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The Mises Review

Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Elshtain Responds; Gordon Replies

Jean Bethke Elshtain and David Gordon

2 2003
Volume 9, Number 2

See David Gordon's Response
See the original review

David Gordon Responds

In Just War Against Terror, Professor Elshtain applied just war standards in order to evaluate the morality of the United States' military action against Afghanistan. As she rightly notes, the standards require the use of prudence to be applied properly: they are not mechanical rules. Nonetheless, they impose fixed limits on what may be done, both on when to engage in war and on conduct during wartime. Reinhold Niebuhr takes a very different view. He rejects fixed rules as legalistic. For him, the precepts of the just war tradition can be no more than rough guidelines. They can be overridden as the politician thinks about the "impossible possibility" of the Gospel.

Faced with these two positions, one can hardly adopt both, yet this is just what Elshtain appears to do. She devotes a large part of the book to expounding the just war standards, as she sees them. At the same time, she calls for a return to the wisdom of Niebuhr. She says nothing about the apparent contradiction between the just war tradition and Niebuhr. It was for this reason that I unkindly suggested that she take a remedial course in logic.

When I said in the review that Elshtain could not adopt both natural law and Niebuhr, I meant by "natural law" no more than the just war principles. (These principles are often considered part of natural law). I did not mean to impute any controversial thesis to Elshtain about the philosophical basis of these principles; once more, I meant only the principles themselves. When in her letter she denies being a natural law thinker, she obviously has in mind something other than the just war standards themselves---perhaps the view that these standards can be shown to be correct without resort to theology. For this misunderstanding, I am entirely to blame. I should have said "just war standards" instead of "natural law" in the relevant places in my review.

To my charge of a lapse in logic, Professor Elshtain has responded in a strange way. She says that I must be either a positivist or a sexist, though she is "loathe" to use the latter term. (I think she means "loath") She thinks the former the more likely view. What is the "very narrow view of logic" that she thinks I adopt? She leaves us in the dark. I hope it is not the view that contradictions must be avoided. As to the charge that I am a sexist, I do not think I am guilty, although my defense leaves me vulnerable on another ground. I regret to say that I have frequently in my reviews written about senior men, some with many award winning books to their credit, in terms no more flattering than those I addressed to her.

She next proceeds to reply to my criticisms of various historical points in her book. I am glad to accept her assurance that in a chunk of her manuscript that was dropped, she distinguishes clearly between Gregory the Great and Gregory VII. She then wonders why I found astonishing her account of Gregory VII's deposition of Henry IV. Why does she ignore the point I raised? In her book, she claims that Gregory's "deposition of Henry IV was circumscribed to mean that Henry could no longer claim to be a Christian king. Ecclesiastical sanctions were removed from his exercise of power, but he was not removed from the temporal throne: Henry remained legitimate where the secular sword was concerned."(Elshtain, Just War, p.33)

Her assertion is in error. In his deposition of February 22, 1076, Gregory declares: "I withdraw. . . from Henry the king. . . the rule over the whole kingdom of the Germans and over Italy. And I absolve all Christians from the bonds of the oath which they have made or shall make to him; and I forbid anyone to serve him as king."(Ernest Henderson, Select Historical Documents of the Middle Ages, London, 1910, pp.376-377). Contrary to her claim, the Pope did endeavor to remove Henry from the temporal throne.

Professor Elshtain also claims that according to Pope Boniface VIII, "the two swords [spiritual and temporal] were to be wielded by one person: the bishop of Rome." (p.33) Boniface VIII in Unam Sanctam says something else: "Both, therefore, are in the power of the Church, that is to say, the spiritual and the material sword. . . the former in the hands of the priest; the latter by the hands of kings and soldiers, but at the will and sufferance of the priest." The issue she raises in her letter, the extent to which Boniface modified the classical two-swords doctrine, is not one on which I think I differ with her. I was concerned in my review only to challenge the incorrect claim that I have just quoted. 

Elshtain, in her haste to pay me back for the nasty things I said about her book, has neglected to have a look at the relevant documents about the Dred Scott case. Instead, she repeats her mistakes. Abraham Lincoln, in his debates with Stephen A. Douglas (my sources spell the surname with only one "s"), did not attack the Supreme Court for leaving in place the Fugitive Slave Act in its ruling in Dred Scott. Even if the court had ruled in favor of Dred Scott's freedom, the Fugitive Slave Act would have remained standing. The Act was not at issue in the case. Lincoln opposed Dred Scott because it ruled unconstitutional laws by Congress to ban slavery in the territories. He several times in the debates used the phrase "blowing out the moral lights" to refer to those, e.g., supporters of Douglas's popular sovereignty view, who denied that Negroes had human rights. He did not apply the words to the Fugitive Slave Act.

Quite the contrary, Lincoln, speaking at Freeport on August 27, 1858, said of the act: "It should have been passed so as to be free of some of the objections that pertain to it, without lessening its efficiency. And inasmuch as we are not now in an agitation in regard to an alleviation or modification of that law, I would not be the man to introduce it as a new subject of agitation upon the general question of slavery."

Turning from history, Professor Elshtain also finds unsatisfactory my account of her position on the Afghanistan war. She says that because I am a snide and school-boy 'smarty-pants' reviewer, I have ignored her true justification for going to war. Unfortunately, the interesting justification she gives in her letter is not to be found in her book. She does refer to Taliban support for al-Qaeda training camps (p.77), and calls that organization an elusive target; but she does not claim in the book, as she does in her letter, that a strike at the al-Qaeda training camps would necessarily involve fighting the Taliban. (But why need this require the destruction of the entire Taliban regime?) Perhaps the argument is in another chunk of the book that had to be excised before publication.

In the textus receptus, however, after first stating that the terrorism of September 11, with its disruption of civic tranquility, "is a justifiable casus belli"(p.59), she adds the following: "But the argument need not end there. One could go on to make the case that love of our neighbor---in this case, the Afghan people---is implicated as well."(p.59) She proceeds to list numerous horrors perpetrated by the Taliban. By liberating the Afghan people from the Taliban, were we not achieving a great good?  She makes her position even clearer a few pages later. She asks: "Should we tolerate a regime that routinely shot women in the back of the head for alleged adultery, that slit throats before spectators, that toppled walls on homosexuals?"(p.77). I take it that we are supposed to answer, "no".

In sum, matters are just as I said in my review. Professor Elshtain is not really interested in determining what degree of support for al-Qaeda by the Taliban justified intervention against them. It is for her enough that al-Qaeda and the Taliban were to some extent linked. September 11 then provided us with a welcome opportunity to rid the world of an evil government, whose treatment of women ranks not least among its crimes.

Professor Elshtain has misapprehended my criticism of her treatment of the last resort criterion. She does not require that a government actually try other options before resorting to war: it need only engage in deliberation and explore other options. (p.61) In my view, this is entirely too lax. To say in advance, "We do not think negotiation will work" does not suffice to meet the criterion. I do not deny that Elshtain recognizes that the criterion involves "a judgment call"; rather, I think that she has failed to be stringent enough in applying the criterion.

Finally, Elshtain's remarks about proportionality manifest a grievous misunderstanding of that doctrine. Suppose, e.g., that the United States bombs an arsenal and that civilians in the neighborhood are killed. A judgment of proportionality requires that the harm to those particular people be assessed, as against the benefits of destroying the arsenal. Each particular case of injury through indirect intention must be assessed separately.  Whether life for the population of the nation being bombed is on the whole better is not relevant to this criterion. Elshtain's account of the benefits of U.S. occupation of Afghanistan, though heartening if true, has nothing to do with the case. I do not know how many unintended civilian casualties count as proportional. I do claim to know that Elshtain offers no argument for her confident claim that the U.S has met this criterion in Afghanistan.

Although I have not been able to accept Professor Elshtain's points against me, I shall end on an irenic note. I withdraw my suggestion that she take a remedial course in logic, for a reason that I trust readers of this exchange will find obvious.

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