To what extent are political leaders entitled to violate embedded moral and legal rules in response to national emergencies? Do they have a duty to do so? This article assesses two prominent liberal approaches to this question.
The ‘dirty hands’ thesis insists that there is a radical separation between private and public ethics and that the latter may require the commission of acts prohibited by the former.
A ‘lesser evil’ approach holds that leaders may even violate the more permissive public ethics if there is a consequentialist case for doing so.
Both suggest to some extent that certain acts remain wrong but may be necessary nonetheless. While this position makes good philosophical sense, it makes little political sense. In practice, societies choose either to validate or reject the legitimacy of certain acts. This article aims to overcome this problem by suggesting a new way of thinking about the way that ‘dirty hands’ and ‘lesser evil’ ethics work in practice through Ian Clark's work on legitimacy. It argues that in particular cases actors evaluate between competing political, ethical and legal claims,
Moral absolutism is not often considered a valued commodity when it comes to war. Political leaders, it is commonly argued, are primarily responsible to their own citizens. Leaders have a duty to protect the physical security, material wealth and common life of their citizens and these obligations override all other obligations to law and morality (Kennan 1985; Hendrickson 1997). This obligation gives rise to the doctrine of national partiality. That is, because they are morally and legally obliged to place the interests and welfare of their citizens above those of others, political leaders must value their own citizens' lives more highly than those of other states' citizens (McMahan and McKim 1993). National partiality is neither new nor a creature of realism alone. Andrew Linklater, for instance, convincingly demonstrated that in modern times political thinkers (and practitioners) have consistently differentiated between the moral obligations owed to ‘men’ in general and those owed to fellow ‘citizens’. Where these two sets of obligations collide, the prior responsibility and loyalty is owed to fellow citizens (Linklater 1982). Although national partiality does not necessarily challenge embedded norms about the use of force, it contributes to the argument that norms can—indeed must—be overridden in dire emergencies (McMahan 1996 and 1997). Given all this, it is commonly argued that where necessity dictates, political leaders are obliged to override embedded norms. Several writers and political leaders have argued that the ‘permanent emergency’ created by the September 11th terrorist attacks on New York and Washington DC is one such instance where necessity dictates that political rulers override settled norms in order to meet a dire threat (Glennon 2002; Frum and Perle 2003).
Realists and liberals ostensibly part company on what it means to override embedded norms. Realists tend to argue that when necessity dictates, norms simply give way to the overriding domestic imperative. According to Morgenthau, ‘the actor may subordinate all ethical considerations to the realization of his political goal, yet his act cannot be beyond good and evil, not even from his own point of view, as long as he makes the apparent harmony of his act with the ethical standards part of the goal to be realized’ (Morgenthau 1945, 5). Thus, Morgenthau denied the existence of universal moral standards and the ability of positive law to constrain behaviour. For Morgenthau, political choices are made in the context of a particular society's interests and values and are to be evaluated as such. Liberals such as Michael Walzer accept the basic proposition that embedded rules must be overridden in emergencies if doing so is necessary for the survival of...