Saturday, April 17, 2010

Silent Enim Leges Inter Arma


Over two thousand years ago, Marcus Tullius Cicero observed that “in times of war, the law falls silent”(Silent enim leges inter arma) (Cicero 17). Today, political philosophers, policy makers, and political leaders argue over this same topic: What laws, if any, are applicable during war? More specifically, what laws, if any, apply to war itself? These questions presuppose a shifting ethical relationship between individuals, societies, and states during a time of war that do not exist in peacetime. But the important question is whether Cicero is necessarily correct – can there exist a time and place where the law is not silent in times of war?

For nearly as long as mankind has maintained written records, it has argued over the ethical actions of war – the idea of a just war is not a Western concept. The ancient Egyptians, Babylonians, and Chinese all discussed various forms of just war. The Egyptians were known for showing great moral restraint in battle (Wilkinson 274), and Laotse – a Chinese philosopher – argued that war is undesirable and should never proceed beyond a minimal objective (Laotse 154). The Babylonians, under Sennecherib, displayed the modern jus in bello notion of distinction, when they would not destroy innocent non-combatants but they would only fight against active soldiers (Friedman 3). Even the Bible establishes the Israelite rules-of-war against the Canaanites in Deuteronomy 20. These examples appear to negate any necessary claim to Cicero’s observation.

Although Cicero’s statement might not necessarily advocate the alienation of law during times of war, it is still a worthy concept to explore for the times when he is correct. It is undeniable that throughout history governments have suspended and progressively interpreted domestic and international laws. Even American history demonstrates this fact. From President John Adams’ Alien and Seditions Act during an undeclared war with France and Abraham Lincoln’s suspension of habeas corpus during the US Civil War, to the previous Bush Administration’s supposed promotion of mistreatment and torture of terrorist enemy-combatants – the struggle to maintain a consistent principle of law both before and during war has proven quite difficult. While the law may not fall completely silent, it has certainly changed its mind on a few occasions.

In 2004, US Supreme Court Justice Antonin Scalia argued in Hamdi v Rumsfeld that

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it (Hamdi).

As Justice Scalia observed, there are many who believe that law is a relative quality during a time of national crisis (war), and that national emergency constitutes a silence of law. This legal realist approach to wartime policies carries some appeal in practical application; however, the legal idealist is left wanting – searching for another method where a principle is not sacrificed for perceived security. In the face of cold realism, the idealist searches for the shelter of principle to justify what Benjamin Franklin once observed that “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety” (Franklin 270). In this search for principle, the idealist can find partial refuge in the “father of just war” – St. Augustine of Hippo.

While the concept of a just war precedes Augustine’s own theories, Augustine solidified the Western concept of just war beyond any method or idea that had previously existed. Augustine is regarded as the “father of just war” in the sense that “the whole Western just-war tradition that follows from the fifth century AD on, in both its Christian and secular varieties, traces its roots not to Plato or Aristotle, nor even to earlier Church Fathers, but rather to Augustine” (Mattox 2). Augustine’s influence is paramount in establishing a principle of just-war.

It is my intention to examine Augustine’s theory of just war and to show that Cicero’s statement – given Augustine’s theory – is accurate insofar as positive law will ignore a moral principle. This paper is written in four parts. The first will examine the basic tenets of just-war: jus ad bellum and jus in bello. The second will examine some of the difficulties associated with Augustine’s theory of just-war, and will present the general aspects of this theory. Third, I will contrast Augustine’s theory of just war with current just war theories to find if Augustine’s ideas are still applicable. Finally, through these theories I will show Augustine’s influence on the modern perception of just war, and I will conclude by showing that Cicero’s statement is true when the positive law ignores a moral principle. I will rely heavily on John Mark Mattox’s book, Saint Augustine and the Theory of Just War, to help unify and clarify Augustine’s theory of just war.

Just War

The just war theory is divided into two branches: jus ad bellum and jus in bello. Jus ad bellum posits the moral conditions wherein a country may justifiably enter war, while jus in bello defines the moral obligations that a state has during the war. Within these two branches of just war theory, each philosopher will distinguish himself from another. In each branch of just war theory there are sub-categories and justifications.

Jus ad bellum

There are nine basic premises of just war that Augustine posits within jus ad bellum: just cause, comparative justice, right intention, competent authority, last resort, public declaration, reasonable probability of success, proportionality, and peace as the ultimate objective (Mattox 45-59). Through the successful argumentation of each premise, a state can morally justify entering in to war.

Jus in bello

Once a country has entered into war, that country must maintain a standard of conduct. While nine basic premises satisfy the state’s ability to enter in to war, Augustine posits three basic jus in bello premises: proportionality, discrimination, and good faith. These three premises are necessary to maintain a morality during war (Mattox 60-5).


Potential Problems and Background

The most difficult problem in solidifying Augustine’s theory of just cause is obscurity. Augustine never presented an absolutely systematic treatise of just cause for war. This, however, does not show that Augustine did not have a theory in mind. Maddox argues that

Although when viewed separately, his just-war statements may appear fragmentary, when woven together, they constitute a remarkable tapestry. Upon careful inspection of that tapestry, one cannot but be struck by the unity that is readily apparent in his just-war thought. … The consistency evident in his expression of these varied but related ideas leads fairly to the assumption that Augustine’s just war statements arise from a consistent set of premises, which guide him to his conclusions; in other words, they reveal the presence of an underlying, if unstated, theory (Maddox 5).

There is, therefore, no doubt concerning Augustine’s intended meaning. However, the task of examining Augustine’s theory, when it is scattered throughout his written record, is a difficult one.

Augustine was not the first to propose a theory of just war in the Western world. In fact, Plato had already argued that the state must be prepared for violent struggle in a disorderly world, and he assigned specific wartime roles to the citizens and the state. Even Socrates argued that Greek civilians and non-combatants were not targets of war, and that the vanquished should not be brought into slavery (Mattox 1). To help better understand his theory, it is important to examine two primary influences on Augustine’s justwar philosophy: Cicero and Ambrose.

Cicero’s Just Cause and Proportionality

In his Confessions, Augustine claimed that Cicero’s Hortensius turned him away from his sinful life towards a life of God and philosophy – it gave Augustine a “different purpose and desire” (Augustine 58-9). Cicero was one of the first philosophers to distinguish between jus ad bellum and jus in bello principles of war. However, while Cicero posits the same three premises of jus in bello as Augustine, Cicero only addresses five premises for jus ad bellum: just cause, comparative justice, right intention, public declaration and last resort, and peace as the ultimate objective. The importance of Cicero’s influence on Augustine, however, comes primarily with his argument concerning just-cause. In the face of realism, Cicero boldly asserted an idealistic proposition that “a war is never undertaken by the ideal State, except in defense of its honor or its safety” (De Re Publica III.xxiii). Cicero’s statement, argues Maddox, “preserved by Augustine, reveals much of importance about Cicero’s most fundamental views on war… there is no other premise that binds Augustine more securely to Cicero than this one” (Maddox 15).

In addition to his influence on Augustine’s theory of just cause, Cicero made another bold statement concerning the jus in bello premise of proportionality – so bold, in fact, that it is just as revolutionary in our own day. Cicero argued that

There are certain duties that we owe even to those who have wronged us. For there is a limit to retribution and to punishment; or rather, I am inclined to think, it is sufficient that the aggressor should be brought to repent of his wrong-doing, in order that he may not repeat the offence and that others may be deterred from doing wrong (De Officiis I.xi).

Cicero’s argument for jus in bello proportionality has certainly made its mark on history, as Augustine clearly adopted this argument as his own.


While Cicero affected Augustine by the written word, Ambrose – Augustine’s Bishop in Milan – affected Augustine by example. It was Ambrose who baptized Augustine and who helped him

Acquire an appreciation of the interiority of the Gospel precepts – a notion that will later figure so prominently in Augustine’s own just-war theory specifically and will pervade his theology in general… In terms of laying the philosophical groundwork for Augustine’s treatment of just-war theory, Ambrose represents an advance beyond Cicero inasmuch as Ambrose considers just war in the context of Christianity (Maddox 19).

Augustine’s influence on the Christian conceptual understanding of just-war is directly attributable to Ambrose. It was Ambrose who instilled in Augustine the belief that Rome and the Catholic Church stood side-by-side (perhaps even as the same entity) to bring to pass the salvation of man (Russell 715) – a view that Augustine would later reject when he witnessed the fall of Rome. Although Augustine rejected the idea that Rome stood hand-in-hand with the Catholic Church for the Salvation of man, he later argued for the possibility of a Christian State (Mattox 29-30). Augustine’s absolute influence on just-war came from this mixture of Cicero’s rational secularism and Ambrose’ religious doctrines – there had never before been such a philosophical marriage in the context of just-war.

Interestingly enough, among the works we have of Ambrose, the only jus ad bellum justifications he gives are just cause and peace as the ultimate objective for war; however, traces of Augustine’s three premises jus in bello are found in pieces throughout Ambrose’ theology.

The Development of Augustine’s Theory of Justice, War, and Peace

Augustine lived in a very peculiar time. Whereas Cicero lived in a prosperous Rome, Augustine was witness to Rome’s fall. Whereas Cicero saw Rome expand through military conquest, Augustine saw Rome give way to the Vandals. Various differences separated Augustine from Cicero, and these differences – mixed with Augustine’s life-changing encounter with Christianity – gave way to differing interpretations of justice. To Augustine, “justice is love serving God only, and therefore ruling well all else” (Of the Morals of the Catholic Church XV.25, NPNF IV). This reflected Augustine’s notion that justice is also “giving every man his due” (Mattox 25).

Having a working knowledge of justice, Augustine advances an interesting theory concerning war itself. For Augustine, war is inevitable. Because God created all things ex nihilo (matter formed out of nothing) – for war to even exist -- God had either initially ordained war, or God had willfully given man his agency to wage war himself (Maddox 32). After all, God uses war to punish the wicked (those who do not follow God). As Augustine argues, God can decide “either to afflict or console mankind, so that some wars come to an end more speedily, others more slowly” (City of GodV.22, 216, 217).

It is important to note that Augustine’s concept of jus in bellum originated during a time when the Roman military was busy suppressing political uprisings. As the Roman army fought to restrain dissent, Augustine witnessed the need for rules of conduct during wartime.

Once Augustine presents a theory of justice and war, he moves towards the discussion of peace. After all, war requires an end, and for Augustine, the just war is always fought to secure peace. Augustine gives no evidence that he believes that mankind will naturally triumph over its fallen disposition (which fallen disposition may be a cause in man starting war to begin with), yet the hearts of man must turn from the “havoc of disruption” and “lawless pleasures” (Confessions II.I) to find a peaceable rest with God (Confessions I.I). Mattox interprets Augustine as saying that “as long as Man’s fallen nature remains, even this divine help will not enable humans entirely to overcome the opposition between spirit and body… the tension that typifies war is merely the social counterpart to the spirit-body tension that typifies every individual person” (Mattox 38).

Augustine and Just War

The influence that Augustine still wields over the just-war theory is evident in Augustine’s premises for jus ad bellum and jus in bello. All of these premises are still used today to discuss just-war. Before proceeding, we will briefly examine the most popular of these categories.

Jus ad bellum

Augustine, like Cicero, argues that paramount to all jus ad bellum premises is just cause. Just cause, for Augustine, has several positive and several negative aspects. For instance, Augustine argues that “material compensation for property unjustly taken or destroyed” (Mattox 46) constitutes a just cause for war; however, Augustine negatively defines just cause through emotional responses that negate this premise: love of violence, lust for power, revenge, cruelty, or wild resistance (Mattox 47).

The concept of comparative justice is not heavily discussed by Augustine, and right intention is nearly treated as an arm of just-cause. Augustine argues that a rightly intended war is “waged by the good in order that, by bringing under the yoke the unbridled lusts of men, those vices might be abolished which ought, under a just government, to be either extirpated or suppressed (Letter 138.14).

No rogue citizen is justified in declaring a war on his neighbor, nor is any social leader justified in waging armed conflict against another faction of society. Augustine argues that a competent authority is necessary, although the state cannot force a person to act in opposition to his will (In Answer to Letters of Petilian, the Donatist, Bishop of Cirta 2.98.224). The goal of competent authority is to seek for peace as the ultimate objective for war. As Augustine wrote,

God, to whom the secrets of the heart of man are open, knoweth that it is because of my love for Christian peace that I am so deeply moved by the profaned deeds of those who basely and impiously persevere in dissenting from it. He knoweth also that this feeling of mine is one tending towards peace, and that my desire is not, that any one should against his will be coerced into the Catholic communion, but that all who are in error of the truth may be openly declared, and being by God’s help clearly exhibited through my ministry, may so commend itself as to make them embrace and follow it (Letter 34.1, NPNF I, 262).

Augustine appears to adhere to the concept expressed by William Godwin that “if he who employs coercion against me could mold me to his purposes by argument, no doubt, he would. He pretends to punish me because his argument is strong; but he really punishes me because he is weak” (Kraut 205). The competent authority must strive for peace and reason, and he must not seek to use force to convert people.

Jus in bello

In studying Augustine’s theory of jus in bello principles, an interesting pattern emerges. Augustine writes more concerning jus ad bellum than jus in bello. However, there is a sense that Augustine does not find it necessary to explicate every specific instance wherein each individual should already have a moral sense of right and wrong in war. Maddox picks up on this theme and quotes Tolstoy: “A father who exhorts his son to live honestly, never to wrong any person, and to give all that he has to others, would not [find it necessary expressly to] forbid his son to kill people on the highway” (Tolstoy 101). It appears, to a certain degree, that Augustine takes man’s inner morality for granted, as he accepts that men should already have a sense of decency.

In the case that such moral certainty requires explication, Augustine posits three premises for jus in bello: proportionality, discrimination, and good faith. The premise of proportionality is built on the most basic of human feelings: respect and love of one’s neighbor. Given all the atrocities associated with war – in accordance, it seems, with the jus ad bellum premise of peace as the ultimate end – the state and individual must contemplate upon the evils of war with sorrow. Otherwise, the hardened individual has “lost all human feeling” (City of God XIX.7,544). Augustine argues, “let necessity, therefore, and not your will, slay the enemy who fights against you” (Letter 189.6, NPNF I, 554).

Augustine’s second jus in bello premise, discrimination, is as contemporary today as when he first expressed his theory. Today, differentiating between non-combatants and religious clerics during a time of war is a highly promoted aspect of just-war. Under the premise of discrimination, Augustine also finds a moral justification for a soldier who is commanded to kill. Augustine claims that

When a soldier kills a man in obedience to the legitimate authority under which he served, he is not chargeable with murder by the laws of his country; in fact, he is chargeable with insubordination and mutiny if he refuses… Thus, he is punished if he did it without orders for the same reason that he will be punished if he refused when ordered (On Free Choice of the Will IV.25,9).

Finally, Augustine argues for good faith. Can an army use deception on the battlefield to gain advantage in the war? Augustine answers affirmatively. Mattox points out that Augustine used scripture to justify good faith. Since God commanded Joshua to ambush his enemy and take control of the City of Ai, Augustine is confident in this theory (Maddox 64).

This teaches us that such things are legitimate for those who are engaged in a just war. In these matters the only thing a righteous man has to worry about is that the just war is waged by someone who has the right to do so because not all men have that right. Once an individual has undertaken this kind of war, it does not matter at all, as far as justice is concerned, whether he wins victory in open combat or through ruses (Questions on the Heptateuch 6.10).

Augustine Today: a modern adaptation

The influence that Augustine has had on the modern interpretation of just-war theory is undeniable. A quick look at the most common interpretations of just war includes nearly ever premise for which Augustine argued.

In a world that is experiencing democratization faster than ever before, there are certainly expected modifications to Augustine’s theory. In “Just Cause for War,” a well known article concerning just-war theory, Jeff McMahan borrows and amends many of Augustine’s original ideas. Interesting enough, through all the changes and amendments to just-war theory, the premise of just-cause has remained consistent. McMahan argues alongside Augustine to show that the recovery of goods lost to prior aggression is, indeed, a just-cause for war.

In a move that amends Augustine, McMahan evaluates the current social pressures of today’s world to construct a new theory of just-war. McMahan includes the following premises in his just war theory: humanitarian intervention, prevention of future aggression, just war as a type of morally justified war, deterrence, and democratization.

While Augustine may have accepted many of these premises, he might certainly have taken issue with others. In almost unquestionable terms, Augustine posited defensive strategies for his just war theory. However, current interpretations of just-war, like McMahan’s own, advance moral justification for preventive and preemptive wars in cases of deterrence and democratization. It is difficult to determine whether Augustine would agree with this. This much is certain: Augustine would likely appeal to scripture to continue the legacy of a just war.

Conclusion: Augustine on Cicero

How do we now interpret Cicero’s statement that “in times of war, the law falls silent” (Silent enim leges inter arma)? Is it true? Cicero himself purported a type of just war theory that was later adopted and amended by Augustine. However, Cicero still makes this claim. The answer is that while the principle may be discussed in politics, the law may not always respond according to principle.

Augustine once observed in De Libero Arbitrio (1.5) that “It is the case that a law, which is not just, is not a law at all” (lex inuista non est lex). In Augustine’s opinion, the law must necessarily reflect a moral principle; otherwise it is not a law. If a law is enforced, despite moral principle and reason having shown the injustice of the law, the government has failed at the principle of establishing peace. If a just law has fallen silent, then the system itself is unjust; however, if the unjust law, in violation of a moral principle, is no longer a law, then justice is maintained.

As Justice Scalia’s words have shown, Cicero’s observation is still applicable. In times of war, when the law falls silent, it is the duty of every idealist to maintain a principle. In establishing and maintaining a moral law concerning the just war theory, legal idealists can find current and applicable reason in Augustine’s just war theory. Indeed, it may surprise many modern just war theorists to find that after more than 1,500 years of political and wartime theory, St. Augustine of Hippo is still our contemporary.

Works Cited

Augustine, and R. S. Pine-Coffin. Confessions. Harmondsworth, Middlesex, England: Penguin, 1961. Print.

Cicero, Marcus Tullius. Pro Milone. Torino: Paravia &, 1969. Print.

Franklin, Benjamin, William Temple Franklin, Henry Colburn, Charles Pye, John Swaine, Sidney Hall, Henry Stevens, and Francis Bedford. Memoirs of the Life and Writings of Benjamin Franklin ... London: Printed for Henry Colburn, 1818. Print.

Friedman, Leon. The Law of WarH a Documentary History. New York: Random House, 1972. Print.

Hamdi v Rumsfeld, 542 U.S. 507. United States Supreme Court. 28 June 2004. Print.

Kraut, Richard. Aristotle: Political Philosophy. Oxford England: Oxford UP, 2002. Print.

Laotse, Yutang Lin, and Zhuangzi. The Wisdom of Laotse. New York: Modern Library, 1948. Print.

Mattox, John Mark. Saint Augustine and the Theory of Just War. London: Continuum, 2006. Print.

McMahan, Jeff. "Just Cause for War." Ethics & International Affairs 19.3 (2005). Web.

Russell, Frederick H. "’Only Something Good Can Be Evil’: The Genesis of Augustine’s Secular Ambivalence." Theological Studies 51 (1990). Web.

Tolstoy, Leo. My Religion. London, 1889. Print.

Wilkinson, John Gardner, and Samuel Birch. The Manners and Customs of the Ancient Egyptians. London: Murray, 1878. Print.