I finally cracked open Oliver O’Donovan’s little treatise The Just War Revisited over the break. In it he tries to revitalize a judicial account of Just War theory, along the lines of an international application of criminal law in a situation where no comparable authority is able to adjudicate between nations. He does this against the background of the recent trend in Just War thinking oriented primarily towards accounts that privilege “self-defense” as the only acceptable justification for war, making altruistic/interventionist action less intelligible within modern frameworks.
In a particularly remarkable passage, O’Donovan suggests that when we screen out any penal objectives, or considerations of desert, from our moral consideration of war, we end up with less restraint rather than more. So what happens when we lose our ability to think of war in punitive terms? Or, put more provocatively, what would we gain if we began to reconsider penal elements in our war-making?
In our own time the notion of punishment, though hardly aired, is an important tacit support for wars of humanitarian assistance, for only penal desert can justify intervention into a foreign state’s jurisdiction and responsibility out of its hands. Without it, international justice is pushed back upon the ‘perimeter fence’. But the notion also has a critical role in keeping war objectives limited. The pursuit of safety can run to indefinite lengths, and the pursuit of right without regard to guilt can be a cruel thing. When Palestinian guerrillas cross the border from the Occupied Territories into Israel and perform isolated acts of terrorism, in reprisal for which Israel launches massive military bombardment, we call it ‘over-reaction’. What we mean is simply that there is a penal disproportion between offense and response. Whatever the guilt of the attack, it strikes us that the Palestinians have ‘not deserved’ all that they are forced to take. Israel may appeal to its need for safety; but that need is infinitely elastic. To require a penal objective guards against the resort to war as a response to non-culpable injury, and prevents the subtle expansion of defensive war-aims into further goals, such as colonisation. Common prejudice is inclined to suppose that punitive objectives make for unbridled war; but the truth is more or less the opposite; they impose the tightest of reins, since punishment is measured strictly by desert. –pg. 58
In other words, if disconnected from concerns about justice as desert, or punishment, war loses important limits. We can claim “defense” as a justification for all sorts of expanding precautionary measures, but war pursued with respect to penal desert can only go so far. Some actions may indeed make us safer, but do our opponents actually deserve them?
C.S. Lewis made a roughly analogous point in his classic essay, “The Humanitarian Theory of Punishment.” His main conceit was that merely deterrent or rehabilitory accounts of imprisonment, capital punishment, and so forth, lose the characteristic trait of justice by dispensing with desert, and ironically become more oppressive:
The reason is this. The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question ‘Is it deserved?’ is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice. There is no sense in talking about a ‘just deterrent’ or a ‘just cure’. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds. Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a ‘case’.
Now some of us might not immediately see the problem with this. After all, it does seem to see things a bit more humanely, less moralistically, and purged of any possible vindictiveness. Yet Lewis goes on to illustrate the problem with an example of where this logic leads in real life:
Let us rather remember that the ‘cure’ of criminals is to be compulsory; and let us then watch how the theory actually works in the mind or the Humanitarian. The immediate starting point of this article was a letter I read in one of our Leftist weeklies. The author was pleading that a certain sin, now treated by our laws as a crime, should henceforward be treated as a disease. And he complained that under the present system the offender, after a term in gaol, was simply let out to return to his original environment where he would probably relapse. What he complained of was not the shutting up but the letting out. On his remedial view of punishment the offender should, of course, be detained until he was cured. And or course the official straighteners are the only people who can say when that is. The first result of the Humanitarian theory is, therefore, to substitute for a definite sentence (reflecting to some extent the community’s moral judgment on the degree of ill-desert involved) an indefinite sentence terminable only by the word of those experts—and they are not experts in moral theology nor even in the Law of Nature—who inflict it. Which of us, if he stood in the dock, would not prefer to be tried by the old system?
We see here how relevant and necessary the punitive question of desert becomes in the prevention of tyranny or injustice in the name of supposedly more enlightened accounts. In the hands of the humane social engineers, a crime deserving of a two-year sentence might be treated for five and with electro-shocks “for the sake of the patient”. Or again, if deterrence is the sole motivation for action, that someone be guilty is not strictly necessary for an example to be made. An innocent accused of the crime, or simply held up as an example of what will happen if you do step out of line, will do just as well. (For more on this, I’d commend to you the rest of the Lewis essay linked above.)
To sum up, while it may seem initially less aggressive, more justifiable by contemporary moral sentiments to screen out moralistic concerns about desert and punishment, it turns out we might just want a penal account of Just War.
Soli Deo Gloria