Ends, Means, and International Law

Daniel Davies takes aim at Michael Walzer — and blows himself up. You can’t judge military means without assessing political ends.

Daniel Davies aims all his rhetorical howitzers at Michael Walzer &#8212 and ends up blowing himself up.

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” &#8212 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 &#8212 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” &#8212 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.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.