On following orders in an unjust war

Journal of Political Philosophy

Volumn 15, Issue 2, 2007, Pages 213-234

  Estlund, David ^a  

^a BROWN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 34249092245     PISSN: 09638016     EISSN: 14679760     Source Type: Journal    
DOI: 10.1111/j.1467-9760.2007.00277.x     Document Type: Article

References (30)

1. Earlier versions benefited from presentation and discussion at the Political Philosophy Workshop at Brown, the Poynter Center at Indiana University, the American Political Science Association meetings in Philadelphia in 2003, the American Philosophical Association meetings in Pasadena in 2004 and Connecticut College in 2005. For comments on drafts, special thanks to Nomy Arpaly, Neta Crawford, Hack Fain, Chris Hill, David Luban, Jeff McMahon, Rich Miller, Lionel McPherson and Paul Weithman.
2. Francisco de Vitoria, "On the law of war," Political Writings, ed. Anthony Pagden and Jeremy Lawrence (Cambridge: Cambridge University Press, 1991, originally published 1539), p. 307.
3. For a thorough account of the Nuremberg Trials see Robert E. Conot, Justice at Nuremberg (New York: Harper and Row, 1983).
4. " Innocence and responsibility in war Canadian Journal of Philosophy, 34 (2004 485 506.
5. " The ethics of killing in war Ethics, 114 (2004 693 733.
6. Arthur Applbaum discusses the significance of this fact that "descriptions persist"; Ethics for Adversaries (Princeton, N.J.: Princeton University Press, 2000).
7. Just and Unjust Wars, Basic Books, 1977, ch. 3, esp. pp. 34-40.
8. See note 14.
9. Applbaum, Ethics for Adversaries, esp. ch. 2.
10. McMahon, "The ethics of killing in war," p. 705.
11. Vitoria, "On the law of war," p. 306.
12. Ibid., p. 308.
13. I have coined the term "epistocracy" to refer to the rule of the knowers.
14. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 137.
15. This is a line of argument I develop elsewhere. See "Making truth safe for democracy," The Idea of Democracy, ed. David Copp, Jean Hampton and John Roemer (Cambridge: Cambridge University Press, 1993), pp. 71-100; "Beyond fairness and deliberation: the epistemic dimension of democratic authority," Deliberative Democracy, ed. James Bohman and William Rehg (Cambridge, Mass.: MIT Press, 1997), pp. 173-204; "Why not epistocracy?" Desire, Identity and Existence: Essays in honor of T. M. Penner, ed. Naomi Reshotko (Kelowna, BC: Academic Printing and Publishing, 2003), pp. 53-69. This suggests one possible explanation for a narrow exception for jailers and executioners, when they have, say, first-hand eyewitness knowledge of the convict's innocence. A properly narrow exception of that kind might improve the epistemic value of the overall process in a way that could be generally accepted. Broader exceptions, such as only jailing or executing those who you believe or even know to be guilty would be more open to dispute. This doesn't mean the jailer couldn't be right, or even be more reliable than the trial procedure. The point is that his being so would not usually be generally accepted, except in a certain very narrow kind of case such as first-hand eyewitness knowledge.
16. Just and Unjust War, p. 40.
17. Lionel McPherson makes this point in "Innocence and responsibility."
18. Quoted by Walzer, Just and Unjust War, p. 39. All Walzer quotes in this paragraph are from p. 39.
19. Walzer, Just and Unjust War, p. 39.
20. Again, McPherson, "Innocence and responsibility," takes this view, as does McMahon, "The ethics of killing in war."
21. McPherson, "Innocence and responsibility," takes this position.
22. See McMahon's discussion of these points in "The ethics of killing in war," pp. 698-702.
23. Two useful sources are: Daniel Goldhagen, Hitler's Willing Executioners (New York: Vintage, 1997); and Alan S. Rosenbaum, Prosecuting Nazi War Crimes (Boulder, Colo.: Westview Press, 1993).
24. Applbaum, "Innocence and responsibility," p. 17.
25. Gustav Radbruch Gesetzliches Unrecht und Übergesetzliches Recht Süddeutschen Juristen-Zeitung, 1 (1946 105 Quint The border guard trials and the East German past - seven arguments American Journal of Comparative Law, 48 (2000 541 72.
26. On the abuses of Iraqi prisoners by U.S. forces, see Seymour Hersh, "Torture at Abu Ghraib," The New Yorker, May 10, 2004.
27. Article 92, "Failure to obey order or regulation," says:Any person subject to this chapter who - (1) violates or fails to obey any lawful general order or regulation;(2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or(3) is derelict in the performance of his duties;shall be punished as a court-martial may direct.
28. UNITED STATES, Appellee v WILLIAM L. CALLEY, JR., First Lieutenant, U.S. Army, Appellant. No. 26,875, United States Court of Military Appeals, 22 U.S.C.M.A. 534, December 21, 1973.
29. I leave open the possibility that for some rules of war, such as rules against torture, there is no such thing as a modest deviation.
30. "The charge of the Light Brigade," 1854.