Jeff McMahan

Jeff McMahan (Rutgers University--New Brunswick) is "presenting" his paper "The Pacifist Challenge." The invited commentary for his paper will be provided by Thomas Hurka (University of Toronto).

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Comments

[Jeff McMahan]

Thanks, Tom, for these very insightful comments. I’ll offer a few brief responses to your main critical point, which I take to be the point in the middle of the second page that focuses on my example of the Polish soldier. There you say that putting on the uniform – that is, voluntarily accepting the role of soldier – involves acceptance of the norms and conventions that are constitutive of our understanding of the role. A person’s status changes when he accepts the role – for example, he becomes entitled to prisoner of war status if captured and also becomes a legitimate target for enemy combatants until he either surrenders or is captured. “Combatant” is, in short, a socially (or conventionally or legally) constructed status that’s signaled by the wearing of the uniform.

My view is that when one voluntary accepts combatant status, one acquires new legal rights, permissions, and liabilities. One gains a legal right to certain forms of treatment after capture, and one gains a legal permission to attack and kill enemy combatants. What this legal permission amounts to is that one will not be held liable to criminal punishment for attacking or killing certain people, people whom it might be murderous to kill if one didn’t have combatant status. This legal permission is one that I think morality itself endorses in current conditions in which combatants often must act under both duress and significant epistemic limitation (for example, conditions in which it’s difficult to know whether one is fighting for a just or unjust cause). But the legal permission is not a moral permission. Here morality says that because there are currently few institutional constraints on the practice of war and because soldiers must act in conditions of great factual and moral ignorance, we should grant them legal immunity when they act in certain ways that morality in fact condemns – for example, when unjust combatants attack and kill just combatants.

Return now to the Polish soldier. You point out that if the Nazis are committing terrible war crimes, such as massacring civilians, anyone may kill them if that’s necessary to stop them. In that case, the Nazis soldiers not only waive their right not to be attacked by enemy combatants but also forfeit their right not to be attacked vis-à-vis anyone who might be able to stop them. In these conditions, the young Pole wouldn’t need to join the military to have the right to attack and kill them. I agree. But let’s suppose that the Nazi soldiers aren’t massacring civilians. They merely want to defeat Poland militarily so that it can provide territory for the expansion of the German Volk. Suppose, in fact, that they won’t kill anyone unless they meet with violence resistance. What are the young Pole’s options in this situation? On your view, he can don the uniform, thereby waiving his right not to be killed by them, and engage them in military combat. But suppose he and his fellow Poles don’t want to waive their right not to be attacked. Can they forget the military, leave off the uniform, and go forth as civilians to kill the Nazis in individual self- and other-defense? The Nazis, after all, want to steal their homeland and rob them of their political self-determination. And if they don’t put on the uniform, they don’t forfeit their rights. It seems to follow that in these circumstances, they’re permitted to attack the Nazis, who pose an unjust threat to them, but since they don’t waive their rights, the Nazis seem to have no right of self-defense against them. This looks rather like my conception of the basic morality of the encounter between Nazi soldiers and Polish soldiers.

What the currently orthodox account of the just war says about this is that if the young Pole is going to attack and kill Nazi soldiers, he has to wear the uniform – otherwise his action is perfidious. He’s an unlawful combatant. He’s guilty of murder. I agree to this extent: this is what our laws and conventions say, and it’s a good idea, in current conditions, to have those laws and conventions. But if I ask whether a young Pole would wrong an invading Nazi soldier, or violate his moral rights, by going out without a uniform on and killing this soldier in defense of his own and his compatriots’ rights of political self-determination, I think the answer is no.