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ABSTRACT
Today, it is widely held that while authorization may be helpful in assuring that the other jus ad bellum criteria are met, legitimate authority is not itself a condition for just recourse to war. Or, if it is necessary, it is said to be a trivial requirement, as mobilization for war requires some political authorization. Those who would retain the legitimacy requirement have differing views about who the proper authority is. I argue that, reasonably understood, legitimate authorization is necessary for jus ad bellum. Considerations of agency and consent in force combine with the social contract to commit us to deferring to recognized authorities. These obligations are strengthened by the epistemic reliability and pragmatic value conferred by governing institutions and procedures limiting recourse to war. These same rationales imply that the U.N. Security Council should regulate the international use of force. I qualify that if higher authorities fail to act, other subsidiary authorities may then authorize force. However, the move to each subsequent level of authorization must be justified. Understood in this way, the requirement that wars not be fought without legitimate authorization is a non-trivial, necessary procedural jus ad bellum condition.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes on contributor
Jordy Rocheleau is Professor of Philosophy at Austin Peay State University, where he coordinates the Philosophy and Religion Program. He does research in moral and political philosophy, especially just war theory. He has published articles on issues including preventive war, the ethics of occupation after an unjust war, and the justification of small-scale interventions. His book Against the New Just War Interventionism is forthcoming with Routledge Press.
Notes
1 Some, like Matlary (Citation2004), have sketched a middle view, in which either the UNSC, states, or other parties can give legitimacy depending on the context. I flesh out such a position below.
2 My division has superficial similarities to that of Syse and Ingierd (Citation2005), who distinguish “procedural” and “moral” reasons for the authorization requirement. I consider procedural concerns to have moral import. I hope to clarify the difference and interrelation between pragmatic and deontological rationales.
3 The question of legitimate authorization should be distinguished from that of which forces should intervene, which is the guiding question for, for example, Pattison (Citation2008).
4 Steinhoff focuses on cases of police taking over an individual’s self-defense. But this is a misleading case in the argument against the relevance of authority, since an individual has some presumed authority over their own defense. It is the defense of third parties which is analogous to going to war on the community’s behalf; in such cases the relative right of authorities to act is especially clear. I would also note that typically police will be more competent than private individuals in making judgments about and exercising force, and this competence is another reason for deference to authority.
5 Indeed, Walzer underestimates the validity of existing norms by inferring too much from their contingency.
6 As I discuss below, in addition to epistemic concerns, individual decisions to resort to violence are unlikely to be effective in achieving just results.
7 The “Responsibility to Protect” norm reaffirms the UNSC’s role in authorizing armed interventions. See ICISS (Citation2001).
8 One might defend the legitimacy of President Obama’s deployment of U.S. force in Libya by arguing either that unilateral presidential action has become the new law, through commonly accepted practice, or argue that Congress’ failure to act justified emergency presidential action. I will not attempt to adjudicate these legal questions here.
9 In a similar vein, Jonathan Parry (Citation2015) takes the legitimate authority requirement to be definitive of war, such that it is necessarily met in any genuine war. Legitimate authority is then an in bello requirement for fighters to be legitimate combatants as opposed to criminals. My view is that there might be wars, communally organized, which do not have legitimate, proper procedural authorization. Combatants in such a conflict would not necessarily be criminal even though the leadership’s decision to enter the war was illegitimate and, thus, unjust.
10 I am influenced by Bob Hoag’s (Citation2007) defense of “violent international disobedience.” However, my view is more restrictive of unilateralism, consistent with the authorization requirement, by emphasizing that parties should (a) first appeal to the UNSC, (b) defer to it if it is not clearly mistaken, and (c) appeal to the next level of representative authority before acting unilaterally.
11 I question whether the prospect of a Russian veto was based on such irrational and self-interested motives that circumventing the UNSC was warranted in that case. The other just war criteria were not so clearly met that the Security Council had lost its authority.
12 A complicating factor is that insurgent groups almost inevitably begin with minor levels of support and only gather more public approval following their engagement with state or occupying forces. Although I cannot develop the details of this proposal here, I would begin by suggesting that the early rebellion can be legitimated by taking up arms for a just cause, in politically repressive circumstances, and with an effort to represent the interests of the people, and that in later stages it can and should have wider levels of support in order to continue as legitimate. Some non-state actors, like Al Qaeda and ISIS, remain unrepresentative of the people whose interests they claim to act on behalf of.
13 During a civil war, such that both parties possess power over territory and represent people therein, each side may possess legitimate authority.
14 This is another illustration of the advantage of having an international authority rather than unilateral decision-making.
15 Of course, the Confederacy failed to justly represent and respect the rights of many of its citizens – particularly the African-American slaves. I argued earlier that authority cannot be limited only to perfect bodies. At the same time, even democratically legitimate states can make unjust decisions.