New Structures on Old Foundations: Bridging Law and Morality in Contemporary Just War

This dissertation examines one of the central questions of contemporary just war utilizing the Classical authors as a third way distinct from the Traditionalists and the Revisionists. One of the fundamental questions which arises out of the disputes between the two contemporary camps is whether the international laws of war are at odds with the morality of just war. Is there a gap between the laws of war and the morality of war? This is the central question of the dissertation.

The answer I find is no, the laws of war are not at odds with the morality of war. There are some areas of tension, which I note, yet overall, the current international laws of war can be morally justified under what I call neo-Classical just war and the natural law. I attempt to demonstrate my argument in two parts.

First, neo-Classical just war provides an additional perspective to three of the main contemporary dilemmas where such a gap is proposed: Moral Equality of Combatants, civilian immunity, and offensive war. Ultimately, neo-Classical just war finds less room for disjuncture than the Revisionists propose. This is a very important contribution and comprises the first three substantive chapters of the dissertation. The dissertation lays out the positions of international law, the Traditionalists, and the Revisionists on each topic then responds with an alternative, Classically-infused response.

Second, neo-Classical just war is needed as an interlocutor in the contemporary debates because there is confusion and ambiguity over the concepts of law and morality. Even if McMahan and the Revisionists are correct about the basic principles of just war, their position does not necessitate changes to law. Also, both the Traditionalists and Revisionists eschew absolutist moral theories yet both deny delving into discussions of moral foundations. Confusion over the scope of morality and its relationship to law underpins the need for a discussion of just war’s foundations, which I accomplish in Chapter 5. Using Thomas Aquinas’ “Treatise on Law” as a guide, I lay out how the foundations of neo-Classical just war navigate potential conflicts between law and morality.