Although Walzer reports having expected his account to be judged too permissive of intervention (1980a: 220), the major immediate critics of Wars suggested that restricting humanitarian intervention to exceptional cases protects illiberal regimes that commit aggression against their own people. This makes it impossible to argue that the rights of such states are founded on the rights of their own citizens (Luban 1980a: 169–70, Wasserstrom 1978: 540–3, Beitz 1979: 412–13, Doppelt 1978: 8–9). Moreover, Walzer’s domestic analogy does more to explain the foundation of state rights than to justify them. Indeed, Walzer’s invocation of a domestic analogy is odd in light of his insistence that just-war theory that proceeds by analogy with the norms appropriate to civil society misses the distinctiveness of war as a human activity (Walzer 2015a: 335–46, 2013a). As Walzer notes, humanitarian intervention is a form of international “law enforcement and police work” (Walzer 2015a: 106), yet it is integral to his recent work that theorists who think of just wars in this way (McMahan 2009, Rodin 2002) err by making such an analogy.
The issue revolves around two competing approaches to military ethics. The emerging orthodoxy in the field is cosmopolitan: it seeks to rethink just wars as rights-protection on a global scale by establishing a world order comprised of “legitimate states” that are “minimally just” because they do their utmost to protect the human rights of their constituents (Orend 2013: 35–43). Thus, David Luban argues that just wars are not fought in defense of the sovereignty of states but of “socially basic human rights” (Luban 1980a: 175; see Shue 1980 for an account of basic rights). Cosmopolitan just-war theorists tend to criticize Walzer for using the legalist paradigm, which grants states’ rights to non-interference by analogy with individual rights (Doppelt 1978: 3–5). As Wasserstrom puts it, while the analogy would hold were citizens to have chosen the characteristics of their state, it is less clear that it does when states do not rest on consent. He concludes that unless “states have an independent, defensible claim to use the deadly force of war to resist all movements onto their territory or all attempts to alter their structure, the case against the initiation of war has not yet adequately been made out” (Wasserstrom 1978: 543).
If just wars are fought to protect basic rights, Walzer makes several mistakes. First, he should not grant all states rights, just legitimate ones. Second, he should not insist that all just wars are wars of national defense but should broaden the scope for intervention such that wars fought to encourage rights-protection, reduce the likely incidence of future wars, and enhance the legitimacy of states around the world be considered just. Both Wasserstrom and Doppelt conclude that Walzer’s theory would not have allowed for intervention in apartheid South Africa, but should have done, while Luban insists that it ought to have allowed for intervention on behalf of the Sandinista rebels in Nicaragua in 1978 (Wasserstrom 1978: 544, Doppelt 1978: 23–4, Luban 1980a: 170–1). Neither the apartheid nor the Somoza regimes merited rights because they excluded the majority of the population from political participation and violated their basic rights. As a result, wars fought to establish legitimate regimes in those countries would, the critics suggest, have been legitimate.
By contrast, Walzer’s approach, while based on human rights, also attaches importance to community. It is a type of liberal approach – Walzer justifies the norm of non-intervention by appealing to John Stuart Mill’s claim that freedom can only be won internally, not imposed from outside (Walzer 2015a: 87–91, 1980a: 227–8; for discussion, Gavison 2014, Beitz 2014, Doyle 2014). This argument is mostly implicit in Wars, but Walzer spells it out much more fully in his important article “The Moral Standing of States” (Walzer 1980a) in which he responds to Wasserstrom, Beitz, Luban, and Doppelt (see also their responses: Beitz 1980, Luban 1980b, Doppelt 1980). Because, for Walzer, one of the central rights is that to collective self-determination, self-help is the appropriate formula in all but the most desperate of situations. The norm of non-intervention is, then, the means by which we respect peoples’ efforts to achieve freedom. That is, collective self-determination is something to which individuals have a right. Walzer concludes that the “distinction of state rights and individual rights is simplistic and wrongheaded” (Walzer 1980a: 234). Individuals need their communities to survive, because it is only within them that a shared life can be established and only with such a life that individuals can develop political friendship (233) and “express their inherited culture” (220). Moreover, communities need states if they are to enforce and protect individual rights (232), with global enforcement unlikely in the short run and potentially dangerous in the long (see Chapter 6 for discussion).
Walzer thus argues that outsiders owe people a presumption that states are legitimate and that there is a “fit” between states and the communities that they exist to protect, even though the state may in fact be illegitimate (Walzer 1980a: 221–5). Only if the absence of fit is “radically apparent,” as in the exceptions to the norm of non-intervention that Walzer allows (massacre, enslavement, civil war, and struggles for secession), can foreigners decide that the presumption of legitimacy does not hold and intervention is warranted (225–6). This is because, while we can assume that murder, slavery, and ethnic cleansing are everywhere condemned, the full range of liberal and democratic rights might not be valued by every culture. Walzer adds that outsiders should be wary of presuming absence of fit because they “don’t know enough about [the community’s] history … have no direct experience, and can form no concrete judgments … [of] the historical choices and cultural affinities” at work (220–1). It is important for understanding Walzer to note that this is not an empirical claim. Rather, it is ontological, and relates to the processes of meaning construction and identity formation. Foreigners can of course study history and culture, but the knowledge of which Walzer writes is at least partly experiential: it comes from sharing in a collective life. The legitimacy to which this gives rise is therefore political, not philosophical: it cannot be judged by timeless, objective criteria worked out by just-war theorists. Walzer concludes that his argument is “best understood as a defense of politics”; that of the critics reiterates the “traditional philosophical dislike for politics” (234; see also Walzer 1981).
With regard to the cases his critics adduce, Walzer argues that intervention would have been warranted in apartheid South Africa, but because apartheid was not “ordinary oppression,” but rather a case of “near-slavery” that also constituted a national-liberation struggle (Walzer 1980a: 226). As a result, failure to intervene did not mean allowing a political process to work out the local meaning of freedom but denying the process itself. By contrast, Walzer denies that intervention in Nicaragua in defense of individual rights would have been legitimate. It would have violated “the rights of Nicaraguans as a group to shape their own political institutions and the rights of individual Nicaraguans to live under institutions so shaped” (227), and would pose a “radical challenge to communal integrity” (229), leading to remaking the whole world on liberal-democratic lines (229–32). The problem with such a remaking is its singularity, rejecting the history of social and political institutions in favor of granting wide latitude to international bureaucrats. Such a denial would lead to the destruction of common lives and make political participation on a local scale impossible. Yet, on Walzer’s account, participation in the community is one of the foremost individual rights because of its role in identity formation (234, Walzer 1983: 31–63).
Walzer’s justification of the claim that humanitarian intervention is legitimate only in exceptional cases is important in illuminating his contribution to theorizing about war and to political theory more broadly. He grounds state rights on a domestic analogy with individual rights because the rights in question are on his view individual rights, collectively held. That is, the state does not, in Walzer’s theory, have any intrinsic moral importance, but it is important to its citizens (Walzer 1988b, Reiner 2017b), who tend to wish to see it reformed as a result of domestic political action, not replaced by cosmopolitan representatives