More “classical”: Kant has written on the morality in/of war in his “Prolegomena” and “Perpetual Peace”.

If you are looking for a textbook, there are a couple of good ones out there. I co-edited on called “The Morality of War-Classical and Contemporary Readings” which covers both the historical development of Just War Theory as well as more recent issues in war theory (terrorism, humanitarian intervention, jus post bellum).

A more historically oriented, but excellent, anthology called “The Ethics of War” (Blackwell) was edited by Reichberg, Syse, and Begby, and it’s very rich with historical figures that are often left out of intro course (Cajetan, Erasmus, Molina). But it doesn’t tackle many of the ‘current issues’ that students find interesting.

In the past, I have used my textbook for the first 2/3 of the course, and then ended with either another full text (I’ve used Walzer) or a collection of recent articles on a topic (terrorism, torture, genocide) to round out the course. These were mid-to-upper level undergraduate courses.

Several good recent articles that come to mind (top of my head) include Robert Bass’s “Jus Post Bellum”, Lionel McPherson’s “Is Terrorism Distinctively Wrong”, and Jeff McMahan’s “On The Moral Liability of Combatants.” (Side note: McMahan has most of his recent papers, all excellent, available for download at his website: http://philosophy.rutgers.edu/index.php?option=com_content&task=view&id=114&Itemid=210)

If you are looking for an authored survey on the ethics of war, the standard still has to be The Ethics of War and Peace by Paul Christopher (Pearson). I have a newer introduction (The Ethics of War and Peace: An Introduction) by Helen Frowe, and it looks promising, but I haven’t read it yet.

One last recent book that I used in an upper-level course, which I thought worked well, was C.A.J. Coady’ “Morality and Political Violence” (Cambridge, 2008). Clear, but rigorous and well-argued.

If you are interested, I’m happy to send you copies of my syllabi for my past courses on the topic. My email is emrovie@gmail.com

I have begun using EverNote as an organizational tool — it is good if you are managing various projects and you want to be able to clip and tag websites, documents, emails, photos. Things, which is a virtual to do list, is good, too.

http://www.mekentosj.com/papers/

Reference management, annotations, etc. Syncs well with Macs. Mendeley Research Networks also has good ipad/iphone apps.

http://www.omnigroup.com/products/omnigraffle-ipad/

http://libguides.mit.edu/apps

I think I don’t know what to think. I’m still inclined to think there’s a cl. liberal tilt, but the considerations Andrew cites in the last three paragraphs make me pause. The problem is that I am still not confident I understand the public reason framework (in part because I’ve read V and VI only once).

So I’ll keep thinking a while longer.

The Basic Principle (p. 263) says a particular imperative, based on a particular rule, “is an authoritative requirement of social morality only if each normal moral agent has sufficient reasons to (a) internalize rule L, (b) hold that L requires phi-type acts in circumstances C and (c) moral agents generally conform to L.”

I’ll dub this the weak version (see the term ‘generally’ italicized in clause c.

Later on the page, Jerry says that “The rule is one that all have sufficient reasons to internalize and to follow. When another demands that you comply with a rule, she is demanding that you do what you have sufficient reasons to do” (italics mine). See also the sentences that follow. See also the top of p. 267″: “… have sufficient reason to internalize, endorse, and follow…” (it. mine). Call this the strong formulation.

On the weak view the Basic Principle yields reasons to internalize, with the expected result of general compliance (a causal claim). The strong version yields, in additions, sufficient reasons to comply in all cases or all undefeated cases (a normative claim).

These two formulations are different in important ways. And I am sceptical that Jerry’s methodology can yield the stronger one (for reasons having to do with his story about rationality).

Am I right in thinking that there’s an ambiguity here? And in thinking that Jerry’s view is probably the weak version?

Let me mention one observation about Jerry’s taxonomy of state functions. One can think of law as a public good, subject to the usual problems posed by free-riders and the difficulty of excluding beneficiaries. And state provision of law can be justified by appeal to these features. In my remarks in the last post I noted that, in principle, some forms of redistribution can be mutually beneficial. (I have called these “cooperative” forms of redistribution elsewhere.) There is a way of reading Hobbes’ and similar accounts (e.g., Jim Buchanan’s in Limits of Liberty, which Jerry cites) as justifying state action only where individual action fails (i.e., collective action problems). On this view, all justified state action is remedial and concerned with public goods. This said, it’s not easy individuating the functions or tasks of states and limiting states to certain functions. I don’t think this will undermine anything that Jerry defends. But it does make it harder to see how to constrain states, to structure them so that they do what we decide they should do and not other things, a task that should interest everyone who believed our states should be limited.

Socialism is excluded from the “optimal eligible set” by the criterion of optimality, I take it; socialism might not necessarily be worse than no system of property rights at all, but members of the idealized Public agree that it is worse than some other option that is in the eligible set, e.g. welfare-state capitalism, because any realistic form of socialism allegedly threatens civil and political liberties (leaving aside whatever intrinsic threat to individual freedom socialism poses in a pluralistic society). The great importance of protecting civil and political liberties still leaves a lot of room for variation in policies regarding taxation, regulation, and, public spending, including even perhaps public ownership of some parts of the economy. The optimal eligible set does not include socialism, but it includes systems of property, taxation, etc. from the Right, Middle, and (responsible?) Left, I take it. The only asymmetry between the positions of Jack (who finds the enforcement of property rights without provision for the poor highly coercive) and the position of Larry the libertarian (who thinks high tax rates highly coercive) arises from the fact that property systems from the (far?) right still secure meaningful civil and political liberty, while those from the far left do not. If true, this claim about the relationship between property rights and civil liberty secures the boundaries of the optimal eligible set; it does not saying anything about democratic choice from within this set, and it does not suggest that there are only a few systems in this set.

So I find Jerry’s concluding claim to be overstated:

A liberalism based on a commitment to public justification – a justificatory liberalism – leads not to socialism, or a thoroughgoing egalitarian liberalism, or to libertarianism, but to the more nuanced approach to legislation we find in the fifth book of Mill’s Principles, allowing that there are a number of tasks that government justifiably performs, but having a strong overall inclination toward less rather than more “authoritative” (i.e., coercive) government.

I am quibbling with the “strong overall inclination” language. At least so long as we are operating with a non-incremental version of the principle of public justification, the only requirements for inclusion in the OES are that a proposal be better than nothing (so that it passes the eligibility test), and that it not be agreed by all to be worse than some other element in the set (so that it does not fail the optimality test). Coercive proposals must be conclusively justified as against no common rule at all, but more coercive policies need not be conclusively justified as against less coercive policies; they simply need to be conclusively better than nothing at all (and not conclusively worse than some other proposal in the OES). From within the OES, we are each free to vote and advocate for whatever proposal we each think best.

One way to get a more powerfully libertarian tilt would be to adopt an incremental version of the public justifiability principle. Such a move would raise the worry about the libertarian dictator Jerry mentions earlier, however.

Another way to get a more libertarian tilt would be to require disaggregation of issues. However, on 522-23 Jerry uses his “justificatory dependency” criterion (495) to argue for aggregation wherever some member of the public can’t express a preference on one issue (e.g. private property) without knowing what other policies are in place (e.g. provision for the poor). That criterion is highly holistic, despite what Jerry says elsewhere against holism. And in this context, holism means (i) a non-coercive default that approaches the state of nature, and (ii) an ever larger OES, as the level of aggregation increases (since many different packages of policies, some highly coercive, will be better than not having any common rule in any of these areas of policy).

Also, I think Jerry addresses your concerns about reasonable disagreement about the level of coercion on pp. 503-504 in 23.3(d). I’d guess that your concerns will not be wholly addressed by this subsection, but what do you think about it? You will also want to check out 24.3. A choice quote: “Once we get beyond paradigmatic instances of coercion, claims about what constitutes coercion are, notoriously, open to dispute” (525).

Peter, I will be interested to see what you think of 24.3 in light of your comments. Also, I take it that Jerry’s remarks about duties of assistance on p. 367, where he thinks it is hard to see how an extensive right to assistance “can go undefeated under full justification among a public deliberating on a diverse set of evaluative standards” might push back against your worries about implicit libertarian bias in Jerry’s defense of public reason’s classical tilt.

I should emphasize that Jerry thinks that a wide range of welfare state provisions can be publicly justified under a number of circumstances and that the classical tilt is hardly libertarian. The tilt includes many modest and some extensive welfare states, though it does take a right to private property (even in capital) as basic. In this way, Jerry’s view is indeed well to the right of most political philosophers, but hardly controversial amongst nearly all Western liberal democracies. I am aware of few Western European and American governments over the last few decades that have denied the fundamental right to private property, including property in some forms of capital goods. With respect to redistribution, Jerry seems mainstream with respect to redistributive proposals that can attain moral authority. As Jerry says: “Property institutions that include significant redistributive elements certainly may be justified …” (526).

The libertarian dictator point is complex, but I think that we can say correctly and briefly that the success of the dictator in determining the eligible set will depend on which proposals he ranks as better than no proposal. But as Jerry notes in 24.3, modest welfare states of the sort that now exist are quite good at protecting a vast range of basic liberties. This suggests that many of these policies might arguably be thought to be better than no law at all on the topic given libertarian Members of the Public. In that case, such states can achieve moral authority even over libertarians. Further, in lieu of that, libertarians are a small enough group that they may be better handled by exemptions of various sorts than allowing their concerns to defeat entire welfare state programs.

Consider one of his examples. A law L is proposed to replace law K, with the effect that a large group g1 is coerced much less than before whereas a smaller group g2 is coerced somewhat more. Gaus’ point is: “Even if L would make the overall system of laws less coercive than K, L might still not be justified because it would violate some citizens’ rights not to be coerced.” (489). Hence he prefers a minority veto against L. My question is: what about the right of group g1 not to be coerced? Does this cease to exist because law K was passed before law L? Why should the temporal sequence of laws matter here? Gaus’ deliberately analysis conflates the passing of legislation with its coercive enforcement (480). Since coercive enforcement of a law is a continuous pattern of acts and threats, the justification of laws is also a continuous need. Hence if Gaus is serious about the right for a minority of some size to veto legislation, must this not be a sort of “atemporal” minority veto? That is, must not a minority of the same size be allowed to repeal any legislation that already exists? If there is a veto right available to g2 for trying to block L, shouldn’t there also be an ex post veto right available for g1 with respect to K?

I think that this type of atemporal minority veto might have libertarian consequences; its usage might sooner or later move us to the libertarian end of the eligible set. I’m not entirely sure, however, because this kind of veto would provide for a real-world test of the degree of justificatory interdependence of issues (495-6). For instance, if some minority blocks banking regulation in response to financial crisis, a different minority might see a connection to other legislation, cherished by banks, and press for its repeal. An atemporal minority veto might not only lead to a great deal of legislative instability (which might greatly increase political transaction costs), it might also enforce a rather “holistic” justification of state activities, which Gaus wants to avoid as much as possible (496). I think there are good reasons why an atemporal minority veto could not be publicly justified, but Gaus’ actual argument about decision rules strikes me as more conservative (status quo preserving) than “libertarian”.

Section 17 begins with a “presumption in favour of liberty”; it is wrong to interfere or otherwise thwart someone’s agency without justification (341). However, it is presumably also wrong to fail to interfere when interference is morally required. So what does the presumption amount to? At this stage, it seems to be simply a tie-breaker; if the cases for and against coercion are otherwise tied, we should not coerce. This presumption is indeed weak, as suggested by the note on p.485 to which Peter draws our attention. Of course one needs a positive justification to engage in coercion; of course in cases of ties, not-coercing wins; and of course this applies to the state as it does to everyone else.

However, Gaus quickly moves from this very minimal presumption against interference on p.341 to a right not to be coerced, beginning on 349, and in particular a right not to be coerced without public justification, as he says on p.350. The problem is that the minimal tie-breaking presumption doesn’t imply the heightened standard of justification (the unanimous qualified acceptability standard). The claim that when the balance of reasons is tied we should not coerce does not imply that the case for coercion must be made beyond a reasonable doubt, i.e. to the satisfaction of all reasonable / qualified points of view (all Members of the Public, in Gaus’s technical sense).

Even if this stronger right doesn’t follow from the minimal presumption against coercion (and perhaps it isn’t intended to), perhaps it is still plausible. I don’t think it is, however, because coercion is such a broad category for Gaus and the right Gaus defends is a right in a strong sense. Coercion includes all threats against the person. And Gaus insists that the right not to be coerced is a right and not a goal. The fact that by coercing some we can prevent a greater number of others from being coerced by third parties may be a good reason for having a law, he concedes. But unless the law meets the standard of unanimous qualified acceptability, it is not publicly justified. That’s what I (like Peter) can’t accept; the application of the unanimous qualified acceptability standard to coercion directly, with a default of not coercing.

For basic liberties, it is plausible that a right to X means that the state may not violate the right to X for one person even to prevent someone else from violating the right to X of two or more people. The right not to be tortured is like that, I suppose. With the principle of public justification, however, we are not talking about coercion of particular kinds in particular contexts, but reasonably rejectable coercion in general. Why should we think that such coercion is asymmetrically bad, i.e. worse to do than to fail to prevent? I don’t think Gaus has satisfactorily answered this question. His example of Draconian laws that reduce the overall level of coercion (which Peter cites) shows only that there are certain kinds of coercion that are not justified even if they reduce the overall level of coercion; threats to boil convicted murderers in oil, or to sever the hands of convicted thieves. One cannot conclude from such examples that there is a right against reasonably rejectable coercion in general.

Moreover, if we are really just talking about an “abstract right”, the precise contours of which will be the subject of reasonable disagreement (341, 479), how has Gaus managed to arrive at such a particular specification? An abstract right not to be coerced would be abstract in that it would leave unspecified exactly what constitutes coercion, in what context the right applies, and so on. But Gaus’s right is definite and specific, in that it applies to all agents and all instances of threats against the person.

First, Peter seems to believe that Jerry rejects the Comparative Procedural Justification Principle (CPJP), and it sure seems so at times. However, Jerry does not say so explicitly and it seems to me that he relies on this principle to argue that only democracies are in the eligible set of political regimes (452-4). I read him as embracing the principle but denying that it implies the priority of political authority over social authority. (455)

Second, Jerry’s purely instrumentalist justification of democratic regimes – as the only reliable protectors of agency and jurisdictional rights – is rather brief and justified with “merely indicative” (452) evidence. I have my doubts (especially given the lack of clear definitions of democracy and nondemocracy). To take just one example, Switzerland has long been a country where rights of agency and jurisdiction are reliably protected, and it is also a country with important supermajoritarian features (which Gaus likes, as we will see in §23). However, women were not allowed to vote until 1971. Based on Gaus, it seems that Swiss women could not complain about the decisions of Swiss political institutions before 1971 – it’s simply how political authority evolved in this country, and as long as the basic rights are protected; women might have been unhappy with the particular institutional equilibrium, but it was still justified to them, since it was an equilibrium within the eligible set of rights-protecting regimes.

If that’s Jerry’s view (and it may not be), it doesn’t seem right. As I noted in my previous comment, Jerry used to argue that there is reasonable agreement on a political equality principle, which is the baseline for the institutional design of liberal regimes. But this principle is at odds with other arguments in the Order of Public Reason, most notably with (1) the priority of social authority and (2) with his preference for supermajoritarian decision procedures. So Gaus seems to have abandoned the equality baseline. I doubt, however, that his purely consequentialist argument can keep nondemocratic systems outside of the eligible set.

Third, I read Jerry as sketching (on page 455) a sort of evolutionary justification of political authority – which Peter seems to embrace in his extended story. I find Jerry’s sketch insufficient and question-begging. One problem is related to my second point. For the evolutionary justification to work, it seems we would at least need reasonable agreement on the eligible set of political regimes. Gaus seems to think so, too, arguing (as noted) that all democracies are in whereas all nondemocracies are out. But why should a tentative empirical argument be sufficient to create the required agreement. Moreover, the democratic/nondemocratic distinction seems less clear than he suggests. Why should Switzerland before 1971 be out? Why should a rights-protecting system with Mill-type plural voting be out? Why should a liberal system be out, where only parties that pass a legal threshold of 20, or 30, or 40 percent of the popular vote gain representation? The answers are not clear to me, based on Gaus’ account. Yet if there is no agreement on the eligible set of regimes, how can a particular evolved regime be justified?

My second problem with the evolutionary account of political authority is that the evolution of political authority seems to be very different from the evolution of social morality – a fact that Jerry completely ignores. He has carefully and on many pages tried to make the case for an evolutionary account of social morality but spends only a single sentence to suggest that “political authority too relies on informal social-moral authority – an evolution of a political culture leading to the selection of one of a wide range of acceptable political systems.” (455). Consider just two ways in which the evolution of political authority may be different from the evolution of social morality. First, political institutions often seem to result from self-interested elite bargaining with little citizen involvement. Second, the evolution of political institutions may be decisively shaped by the meta-rules for changing them. My reading of the evidence is that if meta-rules are permissive, there is a long-term evolution in established democracies towards fairer institutions, i.e., proportional representation for elections and simple majority rule for legislation. (I cannot argue for this here but do so in the paper I mentioned before). However, if meta-rules are restrictive – as e.g. in the United States – they may lock-in institutions that are not affirmed by citizens based on their current social morality. The question thus is whether we need reasonable agreement on the meta-rules or whether it is ok that these meta-rules simply evolved. Consider the counterfactual: if the Swiss meta-rules had made the changing of voting rights for women so difficult that they would still not be allowed to vote today, because a small minority of men could block institutional change, would this be justified because the Swiss regime protects agency and jurisdiction rights and its institutions and meta-institutions simply evolved in some arbitrary power-based process.

To summarize, it seems to me that Gaus wants to use the assumptions of (1) the evolved nature of political authority and (2) the pervasive reasonable disagreement within the eligible set of regimes to reject the priority of political authority of social authority (455). However, it seems to me that these very same assumptions may challenge the idea that political authority can be justified at all (which was a major concern in Gaus’ earlier work).