This post is a response to Helen Kinsella’s article and summary in The International Origins of Political and Social Theory, eds. Tarak Barkawi and George Lawson. 

Both in her contribution to The International Origins collection and in her blog post, Helen Kinsella makes a powerful case that the development of the prohibitions against superfluous injury and unnecessary suffering marked a sea-change for the laws of war, where the partisans of national wars of liberation were able to push back against imperialism and make claims as to the justice of their quests against colonialism and imperialism. Kinsella makes the case in rich, detailed analysis paired with original detail and argumentation in a way that makes it not only important but also nearly irreproachably argued. Kinsella strikes a careful but difficult balance of looking for justice in claims to war legitimation without looking to give credence to the legitimacy of any war. Kinsella celebrates the positive distributive aspects of the development of this principle without ignoring either the shortcomings of the individual principle or the shortcomings of the laws of war more generally.

Still, as I read the post especially, I feel again as I have before that threshold arguments for the acceptability of violence leave something to be desired, both theoretically and in practice. I am not arguing against threshold arguments for pacifist reasons – I don’t believe that non-violence is necessarily possible, let alone the answer to the problems that plague war ethics debates. At the same time, I have always been concerned that normative and practical measures that normatively condemn some violence while not condemning all violence implicitly and practically valorize the violence that remains not condemned.

It is this position (among others) that Kinsella is taking issue with when she suggests that the laws of war do not only reify and facilitate acts of war, but also transgress against them, particularly in the situation of this principle. While, in many ways, Kinsella’s argument is well-taken (and I too see no absolutes, especially in the reification/transgression debate in theorizing about the laws of war), I see two fairly well-rehearsed problems, and then potentially a new one.

The first well-rehearsed problem is the fact the spirit of the law and the letter of the law are not mutually-binding: while the law against superfluous violence may have originated and been intended as a principle that protected the just in wars of liberation from the unjust who perpetrated horrors on them, the idea of what constitutes “enough” violence (and therefore what is superfluous) could imaginably be deployed in favor of the imperial against the recently decolonized, e.g., when used to support the reasoning for particular counterterrorism strategies, where the word ‘enough’ does not seem to have a consistent signification.

The second well-rehearsed problem is that we do not have a great tool with which to approach the cost-benefit analysis of the reification in the laws of war other authors note and Kinsella acknowledges against the anti-imperial, anti-colonial implications of this particular principle. Is more reified than transgressed? Does the transgressive potential of the principle have the chance to make real change in the future, either on drones or in some other way? Should the judgment, as such, be made in whole or on the parts, consequentially or deontologically? If there is not a judgment to be had, how is this contextualization to be read or signified?

My third problem is currently underdeveloped, but somewhat related. I agree with Kinsella’s argument that this principle is, at least in some ways, a ‘win’ for the ‘good guys’ – but, as briefly hinted at above, think that the normative categories of unjustified/unjustifiable violence and justified/justifiable violence are themselves permissive. While it seems like a semantic distinction, I think that there is something important to calling, and understanding, even justified/justifiable violence wrong. Its not that the violence in these categories is morally clean or good or even acceptable because it meets the criteria laid out in the laws of war. Instead (I contend), it remains morally wrong – simply less wrong than the violence or injustice that inspired it. In a world where the laws of war make the justified/unjustified distinction instead of something more morally (or even legally) nuanced, the prohibition against superfluous violence and unnecessary suffering constitutes progress balancing the scales that equate power and justice in the international arena. At the same time, this principle suggests yet another reason why that dichotomy is a bad idea: in my view, it is important to recognize the relative justice of the violence of the oppressed against the oppressor, while maintaining a clear understanding of its absolute injustice.