In an age of terrorism, guerilla and total warfare the medieval doctrine of Just War needs to be re-defined. Moreover, issues of legitimacy, efficacy and morality should not be confused. Legitimacy is conferred by institutions. Not all morally justified wars are, therefore, automatically legitimate. Frequently the efficient execution of a battle plan involves immoral or even illegal acts.
As international law evolves beyond the ancient percepts of sovereignty, it should incorporate new thinking about pre-emptive strikes, human rights violations as casus belli and the role and standing of international organizations, insurgents and liberation movements.
Yet, inevitably, what constitutes "justice" depends heavily on the cultural and societal contexts, narratives, mores, and values of the disputants. Thus, one cannot answer the deceivingly simple question: "Is this war a just war" - without first asking: "According to whom In which context By which criteria Based on what values In which period in history and where"
Being members of Western Civilization, whether by choice or by default, our understanding of what constitutes a just war is crucially founded on our shifting perceptions of the West.
Imagine a village of 220 inhabitants. It has one heavily armed police constable flanked by two lightly equipped assistants. The hamlet is beset by a bunch of ruffians who molest their own families and, at times, violently lash out at their neighbors. These delinquents mock the authorities and ignore their decisions and decrees.
Yet, the village council - the source of legitimacy - refuses to authorize the constable to apprehend the villains and dispose of them, by force of arms if need be. The elders see no imminent or present danger to their charges and are afraid of potential escalation whose evil outcomes could far outweigh anything the felons can achieve.
Incensed by this laxity, the constable - backed only by some of the inhabitants - breaks into the home of one of the more egregious thugs and expels or kills him. He claims to have acted preemptively and in self-defense, as the criminal, long in defiance of the law, was planning to attack its representatives.
Was the constable right in acting the way he did
On the one hand, he may have saved lives and prevented a conflagration whose consequences no one could predict. On the other hand, by ignoring the edicts of the village council and the expressed will of many of the denizens, he has placed himself above the law, as its absolute interpreter and enforcer.
What is the greater danger Turning a blind eye to the exploits of outlaws and outcasts, thus rendering them ever more daring and insolent - or acting unilaterally to counter such pariahs, thus undermining the communal legal foundation and, possibly, leading to a chaotic situation of "might is right" In other words, when ethics and expedience conflict with legality - which should prevail
Enter the medieval doctrine of "Just War" justum bellum, or, more precisely jus ad bellum, propounded by Saint Augustine of Hippo fifth century AD, Saint Thomas Aquinas 1225-1274 in his "Summa Theologicae", Francisco de Vitoria 1548-1617, Francisco Suarez 1548-1617, Hugo Grotius 1583-1645 in his influential tome "Jure Belli ac Pacis" "On Rights of War and Peace", 1625, Samuel Pufendorf 1632-1704, Christian Wolff 1679-1754, and Emerich de Vattel 1714-1767.
Modern thinkers include Michael Walzer in "Just and Unjust Wars" 1977, Barrie Paskins and Michael Dockrill in "The Ethics of War" 1979, Richard Norman in "Ethics, Killing, and War" 1995, Thomas Nagel in "War and Massacre", and Elizabeth Anscombe in "War and Murder".
According to the Catholic Churchs rendition of this theory, set forth by Bishop Wilton D. Gregory of the United States Conference of Catholic Bishops in his Letter to President Bush on Iraq, dated September 13, 2002, going to war is justified if these conditions are met:
"The damage inflicted by the aggressor on the nation or community of nations [is] lasting, grave, and certain; all other means of putting an end to it must have been shown to be impractical or ineffective; there must be serious prospects of success; the use of arms must not produce evils and disorders graver than the evil to be eliminated."
A just war is, therefore, a last resort, all other peaceful conflict resolution options having been exhausted.
The Internet Encyclopedia of Philosophy sums up the doctrine thus:
"The principles of the justice of war are commonly held to be:
Having just cause especially and, according to the United Nations Charter, exclusively, self-defense;
Being formally declared by a proper authority;
Possessing a right intention;
Having a reasonable chance of success;
The end being proportional to the means used."
Yet, the evolution of warfare - the invention of nuclear weapons, the propagation of total war, the ubiquity of guerrilla and national liberation movements, the emergence of global, border-hopping terrorist organizations, of totalitarian regimes, and rogue or failed states - requires these principles to be modified by adding these tenets:
That the declaring authority is a lawfully and democratically elected government.
That the declaration of war reflects the popular will.
Extension of 3 The right intention is to act in just cause.
Extension of 4 ... or a reasonable chance of avoiding an annihilating defeat.
Extension of 5 That the outcomes of war are preferable to the outcomes of the preservation of peace.
Still, the doctrine of just war, conceived in Europe in eras past, is fraying at the edges. Rights and corresponding duties are ill-defined or mismatched. What is legal is not always moral and what is legitimate is not invariably legal. Political realism and quasi-religious idealism sit uncomfortably within the same conceptual framework. Norms are vague and debatable while customary law is only partially subsumed in the tradition i.e., in treaties, conventions and other instruments, as well in the actual conduct of states.
The most contentious issue is, of course, what constitutes "just cause". Self-defense, in its narrowest sense reaction to direct and overwhelming armed aggression, is a justified casus belli. But what about the use of force to deontologically, consequentially, or ethically:
Prevent or ameliorate a slow-motion or permanent humanitarian crisis;
Preempt a clear and present danger of aggression "anticipatory or preemptive self-defense" against what Grotius called "immediate danger";
Secure a safe environment for urgent and indispensable humanitarian relief operations;
Restore democracy in the attacked state "regime change";
Restore public order in the attacked state;
Prevent human rights violations or crimes against humanity or violations of international law by the attacked state;
Keep the peace "peacekeeping operations" and enforce compliance with international or bilateral treaties between the aggressor and the attacked state or the attacked state and a third party;
Suppress armed infiltration, indirect aggression, or civil strife aided and abetted by the attacked state;
Honor ones obligations to frameworks and treaties of collective self-defense;
Protect ones citizens or the citizens of a third party inside the attacked state;
Protect ones property or assets owned by a third party inside the attacked state;
Respond to an invitation by the authorities of the attacked state - and with their expressed consent - to militarily intervene within the territory of the attacked state;
React to offenses against the nations honor or its economy.
Unless these issues are resolved and codified, the entire edifice of international law - and, more specifically, the law of war - is in danger of crumbling. The contemporary multilateral regime proved inadequate and unable to effectively tackle genocide Rwanda, Bosnia, terror in Africa, Central Asia, and the Middle East, weapons of mass destruction Iraq, India, Israel, Pakistan, North Korea, and tyranny in dozens of members of the United Nations.
This feebleness inevitably led to the resurgence of "might is right" unilateralism, as practiced, for instance, by the United States in places as diverse as Grenada and Iraq. This pernicious and ominous phenomenon is coupled with contempt towards and suspicion of international organizations, treaties, institutions, undertakings, and the prevailing consensual order.
In a unipolar world, reliant on a single superpower for its security, the abrogation of the rules of the game could lead to chaotic and lethal anarchy with a multitude of "rebellions" against the emergent American Empire. International law - the formalism of "natural law" - is only one of many competing universalist and missionary value systems. Militant Islam is another. The West must adopt the former to counter the latter.
Protect Your Job & Wages
When people call me about employment issues they dont realize one important law- in almost every state you are terminable at will.That means that your employer can fire you anytime and for no reason at all.The only way you are protected from being fired on the spot without notice is if you have a contract of employment.A contract of employment must be in writing and should specify your length of employment, salary, terms of employment, vacation, bonus calculations, the basis of termination and any warnings to be given make it at least 3 warnings if you can prior to termination and must be signed by your employer, among other things.
How the Jury System Should be Reformed
Our current jury system is ailing. It is beginning to fail us. O.J. Simpson being found not guilty is just one example of that problem. People with loads of evidence against them are found not guilty, while others with far less evidence against them are found guilty. Mass murderers are often sentenced to life in prison, while many others who commit just one murder are sentenced to death. People tried separately for the same crime often get much different verdicts and/or much different sentences. I know the Constitution guarantees the accused a right to a jury of his or her peers, but times have changes over the last 200-plus years and we need to make adjustments accordingly. There are two changes I would suggest we make as soon as possible.
Changes in the Social Security Laws
It is time we educate and update ourselves regarding essential issues of the Social Security Administration.By having enough knowledge of SSAís vital programs concerning Supplemental Security Income SSI and Disability Insurance DI,we would truly understand the workings --- implementations,qualifications,claiming procedures,etc.
Personal Injury Settlement
Personal Injury Settlement is an art, not a science like many personal injury attorneys may think.Understanding all of the moving parts and motivation of all parties interested in the settlement process may be the most important aspect of achieving the highest settlement amount for a client.Companies like Global Financial, which provide cash advances against personal injury and worker compensation cases in 48 states http://www.glofin.com can help with the settlement process.There is nothing worse than a financially desperate plaintiff when trying to achieve the highest settlement offer.
USCIS formerly INS continues to expand online InfoPass service.
Citizenship and Immigration Services formerly Immigration and Naturalization Services, INS continues to rollout its immigration information by appointment system called InfoPass, with three new USCIS districts added last week. Atlanta, Boston and Houston are the newest additions, making the system now available in almost all major metropolitan areas with large immigrant populations. These areas include Los Angeles, New York and Miami.
My Book Contains "No Artificial Growth Hormones"
I dont usually get too excited about what I read in the news.After all, what can I do about itBut one item I recently saw made me jump up out of my chair.
Living Will And Durable Power Of Attorney For Health Care. What Is The Difference
A Living Will is a legal document addressing only deathbed considerations; a client unilaterally declares his/her desire that life-prolonging measures be discontinued when there is no hope of ultimate recovery.
Dealing With Insurance Companies
Every accident cause damages, may it be property or your physical body. It is important to apply for insurance before you encounter such circumstance so that you will be able to recover the money and properties you lost.
Stopping Home Foreclosure
A Foreclosure Prevention Service has numerous ways it can help you deal with the foreclosure process. Under the law, you have a right to remain in the property for a certain period of time. If you canít pay the full amount owed without creating a hardship for your family you need a legal review of your situation, your rights, and your choices before you agree to anything. Protect yourself and your family.
Things You Ought To Know in Faultless Car Accidents
Anyone who has been involved in a vehicular accident, regardless of fault, can avail of No-Fault Benefits which would include compensation for wage lost, medical expenses and a replacement vehicle. It is also termed as Personal Injury Protection Benefit or PIP. Certain states like Minnesota have enacted laws requiring vehicle owners to have no-fault coverage as part of their automobile insurance coverage.
How to Start an Online Bankruptcy Forms Processing Service
Due to the dramatic increase in technology, paralegals now have the ability to outsource their skills and earn extra money working from home as a bankruptcy forms processor. Unlike an attorney or notary public, a bankruptcy forms processor does not have jurisdictional limits.In other words, a bankruptcy forms processor could live in Yellow Springs, Ohio and prepare bankruptcy petitions, pleadings, Motions and other court documents for attorneys practicing in California, New York or any other U.S. state.
Fighting Identity Theft
Chances are good that you know someone who has been victimized by the fastest growing crime - identity theft.The Federal Trade Commission FTC reported that there were 10 million cases of identity theft in 2002 alone.Itís estimated that someoneís identity is stolen every 79 seconds.
Lawsuit Loans which are also known as pre settlement cash advances allow a financially strapped plaintiff to access a portion of their future legal settlement to pay todayís necessary living expenses.Personal Injury and worker compensation lawsuits can take years to resolve and large insurance companies have the financial strength to legally delay the process which can financial ruin an injured claimant who is looking for a fair settlement offer.
The Implications of Income Tax Charge on Estate Planning
Multiple Social Security Beneficiaries
Supplemental Security Income SSI is a federal program run by Social Security Administration that gives a monthly income to people with disabilities, blind, or who are 65 or older with limited income and property. Recipients must be a U.S. citizen or a national with countable income below the federal benefit rate or FBR.
The legal fiction of common law marriage
During a radio-talk show appearance, a caller told me about his unfortunate brush with the legal fiction of common-law marriage. He had been living with a woman for several weeks when he came home one evening to find the woman, his TV and assorted other property missing. He called the police, who mistakenly informed him that the woman was his common-law wife and so they couldnít help him.
Divorce: Coping With The Family Law Process
The Top 10 Scams for 2001
Excerpt from Internet ScamBusters tm The #1 Publication on Internet Fraud
Gathering The Required Data For Your Personal Injury Case
You must be prepared before speaking with any of the insurance companyís representatives. Collect all important documents and evidences, including the photographs, police and medical reports, and statements of your witnesses. Take notes of important details and review the policies given by the company. Do not say anything that will cause your claim to be denied. Examine every photograph; they might see an angle that may be turned against you.
Freedom of Religion
We were all taught in school that our forefathers left England to escape religious dictatorships.Okay, there was a lot more to it then that, but it was a big enough deal that they made sure it got honorable mention in our rulebook.They clearly made the point that we were to have freedom of religion here in America.They also used the word "God" in some of their formal paperwork and even on our money.I dont want to argue politics here, but rather semantics.They didnt say "freedom of Christianity," they said "freedom of religion."The boys who wrote up all of our formal paperwork were wordsmiths and they debated long and hard to find the perfect set of words to govern ourselves by.It wasnt decided that we had the freedom to choose whichever form of Christianity that we liked, but whichever form of religion.Religion is in and of itself a much broader concept then Christianity."God" can mean a lot more then just the Christian definition too.
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