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« Concluding Remarks (With Nods to Marc and Nate) | Main | Response to Anderson: Empirical Evidence and Mental States »

Proportionality, Wanton Destruction, and Intent

Two quick comments in response. The first is about proportionality. I am not sure there is much more to be said as a matter of law regarding proportionality, in the sense that the reason the law has not gone further, in my view anyway, is that we don't have any real social agreement about how to go beyond the very broadly shared social intuitions you mention regarding weighing up of incommensurables. The law of war is not special in this - except that it puts so starkly and brutally on the table that it is hard to avoid confronting this fact that we don't know how to do it. So actually, I think the social lay criteria are more or less the ones we use, rather than some special legal calculus, at least if one tries to go beyond the civilian damage v military necessity judgment. I rather suspect there is more to be got out of the social criteria than the categories of the law. The reason I mentioned the law, at bottom, was to separate out a special category that is sometimes confused with proportionality weighing-up, the category of wanton devastation, which is special precisely because the folks involve in it didn't do any weighing up.

Second, about intent and motive. I join the many philosophers of law and the theory of punishment and liability who have not found the distinction between motive and intent very helpful, at least where intent is said simply to signal, or to allow the inference of, a deliberate action. The fact that an action is deliberate leaves open the genuinely crucial question of, to use Elizabeth Anscombe's terms, an "act under what description"? That is, what matters, and what matters in bringing outward behavior together with inward motive, is the description of the intentional, ie, deliberate action. Some descriptions will be morally relevant, others not.  Anscombe gives various examples in her little monograph, Intention. The city was nuked ... can one infer from that act of genocide? Even leaving aside motive? It was an intentional act. But the rest of the description even of the outward act - not a description of an inner state, but a full description of the behavioral act, from the outside, can profoundly alter the moral/legal issues. The city was cleansed of the virus that somehow fell from the outer space meteor and threatened a global pandemic and so it was nuked and 20 million people died and 7 billion were saved. We are not here speaking of 'motive' but of intention, but not merely deliberate action, but deliberate action fully described. So, truth be told, I think that the usual criminal distinction between motive and intent doesn't get us far enough, at least not in acts that are thought plausibly to point to genocide, although in the ordinary criminal cases, the distinction works pretty well because, as a matter of social fact, we have a pretty good idea of intentional acts that are bad acts.

One last thought, and then to bed! Proportionality can involve two kinds of situations of weighing up in war. I have focused above on the truly intractable case - that of having to weigh up incommensurable goods. Not all proportionality in war involves that kind of tragic choice. Belligerent reprisal, for example, is defined as a party taking an action that would otherwise be an illegal act against a belligerent party, in order to force as a measure of self help, that belligerent party, to stop its violations of the law. In order legally to count as a reprisal, it should ideally (alhtough not absolutely necessarily, so long as the connection is clear) be the same kind of act done proportional to the violation by the other side. Since we are talking of the same kinds of acts, the issue of incommensurate weighing up does not arise.

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