demagogue on 11/12/2009 at 22:24

---

I don't think we're talking about different things as much as you might think, but I'll try to say why I think that.



The basic response to that is to say that legal norms should fully encompass the moral norms we should care about, so that if it's legal, there shouldn't be serious moral quibbling left over on the side. Otherwise it would become a bit like asking which side is God on to find out who is right in a war. Whose "God" (or whatever source you get these feelings from)? Whose "morality"? Whose sense of "right" and "wrong"? People disagree about this stuff, and when you're trying to regulate the conduct of a war you have to use norms that everybody equally understands and is subject to, and that's what legal norms are. If something is legal but upsets you, those probably aren't "moral" norms you can take very seriously anyway, because then you're basically just left with "Well, that wasn't very nice." You have no acceptable reason to stop them that they could accept (because if you did, it would be a legal norm.)

All that said, like I agreed with you, the stuff you mentioned are serious concerns in jus in bello. The crack down on dissidents and treatment of POWs are clearly a serious JIB violation (and the NKA's comparable violations are no excuse), and the strategic blunder that drew China into the war also has serious JIB implications.



I never said the Korean war was well run, far from it. I agreed with you from the start that there were serious JIB concerns (though I ninja edited a clarification before I read your post). But it was still a JAB justified war; the allies were legally and morally sanctioned to fight it, although their conduct in fighting it fell short of a lot of legal and moral standards. And again, you can't talk about the moral conduct of a war without distinguishing JAB and JIB every time. It was a just war fought unjustly.
Point taken about WWII being bigger in scope.

Edit: By the way, I should say I'm not just trying to be snarky to you and disagreeable for its own sake. The sorts of issues that you've brought up with your points raise some of the fundamental questions in the law and ethics of the conduct of war, and I just wanted to articulate a standard point of view on it (so this isn't just my opinion; this is like the "textbook" approach in int'l law and relations, which is my field) because I thought it would be fitting in this thread, on this topic. So please don't take anything I say as trying to attack you or your very reasonable perspective, but more like trying to get out the textbook version for the record. :)

demagogue on 11/12/2009 at 23:43

---

No, I'm not arguing that. That's not the textbook version.
Ok, more distinctions:
Lex lata: "the law as it exists"
Lex Ferenda: "the law as it should be"

The law as it exists is not always moral or correct as a matter of right; and when it isn't, it isn't an authoritative law and we should fight to change it so that it is. The law as it should be, lex ferenda, should be moral (as in correct as a matter of rightness). So in that respect, the textbook version of law rejects that X is ipso facto moral because a few diplomats said X, if the law is in fact wrong. That's actually exactly the opposite of its position in exactly the way you just nicely explained (as long as you understand "moral" as "right", since "moral" can mean different things to different people; some people think a eating shellfish, a sin, is immoral, so you don't count those cases and only deal with the "moral by reason" cases).

That said, some legal norms are what are described as having "crystallized" into customary int'l law, CIL, which means that all states have already accepted that this norm (1) fully binds them and (2) fully instantiates all the relevant moral norms (opinio juris, i.e., it's a just law), and in this case, the laws of war I've been describing (only 2 hooks for a JAB just war; the few JIB requirements I mentioned) can be said to have crystallized in this way, so your point doesn't really apply to these norms to begin with (although it might apply to others, like the old Nazi or apartheid law situations.) I was only talking about CIL.

And law is not really something that people can disagree about very well, unless a person's reading comprehension isn't very good. I mean, you can read the text clearly, and text can only be stretched so far. People can disagree about whether the law fully instantiates a moral/right norm, about the lex ferenda, but that's why politics is sticky business (although even then very often there isn't real disagreement; e.g., if it's a technical norm and the science is clear; or if it's blatant nepotism; or if one party simply doesn't understand the issue; it may still be hard work, but the facts themselves don't really allow much room for real disagreement), and again this doesn't apply to CIL norms anyway (because already no one is disagreeing about the justness of the law in CIL).

Edit: Or let me put it a different way. There are two kinds of moral norms. (1) A norm that rests on a reason for a person to change their behavior that that person must accept; (2) A norm that doesn't rest on a reason for a person to change their behavior that that person must accept. In the case of (1), that's a legal norm (if the reason is binding and just), though possibly still Lex Ferenda and the real-world law needs to catch up. In the case of (2), that can still be a moral norm, but it's not one that you can take seriously because by definition the person whose behavior you're trying to control doesn't have to accept it. So if you push that norm on them by force, that's theocracy, "our" moral-sentiment/God is better than "yours", so do it. That's why you always want to raise a skeptical eyebrow when people start pushing moral norms on people that aren't legal, because already you're starting point is that there isn't a reason for these people to change their behavior that they have to accept as a matter of right.

Edit2: And again, I'm not trying to give just my opinion on this, but the textbook version of int'l law on all of this, and why it's the textbook version and not some other alternative. There's a strong distaste for rootless "morality" sticking its head in and trying to muck around with things, a disgust burned into people's minds by awful historical experience.

theBlackman on 12/12/2009 at 01:19

---

I enjoy even more, watching a person with no real knowledge trying to defend a emotional position against the facts in evidence. :ebil: