David Rodin
- Published in print:
- 2002
- Published Online:
- January 2005
- ISBN:
- 9780199257744
- eISBN:
- 9780191601811
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199257744.001.0001
- Subject:
- Philosophy, Political Philosophy
This book explores the moral response to war and aggression within the context of self-defence. Two main projects are undertaken: to explain defensive rights in their most general form, and determine ...
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This book explores the moral response to war and aggression within the context of self-defence. Two main projects are undertaken: to explain defensive rights in their most general form, and determine whether this explanation can be used as grounds for a right of national self-defence. It contends that although a coherent account of self-defence can be built around the idea of personal rights, the attempt justify war based on the conception of self-defence faces significant obstacles and ultimately fails. Self-defence has significant consequences for the entire enterprise of normative international relations, given its position as the centrepiece of the modern jus ad bellum (the rules specifying the conditions for a just war).Less
This book explores the moral response to war and aggression within the context of self-defence. Two main projects are undertaken: to explain defensive rights in their most general form, and determine whether this explanation can be used as grounds for a right of national self-defence. It contends that although a coherent account of self-defence can be built around the idea of personal rights, the attempt justify war based on the conception of self-defence faces significant obstacles and ultimately fails. Self-defence has significant consequences for the entire enterprise of normative international relations, given its position as the centrepiece of the modern jus ad bellum (the rules specifying the conditions for a just war).
Uwe Steinhoff
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199217373
- eISBN:
- 9780191712470
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217373.003.0005
- Subject:
- Political Science, Political Theory
This chapter tackles the question of why soldiers, allegedly, are legitimate targets and civilians not. Four approaches to the explanation of the difference are discussed: the moral guilt theory, the ...
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This chapter tackles the question of why soldiers, allegedly, are legitimate targets and civilians not. Four approaches to the explanation of the difference are discussed: the moral guilt theory, the convention theory, the self-defence theory, and the justifying emergency theory. All these approaches have a valid moral principle at heart, but are nevertheless misleading in that they raise their respective principle to the status of the absolute. The chapter outlines how a comparative weighting of the principles can proceed if applied to concrete cases. The resulting approach does not square the distinction between legitimate and illegitimate targets with the distinction between soldiers and civilians; this has extremely important consequences for the conduct of war.Less
This chapter tackles the question of why soldiers, allegedly, are legitimate targets and civilians not. Four approaches to the explanation of the difference are discussed: the moral guilt theory, the convention theory, the self-defence theory, and the justifying emergency theory. All these approaches have a valid moral principle at heart, but are nevertheless misleading in that they raise their respective principle to the status of the absolute. The chapter outlines how a comparative weighting of the principles can proceed if applied to concrete cases. The resulting approach does not square the distinction between legitimate and illegitimate targets with the distinction between soldiers and civilians; this has extremely important consequences for the conduct of war.
Justin Morris
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199265206
- eISBN:
- 9780191601866
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199265208.003.0016
- Subject:
- Political Science, International Relations and Politics
In this final chapter, The author asks whether the shift from a multipolar to unipolar society of states has led to normative change in international society, using the norm prohibiting the use of ...
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In this final chapter, The author asks whether the shift from a multipolar to unipolar society of states has led to normative change in international society, using the norm prohibiting the use of force as a case study, and arguing that although material changes in international society do have an impact, the norms that underpin international society are not infinitely malleable and constrain even powerful actors like the USA. He begins his chapter with a discussion of the relationship between power and norms, which reinforces the linkages between English School of International Relations and constructivist approaches identified in Ch. 4 by Reus‐Smit. The author dismisses the realist and materialist arguments that norms play, at most, a peripheral role in international life, by arguing that even powerful states prefer to act in accordance with international rules. In relation to the use of force, he argues that it is very difficult to find a case since 1945 where a state has not sought to justify its use of force with reference to the rules governing that discussion. After charting the evolution of norms pertaining to the use of force and the globalization of international society, he turns to the post‐September 11 era, arguing that although the USA continues to follow the rules to a large extent, its attempt to act as a ‘normative innovator’ by claiming an exceptional right to self‐defence poses a grave danger to both the UN and the system of law that underpins the society of states.Less
In this final chapter, The author asks whether the shift from a multipolar to unipolar society of states has led to normative change in international society, using the norm prohibiting the use of force as a case study, and arguing that although material changes in international society do have an impact, the norms that underpin international society are not infinitely malleable and constrain even powerful actors like the USA. He begins his chapter with a discussion of the relationship between power and norms, which reinforces the linkages between English School of International Relations and constructivist approaches identified in Ch. 4 by Reus‐Smit. The author dismisses the realist and materialist arguments that norms play, at most, a peripheral role in international life, by arguing that even powerful states prefer to act in accordance with international rules. In relation to the use of force, he argues that it is very difficult to find a case since 1945 where a state has not sought to justify its use of force with reference to the rules governing that discussion. After charting the evolution of norms pertaining to the use of force and the globalization of international society, he turns to the post‐September 11 era, arguing that although the USA continues to follow the rules to a large extent, its attempt to act as a ‘normative innovator’ by claiming an exceptional right to self‐defence poses a grave danger to both the UN and the system of law that underpins the society of states.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.003.0011
- Subject:
- Political Science, Political Theory
In a legal system based on pure restitution and self‐defence combined with enhanced reliance on several property and freedom of contract, the ability to effectively prevent crime rather than deter ...
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In a legal system based on pure restitution and self‐defence combined with enhanced reliance on several property and freedom of contract, the ability to effectively prevent crime rather than deter its commission by ex‐ post punishment is greatly enhanced. Unlike public property, several property creates incentives to invest in crime prevention and the ability to exclude dangerous persons before they can act. Freedom of contract makes possible far more responsive law enforcement agencies than can be provided by a coercive monopoly. While pure restitution will not ‘deter’ all criminal behaviour, it is a fallacy to believe that increased deterrence invariably or logically follows, increasing the severity of punishment. Restitution increases the incentives to catch and prosecute defendants, thus increasing the rate at which legal sanctions are imposed.Less
In a legal system based on pure restitution and self‐defence combined with enhanced reliance on several property and freedom of contract, the ability to effectively prevent crime rather than deter its commission by ex‐ post punishment is greatly enhanced. Unlike public property, several property creates incentives to invest in crime prevention and the ability to exclude dangerous persons before they can act. Freedom of contract makes possible far more responsive law enforcement agencies than can be provided by a coercive monopoly. While pure restitution will not ‘deter’ all criminal behaviour, it is a fallacy to believe that increased deterrence invariably or logically follows, increasing the severity of punishment. Restitution increases the incentives to catch and prosecute defendants, thus increasing the rate at which legal sanctions are imposed.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.003.0009
- Subject:
- Political Science, Political Theory
The compliance problem concerns conduct that conflicts with the rights that define justice or the requirements of the rule of law; it is the need to close the gap between the conduct that justice and ...
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The compliance problem concerns conduct that conflicts with the rights that define justice or the requirements of the rule of law; it is the need to close the gap between the conduct that justice and the rule of law requires and what people perceive to be in their interest to do. Though some perceptions of conflict between justice and interest are illusory and can be resolved by a better appreciation of one's true interest or the limits of justice, genuine gaps between justice and interest can be caused by emergency conditions or by the desire for pecuniary gain or psychological gain. Usually, the gap between justice and interest is closed by the processes of socialization. Residual gaps between justice and interest can be ameliorated by the use or threatened use of force or power in advance of, during (by self‐defence), or after a rights violation. How a system of restitution could be implemented as an alternative to punishment is examined.Less
The compliance problem concerns conduct that conflicts with the rights that define justice or the requirements of the rule of law; it is the need to close the gap between the conduct that justice and the rule of law requires and what people perceive to be in their interest to do. Though some perceptions of conflict between justice and interest are illusory and can be resolved by a better appreciation of one's true interest or the limits of justice, genuine gaps between justice and interest can be caused by emergency conditions or by the desire for pecuniary gain or psychological gain. Usually, the gap between justice and interest is closed by the processes of socialization. Residual gaps between justice and interest can be ameliorated by the use or threatened use of force or power in advance of, during (by self‐defence), or after a rights violation. How a system of restitution could be implemented as an alternative to punishment is examined.
Victor Tadros
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199554423
- eISBN:
- 9780191731341
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199554423.001.0001
- Subject:
- Law, Criminal Law and Criminology, Philosophy of Law
Victor Tadros sets out to defend the ‘duty view’ of punishment. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most ...
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Victor Tadros sets out to defend the ‘duty view’ of punishment. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognise that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognise that what they have done is wrong, but also to protect others from crime. Hence, the book offers a defence not only of a communicative view of punishment but also of general deterrence as central to the justification of punishment. This view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. The book offers the most systematic exploration of the relationship between self-defence and punishment to date and makes significant progress in defending a plausible set of non-consequentialist moral principles. It also critically explores other theories of punishment, including retributivism and purely communicative theories, identifying unexamined deficiencies in these theories.Less
Victor Tadros sets out to defend the ‘duty view’ of punishment. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognise that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognise that what they have done is wrong, but also to protect others from crime. Hence, the book offers a defence not only of a communicative view of punishment but also of general deterrence as central to the justification of punishment. This view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. The book offers the most systematic exploration of the relationship between self-defence and punishment to date and makes significant progress in defending a plausible set of non-consequentialist moral principles. It also critically explores other theories of punishment, including retributivism and purely communicative theories, identifying unexamined deficiencies in these theories.
Stephen Shute and Andrew Simester (eds)
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780199243495
- eISBN:
- 9780191714177
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199243495.001.0001
- Subject:
- Law, Criminal Law and Criminology
Written by philosophers and lawyers from the United States and the United Kingdom, this collection of original essays offers new insights into the doctrines that make up the general part of the ...
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Written by philosophers and lawyers from the United States and the United Kingdom, this collection of original essays offers new insights into the doctrines that make up the general part of the criminal law. It sheds theoretical light on the diversity and unity of the general part and advances our understanding of such key issues as criminalisation, omissions, voluntary actions, knowledge, belief, reckelssness, duress, self-defence, entrapment and officially-induced mistake of law.Less
Written by philosophers and lawyers from the United States and the United Kingdom, this collection of original essays offers new insights into the doctrines that make up the general part of the criminal law. It sheds theoretical light on the diversity and unity of the general part and advances our understanding of such key issues as criminalisation, omissions, voluntary actions, knowledge, belief, reckelssness, duress, self-defence, entrapment and officially-induced mistake of law.
Suzanne Uniacke
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780199233137
- eISBN:
- 9780191716270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199233137.003.0004
- Subject:
- Political Science, Political Theory
This chapter provides a general, philosophical account of the use of harmful force in self-defence as a type of retaliation. It argues that pre-emption — the use of harmful force for prevention — is ...
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This chapter provides a general, philosophical account of the use of harmful force in self-defence as a type of retaliation. It argues that pre-emption — the use of harmful force for prevention — is not an act of self-defence. The associations between the concepts of retaliation, self-defence, and pre-emption are discussed.Less
This chapter provides a general, philosophical account of the use of harmful force in self-defence as a type of retaliation. It argues that pre-emption — the use of harmful force for prevention — is not an act of self-defence. The associations between the concepts of retaliation, self-defence, and pre-emption are discussed.
David Rodin
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780199233137
- eISBN:
- 9780191716270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199233137.003.0007
- Subject:
- Political Science, Political Theory
This chapter argues that there are profound moral problems with the doctrine of preventive war. The consequentialist approaches to preventive war are first examined. The chapter then examines whether ...
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This chapter argues that there are profound moral problems with the doctrine of preventive war. The consequentialist approaches to preventive war are first examined. The chapter then examines whether preventive action can be viewed as a legitimate component of the right of self-defence, and argues that it cannot. The right of self-defence has historically been grounded in a number of different theoretical justifications, including those that invoke a conception of psychological necessity and those that invoke human rights. On neither of these theories, however, can preventive self-defence be justified.Less
This chapter argues that there are profound moral problems with the doctrine of preventive war. The consequentialist approaches to preventive war are first examined. The chapter then examines whether preventive action can be viewed as a legitimate component of the right of self-defence, and argues that it cannot. The right of self-defence has historically been grounded in a number of different theoretical justifications, including those that invoke a conception of psychological necessity and those that invoke human rights. On neither of these theories, however, can preventive self-defence be justified.
David Luban
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780199233137
- eISBN:
- 9780191716270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199233137.003.0008
- Subject:
- Political Science, Political Theory
This chapter responds to some objections to an earlier argument that proposed a theory of preventive war. This theory sought to assimilate preventive war to self-defence, but only under restricted ...
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This chapter responds to some objections to an earlier argument that proposed a theory of preventive war. This theory sought to assimilate preventive war to self-defence, but only under restricted conditions; it argued against a general rule permitting states confronting distant or immature threats to launch preventive wars, on the ground that such a permission would license too many wars; it also argued that a more restricted principle, permitting preventive wars against rogue states where the distant threat involves weapons of mass destruction (WMD), can be justified; and also it stated that the permission to launch preventive war is nonproxyable; and finally it argued that the threat a rogue state poses must be a physical threat against the homeland of the state launching a preventive war. The chapter elaborates aspects of the theory that were obscurely stated or underdeveloped in the first go-around. It focuses on the so-called ‘rights objection’ that launching preventive war is wrong because it inflicts death and destruction on people who have done nothing to forfeit their rights against such violence.Less
This chapter responds to some objections to an earlier argument that proposed a theory of preventive war. This theory sought to assimilate preventive war to self-defence, but only under restricted conditions; it argued against a general rule permitting states confronting distant or immature threats to launch preventive wars, on the ground that such a permission would license too many wars; it also argued that a more restricted principle, permitting preventive wars against rogue states where the distant threat involves weapons of mass destruction (WMD), can be justified; and also it stated that the permission to launch preventive war is nonproxyable; and finally it argued that the threat a rogue state poses must be a physical threat against the homeland of the state launching a preventive war. The chapter elaborates aspects of the theory that were obscurely stated or underdeveloped in the first go-around. It focuses on the so-called ‘rights objection’ that launching preventive war is wrong because it inflicts death and destruction on people who have done nothing to forfeit their rights against such violence.
Noam Lubell
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199584840
- eISBN:
- 9780191594540
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199584840.003.0003
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the conditions and rules attached to the exercise of self-defence, with particular reference to circumstances involving non-state actors. The requirement of necessity is shown ...
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This chapter examines the conditions and rules attached to the exercise of self-defence, with particular reference to circumstances involving non-state actors. The requirement of necessity is shown to have added importance in measures against non-state actors. Also examined are the question of a threshold for an attack to be considered an armed attack triggering self-defence, and the concept of accumulation of attacks. The possibility of pre-emptive or anticipatory self-defence against non-state actors is analysed, as is the proportionality of self-defence.Less
This chapter examines the conditions and rules attached to the exercise of self-defence, with particular reference to circumstances involving non-state actors. The requirement of necessity is shown to have added importance in measures against non-state actors. Also examined are the question of a threshold for an attack to be considered an armed attack triggering self-defence, and the concept of accumulation of attacks. The possibility of pre-emptive or anticipatory self-defence against non-state actors is analysed, as is the proportionality of self-defence.
Alia Brahimi
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199562961
- eISBN:
- 9780191595059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562961.003.0002
- Subject:
- Political Science, Political Theory, International Relations and Politics
The Bush administration argued vigorously that the 2003 Iraq war was just. The war's critics similarly invoked the language and concepts of the just war tradition to register their opposition. These ...
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The Bush administration argued vigorously that the 2003 Iraq war was just. The war's critics similarly invoked the language and concepts of the just war tradition to register their opposition. These arguments are explored in the context of seven jus ad bellum criteria: just cause, right authority, right intention, goal of peace, proportionality, last resort, and reasonable hope of success. It is argued that the main source of controversy arose from the Bush administration's shift away from the more narrow, modern understanding of the just war by making arguments which rested on the broader moral tradition of the just war and the larger moral agenda of the ‘war on terror’.Less
The Bush administration argued vigorously that the 2003 Iraq war was just. The war's critics similarly invoked the language and concepts of the just war tradition to register their opposition. These arguments are explored in the context of seven jus ad bellum criteria: just cause, right authority, right intention, goal of peace, proportionality, last resort, and reasonable hope of success. It is argued that the main source of controversy arose from the Bush administration's shift away from the more narrow, modern understanding of the just war by making arguments which rested on the broader moral tradition of the just war and the larger moral agenda of the ‘war on terror’.
Alia Brahimi
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199562961
- eISBN:
- 9780191595059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562961.003.0003
- Subject:
- Political Science, Political Theory, International Relations and Politics
Continuing the discussion of the Bush administration's just cause began in Chapter 1, this chapter examines the arguments put forward for pre‐emptive war and responses to those arguments. The Bush ...
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Continuing the discussion of the Bush administration's just cause began in Chapter 1, this chapter examines the arguments put forward for pre‐emptive war and responses to those arguments. The Bush administration maintains that the Iraq invasion was conducted in self‐defence—a proposition which requires an expansive conception of threat, owing to the destructiveness of WMD and the stealth of the enemy. This finesses the distinction between pre‐empting an imminent attack, largely regarded as legitimate in the just war tradition, and the more controversial doctrine of preventive warfare.Less
Continuing the discussion of the Bush administration's just cause began in Chapter 1, this chapter examines the arguments put forward for pre‐emptive war and responses to those arguments. The Bush administration maintains that the Iraq invasion was conducted in self‐defence—a proposition which requires an expansive conception of threat, owing to the destructiveness of WMD and the stealth of the enemy. This finesses the distinction between pre‐empting an imminent attack, largely regarded as legitimate in the just war tradition, and the more controversial doctrine of preventive warfare.
Alia Brahimi
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199562961
- eISBN:
- 9780191595059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562961.003.0005
- Subject:
- Political Science, Political Theory, International Relations and Politics
This chapter begins with an overview of the development of the Islamic just war tradition (jihad). It then narrows the focus to the critical issue of just cause. Osama bin Laden and his deputy, Ayman ...
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This chapter begins with an overview of the development of the Islamic just war tradition (jihad). It then narrows the focus to the critical issue of just cause. Osama bin Laden and his deputy, Ayman al‐Zawahiri, consistently maintain that aggression is both wrong and illegal, and that in using violence al‐Qaeda is merely repelling America's attacks. However, since the United States had launched no invasion of bin Laden's country before 11 September, be it Saudi Arabia, Sudan or Afghanistan, it was incumbent upon him to redefine the concept of ‘aggression’. This attempt was contested a series of Muslim leaders who described al‐Qaeda as the belligerent party on 9/11.Less
This chapter begins with an overview of the development of the Islamic just war tradition (jihad). It then narrows the focus to the critical issue of just cause. Osama bin Laden and his deputy, Ayman al‐Zawahiri, consistently maintain that aggression is both wrong and illegal, and that in using violence al‐Qaeda is merely repelling America's attacks. However, since the United States had launched no invasion of bin Laden's country before 11 September, be it Saudi Arabia, Sudan or Afghanistan, it was incumbent upon him to redefine the concept of ‘aggression’. This attempt was contested a series of Muslim leaders who described al‐Qaeda as the belligerent party on 9/11.
Alia Brahimi
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199562961
- eISBN:
- 9780191595059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562961.003.0008
- Subject:
- Political Science, Political Theory, International Relations and Politics
This chapter synthesizes the discussion in the preceding chapters and offers some conclusions on moral traditions, on just war, on the ‘war on terror’, and on al‐Qaeda. It ends with the argument that ...
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This chapter synthesizes the discussion in the preceding chapters and offers some conclusions on moral traditions, on just war, on the ‘war on terror’, and on al‐Qaeda. It ends with the argument that al‐Qaeda both defines and empowers itself with moral reasoning. And to deny that Osama bin Laden possesses a moral project would be to deny ourselves the most powerful weapon in the campaign against al‐Qaeda: it is precisely because bin Laden invokes the Islamic jihad tradition and simultaneously pushes its moral boundaries that the main source of vulnerability for al‐Qaeda is created.Less
This chapter synthesizes the discussion in the preceding chapters and offers some conclusions on moral traditions, on just war, on the ‘war on terror’, and on al‐Qaeda. It ends with the argument that al‐Qaeda both defines and empowers itself with moral reasoning. And to deny that Osama bin Laden possesses a moral project would be to deny ourselves the most powerful weapon in the campaign against al‐Qaeda: it is precisely because bin Laden invokes the Islamic jihad tradition and simultaneously pushes its moral boundaries that the main source of vulnerability for al‐Qaeda is created.
Alan Brudner
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199207251
- eISBN:
- 9780191705502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207251.003.0007
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter argues that it is impossible to generalize about the nature and rationale of legal justifications because justifications divide themselves into two categories each of which is further ...
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This chapter argues that it is impossible to generalize about the nature and rationale of legal justifications because justifications divide themselves into two categories each of which is further subdivided. The primary division is between justifications claimed by public officials and those claimed by private agents. Even within these categories generalization is impossible, because private justifications (like public ones) separate themselves into two groupings under two distinct paradigms of justice, each ordered to a particular conception of freedom. The justifications of force against a wrongdoer belong to the formal agency paradigm, whereas the justifications of force against an innocent reflect the interdependence of the formal agency and real autonomy frameworks. Each of these groups has a distinctive rationale and therefore distinctive limiting conditions. As a consequence there is no such thing as a paradigm case of justification. Answers to the questions as to whether justifications negate wrongs in the particular case or justify abiding wrongs, whether the unknowingly justified actor is justified, whether a reasonable belief in justification is sufficient or whether a true belief is necessary vary for the different groups.Less
This chapter argues that it is impossible to generalize about the nature and rationale of legal justifications because justifications divide themselves into two categories each of which is further subdivided. The primary division is between justifications claimed by public officials and those claimed by private agents. Even within these categories generalization is impossible, because private justifications (like public ones) separate themselves into two groupings under two distinct paradigms of justice, each ordered to a particular conception of freedom. The justifications of force against a wrongdoer belong to the formal agency paradigm, whereas the justifications of force against an innocent reflect the interdependence of the formal agency and real autonomy frameworks. Each of these groups has a distinctive rationale and therefore distinctive limiting conditions. As a consequence there is no such thing as a paradigm case of justification. Answers to the questions as to whether justifications negate wrongs in the particular case or justify abiding wrongs, whether the unknowingly justified actor is justified, whether a reasonable belief in justification is sufficient or whether a true belief is necessary vary for the different groups.
Fiona Leverick
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199283460
- eISBN:
- 9780191712654
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199283460.003.0006
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the issue of how to deal with the accused who is some way at fault in generating the need to use self-defensive force. The most common example is the accused who starts a fight, ...
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This chapter examines the issue of how to deal with the accused who is some way at fault in generating the need to use self-defensive force. The most common example is the accused who starts a fight, but then kills his opponent after he reacts disproportionately to the initial aggression. The chapter presents a classification of all the different situations that can be encompassed under the heading self-generated self-defence and assesses the legal options available for dealing with the accused in each situation. It is argued that the defence should not necessarily be denied, except where the accused has deliberately provoked an attack in order to kill the victim and benefit from the defence of self-defence. The chapter also examines the approaches taken to self-generated self-defence in the major common law jurisdictions.Less
This chapter examines the issue of how to deal with the accused who is some way at fault in generating the need to use self-defensive force. The most common example is the accused who starts a fight, but then kills his opponent after he reacts disproportionately to the initial aggression. The chapter presents a classification of all the different situations that can be encompassed under the heading self-generated self-defence and assesses the legal options available for dealing with the accused in each situation. It is argued that the defence should not necessarily be denied, except where the accused has deliberately provoked an attack in order to kill the victim and benefit from the defence of self-defence. The chapter also examines the approaches taken to self-generated self-defence in the major common law jurisdictions.
EYAL ZAMIR and BARAK MEDINA
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195372168
- eISBN:
- 9780199776078
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372168.003.06
- Subject:
- Law, Philosophy of Law
This chapter presents a constrained cost-benefit analysis of measures taken in the fight against terrorism. It begins by characterizing and criticizing existing normative economic analysis of the ...
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This chapter presents a constrained cost-benefit analysis of measures taken in the fight against terrorism. It begins by characterizing and criticizing existing normative economic analysis of the fight against terrorism as reflecting a simplified ad-hoc balancing. It then presents the central deontological constraints pertaining to the fight on terror. The chapter discusses threshold functions that should be employed in order to determine the permissibility of such measures as targeted killings and torture. It discusses the factors affecting the evaluation of the act's relevant net benefit, and those determining the amount of net benefit required to justify an infringement. It argues that standard economic analysis fails to take into account critical distinctions. These include the distinction between different goals of anti-terrorist measures; the difference between harms the state inflicts through antiterrorist measures, and those resulting from unthwarted terrorist attacks; and the distinction between intended and unintended harm. Deontologically-constrained CBA, which incorporates all of these distinctions, is shown to be methodically workable and normatively superior.Less
This chapter presents a constrained cost-benefit analysis of measures taken in the fight against terrorism. It begins by characterizing and criticizing existing normative economic analysis of the fight against terrorism as reflecting a simplified ad-hoc balancing. It then presents the central deontological constraints pertaining to the fight on terror. The chapter discusses threshold functions that should be employed in order to determine the permissibility of such measures as targeted killings and torture. It discusses the factors affecting the evaluation of the act's relevant net benefit, and those determining the amount of net benefit required to justify an infringement. It argues that standard economic analysis fails to take into account critical distinctions. These include the distinction between different goals of anti-terrorist measures; the difference between harms the state inflicts through antiterrorist measures, and those resulting from unthwarted terrorist attacks; and the distinction between intended and unintended harm. Deontologically-constrained CBA, which incorporates all of these distinctions, is shown to be methodically workable and normatively superior.
Lieve Van Hoof
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199583263
- eISBN:
- 9780191723131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199583263.003.0007
- Subject:
- Classical Studies, Ancient Greek, Roman, and Early Christian Philosophy
This chapter is concerned with On Talkativeness, a ‘psychotherapeutic’ work discussing speech, a central issue in elite culture in Plutarch's days. As opposed to earlier authors such as Theophrastus, ...
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This chapter is concerned with On Talkativeness, a ‘psychotherapeutic’ work discussing speech, a central issue in elite culture in Plutarch's days. As opposed to earlier authors such as Theophrastus, Plutarch is not merely concerned with too much talking, but also with the inappropriate or untimely use of speech. By thus extending the subject matter, Plutarch explores the borders between ethics and etiquette. He also deploys a wide range of rhetorical strategies in order to discourage the reader from using speech straightforwardly as an instrument for acquiring honour: philosophy, which replaces self-love with self-knowledge and concern for others, is needed in order to manipulate one's cultural capital successfully in ever changing social circumstances. If his text thus offers practical help in the Bourdieuvian sense of the word, Plutarch also seizes the opportunity to defend his own practice as a prolific writer.Less
This chapter is concerned with On Talkativeness, a ‘psychotherapeutic’ work discussing speech, a central issue in elite culture in Plutarch's days. As opposed to earlier authors such as Theophrastus, Plutarch is not merely concerned with too much talking, but also with the inappropriate or untimely use of speech. By thus extending the subject matter, Plutarch explores the borders between ethics and etiquette. He also deploys a wide range of rhetorical strategies in order to discourage the reader from using speech straightforwardly as an instrument for acquiring honour: philosophy, which replaces self-love with self-knowledge and concern for others, is needed in order to manipulate one's cultural capital successfully in ever changing social circumstances. If his text thus offers practical help in the Bourdieuvian sense of the word, Plutarch also seizes the opportunity to defend his own practice as a prolific writer.
Noam Lubell
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199584840
- eISBN:
- 9780191594540
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199584840.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
This book analyses the primary relevant rules of international law applicable to extraterritorial use of force by states against non-state actors. Force in this context takes many forms, ranging from ...
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This book analyses the primary relevant rules of international law applicable to extraterritorial use of force by states against non-state actors. Force in this context takes many forms, ranging from targeted killings and abductions of individuals to large-scale military operations amounting to armed conflict. Actions of this type have occurred in what has become known as the ‘war on terror’, but are not limited to this context, and the analysis in this book covers a more definable scope: unilateral, extraterritorial, forcible measures against non-state actors. Three frameworks of international law are examined. These are the framework of international law regulating the resort to force in the territory of other states, the law of armed conflict, and international human rights law. The book examines the applicability of these frameworks to extraterritorial forcible measures against non-state actors, and analyses the difficulties and challenges presented by application of the rules to these measures. The issues covered include, among others: the possibility of self-defence against non-state actors, including anticipatory self-defence, the lawfulness of measures that do not conform to the parameters of self-defence, the classification of extraterritorial force against non-state actors as armed conflict, the ‘war on terror’ as an armed conflict, the laws of armed conflict regulating force against groups and individuals, the extraterritorial applicability of international human rights law, and the regulation of forcible measures under human rights law.Less
This book analyses the primary relevant rules of international law applicable to extraterritorial use of force by states against non-state actors. Force in this context takes many forms, ranging from targeted killings and abductions of individuals to large-scale military operations amounting to armed conflict. Actions of this type have occurred in what has become known as the ‘war on terror’, but are not limited to this context, and the analysis in this book covers a more definable scope: unilateral, extraterritorial, forcible measures against non-state actors. Three frameworks of international law are examined. These are the framework of international law regulating the resort to force in the territory of other states, the law of armed conflict, and international human rights law. The book examines the applicability of these frameworks to extraterritorial forcible measures against non-state actors, and analyses the difficulties and challenges presented by application of the rules to these measures. The issues covered include, among others: the possibility of self-defence against non-state actors, including anticipatory self-defence, the lawfulness of measures that do not conform to the parameters of self-defence, the classification of extraterritorial force against non-state actors as armed conflict, the ‘war on terror’ as an armed conflict, the laws of armed conflict regulating force against groups and individuals, the extraterritorial applicability of international human rights law, and the regulation of forcible measures under human rights law.
