The Humanitarian theory of punishment, philosophy homework help


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Canadian Journal of Philosophy Innocence and Responsibility in War Author(s): Lionel K. McPherson Source: Canadian Journal of Philosophy, Vol. 34, No. 4 (Dec., 2004), pp. 485-506 Published by: Canadian Journal of Philosophy Stable URL: . Accessed: 22/01/2014 10:58 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact . Canadian Journal of Philosophy is collaborating with JSTOR to digitize, preserve and extend access to Canadian Journal of Philosophy. This content downloaded from on Wed, 22 Jan 2014 10:58:14 AM All use subject to JSTOR Terms and Conditions CANADIAN JOURNAL OF PHILOSOPHY Volume 34, Number 4, December 2004, pp. 485-506 485 Innocence andResponsibility in War1 LIONELK. McPHERSON TuftsUniversity Medford,MA 02155 USA I The Question of Moral Innocence Innocenceis a notion that can prove controversial.Claimsof innocence typically support not imposing burdens on the innocent when their conductis relevantlyunobjectionable.Thispaperexaminesinnocencein the contextof violent conflictbetween states or groups. Many thinkers about the morality of such violence want to establish a principle that would protect innocent civilians. Yet the common view in just war theory does not affirm the moralinnocence of civilians. Similarly,the common view that soldiers have an equal right to kill does not affirm theirequal moralculpability. Talk of innocence usually starts from the idea that a kind of moral appraisalmakes sense. We assume that persons can be innocent or not by virtue largely of the choices they have made. I will accept this assumption and set aside metaphysicaldoubts about our capacity for freedom. Thereis, of course, no issue of moral innocence if in fact we cannotbe morallyresponsiblefor our actions. 1 I owe much to Erin Kelly for our many discussions on just war theory and for her help in thinking about this paper. I also would like to thank Jeff McMahan for his incisive comments; the Harvard University Center for Ethics and the Professions for its generous fellowship support and for stimulating discussion with the Center's fellows, especially Alon Harel and Michelle Mason; the National Endowment for the Humanities for a summer grant to complete a draft of this paper; Whitley Kaufman for his cautionary criticism; and the referees of this journal for their helpful suggestions. This content downloaded from on Wed, 22 Jan 2014 10:58:14 AM All use subject to JSTOR Terms and Conditions 486 LionelK. McPherson I defend a view of innocence in war that maintains a connection between innocence and the absence of moral culpability.Personsmay warrant criticism or the denial of rights or liberties because of their conduct.Justificationforimposingtheseburdenswould lie with the goal of ending or remedyingwrongs, provided that the persons targetedare not innocent.I will contrastinnocencenot with guilt but with 'noninnocence';the language of guilt and innocence can be misleading since it brings to mind an unqualifiedcontrastbetween being culpable or not. We should recognizethatpersonsmay be noninnocentto the degreethat they bear moralresponsibilityfor relevantwrongs. With regardto war, the partially noninnocent make up a much larger class than the fully noninnocent. My focus in this paperis on soldiers,not civilians.Themain argument is that ordinary combatants generally may be innocent or partially noninnocent. When they are innocent and on the side of a just war, attackingthem is not morallypermissible.Thisposition runscontraryto the common view that although ordinarycombatantsare not morally responsiblefor the war they fight, they are legitimatetargetsof attack.I arguethatlegitimatetargetsareavailableonly forcombatantson the side of a just war. By 'justwar' I mean foremosta war fought for a just cause, as compared to a just or morally respectable aim that may not be sufficientfor a just cause for war.2 II Harmfulness and the Common View The common view in just war theory designates as innocent certain classes of people - typically,civilians- it holds should not be harmed. Thomas Nagel and Michael Walzer give accounts of this sort. Their arguments appear to be backed by the weight of judgments of moral innocence yet turn out to be in tension with such judgments. While ElizabethAnscombe's account is often linked with the common view because of her stancetoward civilians,she believes that assigninginnocence in war does involve moralevaluation. Nagel defends non-utilitarianmoral restrictionson conduct in war.3 One such restrictionis thatpeople who are innocentcannotdeliberately 2 This distinction between a 'just cause' and a 'just aim' follows Jeff McMahan and Robert McKim, 'The Just War and the Gulf War/ CanadianJournalof Philosophy23 (1993), 502. 3 Thomas Nagel, 'War and Massacre/ in InternationalEthics, Charles R. Beitz et al., eds. (Princeton: Princeton University Press 1985), 56. He admits the possibility of This content downloaded from on Wed, 22 Jan 2014 10:58:14 AM All use subject to JSTOR Terms and Conditions Innocenceand Responsibilityin War 487 be harmed. We reasonably take this restrictionto apply to innocent civilianson both sides at war and anywhereelse. Butthe restrictiondoes not tell us whethercertainpersonscount as innocenton moralgrounds. If these persons are not morally innocent,the presumptionsupporting theirimmunityto deliberateattackis less obvious. The common view of who counts as innocent and why deliberately harming them is prohibitedmight be motivated as follows. A central goal of just war theory is to keep injuryand loss of life to a minimum when war cannotor will not be avoided. We startby acknowledgingthe realityof war, which is also to acknowledgea class of personswhose job is to do the fighting.Some of them will be injuredor killed in their role as combatants:this is inherentto war. Harmto noncombatants,though an expectedbyproductof modernwarfare,is not inherentto war. Since noncombatantsare not directparticipantsin war, they are supposed to lie outside the acceptablebounds of warfare.This judgment could be markedby the claim that noncombatantsare innocent.Theirinnocence in war would translateinto theirhaving a fundamentallydifferentmoral status than combatants. Moralinnocence,accordingto Nagel, is not relevantsince many of the moralflaws people have are irrelevantto the appraisalsof just conduct in war. He argues that 'in the definition of murder "innocent"means "currentlyharmless,"and it is opposed not to "guilty" but to "doing harm"....So we must distinguish combatantsfrom noncombatantson the basis of theirimmediatethreator harmfulness/4Materiallyinnocent persons, whether or not they are morally blameless for the fighting of others, do not themselves harm anyone. As one critic describes the position,'Innocenceand guilt are therebyemptied of moralcontentand become simply synonymous with the roles of [civilian and soldier] in war, making the role of combatantsufficientfor specifying who is and who is not a legitimate target of deliberateattack/5This distorts our ordinaryunderstandingof innocence. Persons, including soldiers, do not lose theirinnocencein any crediblesense simply by being an immediate threat to agents of unjust aggression. extreme circumstances that compel, but do not justify, violating absolutist restrictions (ibid., 66-7). 4 Ibid., 69-70 5 Gabriel Palmer-Fernandez, 'Innocence in War/ InternationalJournalof Applied Philosophy14 (2000), 164. A similar point about the moral arbitrariness of the combatant-noncombatant distinction is made by George I. Mavrodes, 'Conventions and the Morality of War/ in Beitz, InternationalEthics. This content downloaded from on Wed, 22 Jan 2014 10:58:14 AM All use subject to JSTOR Terms and Conditions 488 LionelK. McPherson While Nagel welcomes the rhetoricalforce of the language of moral innocence, he renounces the moral content of that language, which is connected to moral responsibility.It is true thatmoral innocencealone does not tell us who can and cannotlegitimatelybe attackedin war;for example, the efficacy of an attack in promoting a just cause is also relevant.Nagel's notionof innocence,however,refersto a classof people who cannot legitimately be attacked, where this is determined on groundsentirelyseparatefrommoralresponsibility,namely,immediate harmlessness.If the position is that harmlesspeople should not be attacked,this canbe statedwithout relyingupon judgmentsof innocence. Walzer,like Nagel, understandsinnocencepartly as an issue of permissible treatment of persons depending on their roles. But Walzer seems to think that moral innocenceis relevant.'Innocent/ he states, is 'a term of art which means that [persons]have done nothing, and are doing nothing,thatentailsthe loss of theirrights/6Thelanguageof rights suggests here an ordinarynotion of noninnocenceand its consequences. Persons who deliberatelyand unjustly harm or support those who so harmotherswould be morallynoninnocent.Thesenoninnocentpersons may lose their moral right to life or libertyif this is prerequisiteto end grave harmsfor which they bear some responsibility.Such a position is plausible. In contributingto an unjust war, persons may be morally noninnocentand thus not immuneto deliberateattack,thoughthey may not directlybear moral responsibilityfor the war itself. Yetthis line of thoughtbecomes a dead end on Walzer'sapproach.He finds that whether combatantsfight for a just cause does not matterin determiningtheirinnocence;combatantson both sides can legitimately be attackeddue to theirequalnoninnocence.Theapparentinconsistency is that combatantswho are fighting a just war are doing nothing,plausibly construed,that entails the loss of their moral rights. Theirmoral innocenceand morallypermissibleconductwould seem to rule out the possibility of legitimately attacking them in the service of an unjust cause.Thiswould representa limiton the moralgroundsforself-defense that Walzerdoes not ultimatelyaffirm.7 6 Michael Walzer, Just and Unjust Wars,3rd ed. (New York: Basic Books 1977), 146 7 Other writers, like Walzer, also do not recognize this limit on the legitimacy of self-defense. Some of them cite an unrestricted 'principle of self-defense' that would allow any persons to defend themselves against serious threats, regardless of the moral innocence of the attackers or the unjust cause that the defenders serve. See, e.g., Robert K. Fullinwider, 'War and Innocence/ in Beitz, InternationalEthics;and Lawrence A. Alexander, 'Self-Defense and the Killing of Noncombatants: A Reply to Fullinwider/ in Beitz, InternationalEthics.Against Fullinwider, Alexander argues This content downloaded from on Wed, 22 Jan 2014 10:58:14 AM All use subject to JSTOR Terms and Conditions Innocenceand Responsibilityin War 489 Anscombe's account appears more promising, for it truly encompasses a notion of moralinnocence.'Whatis required,for the people to be attackedto be noninnocentin the relevantsense/ she claims, 'is that they should themselvesbe engaged in an objectivelyunjustproceeding which the attackerhas the rightto makehis concern;or- the commonest case- shouldbe unjustlyattackinghim/8 Thisimplies thatpersonswho are not involved in causing unjustharms are innocent.On my reading of Anscombe,currentharmfulnessor simply being a combatantis not sufficientto establishnoninnocencein war. Combatantswould be innocentif they arefightinga justwar:theirconductis not morallyobjectionable. Innocentcombatants,as with innocent persons in general, could not legitimatelybe attackedby combatantson the side of an unjustcause. Some personswho are involved in causing unjustharmsare morally innocentas well, in thatthey arenot morallyblameworthy.Combatants may be blamelessly ignorantof why the war on their side is unjust or they may lack moral agency, say, because of brainwashing through propaganda. These 'innocent attackers' seem noninnocent in Anscombe'sobjectivesense and hence call fora qualificationto her account: not all of the noninnocentmust be morally noninnocent.9In addition, cases could arisewhere claims to immunity conflict,for instance,innocent civilians on the unjust side acting in self-defense against a just combatantwho unintentionallywould cause them harm. Anscombe might allow that determiningpermissibleconductsolely on the basis of moral innocence is not always possible.10Moral innocence would not fully explainwho can count as a legitimatetargetof attack. A more worryingissue is that Anscombedoes not spell out, except in the broadest terms, which types of activity are morally innocent and that the principle of self-defense does not necessarily prohibit the killing of noncombatants. Both Fullinwider and Alexander, however, basically take it for granted that an unrestricted principle of self-defense derives from a right to self-defense. 8 G.E.M. Anscombe, 'War and Murder/ in Ethics, Religion and Politics (Minneapolis: University of Minnesota Press 1981), 53 9 I have been assuming that what Anscombe regards as objectively unjust can be distinguished from what the rules of war as grounded in convention and international law specify as unjust. For criticism of the conventionalist grounding of the rules of war, see my "The Limits of the War Convention/ Philosophy & Social Criticism,forthcoming. 10 Jeff McMahan disagrees, claiming that Anscombe is committed to the position that morally innocent civilians would not be permitted to defend themselves against a just combatant in such a case ('Self-Defense and the Problem of the Innocent Attacker/ Ethics 104 [1994], 274-5). This content downloaded from on Wed, 22 Jan 2014 10:58:14 AM All use subject to JSTOR Terms and Conditions 490 LionelK. McPherson are why. She states that 'a very large numberof the enemy population * Innocence is in the life of the just engaged maintaining country.../ presented generally as the moral status of civilians. Whethernormal activities- e.g., voting for hawkish candidates,supportingwar initiatives through public affirmation,supplying goods to the military could morally implicate civilians in a war effort is a serious point of contention she hardly addresses. Her account is close to the common view of civilians, a view I am skeptical of, but I must leave extended discussion of civilian moral responsibilityfor anotheroccasion. I have argued so far that the distinctionbetween noncombatantsand combatantsis not a good guide for determininginnocenceand noninnocence. Nagel and Walzer fail to separatejudgments of innocencefrom theirconclusionsabouthow differentclassesof people shouldbe treated; theirconceptionof innocencein war comes at the expense of reasonable moral consistency about who can be targetedfor attackand why. Anscombe appearstornbetween this kind of approachand one guided by moralinnocence.The accountof innocencein war that I develop makes explicit why unjust combatantsgenerally are in no moral position to defend themselves againstjust combatants. Ill The Innocence of Just Combatants My approachto innocencein war depends on a relevantconceptionof moral innocence. Persons are noninnocent insofar as they bear some moral responsibilityfor wrongdoing through war; they are innocent otherwise.Call this the MoralAgency View. I distinguish three classes of people: the innocent,the partiallynoninnocent,and the fully noninnocent. The accountI give of who falls into these classes differssignificantly from commonjust war theory,and thereis good reasonto revise the common view. The innocentcannotbe construedas bearingany moralresponsibility for the cause of or the conductin a particularwar. They includepersons who have not contributedto the war effort,whether as membersof a side at war or of a third party. A nation and its people may be faulted fornot supportinga justcause,but this is differentfromthe criticismthat they arenoninnocentregardingwhy or how the war is fought.Individuals who lack the prerequisitesfor moral accountability,such as young childrenand the severelymentallyhandicapped,are also innocent;they 11 Anscombe, 'War and Murder/ 60 This content downloaded from on Wed, 22 Jan 2014 10:58:14 AM All use subject to JSTOR Terms and Conditions Innocenceand Responsibilityin War 491 are not autonomous moral agents. There is nothing controversialyet about the MoralAgency View. I have suggested, though, that the class of innocent people includes just combatants.They are morally innocent insofar as they fight a just war. In contrast,common just war theory claims that combatants,as combatants,arenot innocentin the relevantsense. The common view is hard to maintain.Considerthe case of combatantswho are defending their nation against unprovoked, expansionist aggression. Their groundsfor fightingarejust.The commonview deems this irrelevantto the question of their innocence, since combatantsas such must be allowed to fighteachother.Thispositionhas no analogoutside the context of war. In the civil case, a previously innocent person who defends himself or innocent others against an unjust assault does not thereby become noninnocentalong with the assaulter.Unjustassaulterscannot fight back in the brute name of self-defense.The grounds for fighting matter.Although the state of mind of an unjust assaultermay make a differenceto moral evaluation of his actions - perhaps he mistakenly believes he is repellinga violent, criminalthreat- this differencemay mitigatehis moralresponsibilitywithout morallyabsolvinghim. Common just war theory needs a credible explanation of why war is a fundamentally different kind of case.12Concern to minimize harms overall in war should not be divorced from considerationsof responsibility. The key is supposed to be the distinctionbetween jus ad helium,or justiceof war, and/us in hello,orjusticein war. I takeWalzer'sinfluential account largely to represent common just war theory. According to Walzer,combatantsbear some moral responsibilityfor justice in war, that is, for how they fight. The war conventionspells out certainrules, forexample,civiliansareneverto be targetedforattack.Suchrulesapply to combatants,and theirduty to follow these rulescannotbe negatedby 12 It has been argued that a fundamental difference lies in a distinction between an individual moral perspective and a collective moral perspective. See Noam Zohar, 'Collective War and Individualistic Ethics: Against the Conscription of "Self-Defense/" Political Theory 21 (1993) 606-22. According to Zohar, 'Analogies that proceed directly from relations among individuals to the realm of relations among states, without emphasizing the two disparate perspectives involved, produce more confusion than illumination' (619). While I share some of his skepticism about the applicability of a refined account of individual self-defense to the case of war, I do not find plausible his account of 'the dual character of our moral vision' (619). My reason, in short, is that I do not think collectivities are essentially so different from the individuals who comprise them - at least, not so different as to entail two different kinds of morality. This content downloaded from on Wed, 22 Jan 2014 10:58:14 AM All use subject to JSTOR Terms and Conditions 492 LionelK. McPherson orders from their superiors. But combatants typically do not bear any moral responsibility for the justice of the war they fight: whether the war has a just ...
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The Humanitarian theory of punishment

The capital punishment thing in England and the whole of Europe has been under controversy as it
does not give any source of information. Besides, advice on to whether the people found not innocent should
be made to face the hangman or just helped into living lives that are better and transformed for the
betterment of the society as a whole. The repentance by the wrong doers or those found guilty could likely
help them transform rather than having them to face jail for thirty years or even life imprisonment
(Thompson, 2013). The humanitarian theory is thought to be merciful and moral as the formulators as well
as country have an argument that killing someone because they have done something wrong or having them
face capital punishment is more or revenge than provision of correction to the wrong doer. This is therefore
at the end considered to be immoral and against the rights of people. The act is also considered and seen to
be barbaric as much as the person deserves it.
When this theory is combined with some other arguments that crime is more of pathology rather
than the will of those doing the crimes. It is also argued that most of the crimes that happen especially in
the states are as a result of influence and that some people end up engaging in these activities because of
the way the environment that fathered them was set up. This leads to the fact that the idea of curbing crimes
and criminal activities should be based on the fact that it is therapeutic (Thompson, 2013). The people
considered as bad or evil in the society could still be offered a shoulder to lean on instead of having to treat
them like outcasts and people who are doomed. This kind of treatment will only make them feel secluded
and therefore trigger them into engag...

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