Legal Positivism

Behind much military ethical discourse is the question whether the use or threat of force against another can be legitimized? If so, then the armed forces would achieve a professional justification that could in turn provide a moral umbrella for certain actions within the military realm of action (and hence delegitimize others) from the appropriate authority structures. On the other hand, acts that are not legitimized by authority are therefore said to be beyond what is right or fair. Military ethics would thus be derived from authority – and accordingly would be dependent upon political tenets concerning right and wrong on the battlefield.

The legitimization of force appeals then to those who turn to the state for moral justification and hence see the state (or any kind of political authority) as the ultimate source of ethics. In the absence of the state, this argument goes, there can be no moral covenant between people, for rights and wrongs are not delineated legitimately and remain the subjective utterances of individuals; such subjectivity in morals is characterized as dangerously anarchic for such thinkers, whose great modern proponent was Thomas Hobbes, who see the state as providing a critical grounding in all matters political and ethical. Following the formation of the state, morality gains a consensual justification and legitimization, and for some, an absolutist status (either because God, the democratic consensus, or logic implies that the state is the epitome and the source of all that is good). With respect to military ethics, the argument is then proposed, following Augustine’s lead above, that the state defines what is right and wrong in war, and soldiers may be judged according to whether they obey the dictates of the state.

In legal philosophy, this position is called legal positivism. The legal positivist rejects the proposition that ethics can judge military action independently of power or states, for right and wrong are decreed by and enforced by governments and particularly through the legislation (rule books) pertaining to conflict. When soldiers go to war, they are said to be constrained by the laws of their countries as well as by the various military handbooks that guide or regulate soldiers’ conduct. Should the soldier fall foul of his regimental or military regulations, he or she should face a court-martial and if he or she contravenes the laws of the land (say in stealing from a civilian), then civilian courts can hold them responsible. Ethics thus emanates from legally binding constitutions, sanctioned legislation, particular treaties that may even transcend national boundaries, such as the Geneva and Hague conventions or the legal precedents generated by the Nuremberg and Tokyo war crimes trials.

An obvious weakness to legal positivism is that legislation is typically bound by state jurisdictions – in fact the theory assumes that all peoples are delineated clearly by state boundaries and served by identifiable governments, which is not always the case and can be viewed as a peculiar Western prejudice; consider when two warring peoples clash, enormous problems must surely arise as to whose laws should transcend the differences and on what grounds and guided by whom? The lawyers behind international treatises have sought to create overarching frameworks based on the validity of statism (and the dream of a world government), but historically they have often been frustrated by the resurgence of national or local claims against such conventions when the laws have not suited the parties’ interests. For the cynical, imperial powers from Rome to Great Britain have been able temporarily to impose a ‘cosmopolitan’ legal frameworks on peoples, but again skeptics may criticize such outlooks in turn as self-serving and reflecting the imperial power’s legal system and values and hence a lack of recognition of minority perspectives.

Nonetheless, international agreements do arise despite, or in spite of, attempts by states to formulate cross border regulations. Commercial law often emanates from the desires of traders to seek redress and the conventions that arise do so spontaneously and independent of power structures. The codes may later be given state authorization, just as monetary media may be sanctioned by the Crown or President; but such sanctions do not themselves beget the codes, they merely reflect what has become to be agreed by trading parties. The same may also be said of all the legal conventions governing military combat that exist in spite of the voracious divisions that wars generate: mutually binding agreements concerning conduct in war do evolve and emerge, particularly between peoples who retain some common ground or basic humanitarian principles. But to recognize the spontaneous forces involved in converging onto common conventions which are later ratified by explicit treaties is to admit that the source of military ethics lies behind the state and its political structures. That is, military ethics need not look to the state or to legal documents for the source or the framework of its remit: if a soldier commits a wrong, if an order is deemed immoral, the analysis need not be state-dependent. Legislation can err, can reflect particular interest groups’ demands, can be parochial, can be the product of an ideology or cultural outlook – and in committing rights and wrongs to paper, the risk is immediately run that soldiers act according to the letter rather than the spirit of the law: fiat iustitia et pereat mundus – let there be justice though the world should perish.

Arguably, law is separate from legislation (Hayek). Law reflects the notions of right and wrong, good and bad, which pervade all human intercourse, not just the scriptures of legal theorists. Law may crisscross societies and be recognized in various guises – do not murder, respect elders, do not steal, care for the sick, educate the young, as well as touching on notions of fairness and justice such as do not fire upon the unarmed or offer disrespect to an enemy’s sanctuaries – but legislation is intimately embedded in a political and historical context and falls or stands according to how well it reflects deeper notions of moral law or political constitutionalism. After all if the state is the law, then the state can change the law, a position philosophers since Plato’s Thrasymachus have found untenable: Thrasymachus proclaimed that might defines right but Socrates points out the weaknesses in his position - firstly the just ruler is one who rules unselfishly, and whose purpose is the welfare of the subjects, not of himself. Secondly the just man is not interested in expanding his power over others, for he recognises that his actions should be guided by reason; he is therefore wiser than the selfish ruler and hence happier (Republic 353 d). Justice therefore does not emanate from power or authority, but from taking into account others’ needs. The statesman must not pander to his own whims, but to ruling the polis with a sense of justice, and part of the notion of justice is ensuring peace. The individual party or politician cannot therefore be the author of right and wrong for such notions transcend particular power blocs.

Legal positivism asserts that laws governing soldiers’ conduct are the product of state power, but the counter is that the absence of state authority (which can sometimes arise in the field of warfare) does not imply the abandonment of moral action. Indeed, it may be reasonably argued, the absence of authority acts to highlight the moral worth of an action for then it can be assessed on its own merits rather than on the implication that the ‘right deed’ was done because failure to do so would incur punishment. In the absence of authority (a higher officer, a comrade, an observing civilian, a cameraman) and with the possibility of an undetectable action, should the soldier commit what would otherwise be deemed as a breach of ethical codes of conduct (military or civilian)? Most moral theorists remind us that the soldier would still be transgressing a deeper code of conduct that would blight his life permanently. Theorists differ regarding what principles a soldier may be said to be violating: they may say that he violates God’s law, or the natural laws governing humans, or an ultimate conscience that pricks each man’s heart. The unfolding arguments lead back into the traditional field of morality and the theories of deontology, utilitarianism, and virtue theory, with all tending to agree that the absence of authority or possibility of punishment does not eliminate some form of moral requirement on each soldier’s choices.

Article by Dr Alexander Moseley
Added Fri, 4 Mar 2011 00:39

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