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The Contemporary Significance of the Doctrine of Just War

Published online by Cambridge University Press:  18 July 2011

Lynn H. Miller
Lynn H. Miller
Affiliation:
Princeton University
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Extract

After an eclipse of nearly two centuries, the ancient doctrine of Yst war has received renewed attention and interest in the twentieth century, primarily as the result of two conditions in the contemporary world. First, a new international system has come into being, replacing the European balance-of-power system of the recent past; and, secondly, modern technology has created military weapons without precedent in destructive capabilities, thereby radically altering the techniques and even the rationale of warfare. It will be the purpose of this article to examine the current status of the doctrine of just war to determine its viability for modern international politics and law. Specifically, the intent is to determine how relevant the doctrine may be to the two characteristic political conditions of our era just noted. A very brief historical review of the doctrine's development and demise will permit a fuller discussion of modern attitudes toward the subject.1

Type
Research Article
Information
World Politics , Volume 16 , Issue 2 , January 1964 , pp. 254 - 286
Copyright
Copyright © Trustees of Princeton University 1964

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References

1 For a more complete account of the development of just war doctrine, see especially von Elbe, Joachim, “The Evolution of the Concept of the Just War in International Law,” American Journal of International Law, XXXIII (October 1939), 665–88CrossRefGoogle Scholar. Another valuable, although briefer, account is Kaplan, Morton A. and Katzenbach, Nicholas de B., The Political Foundations of International Law (New York 1961), 201–17Google Scholar. Kotzsch, Lothar, The Concept of War in Contemporary History and International Law (Geneva 1956), ch. 1Google Scholar, discusses the origins of the doctrine in the pre-Augustinian period. The influence of both Luther and Calvin upon the doctrine's development is discussed by Ramsey, Paul, War and the Christian Conscience (Durham, N.C., 1961), 114–33Google Scholar; and a somewhat different emphasis is to be found in Nussbaum's, Arthur article, “Just War—A Legal Concept?” Michigan Law Review, XLII (December 1943), 453–79CrossRefGoogle Scholar. An interesting sociological interpretation is Delos, J. T., “The Sociology of Modern War and the Theory of Just War,” Cross Currents, VIII (Summer 1958), 248–66Google Scholar.

2 Von Elbe, 668–69.

3 Kotzsch, 32.

4 Von Elbe, 675.

5 Kaplan and Katzenbach, 203.

6 Von Elbe, 681–82.

7 Falk, Richard A., “Revolutionary Nations and the Quality of International Legal Order,” in The Revolution in World Politics, ed. by Kaplan, Morton A. (New York 1962), 320Google Scholar.

8 Delos, 250.

9 Draper, Gerald, “The Idea of the Just War,” The Listener, LX (August 14, 1958), 222Google Scholar.

10 Kotzsch, 86.

11 Tucker, Robert W., The Just War: A Study in Contemporary American Doctrine (Baltimore 1960), 120Google Scholar.

12 Bluntschli, Johann C., Das moderne Völkerrecht der civilisierten Staaten als Rechtsbuch dargestelt (Nördlingen 1878), 287Google Scholar.

13 Kaplan and Katzenbach, 209–10.

14 Kunz, Josef L., “Bellum Justum and Bellum Legale,” American Journal of International Law, XLV (July 1951), 532Google Scholar.

15 Nussbaum, 474.

16 Kotzsch, 101–2.

17 Kaplan and Katzenbach, 210.

18 But note Kunz's disagreement with this interpretation (cited above, note 14). It seems to this writer that the idea of sanctions in the League Covenant is consistent with the traditional theory, even though the relationship of the two is not made specific.

19 Kotzsch, 99–100.

20 Ibid., 100–1. Jessup, Philip C. discusses the effect of specifically reserving the right of self-defense from being included in the provisions of the Kellogg-Briand Pact in his book, A Modern Law of Nations (New York 1948), 163Google Scholar.

21 Kaplan and Katzenbach, 45.

22 Kotzsch, 270.

23 Kaplan and Katzenbach, 213. Tucker notes as well that the Charter permits the use of preventive force without substantive restraint: “The one attempt in this century to realize a centralized system of international order … nevertheless sanctioned the preventive use of force subject to no substantive restraint other than that imposed by the necessity of obtaining the unanimity of the major powers. … The Council has only to decide upon the existence of a ‘threat to the peace, breach of the peace, or act of aggression’ before taking the enforcement measures provided by the Charter …” (pp. 133–34).

24 Most ably by Stone, Julius in Aggression and World Order (Berkeley 1958)Google Scholar.

25 Kaplan and Katzenbach, 214.

26 Ibid., 216–17.

27 Tucker, 11. Tucker's study is both useful and suggestive, and I have relied rather heavily upon it for this section of my article. Tucker points out the simplicity of the American doctrine when he notes that, according to it, “… the just war is also the lawful war, the bellum justum is equated with the bellum legate. International instruments to which we have subscribed, e.g., the Kellogg-Briand Pact and the Charter of the United Nations, are looked upon as legal expressions of the moral law …” (ibid.).

28 Ibid., 12.

29 Ibid., 15.

30 Ibid., 51–52.

31 Ibid., 63.

32 Ibid., 74.

33 Paul Ramsey, War and the Christian Conscience, 151.

34 Kotzsch, 70; the quotation presumably is from Lenin.

35 Stone, 114n.

36 Kotzsch, 72–73.

37 Ibid., 74.

38 Ibid., 75. Kotzsch states that “All the controversies as to the legal meaning of aggression, however, … clearly illustrate that the Communist conception of war is very much like that of ‘material war.’ Suffice it to say that Soviet State practice conformed itself to the distinction between civil war and inter-State war as it had been established in the 19th century. Yet, this does not preclude Soviet Russia from maintaining her specific civil war doctrine in legal theory” (ibid.).

39 Y. A. Korovin, et al., Academy of Sciences of the USSR, International Law (Moscow, n.d.), 402.

40 Ibid, (emphasis mine).

41 Ibid., 16.

42 Kardelj, Edvard, Socialism and War (Belgrade 1960), 89Google Scholar. Professor Paul Ramsey has made the interesting observation that the effect of Kardelj's revision of the old Communist doctrine is to make it resemble the Thomistic criterion, which implies that the justification of the resort to arms even in a “just” cause still requires the topmost authority to weigh the good against the evil effects of war, i.e., count the costs involved.

43 Ibid.

44 Ibid., 91.

45 Ibid. Moreover, Kardelj asserts that the notion that any Communist war is just is contrary to Leninism (cf. pp. 93ff.).

46 See above, 270.

47 Korovin, et al., 9.

48 Ibid., 401.

49 Ramsey, 81. Falk has noted succinctly the development in the direction of prohibiting aggressive war (“Revolutionary Nations,” 320–22).

50 Appadorai, A., The Use of Force in International Relations (Bombay 1958), 35Google Scholar. Elsewhere, Appadorai makes a cogent plea for the rejection of traditional just-war doctrine.

51 Röling, B. V. A., International Law in an Expanded World (Amsterdam 1960), chs. 1–3Google Scholar.

52 Ibid., 52. Other recent publications that are relevant to this section on non-Western contributions include Aron, Raymond, Prix et guerre entre les nations (Paris 1962)Google Scholar; Singh, Nazendra, Nuclear Weapons and Foreign Policy (London 1959)Google Scholar; Alvarez, Alejandro, Le droit international nouveau dans ses rapports avec la vie actuelle des peuples (Paris 1959)Google Scholar.

53 Falk, Richard A., Law, Morality, and War in the Contemporary World (New York 1963)Google Scholar, 53. Or, as Röling has put it, “In former times, the threat and the possibility of war were factors in the maintenance of law. War can no longer serve this purpose, however, for humanity can also be annihilated by a just war” (p. xix).

54 Ecumenical Studies Commission of the French Protestant Federation, “Christians and the Prevention of War in the Atomic Age,” Cross Currents, IX (Winter 1959), 25–26Google Scholar.

55 Scelle, Georges, “L'Aggression et la légitime défense dans les rapports internationaux”, L'Esprit International, XVI (1936), 389–90Google Scholar.

56 Kunz, 533–34.

57 Sturzo, Luigi, The International Community and the Right of War (London 1929), 208–9Google Scholar.

58 For example, Luigi Sturzo, whose “humanistic” view of war was just noted, was himself a Roman Catholic priest.

59 This is also the judgment which Ramsey makes in War and the Christian Conscience, where he is rather harsh in his criticism of most Protestant writers on the subject for failing to recognize the value of sophisticated just-war doctrine for the nuclear age.

60 Quoted in Ramsey, 83.

61 Murray, John Courtney, “Remarks on the Moral Problem of War,” Theological Studies, XX (March 1959), 45Google Scholar. This passage is also quoted in Ramsey, 86–87.

62 Ramsey, Paul, “The Case for Making ‘Just War’ Possible,” in Nuclear Weapons and the Conflict of Conscience, ed. by Bennett, John (New York 1962), 143Google Scholar.

63 Ramsey, War and the Christian Conscience, 68.

64 Ibid.

65 See above, 278.

66 McKenna, Joseph C., , S.J., “Ethics and War: A Catholic View,” American Political Science Review, LIV (September 1960), 658Google Scholar.

67 Falk, Law, Morality, and War, 6I.

68 See above, 278–79.