War and Peace: The Regulation of Murder

Abstract

An important group of contemporary moral philosophers — known as revisionists — think that the morality of war is at odds with our laws of armed conflict. While the morality of war holds that combatants pursuing an unjust war are morally forbidden from killing just ones, for killing just combatants is just like killing the innocent, the laws of war provide all combatants with a legal privilege to target each other, regardless of the nature of the war they are participating in. Faced with this tension between morality and our laws of war, some revisionists provide an instrumentalist justification for our legal rules, commonly known as “the humanitarian view:” they argue that the legal rules are justified because they are better at reducing suffering than laws that would track the revisionist morality of war more closely. In this paper, I argue that if revisionists are right that killing just combatants is just like murdering the innocent, the humanitarian view stands in irreconcilable tension with their conception of the morality of war. However, I argue that this tension does not mean that we should immediately discard all instrumentalist justifications. Instead, in this Article, I offer a richer instrumentalist justification for our laws of war drawing on John Rawls’s distinction between ideal and non-ideal theory. I argue that this view provides a better moral justification for our legal regime. Still, as this Article argues, when premised on the revisionist morality of war, this alternative justification remains fragile. This fragility, as I argue towards the end of the Article, might be attenuated by directly contesting the revisionist morality of war and, in particular, by denying that what unjust combatants do is just like murdering the innocent.