The Legalist Paradigm and Its Revisions

The Purpose of The Legalist Paradigm

The legalist paradigm (model) is one attempt to outline a “theory of aggression,” a basis for judging which wars are just and which wars are cases of criminal aggression. It is favored by interna­tional lawyers and rests on the “domestic analogy,” a view of states as being in a rule-governed “international society,” just as individuals are bound by rules in “ordinary” societies.

Walzer introduces the legalist paradigm as the first outline of a moral theory of just war, not as a final word. Walzer will suggest revisions to this paradigm.

“Though the domestic analogy is an intellectual tool of critical importance, it doesn’t offer an entirely accurate picture of international society. States are not in fact like individu­als....The account is still incomplete... and I must look now at a series of issues and historical cases that suggest the need for revi­sion.” (p. 73)

The legalist paradigm indirectly supports Walzer’s larger thesis against moral realism insofar as it outlines a set of moral principles that apply to war. But the issue in Part Two (chapters 4-7) is no longer the general case against moral realism—that was Part One—but the attempt to formulate specific moral principles about which wars are just wars. (Part Three deals with rules in war.)

The Six Principles of the Legalist Paradigm

1.      There exists an international society of independent states. (States, not individuals, are the members of this “society.”)

2.      Members of international society (states) have rights of territorial integrity and political sovereignty. (These rights are based on rights of individuals but the rights of individuals are not the direct concern here.)

3.      The use of force or imminent threat of force by one state against the rights of another state is criminal aggression.

4.      Violence is justified to defend oneself or as a means of law enforcement, and the latter can be exercised by the victim or by any other state against the criminal aggressor.

5.      Nothing but aggression can justify war.

6.      An aggressor state may not only be militarily repulsed but punished as well.

Revisions to the Legalist Paradigm

Revision one: War is justified not only in response to actual aggression but when a “sufficient threat” exists.

This is the subject of Chapter 5: Anticipations. Walzer’s aim is to recognize that a state need not wait until a hostile power actually initiates aggression, as would be required by the legalist paradigm. Nor need it wait until the necessity of self-defense is “instant, overwhelming, leaving no choice of means, no moment for deliberation,” especially if waiting greatly magnifies the risks for a state’s security. This standard would be too stringent.

On the other end of the spectrum, Walzer rejects the permissive claim that any increase of an enemy’s power justifies a “preven­tive war” or that an enemy’s “boastful ranting” or provocation (as distinct from real threat) is sufficient to justify a war. Walzer’s task is to specify the middle ground he has in mind, the meaning of “real threat.” He uses the Israeli first strike in the Six-Day War (1967) as a test case.

Chapter 6 discusses the next three revisions of the legalist paradigm. They concern cases where it may be appropriate to intervene violently in the internal affairs of another country, an act which violates the legalist paradigm.

Intervention requires special moral justification because it seems to go against the state’s right of self-determination. Self-determination only gives people the opportunity to “become free by their own efforts if they can,” unimpeded by alien powers; it does not guarantee people political freedom or democracy. Mill seems to suggest that people get the governments they deserve, so intervening to improve another country’s govern­ment is not permissible.

But if the real basis for the doctrine of non-interference is to preserve and uphold communal autonomy, then there may be times when intervening will better maintain communal autonomy than adhering strictly to the legalist paradigm. (One major question will be identifying where a “genuine community” exists.)

Revision two: States can be invaded and wars justly begun to assist a secessionist movement if that movement has a legitimate claim to be a community.

This can usually be proved only after it has shown itself able to rally its people in a sustained military or political struggle. (Walzer cautions that at times it may be imprudent to intervene in these cases if general world order would be upset.) This standard would seem to allow U.S. intervention in the Hungarian uprising against Soviet rule in 1956 (leaving out considerations of prudence) but not in support of Solidarity in Poland. The reason would be that Hungary is a distinct commu­nity, and its nationalist movement had widespread support among Hungarians, whereas Poland’s Solidarity was an internal movement fighting not against foreign rule but against its own “domestic tyrants.” (Obviously it could be argued that Poles were fighting against what they regarded as a Soviet puppet regime, but this shows how blurry the line is.) On revision two, “domestic tyrants are safe”; outside intervention is only justified against foreign oppressors.*

Revision three: States can be invaded and wars justly begun to balance prior interventions of other powers.

A civil war is more than a local disturbance or riot. A riot is a disorder that a state can put down, and other states can help a state restore internal order. This presumably protects the communal autonomy that the rioters threaten. But when “rioters” gain enough popular support and territory, they then gain equal status with the government and a civil war exists. (Are black South Africans or Palestinians mere “rioters,” as ruling parties have claimed?) In those cases outside powers must remain neutral unless another outside power intervenes. If another power intervenes, it is permissible to intervene as a counterweight, not to win the war but to allow the internal side with more support to win. Walzer argues that American intervention in Vietnam did not meet this standard.

Revision four: States can be invaded and wars justly begun to rescue people threatened with massacre.

This is the only case where a domestic tyrant can be opposed with the aim of defeating the currently constituted government. It must be a case of massive violation of human rights, a response to acts “that shock the moral conscience of mankind.” The intervening state must enter into the purposes of the oppressed people and cannot claim political privileges for itself. Walzer contrasts India’s inva­sion of East Pakistan (1971) with American action in Cuba (1898). Unlike India, America mainly fought for its own agenda.


     *A taxi driver in Prague (then Czechoslovakia) implicitly ap­pealed to this principle when he drove me past an office repre­senting Husek, then Prime Minister of the hated Czechoslovak government.  "He's not a Czech leader; he's a Russian leader," the taxi driver said. Husek was Czech, of course, but the taxi driver was saying that, morally, he represented foreign Soviet interests and therefore violated the autonomy of the Czech community.