Ethics, Law, and Humanitarian Intervention: Biggar’s Argument for the Precedence of Moral Order in the Dialectic with Positive Law

Nigel Biggar begins his chapter 6, subtitled “Legality, Morality, and Kosovo,” with these words:

Law is given before it is made. Legal statutes and social contracts are not crafted in a moral wasteland. They are born accountable to a higher, natural law. . . . Such is the moral realism that the Christian doctrine of just war, both early and late, takes for granted. It assumes that there is a universal moral order that transcends national legal systems and applies to international relations even in the absence of positive international law. . . . One thing that this implies is that military action can sometimes be morally justified in the absence of, and even in spite of, statutory or customary international law.

(2013, 309–10)

These comments frame the core of Biggar’s stance in what follows: a detailed, thorough dialectical analysis of the major lines of the legal, and sometimes political, debates over humanitarian intervention by military force since the 1990s. The principal focus is on the debates occasioned by NATO’s intervention in Kosovo in 1999, but Biggar’s reach extends both backward in time, to include some elements of the debates over military intervention for humanitarian reasons that had taken place earlier in the 1990s and forward, to provide a brief look into the development of the “responsibility to protect” (R2P) idea, from Kofi Annan’s initial expression of the need for some such doctrine, through the original conception of R2P in the 2001 report of the ad hoc International Commission on Intervention and State Sovereignty (ICISS), to the narrowed redefinition of R2P in the Outcome Document of the 2005 World Summit.

Biggar by no means provides the first example of a moralist’s effort to engage critically with the legal debate over intervention—an engagement that has so far not produced any comparably serious effort by lawyers to reciprocate. When I first treated the subject of humanitarian intervention by military force in a chapter in Morality and Contemporary Warfare (Johnson 1999, 71–118), I began by examining three moral arguments on the matter: those of Paul Ramsey, Michael Walzer, and the United States Catholic bishops’ 1993 statement, The Harvest of Justice is Sown in Peace. All three, though in different ways, engaged international law, accepting it as it then stood but offering arguments that went beyond the law. So did I in that chapter, and so have I in addressing the subject of intervention since (e.g., Johnson 2006, 2014). For whether positivistically inclined lawyers like it or not, the international law on the subject imposes moral claims and standards that no moralist addressing the subject can properly ignore. Thus Biggar, a moral theologian writing a book exploring the idea of just war as it applies to contemporary issues, could by no means ignore arguments on the same issues from the perspective of law, or indeed, the relation of law to morality in itself. Indeed, he pursues an engagement with the law not only in chapter 6 on intervention but also in the previous chapter, where he provides a scathing moral criticism of legal positivism, a criticism that is recalled in his discussion of the legal arguments regarding the use of military force for humanitarian intervention, where a depiction of the relevant international law in positivistic terms is commonplace.

Biggar’s stance is particularly reminiscent of Ramsey’s and invites a brief rehearsal of how Ramsey approached the relationship between morality and law with reference to intervention. Whereas Biggar refers his own stance in his critical engagement with the law to “a higher, natural law,” Ramsey begins instead with a normative statement about politics: military intervention is “among the rights and duties of states unless and until supplanted by superior government” (Ramsey 1968, 20). If such a higher governmental order existed, then the responsibility would rest there, but, he argues in the next pages, there is no such superior order in the international arena, so that the obligation of maintaining justice and the right to use military means in doing so falls...