In this ongoing discussion of jus contra bellum, I was originally going to focus this post on The Challenge of Peace: God’s Promise and Our Response, the pastoral letter on nuclear war and deterrence published by the National Conference of Catholic Bishops in May 1983. However, as I went through my material, I realized that an intermediate step was necessary. It was clear – whether one read James Turner Johnson’s 2006 article on the “state of the just war question,” George Weigel’s 2009 critique of President Obama’s Nobel Peace Prize speech in Oslo, or Kristopher Norris’ just-released (and well-crafted) article in the Journal of Religious Ethics on “functionalism pacifism” in the Catholic just war tradition – that any discussion of either The Challenge of Peace, or for that matter, as I wrote in the initial post, “[the shrinking of] just war theory into a set of in bello and prudential-focused ad bellum ‘hurdles’ or ‘tests’,” required a closer look into the work of James F. Childress.
Hearkening from a Quaker background, Childress, a long-time professor of religion and ethics at University of Virginia, began his career with doctoral work at Yale (1968) on theological and philosophical justifications of civil disobedience. After moving to UVA and publishing some of his dissertation material in an article for the inaugural 1973 issue of Journal of Theological Ethics, Childress served a multi-year position as the Joseph P. Kennedy Sr. Professor of Christian Ethics at Georgetown University. At that time, he began to shift his attention to, as he explained it in the late 1990s, “the shared starting point of proponents of nonviolence, including pacifists, and proponents of justified violence.” (216) Indeed, it was at Georgetown that Childress published his 1979 Theological Studies article, “Just War Theories: The Bases, Interrelations , Priorities and Functions of their Criteria,” which is cited by many as a key influence on the debate preceding the issuance of the 1983 pastoral letter. The remainder of this post, then, examines the thrust of Childress’ argument in “Just War Theories,” in anticipation of an upcoming post on The Challenge of Peace.
Childress begins by outlining the traditional jus ad bellum and jus in bello criteria, but with a few of his own adjustments. Besides the well-established ad bellum criteria of legitimate authority, just cause, right intention, last resort, reasonable chance of success, and proportionality, Childress adds to this list “announcement of intention.” (428) And strikingly, Childress’ centers his discussion of jus in bello on a single criterion: “just conduct.” He equates “just conduct” with intention and proportionality – categories which, he insists (in an overly-confusing way, I would argue) are “part of the jus ad bellum,” (428) but also “very important in particular battles, engagements, and acts within war and not merely for the war as a whole.” (438) It seems to me that an acknowledgement of the strategic and tactical levels of warfare ameliorates the article’s confusion on this point . There is the statesmen’s right intention, and the proper intentions of, to use Rear Admiral J.C. Wylie’s phrase, “the man on the scene with the gun.” Similarly, there is macro-proportionality – the statesmen’s assessment as to whether the anticipated good of war-as-an-instrument-of-politics outweighs the harm or injury that will transpire – and there is micro-proportionality, the determination at the level of military operations and tactics as to whether the good that will come out of a specific military action will offset the expected injury.
Childress introduces the article’s central thesis with an observation: why does one find the use of analogues of just war criteria in a number of situations not always tied directly to war, including revolution, tyrannicide (using Bonhoeffer as the primary example), boycotts, or other forms of civil disobedience (and, although he doesn’t mention them, I would add policing and whistleblowing)? (428-429) While some suggest that it is because all of them involve types or levels of coercion and force, or at least the possibility of such, Childress argues that it’s really because they all concern conflicts between competing prima facie obligations or duties. Applying the work of 20th century Oxford moral philosopher and British intuitionist Sir William David (“W.D.”) Ross, Childress distinguishes between absolute, relative and prima facie obligations or duties. Absolute obligations are those which “cannot be overridden under any circumstances,” relative obligations are without any prescriptive hold, and prima facie obligations are those which are “intrinsically binding,” but upon evaluation or reflection, may be overridden in the face of other, more “stringent” prima facie obligations. And Childress points out that when one goes to justify one’s decision to overrule one prima facie obligation for another, one turns to reasoning that closely tracks with the traditional just war criteria: one needs a just cause, one needs to balance anticipated good and expected harm, one should consider the character of one’s intentions, etc. Some examples of W.D. Ross’ prima facie obligations include (but are not limited to) gratitude, justice, and fidelity; however, the one Childress is most concerned about is nonmaleficence, or the prima facie duty not to harm or injure others. (429-430)
Childress follows Ross in arguing that the injuring or killing of another individual – both of which are part and parcel of warfare — are “intrinsically prima facie wrong” given the prima facie obligation of nonmaleficence. (430-431) The setting-aside of nonmaleficence for other prima facie duties or responsibilities, therefore, requires a justification. Additionally, a set-aside, prima facie obligation does not just disappear or evaporate. Instead, it has a lingering, prescriptive hold on the one doing the overriding. Hence, throughout the remainder of the article, Childress shows how the just war tradition and its criteria have arisen out of both the “implications” of this need to justify nonmaleficence’s setting-aside, and the continuing influence of nonmaleficence’s “traces” or “residual effects” on the acts involved in the setting-aside. (431-433) In Childress’ argument, for example, just cause reflects the fact that nonmaleficence can only override a competing prima facie obligation that is “serious and weighty.” (436). Or, for another example, take discrimination – one of the two core criteria of jus in bello. Childress would argue that the reasoning behind discriminating between those who may be directly targeted and those who may not can be explained as both a “residue” of set-aside nonmaleficence and the ongoing, prescriptive requirement of prima facie obligations like justice and beneficence. (434, 440) As stated earlier, one should keep in mind distinction between strategy and tactics while reading the remainder of Childress’ article, as he often moves back and forth between examples of the setting-aside of nonmaleficence at the level of the statesman and/or “lesser magistrates” (i.e. jus ad bellum), and its setting-aside at the tactical level for military advantage (i.e. jus in bello).
This, then, is the origin of the charge that just war theory has, at its core, a “presumption against war” – a charge spotlighted with the 1983 The Challenge of Peace and the attendant debate over “functional pacifism” or “Christian pacifism” in the just war tradition. Because war’s constituent ingredients are killing and/or physical harm, and because, in Childress’ argument, those two things are “intrinsically prima facie wrong” because of the prima facie obligation of nonmaleficence, war itself is prima facie wrong. Therefore, for Childress – and those who follow him – just war theory has evolved out of the need to justify the overriding of nonmaleficence but begins with the presupposition of war’s prima facie wrongness.