Secularization of the Just War Tradition
The process whereby Roman and Christian ideas concerning Just War evolved into international law is complex and spans many centuries. Theologians, canonists, and jurists, many of them now obscure, all contributed to the transition.
In this chapter we will highlight some of the key mileposts in this process by focusing on two representative and influential writers whose original contributions significantly affected the development of the laws of war: Thomas Aquinas and Francisco de Vitoria.
The period between the work of Augustine and that of Aquinas saw a transition from the stability of the magnificent Roman Empire to the continuous feudal conflicts of the Dark Ages.
The emergence of numerous, autonomous, political communities with a shared unifying dimension the Catholic Church motivated the development of more formal rules governing warfare and gave birth to the Code of Chivalry.’ Ironically, the breakup of the Catholic Church during the Reformation led to savage ideological wars that were void of rules (e.g. the Thirty Years’ War) and that gave birth to Grotius’s famous work on international law.
Likewise, the Spanish treatment of the Indians in the Americas inspired a number of significant contributions to the law of nations by writers such as Vitoria. Valdez and Suarez, in each case, it seems as though moral judgments concerning the conduct of war were formulated in response to actions that outraged the public conscience.
Perhaps the public recognition of wrongs most often motivates the development of formal rules to outlaw acts that people’s private sense of justice already recognizes as manifestly improper. Certainly the changes in conduct of war and the techno- logical innovations that occurred during this period necessitated parallel developments in the Just War Tradition.
As secular, central authority diminished with the demise of the Roman Empire, localized conflicts increased. An increasingly powerful Catholic Church sought to fill the void created by the decentralization of secular power. About the year A.D. 600, St. Isadora, the Archbishop of Seville, produced an encyclopedic compilation of past writings on Just War that became a source document for later scholars.
In the year 989, the Church attempted to restrict the conduct of the constant warfare through an edict known as the Peace of God.* This edict sought to regulate the participants in war by prohibiting actions against certain classes of peoples such as clerics, monks, peasants, women, pilgrims, merchants, and shepherds; the edict also prohibited attacks on churches, cemeteries, farm animals, and fruit trees.
While this had little immediate effect (probably because it was not supported by feudal law), the ideas contained in the edict concerning innocents would be picked up by later writers, most notably Grotius, and would thereby find their way into the jus in bello rules of international law.
In 1027 the Peace of God was supplemented with the Truce of God, which restricted warfare to certain days of the week and sea sons of the year. A third attempt at controlling the conduct of war was made by the Second Lateran Council in 1139 when it prohibited crossbows, bows and arrows, and siege weapons. Through these efforts the Christian Church became an early proponent of jus in bello restrictions-with the limitation that these restraints only limited what Christians could do to other Christians; non- Christians were not afforded protection until many centuries later.
Ironically, the event that contributed the most to reducing the countless private wars that cursed the period was the Church’s successful redirection of the violence within Christendom against an external foe through the Crusades.
From an historical perspective, the first really pivotal event in the development of the Just War Tradition following Augustine occurred in 1148 when a Benedictine monk, Gratian of Bologna, published an exhaustive compilation of canon law, the Concordia discordantium canonum. Gratian’s Decretum, as the work was known, became the focal point for Just War debate.
The Decretum is important, not because of its original content, but because of its topical organization and detailed treatment of the central issues. Gratian sought to reconcile the many divergent, even contrary, works on canon law, and in his discussions he included selections from historical documents, various civil laws, and extensive ecclesiastical sources: hence the title, Concordia discordantium canonum.
Gratian, like Augustine, argues that “with the true servants of God even wars are pacific as they are entered upon not through cruelty or greed and have as their object peace, the repression of the wicked and the deliverance of the good.” He devotes a separate chapter (Pars Secunda, Causa XXIII) to war; and while the content of this chapter does little more than reproduce most of the texts of Augustine (the Roman influence is also apparent through the texts of Isadora), it is presented in a manner that encourages study and invites commentary.
�Up until the publication of the Decretum, canon law was considered a branch of theology; but after the circulation of Gratian’s work, canon law became an independent discipline. In fact, the influence of this work was so great that it inspired a new school of canon lawyers called the Decretists, which in turn gave birth to the Decretalists. As one scholar of the period notes: Just war into modern international jurisprudence.”8 “To Master Gratian we owe the introduction of the concept of the
While many of the commentators on Gratian’s work made important contributions to the Just War Tradition, the next pivotal breakthrough occurred during the intellectual renaissance of the thirteenth century following the new availability of the Aristotelian corpus in Europe.
Aristotle’s emphasis on grounding arguments in principles derived from induction (coupled with the sheer brilliance of his analyses) influenced many to believe that revealed moral and scientific truths, at least those concerning the temporal world, could be deduced independently of the Gospel.
This is not to imply a questioning of the veracity of that which is revealed through the Old and New Testaments; it simply means that because the truths written in the mind of the immutable God must necessarily be manifested in God’s instantiation of the world, induction from the state of the world can therefore reflect glimpses of these truths.
Foremost among the Aristotelians of the period was Thomas Aquinas, to whose work we now turn. Saint Thomas Aquinas
Just as Augustine turned to Cicero and Plato for inspiration, so did Thomas Aquinas turn primarily to Aristotle and Augustine? His work on bellum justum is significant for a number of reasons. First, Aquinas summarizes the key elements of Augustine’s work on Just War (available to Aquinas through Gratian) and reduces them to abstract rules grounded in clearly stated principles. Aquinas believed that human reason was the sole arbiter between right and wrong moral choices (and by extension, just and unjust human laws).
The first principles that give the impetus to rational (hence moral) choice are accessible to all humans through perception of natural inclinations. This is crucial because it recognizes that all humans share identical natural inclinations (we might call these “fundamental social values”), even though these universal inclinations often provide the basis for different human laws for different peoples at different times. �
That is, all mankind has access to the eternal law (written in the mind of God) by discerning the fundamental tendencies of nature (natural laws); and by reflecting on these tendencies, rational agents can develop knowledge of the principles that underlie moral judgments. These principles serve as the grounding for different human laws. Aquinas himself explains the significance of this:
It follows therefore that natural law in its first common principles is the same among all men, both as to validity and recognition (i.e. something is right for all and is so by all recognized).
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One of mankind’s natural inclinations is to live in society. This necessitates some form of government as well as laws to ensure justice and order. “The common good of the state cannot flourish unless its citizens be virtuous”: therefore “the proper effect of law is to lead its subjects to their proper virtue.” In fact, the state is a natural condition and the end (telos) of all states is the same: to bring about justice and order.
Because justice and order is the end for which all states exist, a ruler’s authority cannot legitimately extend to decisions concerning this end, but only to the means whereby this end might be realized. This is significant because it implies that laws or commands by rulers (governments) that interfere with justice and order are invalid and need not be obeyed.
Human laws are the rational ordinances enacted and promulgated by the states (and their rulers) for the common good, understood by Aquinas to mean the preservation of order and maintenance of justice. These laws might necessitate the destruction of life, limb, and property, and the deprivation of liberty, whenever such action is necessary to uphold justice or maintain order.
That which is murder or theft for a private person may become praise- worthy act when performed by someone vested with public power. Public officials may also act to address injustices that arise from causes outside the state. Because the raison d’etre of political rulers is to promote the common welfare, they have a duty to ensure the safety of their community from external enemies.
This brings us to Aquinas’s second major contribution to the Just War Tradition: his comprehensive statement concerning jus ad bellum. Before addressing this, however, we should note that the position we have been attributing to Aquinas rests entirely on secular premises.
As Russell observes, “Aquinas’ use of Aristotle pre- vented him from attempts to transform the church’s spiritual superiority into the legal supremacy advocated by [certain] canonists.” And in Aquinas’s own words, “the theologian considers a sin principally as an offense against God, whereas the moral philosopher considers it as being contrary to reason.”
None of Aquinas’s three conditions for a Just War are new, but he is the first to place all three of them together as independently necessary and jointly sufficient. Moreover, he elaborates on them and supports them with sound, and often original, argumentation. In the section of his Summa Theological where he specifically addresses war, Aquinas stipulates that for a war to be just it must be declared by the authority of a head of a state (proper authority).
Good aim (right intention). for a proportionally good reason (just cause), and with a morally between the declaration and the commencement of hostilities (recall that Roman law stipulated thirty-three days), the very act of declaration invites the second party to the pending hostilities the opportunity to offer redress in lieu of war. This is crucial because it establishes the principle that for a war to be just, the aggrieving nation must have refused to render satisfaction. While he doesn’t specifically state that war must only be used as a last resort in this section.
Aquinas does specify elsewhere that a cause cannot be considered just unless the aggrieved party has first tendered the opportunity for a peaceful settlement and been refused. Thus war becomes a means of sanction for some injury received in those cases where there is no alternative means of seeking redress. This point is developed in greater detail by subsequent writers such as Francisco Suarez and will evolve into the modern principle that war must always be a “last resort.”
Concerning the requirement that wars be declared only by proper authority. Aquinas argues that if one can seek redress from some higher authority, then one is not justified in resorting to violence. States, however, have no common authority to which they may appeal for arbitration, and “just as it is lawful for them to have recourse to the sword in defending the common weal against internal disturbances….so too it is their business to have recourse to the sword of war in defending the common weal against external enemies.” And quoting Augustine (Contra Faustum, 22.75), Aquinas adds: “The natural order conducive to peace among mortals demands that the power to declare and counsel war should be in the hands of those who hold the supreme authority.”
Concerning the requirement for just cause, Aquinas provides three examples taken directly from Augustine (Questiones in Heptatuechum, 10): “A just war is wont to be described as one that avenges wrongs, when a nation or state has to be punished for refusing to make amends for wrongs inflicted by its subjects, or to restore what it has seized unjustly.”
Although Aquinas doesn’t directly address defensive wars (presumably he considers their justification obvious), he does discuss personal self-defense in the chapter following his discussion of war.
Here he makes it clear that a defensive act can become aggression if one uses more violence than is necessary in repelling an attack, 19 We will return to the issue of self-defense momentarily in our discussion of double effect.
Finally, Aquinas again follows Augustine in his stipulation that wars may not be undertaken without rightful intentions, such as the advancement of good, the securing of peace, the punishment of evildoers, or the avoidance of evil. The examples he gives of wrongful intentions are also taken directly from Augustine (Contra Faustum, 22.74):
“The passion for inflicting harm, the cruel thirst for vengeance, an unpacific and relentless spirit, the fever of revolt, the lust of power, and such like things.” And he adds that even if a war is declared by legitimate authority for a just cause, it can be rendered unjust through a wicked intention.
Aquinas concludes his discussion of offensive wars by again invoking the words of Augustine (Epistle ad Boniface 189): “We do not seek peace in order to be at war, but we go to war that we may have peace. Be peaceful, therefore, in warring, so that you may vanquish those whom you war against, and bring them to the prosper, ity of peace.”
Aquinas also addresses the right of subjects to rebel against an unjust sovereign. While he adopts the Augustinian doctrine that sedition is wrong because it is opposed to a special kind of good, namely “the unity and peace of the people,” he also breaks sharply with Augustine with the following important caveat:
A tyrannical government is not just, because it is directed, not to the common good, but to the private good of the ruler, as the Philosopher states. Consequently there is no sedition in disturbing a government of this kind, unless the tyrant’s rule be disturbed so inordinately, that his subjects, suffer greater harm from the consequent disturbance than from the tyrant’s government.
Notice that Aquinas is careful to stipulate that the harm done by the means employed in effecting justice must not exceed the arm that is being done by the injustice one seeks to correct. This introduction of proportionality as a necessary condition for the escort to revolution will be picked up by later writers and will become a necessary condition for any resort to force.
The final dimension of Aquinas’s philosophy that we will explore is his doctrine of double effect. Recall that both Ambrose and Augustine had prohibited self-defense because it is motivated y cupiditas, while defense of others is motivated by brotherly love a form of caritas). Aquinas’s predisposition to natural law and his Aristotelian background would not let him accept this position, and is doctrine of double effect is his retort to the prohibition against elf-defense.
This doctrine states that acts which have both a good and a bad effect are permissible provided that the bad effect is an unintended side effect, that it is proportional to the objectively good effect, and that there is no alternative way of achieving the good effect. Thus, one can kill an attacker in self-defense provided that e or she does not intend (will) the attacker’s death (either as land or as a means), but simply endeavors to defend one’s own life. Und the death of the attacker is “outside the intention” or per accidents.
While Aquinas’s doctrine of double effect is developed to justify self-defense, and even though he does not himself extend it to acts of war, it has had such a profound effect on Just War thinking and international law that it is worthwhile to reproduce Aquinas’s own words here:
Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species according to what is intended, and not according to what is beside the intention, since this is accidental…. Accordingly, the act of self-defense may have two effects, one is the saving of one’s life, and the other is the slaying of the aggressor.
Therefore, this act, since one’s intention is to save one’s own life, is not unlawful, seeing that it is natural to everything to keep itself in “being,” as far as possible. And yet, though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end.
Notice that the innate disposition to remain “In being” (Le. alive) is not itself a sufficient justification for the secondary or “bad effect” because one could conceivably save one’s own life by acquiescing or fleeing: Aquinas must also condone the foreseen harm that will occur to another as a direct result of one’s defense of self.
His solution (ironically) is to use Augustine’s own distinction between intended consequences (which have normative worth) and incidental consequences (which are morally neutral) to provide this Justification. The crucial step that permits Aquinas to make this innovation is an acceptance that unintended (bad) consequences can be foreseen without undermining the permissibility of intended (good) consequences, as long as the bad consequences are proportional to the intended ones.
The application of double effect to the conduct of war has been the topic of much debate and consternation, and we shall return to it. For now, however, let us focus on the writer who first extended Aquinas’s double effect to include collateral damage on the battle- field: Francisco de Vitoria.
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