The return of Just War blogging! Hosannas all around!
One crucial element of modern just war theory (JWT) is the so-called doctrine of double effect (DDE). Though DDE has been applied to other areas of moral concern (such as medical ethics), its application to JWT is particularly important, since it purports to justify a great deal of killing.
Put simply, DDE attempts to outline conditions under which it is permissible to kill an innocent person. The conditions usually include:
- The death of the innocent person is unintentional but foreseeable (i.e. it is a reasonably expected outcome of the action undertaken)
- The death is not a means to the end sought by the action (i.e. you can’t kill innocents in order to bring about some purported good; their deaths can only be a side-effect of the action)
- The good accomplished by the action “outweighs” the evil of the death(s) of the innocent bystander(s) (this is also known as the requirement of proportionality)
The paradigm case of “collateral damage” that is licensed by DDE runs like this: person A, in order to fend off an attack by B, elects to use deadly force. However, A foresees that doing so will result in the death of C, an innocent bystander. Because A does not intentionally kill C as a means to defending himself, but only kills him as a foreseeable but unintentional side-effect, DDE permits A to act in a way that brings about C’s death.
This example rests on a crucial premise: that A has the right to self-defense, the enforcement of which permits the use of deadly force. That right has as a correlate that everyone else has a duty to refrain from aggressing against A’s person, so long as A has done nothing to infringe the rights of others (e.g. If A aggresses against B, then A loses his right of immunity from attack).
However, the assumption of a universal right of self-defense introduces a wrinkle (here I am following the argument of philosopher Camillo C. Bica). If A has the right of self-defense, then so does C (the innocent bystander in the example above). And it surely makes no difference to C that A doesn’t intend to kill him. C has the same right to respond to an attack on his person as anyone else (including A), even using deadly force if necessary.
As Bica argues, to assert a right of A to kill C as “collateral damage” implies (because rights and duties correlate) that C has a duty to give up his life to save A. But to give up one’s life to save another is, most of us would agree, an act of supererogation, not obligation. That is, above and beyond the call of duty.* Why (barring a special relationship) should C be obliged to sacrifice himself to save A?
But then it seems to follow that if C has no duty to give up his life to save A, then A has no right to take C’s life, even as an unintentional and foreseeable consequence of his actions (since “A is right in doing x” and “A has a right to do x” seem, for all intents and purposes, to be equivalent statements). And that seems to rule out the permissibility of “collateral damage,” at least in cases relevantly similar to the above.**
This argument doesn’t entail total pacifism, but, if correct, it would seem to entail a kind of “antiwar pacifism,” since virtually all modern wars involve killing innocents, even if unintentionally.***
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*Some utilitarians seem to deny that there is any distinction between obligation and supererogation. That is, they argue that we are obliged to bring about the state of affairs that will maximize utility, full stop. I happen to think this is a strike against utilitarianism, since the distinction between obligatory and supererogatory actions is so deeply embedded in our moral intuitions.
**It might require further argument, for instance, to show that collateral damage is impermissable in cases where multiple lives are on the line. Here questions of proportionality might be judged dispositive. However, that would mean abandoning the perspective of rights talk since, if my “right” not to be killed can be overridden by considerations of proportionality, it doesn’t seem to be much of a right.
***”Unintentionally” obviously does not here mean the same thing as “accidentally.” We are not, it is generally held, culpable for the unforseeable consequences of our actions.