Previous articleNext article FreeBook ReviewsDraper, Kai. War and Individual Rights: The Foundations of Just War Theory.New York: Oxford University Press, 2015. Pp. 272. $65.00 (cloth).Alec WalenAlec WalenRutgers University Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreKai Draper works in the now dominant individualistic and reductive school of just war theory, according to which the moral justifiability of both going to war and killing in war is to be understood along the same lines as acts of self- and other-defense between individuals. But Draper challenges a central pillar of the moral view embraced by, as far as I know, all the other writers in the same school of just war theory. He argues that what he calls the “principle of double effect” (PDE), and related doctrines—including my own “restricting claims principle” (RCP) (136–37)—are false. In their stead, he develops a small set of rights-based principles that he thinks distinguish permissible from impermissible acts of killing in war.Draper writes with an admirable combination of wisdom, humility, originality, and clarity. The result is an important contribution to just war theory. Nonetheless, I argue below that his challenge to the PDE and related doctrines fails, and that the distinctive prescriptions the book offers must also, therefore, be rejected.To see why Draper’s rejection of the PDE and related doctrines matters—for the next few paragraphs I focus on the PDE; then I will shift to defending the RCP—one must start with its role in explaining a central pillar of traditional just war theory, the principle of distinction (hereafter, Distinction). Distinction holds that it is permissible to target combatants but impermissible to target noncombatants. A corollary of Distinction is that it is permissible to cause collateral damage—damage that results as a side effect of targeting legitimate military targets—to noncombatants as long as that damage is not disproportionately great, given the goods that can be achieved by targeting combatants or other legitimate military targets. The PDE can help to ground Distinction and this corollary because it holds that it is impermissible intentionally to cause harm to people who are not specially liable to intentional harm but that it is permissible to cause harm to people who are not liable to such harm as long as the harm is only a side effect of pursuing a greater good.Other writers in the individualistic and reductive school of just war theory have accepted that the PDE or something like it is true, and have focused on challenging two other aspects of Distinction: (1) that combatants, whether just or unjust, are generally liable to being harmed, and (2) that noncombatants generally are not liable. The dominant view seems to be that just combatants are not liable to being harmed and that, insofar as noncombatants may not be targeted, even if they causally contribute to an unjust war effort, it is for reasons independent of liability. (See, for example, recent work by Jeff McMahan, Seth Lazar, and Helen Frowe.)Draper’s approach to just war theory is significant because he rejects the PDE and related principles. In place of them he offers: The defense liability principle: If (1) an individual x poses a threat of unjust harm to a second individual y (i.e., x behaves in such a way that, barring preventive action, x will infringe upon y’s non-contractual rights and thereby jeopardize interests protected by those rights), or x belongs to a group g that poses such a threat, and (2) x is more responsible than y for that threat, then (3) (ceteris paribus) it would not infringe upon x’s rights to eliminate or reduce the threat by inflicting necessary and proportionate harm on x. (83) Draper spends many pages working up to, defending, and explaining this principle. In this review, I can but highlight four features of it. First, it is an account of liability that explains why it would not be unjust to kill certain people in terms of the fact that they pose unjust threats to others. Second, attacking x if she is liable to attack does not infringe x’s rights; it may or may not be morally justifiable all things considered, but even if not, it will lack the sort of distinctive wrongness that comes with violating the rights of another. Third, given that defensive force against x does not violate x’s rights, it cannot ground defensive force against y. Fourth, defense justified on this principle can be executed by the person threatened by unjust force or by third parties seeking to defend the person so threatened.The defense liability principle provides the core of Draper’s normative account of justifiable killing in war, but it is complemented by two related ideas that further expand the range of people who can be killed without even infringing (much less violating) their rights. First, Draper thinks that if people “freely and knowingly [enter], or even [fail] to leave, an area that contains military targets,” then they “‘assume the risk’ of being injured or killed” (154). These people include war correspondents, civilians “living or working near a military target” who do not “respond to a warning of an impending attack on the target,” and “military noncombatants (e.g., the chaplain or medic)” (155). Second, Draper thinks that people who benefit from ex ante compensation for the risk of harm are, in a broad sense, liable to being killed. The people Draper has in mind here are those who have a “small chance of being killed” that is “compensated for by the high likelihood of reaping the benefits of [a war of] liberation” (160).Even adding these to extensions to the defense liability principle, Draper admits that “even the noblest of liberation war efforts will [likely] infringe upon the rights of some innocent bystanders” (165). This admission then raises the question: Can the killing of innocent bystanders—those who are “not liable under the defense liability principle” (122)—be justified by the greater good that might be achieved by war?Draper’s answer rests on what he calls “a moderate deontological perspective” (165). He means that one can justifiably kill someone who has a right not to be killed “if its consequences are good enough” (165). How good would that be? He suggests a ratio somewhere in the range of 100 to 1 to 1,000 to 1. He arrives at that number by asking himself what sort of risk he thinks others could justifiably impose on him to save an innocent life. He reasons that if he should accept a 0.1 percent risk of death, but no more, then he should accept certain death to save 1,000 people, but no less (171). This is a problematic move, but I don’t want to focus on its problems here. Rather, I want simply to point out that it seems to imply that a just war can be fought only if the number of innocents saved is at least 100 times greater than the number of innocent bystanders whose right to life the war-making party infringes. Despite taking this position, Draper writes as though he can “undermine” the argument for pacifism (148). That seems clearly wrong to me. If his argument were sound, then it would be highly implausible that any war has ever been or will ever be justifiably fought. Oddly, Draper does not face up to that conclusion.It is important to see that Draper comes to this impasse because he rejects the PDE and its kin. He thinks these principles make it “easy for powerful nations to rationalize war efforts that infringe upon the rights of huge numbers of innocent bystanders” (125). In truth, he thinks that these principles make it way too easy to justify going to war. But, of course, the cost of adopting his view—with its unacknowledged implication that war is essentially prohibited as a response to unjust aggressions against innocent bystanders—would leave many more people vulnerable to unjust aggression. Before accepting this cost, we had best be sure that Draper’s argument against the PDE and its kin is strong.What then is Draper’s argument against the PDE and its kin? It is that he has intuitions about certain cases that the PDE and its kin cannot account for. I present below four reasons for doubting that Draper’s argument succeeds.First, Draper’s case-based argument is not as compelling as he thinks. His argument turns essentially on cases like this: “Push Car II.” We are to imagine that “the only way for Rescuer to save five people who are threatened by a runaway trolley is to use her car to push” a third party’s car off a bridge “and onto the tracks below, thus blocking the path of the trolley” (131). Unfortunately, “against Victim’s will, one end of a chain was attached to his wrist, and the other end was attached to the door of [the] third party’s car” (133). Thus the Victim would be killed as a result of saving the five.Draper thinks that this killing is intuitively as impermissible as killing by pushing someone onto the tracks to stop the train with his own body. The PDE and its kin are invoked to explain why that sort of intentional harming is impermissible. But Draper argues that if that sort of case is fundamentally like Push Car II, a case that does not involve intentional harming, then something other than intentional harming must be doing the moral work.There are three possible responses to this argument: (1) Draper’s intuition on Push Car II is unsound; (2) it is sound and can be defended within the framework of something like the PDE; or, (3) Draper is right and it shows that something else, quite unlike the PDE, is doing the moral work. I suggest taking the second option, and I explain why using my preferred alternative to the PDE, the RCP (though appealing to a revised version of it, one that came out after Draper’s book; see Alec Walen, “The Restricting Claims Principle Revisited,” Law and Philosophy 35 [2016]: 211–47).According to the RCP, Victim plausibly has a right over the use of the car, in virtue of his prior “attachment” to it, and that suffices to deny anyone else the right to use it to save others. Such a prior claim counts as “non-restricting,” and thus is much stronger than competing positive claims for aid. This view should be congenial to Draper, as it tracks his rights account, which similarly appeals to the “right of first arrival” (58).Second, the real difference between Draper’s account and the RCP is that Draper has an overly narrow view of when it is permissible to harm someone who is not liable to defensive force. He makes room for a single exception that does not require the numbers saved to outweigh those killed by a factor of one hundred or more: deflection of an existing threat (139). His thought seems to be that if a threat exists, it can be deflected, but a new threat cannot be introduced. Draper admits that it “is not easy to say why that should be so” (139). Accordingly, he uses an argument here that he uses hardly anywhere else: he drops a footnote and makes common cause with famous philosophers who have taken the same position.But the difference between a deflected threat and a new threat is too unclear, and too compromised by hybrid cases, to do serious moral work. Consider deflecting a landslide. Is that “merely” a deflection? What if the deflected path involves not only crushing a different set of victims but crushing them with a different set of rocks? I cannot see how deflecting a landslide is meaningfully different from turning a trolley. But I also cannot see why it is meaningfully different from tossing a grenade at a threat, taking it out, but causing another threat to harm a smaller number of people as a side effect. If deflections are permissible, it is not because they are “merely” deflections, but because those killed are killed as a side effect of saving a larger group of people.Third, Draper’s attempt to sidestep the RCP in truth presupposes it. Consider how he explains the impermissibility of allowing people to suffer a life-threatening disease in order to learn how better to treat it in the future. Draper thinks it is impermissible because it infringes the rights of others to treat them that way. He thinks it counts as a “doing” because “the doctors intend the progression of the disease so that they can study it” (142). But this misstates the real point. The doctors violate the rights of their patients when they allow them to remain sick so that they can use them as guinea pigs. But the violation is a violation because the doctors are using them as a means of studying the disease. The problem is fundamentally that such using of another without his consent is much harder to justify than allowing or causing harm as a side effect of pursuing an equivalent good.Fourth and finally, Draper’s account sets up too much of a gulf between what can be done to the liable and what can be done to those who are “moral obstacles” (using the evocative phrase of Gerhard Øverland, “Moral Obstacles: An Alternative to the Doctrine of Double Effect,” Ethics 124 [2014]: 481–506). A moral obstacle, according to the RCP, is someone with a claim that “pushes” to restrict an agent relative to her baseline freedom in such a way that, were she obliged to respect it as a right, she would be unable to do what she could do, if free to act on her baseline freedom, for the sake of herself or others. The RCP takes that sort of “pushing” to have some normative significance. It may be that positive claims for aid have to clearly outweigh negative restricting claims before it is permissible to harm those with restricting claims to save a greater number. But given the normative significance of claims being restricting, it seems wildly inappropriate to insist that it is impermissible to kill a moral obstacle to save even 100 innocent people from death. And it is even more implausible to open up such a gulf when one also says—as Draper does—that it is permissible to kill one person who is responsible, though not at fault, for threatening another (74). Neither the moral obstacle nor the innocent threat is at fault, and both make others worse off: one by a faultless mistake, the other by being present with a restricting claim. A plausible view would not create such a gulf between the two cases.For these reasons, I find Draper’s view ultimately implausible. That said, I admire much about the book, and think that its distinctive arguments and prescriptions merit careful study. Previous articleNext article DetailsFiguresReferencesCited by Ethics Volume 127, Number 1October 2016 Article DOIhttps://doi.org/10.1086/687341 For permission to reuse, please contact [email protected]PDF download Crossref reports no articles citing this article.