Introduction
If justice is a concept that applies to all humans and human communities equally, regardless of national, religious, ethnic, or other affiliations, with the corresponding advantages and disadvantages of communal living being equally distributed among all,1 then war can only ever be unjust.
The global or cosmopolitan normative understanding of justice today is based on a moral universalism, in which all humans, everywhere, are of precisely equal moral importance.[263] It is further based on a concept of responsibility that applies to all humans, regardless of nationality, religion, and culture.[264] If justice is understood in this holistic sense, the problem of war must still be confronted, with efforts being made to find ‘just’ solutions to any given conflict. However, within this framework, war itself can hardly be described as just. For, in war, there is always an opponent, to whom the arguments legitimating war for the first party are perceived as unjust; not to mention the so-called collateral damage that accompanies all wars, revealing how they are no more than ugly and unjust affairs. If justice is defined, on the other hand, as being particular,[265] it becomes easy to speak of war as a just or an unjust affair. Particular, in this sense means, particular to a specified group of people. This means, that in order to determine the just course of action in a given conflict, the starting point for deliberation is one’s own particular position within a given framework (e.g., national, religious, or cultural). The theoretical grounding of particular justice is based on the empirical finding that there is no form of global authority or over-arching sovereignty, that can meet the demands of justice in a form analogous to that of the state. It thus supports the normative assumption that in the case of conflicting national and global principles of justice, members of one’s own group will be prioritised.[266] Justice is still called for in a general sense, even in this particularistic form, for one’s own position is taken to be absolute. Others however, are not party to this definition of justice. It is irrelevant whether the position is perceived as legitimated via conceptualizations of natural law, religion, or nationality.It is precisely this ‘particular’ understanding of justice that formed the bases for initial theories of ‘just war’ in Antiquity, not only that of Aristotle, but also of later ecclesiastical theories, such as that of Thomas Aquinas. These scholars theorised about just war (bellum iustum) in a world that differentiated between two groups of human beings: the free, the chosen, followers of the Lord, the civilised, and believers, on the one hand, and slaves, barbarians, the Lord’s enemies, heretics, and non-believers, on the other.[267]
Similarly, the term jihad, as a meritorious (and at times bellicose) act, must also be contextualised against the background of a particular conception of the world, or of humans within it. Traditional Islam groups people based on their religious affiliations, whereby the community of Muslims is the just, or the more just, of the religious groupings, and deserving of struggle: “You are the best community produced for humans [as an example]. You enjoin what is right and forbid what is wrong and believe in God!”[268] During the Middle Ages, it was in reference to this verse, that the Hanafi legal scholar al-Sarakhsi (d. 1090) claimed that if the message of Islam was delivered to non-believers and they rejected it, then they must be fought.[269]
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