Regulating Murder

Abstract

Abstract This chapter argues that the humanitarian view, whereby the laws of war are justified on the basis of their ability to reduce suffering, cannot justify the legal equality of combatants if revisionists are right, and unjust combatants are simply like those who murder the innocent. However, the failure of the humanitarian view does not provide a conclusive argument against instrumentalist justifications of the symmetry thesis. The chapter proceeds to argue for a different, contingent, instrumentalist account, by relying on John Rawls’s distinction between ideal and non-ideal theory and on what the book refers to as ‘the perpetual peace ideal’. Nevertheless, as this chapter concludes, the instrumentalist account provided can only justify, contingently, the adoption of the symmetry thesis, not its content. It thus remains incredibly fragile when premised on the revisionist morality of war. And although, in many ways, moral fragility is inescapable for both just war theory and the legal regulation of war, we would do well in trying to attenuate it.