The last posting on this topic began by looking at Rawls' general discussion of the distinction between "outlaw states", "decent societies" and liberal societies where the last two have some adherence to the "law of peoples" whilst the first named are not in compliance with it. The result of this includes a sense in which the latter two have some rights against the first named to intervene so that Rawls does include an expansion of right of intervention beyond simply responding to aggression. However, whilst this is so, the nature of right within war has not yet been discussed and it is to this which I now intend to turn.
The notion of "right in war" or jus in bello is given quite an extended treatment by Rawls, so extended, in fact, that I will treat it over more than one posting. It is discussed by him as part of "just war doctrine". Three "familiar" principles are used to set the discussion up, namely, (i) that its aim should be a "just and lasting peace", (ii) that it should occur for "well-ordered" peoples only against peoples that are not "well-ordered", (iii) that is is necessary to distinguish between an "outlaw" state's leaders, its soldiers and its population.
To an extent, as he confesses, Rawls here is following the analysis of Michael Walzer, not least with regard to the third provision. The point that is being made with regard to the population at large, is that the general population of such states is, by necessity, not included in the considerations of the leaders and that such states, effectively, lack any sense of "public sphere". They are private enterprises run for the benefit of the rulers and have no mechanism for consultation of the public and so the public has no say in the war and cannot be held to account for the fact that it has broken out. A consequence of this, not discussed by Rawls here, is that the population of such an "outlaw state" is, therefore, in a state of nature with regard to its rulers (or, as Ripstein has taught, there is here a state of barbarism).
The consequence Rawls himself draws is a different one, since he is focused rather on the circumstances in which the third guideline can be said not to have been followed and thus in which "well-ordered" states acted in a way that was not just. Circumstances he points to of this sort included the atomic bombing of Hiroshima and Nagasaki and the fire-bombing of Tokyo in 1945. (Interestingly, in pointing to these examples, Rawls reveals something about an American perspective. In the UK, it would be much commoner to cite the bombing of Dresden but this is not in Rawls' mind.)
The guideline on action in relation to the general population effects also the response of "well-ordered" peoples to the military of "outlaw" states. If the general population is outside the sphere of consideration of the rulers in such states, is it different for the military, especially considering that the military is often the institution that is most important in such states? In mitigation, if conscription is a tool used by such states and the general population is thereby introduced into the military, there is a consideration for taking the military to be partly exonerated from creation of the conditions that led to war. However, Rawls also introduces another consideration that is more wide-ranging when he refers to the "indoctrination" to which the military may have been subjected. In this case Rawls points to the military code that prevented Japanese soldiers surrendering.
This point about "indoctrination" is much more difficult than the one about the general population. It is true that an essentially private venture being at issue with the "outlaw states" that they must have some means of persuading others to support them in their actions and that this will require the rulers to develop means of action that are not based only on physical power. But Rawls provides here no theory of the nature of such "indoctrination" or its types. This indicates a serious question about the nature of the generality of such a description. The question concerns whether there are different types of "indoctrination" which produce different kinds of regimes and this question cuts to the nature of the distinction between "decent" peoples and "outlaw" states. But perhaps this point would require more extended analysis on another occasion. A more important point, in specific reference to consideration of the effect of such "indoctrination", concerns how the well-ordered state should act. Rawls' own example leads him to confessing that confronted with soldiers of a certain type it may necessarily occur that normal rules suffer some kind of suspension (so the US soldiers here rarely took prisoners). Is this the correct conduct or is it merely forced upon the "well-ordered" state?
A fourth provision states that "well-ordered" peoples must respect, as much as they can, the human rights of civilians and soldiers of the enemy. This point seems to curtail the exceptions that might arise from the third and provide some kind of guard-rail around it but, again, there seems no systematic reflection here on the relations between these points.
The fifth provision states that well-ordered peoples should, by actions and statements during the war foreshadow the nature of the peace aimed for after it. The "content" of this provision, other than the point aimed at in the reference to "human rights" in the fourth is, to say the least, unclear. The final, sixth, provision, restricts the scope of means-ends reasoning in reference to the norms already established.
In discussing the fourth and fifth provisions Rawls introduces the "ideal of the statesman" and this will be returned to in the next posting on this topic.
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