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Just War and Rights

David Luban

• University of Maryland at College Park

“Just War and Human Rights.” Philosophy and Public Affairs 9(Winter 1980):160–181.

Theories of the just war have traditionally been elaborated by theologians and jurists. These doctrines originate in a moral understanding of violent conflict. Yet, when adapted for use in the realms of pragmatic politics and diplomacy, their moral content often vanishes. Prof. Luban provides a moral assessment of the justice of war to serve in the actual conduct of international affairs.

A widely respected document of international law, the Charter of the United Nations, condemns “the threat or use of force against the territorial integrity or political independence of any State ....” At the same time, it recognizes the right to “individual or collective self-defense if an armed attack occurs against a member of the United Nations.” In this view, therefore, aggressive wars are unjust, whereas defensive wars are just.

International law in general asserts the duty of each state to refrain from intervention in the affairs of other states. At the root of this duty lies the notion of state sovereignty. But how, Prof. Luban asks, is nonintervention to be construed as a moral duty? Some have added the concept of legitimacy to add a moral dimension lacking in the usual international definitions. A legitimate state would thus have a right against aggression, because citizens possess a right to a legitimate state, which in turn implies human rights and social contract.

A legitimate state may be recognized by evidence of a political community's longstanding consent to be governed. Michael Walzer has written: “Over a long period of time, shared experiences and cooperative activity of many kinds shape a common life. ‘Contract’ is a metaphor for a process of association and mutuality ....” Yet, according to this standard, many parts of the third world are governed by manifestly illegitimate states. Are the populations of these territories to be exempted from the moral protections of just war theory? Obviously, comprehensive just war theory can not be derived from a governmental base.

Prof. Luban suggests that the moral discernment of a just from an unjust war can only be achieved through a consideration of human rights—“the demands of all humanity on all of humanity.” He first distinguishes a category of socially basic human rights. These are required for the enjoyment of any other rights and include security rights (freedom from torture, killing, assault, etc.) and subsistence rights (rights to healthy air and water, adequate food, and shelter).

Such basic rights are worth fighting for—not only by those to whom they are denied but also by others who take them seriously. Of course, this does not mean that an infringement of socially basic human rights is a casus belli. Here as elsewhere in just war theory, the doctrine of proportionality applies. Nonetheless, any proportional struggle for basic rights is justified—even one which involves attacks on the nonbasic rights of others.

Prof. Luban insists on the substantive differences which distinguish his definition of the just war from that of the United Nations. The UN approach would have us measure the rights of states against socially basic human rights, which may well constitute a comparison of incommensurables. Under Luban's definition, on the other hand, we are only asked to compare the violations of basic human rights likely to result from a war with those violations it is intended to rectify, a much more tractable dilemma.