The Public Uses of Coercion and Force from Constitutionalism to War

War is barbaric and wrongful—at least for Kantians. For Kantians, there are no just causes for war as such. War is permissible only when it is the only way to secure peace, in self-defense. A Kantian theory of war is thus particularly interesting as it fleshes out the constitutive tensions of the use of violence. It may be seen as an alternative normative theory of war, similar but not identical to the just war theory tradition. This is interesting as in the last decades, the main dividing line among normative theorists of war has been between two wings of just war theory: so-called just war theory traditionalists, commonly associated with Michael Walzer, and so-called revisionists, commonly associated with Jeff McMahan. The basic assumption of traditionalist just war theory is that combatants should only be held liable when they fight unjustly, in accordance with the requirements of jus in bello, irrespective of whether the war itself is just. Revisionists like McMahan question the privileged moral standing of states, with wide-ranging consequences for the permissibility even of defensive war, pointing to the recent blurring of the line between combatants and noncombatants and between public and private interests and agency.

Returning to Kant offers a third position. The need to replace force with law is central to Kantian theory of war. For Kant, defensive force is about the political right to peace. Kant’s approach is centered on a novel understanding of the status of states and puts the achievement of peace at the center of the picture: war is only permissible to enforce a prohibition against resolving disputes by force, and the conduct of war must be compatible with the possibility of future peace. This edited volume on the Public Uses of Coercion and Force from Constitutionalism to War (Oxford University Press 2021) co-edited by myself and Enzo Rossi, University of Amsterdam, explores these and related questions both in their normative core and their real-world applications. We have invited  a group of leading philosophers, legal theorists and constitutional law experts, to engage with Arthur Ripstein’s new and exciting monograph, Kant and the Law of War (Oxford University Press 2021), which explores the use of force and the distinctive immorality of war. Such an exercise is particularly interesting from the point of view of several contemporary debates in war theory and related questions. For example, who does the right to wage war extend to? What, if any, are the normative salient differences between states’ internal coercion and the external use of force? Is it possible to isolate the constitutional level from other aspects of the state’s coercive reach? How could that be done while at the same time guaranteeing a robust conception of human rights and adherence to the rule of law? New forms and technologies of warfare raise further fundamental questions about individual responsibility, fairness, vulnerability, due process, and broader questions pertaining to justice and the responsibility to protect. From a critical constitutional perspective, these questions concern the justification of state action, the human rights framework, and the question of judicial review and proportionality reasoning in “emergency” contexts. The purpose of the edited volume is thus to explore the intersection of innovative work in political theory, philosophy of law, criminal law theory, and constitutionalism scholarship in order to provide a new platform for understanding the contemporary law of war through a Kantian prism.

Kant’s approach is centered on a novel understanding of the status of states, and puts the achievement of peace at the center of the picture. A key theme in Kantian political and legal philosophy is every individual’s right to independence (on Ripstein’s interpretation of Kant, independence is not a feature of the individual person considered in isolation, but of relations between persons) which can only be secured through a legitimate state, which in turn is obliged to repudiate war and pursue peace. While the Kantian project of achieving perpetual peace among states seems (at best) an unfulfilled hope, Kantian theories are distinctive insofar as they carve out a relatively hopeful role for the state in international affairs, one that is grounded in an analysis of the state’s nature rather than driven by abstract moral considerations—not quite a realist position, but not the ‘applied ethics’ approach either.

Kant’s solution to the just war theory problem of uniting just cause with the prospects of war has two parts: an account of the distinctively public nature of a state, and an account of peace as an essentially public condition under which disputes can be resolved on their merits (Ripstein 2021). Law is the key to Kant also in a global context, in terms of global institutions and cosmopolitan right, because on the Kantian view, legal institutions are fundamentally constitutive of what it is to live in peace between nations. As law is central to Kant and as war theory is seeking to achieve peace, Kant’s war theory is also a constitutional law theory. Constitutional legal questions that are highlighted by a Kantian war theory are, inter alia: How and why can a decision regarding the authority to enter war be challenged? When is self-defense under Article 51 UN allowed and is preventive force permissible? What is proportionate to secure peace and so on. Other intriguing questions are multidisciplinary, for example, concerning the links between global justice and the question of waging war. These issues and other related matters are discussed throughout the book.

One thing is clear: for Kant, force without freedom guaranteed by law is barbarism (Ripstein 2021). How law and constitutionalism can be informed by contemporary war theory in responding to future challenges, are some of the vital questions that any jurisprudence and political theory of force must address.


The Public Uses of Coercion and Force from Constitutionalism to War
ed. by Ester Herlin-Karnell and Enzo Rossi
Oxford University Press | New York, 2021. 360pp.

 

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Ester Herlin-Karnell is Professor of EU Law at the University of Gothenburg.
Website at University of Gothenburg

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