II. Through the Lens of Morality—
Axiological Validity
- Old Verses in New Skins: The Sixteenth Century Debate on Artillery
- – Alexis Keller
- The Question of “Imminence”: A Historical View on Anticipatory Attacks
- – Steven J. Barela
- Correcting the Record: Civilians, Proportionality, and the Jus ad Vim
- – Avery Plaw
- – Carlos R. Colon
- From Just War to Clean War: The Impact of Modern Technology on Military Ethics
- – Delphine Hayim
Moral debate over war has a deep and long tradition. We have contemplated it for centuries and its historical filiations in the Western world are best traced through the familiar just war doctrine. While there is a historical recurrence of formulating a reasoning for casting aside any ethical and legal considerations in war making, classical,[1] modern, and contemporary forms of moral (at times mixing clearly with legal) analysis are a testament to the durability and relevance of such an approach.[2] It should be remembered that these limits on warfare have come together over scores of years from an amalgamation of sources which include Christian theologians as a moral doctrine came into being inside the church, international lawyers with principles that guided and set in motion the first texts of this discipline, and military professionals using considerations of fair play rooted in chivalry.[3] As the just war theory will serve as the overarching vehicle that will drive the axiological analysis in this section, it should be taken as a relatively imprecise term that reflects the intersection of the vital concepts of law, morals, and prudence. As a result, it is an appropriate tradition to be used in this work treating the equally interdisciplinary subject of legitimacy.
Of course, there is a great amount of debate over whether the type of operations carried out by UCAVs for counterterrorism should always and only be categorized as war. Once armed conflict is used as the framework for analyzing the use of force, the constraints become more lenient, and there is a wider margin for the use of violence. Accordingly, the debate over this difficulty of determining the proper applicable norms will be discussed in this section.
…since this book deals with the use of deadly force, the severest act that can be carried out against an individual, we will be solely concerned with the more discernible bottom end of this scale—the morality of duty.
In addition, morality is undoubtedly an extremely complex concept that creates many difficulties for analysts who wish to explore its relevance. However, it is this editor’s opinion that it is in fact possible to clarify what is intended when the word morality is invoked in this book by drawing a distinction between a “morality of duty” and a “morality of aspiration”.[4] These two categories represent opposite ends of the same scale, and where one leaves off for the other to begin has long dominated moral argument. A morality of duty starts at the bottom and “lays down the basic rules without which an ordered society is impossible,” whereas a morality of aspiration is at the top end of this scale and is about human excellence or “the fullest realization of human powers”.[5]
It is essential to understand that the difficulty in precisely specifying all the forms of a morality of aspiration as we mount this scale does not mean that the more basic requirements of a baseline morality of duty are unknowable or incomprehensible. This wide scope that morality can cover, from the most obvious demands of social living to the highest reaches of human aspiration, often leads to confusion when we speak about morality. Yet, since this book deals with the use of deadly force, the severest act that can be carried out against an individual, we will be solely concerned with the more discernible bottom end of this scale.
In addition, to speak about legitimacy in a thorough manner one needs to not only address the questions of formal validity, but also where there is conceivably overlap with the more axiological questions of morality. In other words, attention in this section will focus on what the consummate positivist H.L.A. Hart has described as the “minimum content of natural law”: the unstated assumption that all human activity is properly understood as perpetuating survival.[6] Indeed, this theory posits that there is an overlap of legality and morality in the prohibition of free, unconstrained violence, and the destruction of human life (by terrorism and drones alike) poses problems that cross disciplinary boundaries. It is with this approach that this section will gaze through the lens of morality.[7]
Chapter 5
Old Ideas in New Skins: The Sixteenth Century Debate on Artillery
To initiate this section Alexis Keller addresses the fact that armed drones are certainly not the first time that humanity has been confronted with a technology that upsets the conventional norms of war. Remarkably, it has even at times centered on the same question of killing from a distance. At the beginning of the sixteenth century, Renaissance Europe, particularly France and Italy, encountered a similar upheaval—the introduction of artillery weapons. While previous armed conflicts had been largely conducted by knights and nobles who were highly educated and followed a code of honor in their hand-to-hand combat, the fact that untrained laborers and uneducated individuals of a lower social background could suddenly launch deadly material into the air to rain down on opposing fighters sparked an important debate over the expanded warfare. Ominously, combatants were now unexpectedly struck dead from objects dropping from the sky—a zone previously unknown to be perilous—by an unknown and unseen enemy. In fact, among other changes, this revolution and the debate that surrounded it paved the way to one of the most significant developments in the theory of just war: jus in bello.
