Walzer poses a bunch of philosophical questions and suggests that they are hard to answer; Davies responds that Walzer is a moron because international law has already answered them. That seems to me to be a non-sequitur: lots of times something might be settled in the law, but one can still argue about it and not be accused of destroying his credibility or of “blowing squid ink” etc. California law bans affirmative action; does that means Davies would say that a Californian discussing its legitimacy would have “a stick in his ass”?
Moreover, Davies’ confidence that international law is so clear and easy is quite perplexing. He insists that it’s obvious that one needs to “minimise civilian casualties” — but minimize in relation to what? In relation to a “military” objective, of course; thus, “no bombing objectives in order to gain political advantage.” (emphasis his).
I find this unintelligible. You can’t know how important a military objective is unless you relate it to political ends. The US found that out the hard way in Vietnam; Israel may be finding out the same thing in Gaza. Abraham Lincoln insisted that his generals take the offensive to capture east Tennessee, where (he thought) millions of Union sympathizers lived (who would form the backbone of a pro-Union postwar South). The generals resisted because, they said, east Tennessee had no “strategic value” (an assessment echoed by some modern military historians). But Lincoln was clearly right because he correctly assessed the political goals of the war. “Military goals” do not have meaning outside a political context.
Similarly, Davies finds it quite simple to say that every combatant must assess whether the risk to civilians is “excessive” in relation to the “concrete, definite, and military” advantage. I sure don’t. Assuming that one could even make this calculus, I still don’t what “excessive” means. And adding words like concrete, definite, and military don’t make it any easier.
What’s going on here? I confess I have never heard of Davies before (although anyone who writes for Crooked Timber ought to be taken seriously); he seems quite committed to international humanitarian law and the law of war. And both of those bodies of law are themselves quite committed to the notion that one can make judgments about the legitimacy of each side’s action without any reference whatsoever to their ends.
And that, in my view, is the problem: you can’t judge military means without assessing political ends. The ends don’t justify the means; that thinking leads to “we can torture anyone because we’re the good guys.” But ends aren’t irrelevant, either. That’s one major problem that Walzer points to, and what ticks off Davies so much.
The US is fighting Nazi Germany. It knows that Hitler and his best commanders are in a building with 20 civilians. If it levels the building, it cripples the German war effort. Concrete? Check. Definite? Check. Military? Check.
Nazi Germany, then, knows that FDR, George Marshall, Ike, Patton, etc. are in a building with 20 civilians. It decides to level the building in order to cripple the US war effort. Concrete? Check. Definite? Check. Military? Check.
The same thing? No way. And if international lawyers want to say it’s the same thing, then that says more about them than those who criticize them. In the immortal words of Mr. Bumble: “if the law supposes that then the law is a ass — a idiot.”
Recall that this body of international law originally emanates from the Hague Conferences of 1899 and 1907 (although obviously it has developed enormously since then), and reflect what scholars refer to a “classical legal thought” — the notion that law can be divorced from politics. (I have had occasion to write about it at too-great length myself). This notion is now viewed as somewhat quaint by most scholars, because the legal realist movement effectively trashed it: you can’t divorce the two, and attempts to divorce the two result in bad policy and make a mockery of the law.
Clicking through the links, I see that Davies is very sympathetic (although not committed) to the idea of the “one-state solution” to the Israel-Palestine conflict, which means that Jews will be a minority in an Arab state. (readers can ask Iraqi Kurds, Algerian Berbers, Saudi Shiites, or Sudanese Black Africans about how well that usually works out). Walzer, on the other hand, is an avowed two-state solution advocate. He is trying to integrate what he sees as legitimate ends with problematic means. That’s a hard moral question, and he realizes it. Davies, meanwhile, thinks that this is garbage, perhaps because if it makes Israel less able to defend itself, then that will result in a one-state solution, and that’s just the way it goes, and it doesn’t bother him anyway.
In other words, Walzer sees the ends-means relation, and it creates a hard moral problem. Davies doesn’t see it and thinks the problem is easy because the ends don’t bother him. In one sense, they are both doing the same thing, only Walzer acknowledges it, and Davies doesn’t (maybe not even to himself). Hard to say how that makes Walzer look bad.
Update: I had not realized that this Daniel Davies was the same guy who had written this. So he’s still very much worth reading as a general matter. A reader tells me that “Daniel Davies is Crooked Timber’s pet wild and crazy guy.” Didn’t know they could be domesticated. To clarify, in general folks are more worth reading if they aren’t academics.