The law enforcement model of war

When an army invades a country, the invaders break a massive number of that country’s laws. They kill, commit assault and battery with deadly weapons, recklessly endanger lives, and destroy property, and do all this as part of a concerted conspiracy. And they break all sorts of more minor laws, by carrying unlicensed weapons, trespassing on government property, littering, and presumably violating traffic laws all the time (I assume one can’t slow down the progress of a column of tanks by putting up a stop sign).

This means that there is an intermediate position between just war theory and complete non-violence. This intermediate position holds that law enforcement can appropriately make use of violent means, including lethal violence when this is proportionate, and that when one’s country suffers an unjust invasion, one may (and maybe often should) legitimately engage in appropriately violent law enforcement activities against the enemy. Call this the law enforcement model of war.

I do not advocate the law enforcement model, but it is interesting to think just how it would differ from the two more standard options.

The difference from complete non-violence is clear: on the law enforcement model, violent action in defense of the country’s laws is permitted whenever proportionate. Thus, it would be permissible to destroy a tank because it is a part of a conspiracy to commit murder and destruction of property, but not because it is simply refusing to stop at a stop sign. (And discretion being the better part of valor, issuing traffic tickets in the latter case is probably not a good idea.)

The differences from just war theory are also significant, though more nuanced. While in most cases where traditional just war theory permits a defensive war, the law enforcement model would also permit defensive violence, there would be significant limitations on offensive wars, due to the fact that law enforcement is bound by significant limitations of jurisdiction. While on traditional just war theory, the fact that Elbonia is violently persecuting a Kneebonian ethnic minority on Elbonian soil might be a sufficient just cause for a war, on the law enforcement model, execrable as such persection is, it is likely to be outside of the proper jurisdiction of Kneebonian state law enforcement. Indeed, there may have to be significant limits to extraterritorial defensive operations, though some version of the doctrine of “hot pursuit” may be helpful here.

Interestingly, the law enforcement model in one respect seems to point to greater violence. The presumption in law enforcement is that criminals are not only stopped but also punished. This suggests that on a law enforcement model, we would have a presumption in favor of putting all captured invading soldiers on trial. However, even in ordinary law enforcement, punishment is only a presumption, and it can be waived for the sake of significant public goods. In the special case of defending against invaders, having a general waiver, with exceptions tailored to mitigate the worst of evils (say, attacks on defenseless populations), in order to encourage the enemy to surrender would be prudent.

In regard to the waiver of criminal penalties, it is interesting to note one difference between how we feel about war and about ordinary crime. In the case of ordinary private crime, we do not feel that it is qualitatively worse when the criminal murders a civilian rather than a police officer—indeed, we tend to feel that there is something particularly bad about murdering a police officer. In the case of war, however, we do feel that it is much worse to kill civilians. On the law enforcement model, this difference in attitudes does not seem right. But the difference can still be defended within the law enforcement model. In typical cases, soldiers fighting an unjust war are subject to incessant propaganda that they are fighting for justice. There is thus a significant probability that they are not culpable for killing enemy soldiers, because they are rationally convinced that justice requires enemy soldiers to be stopped with lethal force. But it is much harder to come to a rational conviction that justice requires enemy civilians to be stopped with lethal force. Therefore, even if in an unjust war the intrinsic wrong of killing soldiers is just as great as that of killing civilians, there is a significant difference in likely culpability.

As I said, I do not endorse the law enforcement model. But I think it is an interesting model. And I think it presents a significant challenge to those pacifists who think that law enforcement violence is sometimes justified but that violence in war never is.