Laws are silent in unjust war: Student protests for Palestine and the original fantasy of liberalism

Philospher Jennifer Frey has given an argument that university governing boards have the right to clear students off their lawns and end their protests. According to her, doing so is enforcement of content-neutral restrictions on speech (manner and form restrictions), not content-based restrictions against speech. There are, I think, many ways to challenge her argument even on its own terms (esp. disproportionality and uneven enforcement), but I want to make another point that I think is illustrative, and often forgotten. There is no morally neutral way to adjudicate a case like this. The morality of the university government and the real government cooperating to kick the students off the lawn cannot be decided without considering the moral claims of the students. The idea that we can resolve this without taking a stand on the righteousness of the student’s cause is the original and diagnostic fantasy of liberalism.

The claims of the students include:

1. That the government of the United States is an accessory to war crimes and the crime of genocide in Israel/Palestine.

2. That the government of most of the universities these protests are happening at are an accessory to war crimes and genocide. This is by reason of their support- including military technology support and ideological support- of the state of Israel.

Both the real and university governments deny these claims, of course. The question is are they true? I will not be adjudicating that question in this essay, merely arguing that our actions should wholly depend on the answer we give.

People often cite the aphorism: Inter arma silent leges- among arms, laws are silent, often glossed as “laws are silent in times of war”. Most right-thinking people would see this as a somewhat barbaric slogan if used as an excuse to trample civil liberties or ignore the laws of war. Yet there is, I think, a sense in which it is true. Laws give no moral standing to stop those fighting against unjust war. For this reason, it matters, more than any other factor, whether the students are right.

I

In a legitimately democratic state or institution, there is an obligation to obey the law and/or rules. But a state or institution engaged in grave breaches of rights cannot be legitimate, no matter how structured. Exactly how you draw the line I’ll leave to other people, but I would take it, at a minimum, to include:

1. The absence or utter impotence of democracy

2. Slavery

3. Genocide

4. Extra-judicial (and kangaroo court) imprisonments and/or killings

5. Segregation and apartheid (by any attribute, not just race)

6. Unjust war and war crimes for which the state, and not just rogue actors within it, bear responsibility.

There will be many other conditions as well, but they’ll be much harder to define, e.g. ‘intolerable breaches of civil liberties’, and ‘Severe poverty the state could prevent but chooses not to’. Call the sort of things on this list ‘grave breaches’.

Now what do we mean by legitimate here? There are, I think, multiple concepts of legitimacy in play in political philosophy, but I will take one of them. It will be best to define it negatively. A state possesses rebellion legitimacy if and only if it is not rebellion illegitimate. A state is a rebellion illegitimate if and only if:

In principle, it should be overthrown

The in-principle bit is key. In many (most?) cases of rebellion illegitimacy, attempting to overthrow the state is unwise, and even if possible might lead to a bloody civil war terrible enough to make the attempt morally ill-advised. To say a state is in a condition of rebellion illegitimacy is just to say the legitimacy of that state itself provides no moral barrier to overthrowing that state. [Long-time readers might be wondering how this somewhat complex constellation of moral categories is compatible with my consequentialism. I think it is, but won’t get into it here].

Where rebellion isn’t prudent but the state is rebellion illegitimate, lesser lawbreaking actions to oppose the unacceptable actions of the state are reasonable. Of course, any specific action might be immoral because of its effects on others. However, the mere fact that the rules of the state forbid an action is no argument against the action if that action is done to oppose grave breaches.

Personally, I think all existing states are guilty of multiple ongoing grave breaches of these and are, at least theoretically - just subjects of rebellion. In practice, perhaps in most cases, this would be unwise to attempt under present conditions. However, this is not directly relevant.

The thing about struggling against a state or institution allegedly committing the grave breaches I listed above is that there’s no viewpoint-neutral way to adjudicate the actions of those opposing the state. You have to decide whether the claim against them is true, because if it is, then saying ‘the rules don’t permit this’ is pointless. In a sense, it begs the question. If you want to vindicate the state or institution you have to defeat the protestor’s argument that the state is engaged in grave breaches.

I should probably say something about the fact that I’m treating institutions, or at least large institutions, like states, but I don’t want to break the flow. If anyone thinks that the non-state character of institutions means the university does have the right to defend itself against attempts to stop its participation in war crimes, and the government has a right to help the university out, spell out your argument in the comments and I’ll reply and detail my thinking a bit more.

I

When Martin Luther King broke the law to oppose segregation, by what right was this permissible?

There are, I think, two common answers to this, and my own answer, which has been given from time to time, but which is not as common. They are:

1. King was justified by a special right of civil disobedience which is morally absolutely distinct from rebellion and which comes with various special obligations.

2. King was not justified at all, his disobedience was impermissible.

And my preferred answer:

3. King was justified by a right of rebellion. But for practical constraints, he would have been equally justified in overthrowing the state, or forcing it to change its law, or just forcing the non-enforcement of the law. However, since he either chose not to do this or (more likely) it wasn’t feasible, his lesser form of rebellion was permissible.

I don’t like the concept of civil disobedience. At the very least, I don’t think its ambit applies to extremely serious situations. I think the older concept of a right to rebel is more appropriate. It doesn’t come with silly baggage, e.g. the idea that you are required to surrender yourself to the authorities after your disobedient act. If I free slaves, why should I surrender to the authorities? It is the authorities that should surrender to me.

II

I could just leave it at saying that if the students are justified in rebellion, so the state and university governments certainly aren’t justified in enforcing university rules against them. But I want to flesh out a bit of detail.

The obvious historical point the students could pursue against Frey is that it is widely agreed time and place laws were not just when used against MLK. At least sometimes, the use of time and place rules to stop protests are impermissible, even, I would argue, if they are content-neutral rules. This is because in the absence of exceptional circumstances, actions taken by the state to stop protestors from protesting one of the grave breaches listed above are morally wrong. In addition to the obvious, the following reasoning applies.

There are two ways the authorities could have stopped King’s protests-

1. Forcibly, as they did.

2. By immediately surrendering and meeting all of his demands.

Because his demands were just- so just that not to meet them was to engage in grave rights violations- the state had an obligation to meet them that instant (yes, I would argue, even if the only way to do so was by breaching its own constitutional processes). Doing so presumably would have ended the protest, thus making the use of force unnecessary.

If:

1. I want to achieve object O and

2. I am already required by morality to do A and

3. Doing A will achieve O and

4. All other means of achieving O are violent or otherwise morally costly.

Then there’s a powerful case that I must achieve O by A. Thus the students can argue that just like the authorities MLK faced had an obligation to ‘defeat’ his illegal protest only by surrendering to him in full, so the university must defeat the students’ encampment only by surrendering to them in full and immediately ceasing all support for Israel.

You might argue the students would probably keep encamping even if the university gave into their demands regarding Israel. My first response is that if the students are right, the university at least has an obligation to first try dispersing them by meeting their demands if those demands are to stop grave breaches. My second response is that the students would still have similar claims against the state, which would not be allowed to help the university clear the lawn until it ceased its own grave breaches.

It all depends on whether you think the students are right. there is no neutral logic possible here.

If the protestors at the encampments are right, then their university governing bodies are knowing and known accessories to war crimes, moreover grave war crimes, including the crime of genocide. This either is, or should be, a war crime in itself. This gives the governing bodies a status in some respects comparable to Idi Amin. I phrase this in deliberately provocative terms because this is how serious the accusations of the students are.

In this story, before the universities could even pretend to have a moral right to kick the students off their lawns, they would need to stop participating in war crimes. Leave aside the story I’ve built up so far and look at it afresh. If I were currently participating in war crimes, and a group of people had gathered on my lawn to try and stop me from committing these crimes, my bleating that I had a right to drag them off the lawn because ‘my lawn my rules’ would have all the moral force of straw thrown against a gale. It’s hard for me to see how this changes if it’s a university or government. It is well established that the law gives no excuse as a defense to committing these crimes, I don’t see why it should have any force as a reason not to try to stop the crimes. Should Sophie Scholl have respected the law because it was the law? Of course not.

On the other hand, if the universities are right, and they are not morally implicated in war crimes, then broadly speaking they have the right to enforce neutral manner and form rules. Even so, there may be lingering questions- for example, occupations of lawns have occurred before, yet they are not usually met with such force, what is the cause of the disparity? The protestors might be able to mount an argument that unequal enforcement effectively makes the neutral rules not so neutral although the devil will be in the detail and litigating it is beyond the scope of this essay etc. etc. Also note that other actions taken by the university- such as expelling and suspending students, may still be beyond the pale because of their severity relative to the infringement.

III

The idea that there is some perspective of public reason from which it is possible to determine whether the university has the right to do what it is doing while remaining agnostic about the student’s claims is silly. The students aren’t accusing the university of having made a foolish hire, they’re accusing the university of acts of moral gravity comparable to murder. I grant that viewpoint-neutral arbitration is a morally sensible perspective for some lower-level clashes. However, one can’t determine, as Frey attempts here, that it is just to arrest the students who say they are trying to prevent ongoing and imminent war crimes by the university without considering whether the university is involved in ongoing and imminent war crimes. That viewpoint-neutral arbitration is possible no matter the stakes is the original and the diagnostic fantasy of liberalism.

Suppose twenty years from now, it is widely agreed that Israel engaged in war crimes, and/or genocide against the Palestinians and that American universities played a modest role in that. If this happens, I do not think that those who defended removing students resisting those atrocities will be remembered for their neutral respect of rules. If twenty years from now, Israel’s actions are seen as defensible, then perhaps the debate, if there is any, about the university’s actions will be centered on whether they were over-zealous in enforcing their manner and form rules. Frey will probably come out looking much better if discourse goes down this path. If it doesn’t go down this path, then if I were Frey, I would pray history is forgetful.

We will see.

(P.S., one thing I wanted to add but did not find a space for- uneven enforcement can create a legitimate claim that a rule not be enforced, in my view, and not merely that it be enforced consistently in the future. Happy to talk about this in the comments.)

Appendix: Jennifer Frey’s thread