雇佣军的错误:期票

IF 2.9 1区 哲学 Q1 ETHICS
Chiara Cordelli
{"title":"雇佣军的错误:期票","authors":"Chiara Cordelli","doi":"10.1111/jopp.12305","DOIUrl":null,"url":null,"abstract":"<p>Recent history has seen a rapid growth in the involvement of private parties in war conflicts. In 2020, there were almost twice as many private contractors as US soldiers in Afghanistan.1 In the ongoing war in Ukraine, private actors are allegedly deployed by both parties in the conflict.2 Originally hired by states to provide support services from catering to logistics, private military firms (PMFs) have progressively taken on functions, including combat tasks, that were deemed, at least in the last century, inherently governmental.3 The phenomenon amounts to an unprecedented form of corporatized mercenarism.4</p><p>The condemnation of mercenarism has an illustrious history. While Machiavelli famously deprecated mercenaries' lack of loyalty and tendency to corrupt the state,5 Rousseau worried that hiring mercenaries, rather than having citizens fight wars, would lead the latter to value comfort more than republican freedom. Recent critics argue, among other things, that fighting for profit is inherently wrong;6 that the privatization of war leads to an unjust distribution of access to security;7 that it allows both states and private parties to escape democratic accountability;8 and that it provides incentives to escalate conflicts and to increase the use of violence in the battlefield.9 Some contemporary philosophers have, on the other side, shown a friendlier face towards mercenarism. Most prominently, Cécile Fabre argues that, at least under ideal circumstances, private parties have a right to sell their soldiering services to states, for the purpose of just defensive killing, and states are at liberty to buy those services from them.10</p><p>Departing from Fabre's (qualified) defense of mercenarism, my goal is to provide an account of the wrong of privatized war, which neither rests on the controversial claim that fighting for profit is inherently wrong, nor assumes that privatization leads to unjust distributive outcomes, a lack of accountability, or the disproportionate use of force (although it may). I argue that, even in the absence of such problems, the privatization of (at least some) military tasks would amount to a condition of <i>double domination</i>, whereby both those exposed to the mercenary's use of force and, perhaps more surprisingly, the mercenary themself is dominated: that is to say, subject to the arbitrary will of another. This can occur even within the context of a just war.</p><p>To make my case, I will first argue that the state's outsourcing of certain military tasks to private parties, including most combat tasks, consists of a system of contracts between states and such parties that contain either invalid (not binding) or seriously problematic promises. Either the mercenary's promissory offer to perform those tasks entails the <i>alienation</i> of certain rights that cannot be so alienated, in which case the promise is invalid, or, if limited to the mere <i>waiving</i> of those rights, then the state is generally under a duty not to accept the mercenary's offer. Therefore, either the mercenary acquires no promissory duty to perform the content of the promise, or, if they do acquire it—because the state wrongly accepts the offer—they should be released immediately. Further, insofar as the mercenary comes to acquire a permission to use force <i>on behalf of</i> the state only as a necessary means to discharge their promissory duty to fight on its behalf, if the promise misfires, the mercenary does not acquire any such permission either.</p><p>Two implications follow. On the one hand, any attempt, on the part of the state, to compel the mercenary to perform constitutes an instance of domination over them—an arbitrary imposition of duties on them. On the other hand, since the mercenary lacks permission to exercise force on behalf of the state, and since one can arguably legitimately enforce rights <i>on behalf of</i> a state only if one does so in virtue of a grant of permission therefrom,11 those exposed to this exercise are also dominated—subject to an arbitrary will. One important and difficult part of the argument will be to explain why the relationship between states and regular soldiers does not present the same normative problems that afflict the contractual relationship between the state and mercenaries.</p><p>A concern with double domination provides strong reasons to limit the privatization of war, <i>even if</i> private actors are committed to only fight just wars and to avoid any disproportionate use of force. This does not mean, however, that the privatization of <i>all</i> military tasks, in <i>all</i> circumstances, is equally problematic. My argument provides reasons to condemn the privatization of combat tasks on the ground, and possibly also of non-combat but essential support tasks in dangerous missions for which replacements cannot be easily found, but not the outsourcing of non-essential tasks or of combat tasks with no or very little risk of death to those providing them, such as drone operating. Further, my account condemns the privatization of military tasks by normally functioning states—that is to say, political entities that have both the institutional and economic capacity to maintain a public military—but not necessarily by very weak or failing states. I take these qualifications to be a strength rather than a weakness of the argument, since they reflect the complex nature of the question at stake, and of reality.</p><p>Although the argument relies on empirical assumptions about contemporary mercenarism, some of which could <i>arguably</i> be changed without compromising the conceptual integrity of the practice itself, nevertheless, the objection is robust insofar as, as we shall see, making the changes needed would undermine the reasons why mercenarism exists in the first place.</p><p>Also, and importantly, mercenaries do not occupy an official position within a state's armed forces.</p><p>Although an ethical assessment of the privatization of war is the main focus of this article, it is not its only ambition. The article also provides an opportunity to reflect on what, if anything, makes the occupancy of a public office normatively special, and suggests a plausible, if not conclusive, answer to the broader question of which jobs, if any, should be performed exclusively by public actors. One upshot of my argument is that we have reasons to publicize—to reserve to public agents—the performance of jobs the function of which (1) is both morally permissible and socially desirable, in the sense that a political society has strong reasons to not eliminate the job in question, and (2) can only be fulfilled if employees are bound and can be compelled, by threat of punishment, to stay when an imminent risk of death materializes. Beyond combat tasks, firefighting and, more controversially, also policing and the provision of emergency care during deadly pandemics are plausible candidates.</p><p>If mercenarism consists in a contractual exchange for services between a government and a private actor, then, mercenarism is a promissory phenomenon. For what is a contract if not an enforceable promise?14 This way of defining contracts, still dominant among philosophers, also reflects the way most legal systems understand contracts. For example, US contract law defines a contract as “a promise … for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”15</p><p>Mercenary contracts are legally binding and mutually conditional promises. By outsourcing military tasks (T) to a mercenary (M), government (G) promises to give certain benefits to M <i>if</i> M performs T on G's behalf. Simultaneously, M promises to perform T <i>if</i> G provides, or commits to providing, those benefits to M.</p><p>A moral assessment of the privatization of war should thus grapple with the question of whether mercenary contracts contain valid promises and, if so, whether such promises are promises that a state can permissibly hold their parties to. For even if the law of contract should not perfectly track the <i>morality</i> of promises—for example, a marriage contract in which Joseph marries Bob mostly for pecuniary reasons may be immoral (unethical), but nevertheless binding—still, the validity, and thus the enforceability, of contracts is conditional on the <i>validity</i> of underlying promises. Further, a state should not use legal norms to force people to comply with promises they made to the state, if the state itself should not have accepted those promises, however valid, in the first place. If it turns out, then, that mercenary contracts contain invalid promises, or promises a state ought not to accept, we would have strong reasons to question the contracts' enforceability.</p><p>But what does it mean for a promise to be <i>valid</i>? A promise is valid if it successfully imposes on the promisor a new duty, owed to the promisee, such that the promisor would wrong the promisee by failing to perform. I endorse “the authority view”16 in thinking that what generates promissory obligations is not the fact that the promise creates an expectation in the mind of the promisee, for predictions can do this too, but rather the fact that the promisor transfers to the promisee <i>decisional authority</i> over the promisor, including “the right … to be the one to decide whether to act, how to act and on what grounds.”17 Before promising to buy you a book, I had the right to decide whether to buy it or not. After my promise, you have the right to decide that for me.</p><p>If what generates promissory duties is a transfer of decisional authority, then, to be valid, a promise must meet an <i>alienability condition</i>: the authority that the promisor purports to transfer to the promisee cannot be inalienable. The promise to become someone else's slave is a paradigmatic example of a promise that fails to meet this condition. Why?</p><p>For one thing, the kind of decisional authority slavery promises attempt to transfer is arguably itself inalienable. <i>If</i> individuals' right to autonomously decide how to live—a right the slave gives up—is grounded on the value of moral agency, where to be a moral agent is to be a person endowed with free purposiveness—that is, the ability to develop long-term projects and to revise purposes over time, as well as to live according to them—it is plausible to see the very grounding of the right to autonomous living as internally constraining its own alienability, to the extent that irrevocably transferring decisional control over one's life to another, while remaining a person, would contradict moral agency.18</p><p>Promises that bind someone to irrevocably transfer the right to decide for themselves what they are going to do are invalid because they violate the rationale that justifies having the power to enter into promises in the first place. This invalidates promises to become someone else's slave, and possibly also promises that <i>irrevocably</i> transfer the right to decide on fundamental questions, such as whether one should live or die.</p><p>With these clarifications in mind, I now turn to ask: can a mercenary validly offer their combat services to the state?</p><p>Some answer positively to the question above. Fabre, for example, argues that, in the same way in which a weapon manufacturer can permissibly sell guns to those who need them to justly defend themselves, even though the assistance that they provide involves a contribution to an act of killing, private parties also have the liberty and claim, on grounds of freedom of occupational choice, to offer killing services, as long as the cause they serve is just.20 Just defensive killing also provides, for Fabre, a justification for conferring on states the liberty and power to hire mercenaries for killing services.</p><p>Fabre's argument is intuitively appealing, but a careful analysis of her analogy reveals a problem. Whereas the manufacturer's offer simply transfers to the state a right over the use of an object (a weapon), those who fight for a state generally transfer to it also decisional authority over their life. Take the case of soldiers. By offering their combat services to the state for a just cause, soldiers transfer to it the authority to decide whether and when they should sacrifice their life for that cause. The state acquires the right to <i>demand</i> that, if circumstances necessitate, the soldier stay, even if the risk to their life amounts to almost certainty of death. If the soldier leaves just because things are too risky, they would be seriously wronging the state. The soldier–state contract thus implies the transfer of what Joel Feinberg calls <i>the discretionary right to life</i>—the authority to decide, at any given point in time, and without external interference, whether or not to end or sacrifice one's own life.21</p><p>This right transfer is generally considered morally justified, assuming that the state is committed to only fight just wars and to not demand futile sacrifices from soldiers, because without it, the effectiveness of the military would be compromised.22 The transfer is also legally sanctioned. In the US, for instance, the Uniform Code of Military Justice (UCMJ) makes soldiers who disobey an order on the grounds that it demands self-sacrifice liable to punishment, including execution.23</p><p>If this is the content of the promise between the state and its soldiers, we have prima facie reasons to think that the content of the promise between the state and mercenaries should be the same. After all, if demanding sacrifice is necessary for military effectiveness in the case of soldiers, why would it not be equally necessary in the case of mercenaries? The mercenary promise would then (attempt to) transfer something that Fabre's manufacturer's promise does not transfer: the promisor's discretionary right to life.</p><p>But can the promise, so understood, meet the alienability condition? Whereas the manufacturer can alienate through a private contract their property right over the weapon, it is far less clear that the mercenary, as a private individual, can alienate their discretionary right to life through a simple private contract. As we saw, valid contracts must rely on valid promises, but some promises—for example, slavery promises—are invalid if and because they attempt to transfer rights that cannot be so transferred, and this is so even if compliance with such promises could promote a just cause. Many would agree that slavery contracts would be invalid, even if and when a system of voluntary slavery could promote, say, overall welfare.24</p><p>Now, the same reasons why slavery promises fail to meet the alienability condition also explain why promises that attempt to alienate one's discretionary right to life fail to meet that same condition—the discretionary authority to decide whether one should live or die being perhaps the most fundamental aspect of moral agency, and definitely something we have an authority interest in controlling, since our ability to embark on meaningful projects and plan long term would be seriously diminished if we transferred to others the right to control that more fundamental decision. Therefore, either the discretionary right to life is inherently inalienable, for its alienability would contradict the grounding value of moral agency, or it cannot, in any case, be alienated through promising, for such alienation would contradict the reason for having the normative power to promise—the authority interest. Note that this does not mean that contracts for, say, voluntary euthanasia are necessarily invalid, for in the case of voluntary euthanasia, I do not transfer to someone else the discretionary authority to decide whether I should live or die, regardless of changes in my future will. To the extent that I can change my mind until the last minute, I am myself <i>exercising</i> that authority.25 By contrast, to (attempt to) transfer to another the right to decide whether I should live or die, regardless of potential changes in my future will, is to (attempt to) <i>abandon</i> that authority.</p><p>It follows that, <i>if</i> the mercenary's offer is interpreted, on a par with the soldier's promise, as an attempt to alienate the mercenary's discretionary right to life, then, such an offer (unlike Fabre's manufacturer's offer) ought to be regarded as invalid—even if the state accepts it, no promissory duty to stay in the case of an imminent risk would arise. If the mercenary refuses to die, they would not be wronging the state.</p><p>It could be objected, however, that people sign employment contracts to undertake very risky occupations all the time, and such contracts generally succeed in imposing binding obligations on the employees. Indeed, although mercenaries incur serious risks to their lives,26 professions such as logging or construction working are overall more risky. So why is the mercenary contract, but not, say, the logger contract, invalid? The reason is that the logger's offer does not attempt to alienate their right to life. What the logger agrees to—performing tasks to which some randomly distributed risk of death is attached—is not the same as transferring to another the authority to decide whether they should stay once a risk of death materializes. The logger does not wrong the employer if they leave as soon as they reasonably fear a tree is falling on their head, and this would be so even if they had contractually agreed to do whatever the employer decides. Not only, as Ned Dobos points out, would we “not think it morally justifiable for any civilian employer to demand and enforce obedience <i>unto death</i>”, but also employees, including those in very risky occupations, have a moral and a legal right to disobey an order if they believe that an “imminent danger” exists, where this is legally defined in terms of a reasonable expectation “of death or serious physical harm.”27</p><p>In the same way in which a logger's promise to do whatever the employer demands, including staying in case of imminent danger to the logger's life, would be invalid, so too should be the mercenary's promise to do whatever the commander demands in case of imminent risk of death. Later I will explain why soldiers constitute a sui generis exception to this conclusion.</p><p>It could be objected, however, that in the case of mercenarism, and only in this case, obedience to sacrifice is necessary to fulfill the aim of the profession—an aim that is arguably both morally acceptable and sufficiently valuable.28 Perhaps this fact suffices to justify morally binding the mercenary to do as the commander says.29 The objection, however, encounters a deontological challenge: the expected benefits of alienation would seem insufficient to make alienable what is inalienable. Just as a system of slavery contracts would be invalid, even when necessary to achieve social stability or economic growth, a system of mercenary contracts that entails the alienation of the discretionary right to life would be similarly invalid, even when necessary to achieve better security.</p><p>It would seem, then, that mercenary promises can be both valid and permissible only to the extent that mercenaries are treated as <i>waiving</i>, rather than alienating, their right to life. Just as, say, sex workers can (arguably) sell sexual services in the market, as long as they retain the right to walk out as soon as they change their mind, mercenaries can sell their combat services, assuming that they retain the right to leave when things get too dangerous. They may have a duty to return the money if they provide no service, but no duty to incur any sanctions for failing to perform.30</p><p>While the fact that walkouts are not punished as desertion indicates that mercenaries cannot be compelled to remain against their will, the fact that they break a contract when they leave indicates that they are understood as having a duty to stay, albeit one with “limited enforceability.”</p><p>Regardless of how existing law understands the content of the mercenary contract, morally speaking, the mercenary's offer for services can be valid only if it is limited to waiving.32 But this generates a new problem. If mercenary offers are valid only conditionally on private actors retaining the right to walk out in case of imminent danger, then, this fact would seem to compromise the moral permissibility of a state <i>accepting</i> such offers, since acceptance would endanger the success of military operations,33 thereby contravening the state's moral duty to effectively protect its citizens.</p><p>It could be argued, however, that even if mercenaries are less reliable than soldiers, they may bring other benefits that could outweigh the heightened risk of walkouts, such that accepting mercenary offers would be, all things considered, the best way for states to fulfil their duty to effectively protect their citizens and their own stability. Of course, when it comes to combat tasks on the ground, reduced reliability would seem to be a particularly weighty consideration, since if combatants walk out in the middle of a military operation, the success of the entire operation would be jeopardized, especially if those who walk out have, say, higher skills or better training. But in order to assess the weight of reduced reliability, relative to other considerations, we should be more specific as to what reasons states may have to prefer mercenaries to soldiers as means to discharge their duty to effectively provide security, compatibly with other duties they may have.35</p><p>One often cited reason is that, because of market competition, private companies can provide superior services at lower costs than the state. However, even if we assume, arguendo, that this functional consideration could compensate for reduced reliability, it may simply not apply in the case of most combat tasks, for providing security in conflict zones exhibits, and robustly so, all the features of market failure: scarce competition, a narrow consumer base, and consumers' inability to pass on economic losses.36</p><p>A second reason states may have to prefer private companies is “to acquire the services that they want when they want them, rather than having to maintain an ongoing regular military.”37 This is an important consideration, for security is not the only responsibility a state has, and a political society may reasonably opt to redirect military spending to other causes. However, this consideration holds only if we assume that privatizing military tasks will amount to long-term savings that could then be redirected elsewhere, something that is, again, highly questionable, once the costs involved in monitoring and administrating private contracts are factored in.38</p><p>Third, hiring private armies allows states to avoid politically unpopular choices such as committing additional soldiers to dangerous missions.39 But either a state should do what the people want and not send the troops, or, if it should pursue the aim of security, despite the people's will, then, other things being equal, it is impermissible to prefer private combatants just to avoid political costs, if there is a higher risk that such combatants will leave when things become too dangerous.</p><p>Finally, normally functioning states that have the capacity, if not the willingness, to recruit soldiers cannot generally appeal to the scarcity of soldiers as a justification (as different from an excuse) for hiring mercenaries, as a means to discharge their duty to effectively provide security, for in such states the scarcity of soldiers is often a consequence of previous decisions to hire mercenaries instead.40</p><p>In sum, insofar as private combatants' reduced reliability cannot be easily outweighed by competing considerations, states with the capacity to maintain or recruit alternatives—which excludes very weak states—will <i>generally</i> have strong reasons, grounded on their moral duty to effectively protect their citizens and defend themselves, not to accept the mercenary's promise.41</p><p>But perhaps the assumption that mercenaries are, or can be expected to be, less reliable than soldiers just because they are not subject to threats of punishment is false. After all, economic incentives, such as refusal to renew a firm's contract in case of walkouts, or motives such as comradeship, could and often do suffice to secure the willingness of private combatants to sacrifice their lives.42 In response, we should first notice that incentives can be circumvented. For example, private firms can dissolve and form a different company in order to avoid a ban on bidding for further government contracts.43 As for motives, even if we assume that mercenaries can be motivated, precisely like soldiers, by comradeship and a sense of honor, beyond pecuniary considerations, the threat of punishment may still be necessary to keep cases of desertion under reasonable limits. Otherwise it could not be explained why soldiers, who are similarly motivated, are subject to such threat of punishment.</p><p>But there is more. A state has a duty to secure not just reliability, as far as the provision of security is concerned, but <i>robust</i> reliability—reliability under a set of possible changes in human motivations. The reason is that a state should ensure that its citizens' security does not significantly depend on the good will of its providers44—in the same way as a state committed to the economic security of its citizens should not leave its provision to philanthropy. If mercenaries, however well intentioned, were allowed to discretionally judge the level of risk, and make decisions about whether to leave or stay on that basis, this would raise important concerns of domination. It is thus impermissible for states to exclusively rely on the comradeship of the mercenary, or on their discretional responsiveness to economic incentives, to ensure the successful performance of justified military operations.</p><p>To this we can add that, if mercenaries could not be compelled to remain, states would likely have incentives to deceive them about the risks of certain wars in order to prevent desertion.45 This in turn could generate a lack of trust between mercenaries and state officials, as well as other soldiers, thereby further undermining the effectiveness of the military. Finally, the overall likelihood of desertion would impose higher costs on those remaining in the field of war.46</p><p>All these reasons, then, suggest that functioning states are under a duty, grounded on their prior moral duty to provide security in an effective, non-dominating and fair way, not to accept mercenary offers. We thus reach the following preliminary conclusion: <i>either</i> the mercenary's promissory offer of military services violates the alienability condition, in which case the promise is invalid, <i>or</i>, if limited to waiving, it is generally impermissible for states to accept the offer. It follows that, if the state does what it ought to do, the mercenary would acquire no promissory duty to perform. If, by contrast, the state (wrongly) accepts the mercenary's promise, it would still be wrong for the state to demand that the mercenary comply with the offer's terms. It should release the mercenary instead. In turn, the state should not consider itself wronged if the mercenary fails to comply, for this failure is only possible as a result of the state's previous wrongful failure to release the mercenary.</p><p>Note that this argument does not apply to the provision of services, including some combat tasks such as drone operating, that entails no, or a very low risk of death for those providing them, or to services, however essential, for which replacements could be easily and effectively found, because in such cases leaving would not undermine security. It only applies to the provision of services that are both essential and can only be effectively supplied if those who provide them are willing to stay when a risk of death materializes—for example, combat on the ground by front-line infantry or, depending on circumstances, the operation of bombing campaigns. It may also apply to the provision of non-combat support services, as long as such services are essential for the success of a military mission, their provision in conflict zones entails a non-negligible risk of death, and replacements in cases of walkouts cannot be easily secured.</p><p>But a part of the puzzle is still missing. If mercenaries cannot alienate their discretionary right to life, why can soldiers? Call this <i>the asymmetry question</i>. True, soldiers retain the option of choosing imprisonment as an alternative to making the ultimate sacrifice.47 However, the pair of options between which soldiers can freely choose is imprisonment versus (an imminent and likely risk of) death, as opposed to a free life versus (an imminent and likely risk of) death. Joining the army involves, in this sense, a qualified form of alienation.</p><p>The literature on war suggests two answers to the asymmetry question, both of which are wanting.48 The first answer points to the distinctively financial character of the mercenary's contract. Along these lines, Baker argues that “sacrifice has no place in the cost–benefit analysis that is at the heart of commercial soldiering,” and Pattison contends that “the difference lies in the nature of the agreement.”49 For private contractors, “it is financial and, as such, its fulfillment is not always binding, especially in the face of likely death”; by contrast, the contract between the state and the soldier “is not simply financial … It involves an extensive responsibility of care, expert training, and a special positioning in society.”50</p><p>It is, however, unclear what the financial aspect of the contract refers to and why it is relevant. If it refers to the <i>motives</i> for the sake of which mercenaries agree to fight, this cannot explain the asymmetry between soldiers and mercenaries, because, as Baker himself argues, both parties can have mixed motives.51 Further, the motives an agent has for signing an agreement arguably do not bear on whether they can or cannot alienate their right to life through that agreement. Whether I am motivated to agree to become someone's slave for money, fun, or to pursue a just cause, the other party still wrongs me if they enslave me. If, instead, the financial aspect refers to the <i>rationality</i> of the agreement—whether the expected benefits are worth the expected costs—this cannot explain the asymmetry either, because mercenaries, precisely like soldiers, could in principle expect the benefit of fulfilling a vocation or of obtaining a certain kind of social recognition for their heroic acts, in a way that could make their agreement to stay in case of imminent risk of death rational.52 But, again, the fact that it may be rational for an agent to enter a certain agreement (for example, a contract for voluntary slavery with great benefits attached to it) does not mean that the agent has the moral power to alienate what is in fact inalienable. Nor the fact that soldiers have special responsibilities of care, undergo expert training, and occupy a special position in society explains why they, and only they, can alienate their discretionary right to life. Not only could these features in principle extend to mercenaries, but also a private agent's inalienable rights generally constrain the kind of responsibilities she can reasonably be allocated.</p><p>The second answer is contractarian and argues that soldiery is a role the constitutive rules of which (1) could be agreed by all relevant participants (for example, states) as fair and mutually beneficial, and (2) demand that soldiers acquire sui generis permissions and liabilities that would be ruled out by ordinary morality. Benbaji makes this argument to explain how soldiers, by consenting to their role, lose their moral claim against being unjustly attacked by enemy soldiers, but his argument could be extended to explain why soldiers also lose their claim against being compelled by commanders to face an imminent risk of death against their will.53</p><p>However compelling in its own case, Benbaji's argument cannot suffice to answer the asymmetry question, for two reasons. First, one could argue that a practice of mercenarism, the constitutive rules of which required private parties to alienate their right to life, would also be mutually beneficial and fair to all relevant parties, for the same reasons why that is the case for soldiers: most states are not able to efficiently fight just wars except with armies compelled to remain when a risk of death materializes. Mercenaries could then acquire a duty to stay by simply consenting to become mercenaries. Therefore, fairness, mutual benefit and consent cannot by themselves explain the asymmetry between soldiers and mercenaries with regards to alienation. Second, as Benbaji himself acknowledges, the contractualist argument is subject to an important deontological objection. In Benbaji's own words “a person's claim against being unjustly killed is not alienable just by her consent to morally optimal rules.”54 That is correct and applies as well to a person's claim against being compelled to die against their will. Neither a soldier nor a mercenary can alienate their inalienable rights through simple consent, no matter how optimal the rules they consent to.</p><p>In sum, the reason why soldiers but not mercenaries can be treated as if they have alienated their right to life cannot be reduced either to the non-financial nature of their agreement or to the fact that they consent to optimal constitutive rules. Rather, the asymmetry must ultimately have to do with a difference in their (public/private) status or identity.</p><p>The above conclusion comes with a first, interesting implication. If the mercenary offer is invalid, or if it is valid but the state does what it ought to do (decline the offer), no promissory duty of performance on the part of the mercenary arises. Therefore, whenever a state attempts to enforce that duty on the mercenary—including, for example, by threatening them with economic sanctions if they do not perform—the state wrongs the mercenary. This wrong amounts to a form of domination, insofar as the state arbitrarily interferes with the mercenary's freedom by trying to enforce duties upon them that they do not in fact have (or that they may have, but just as a result of the state's wrongful failures to refuse the promise and to release the promisor), and by claiming the authority to do so on the basis of a contractual relationship that the state itself should have refused.</p><p>But there is a further implication. Sometimes promises that misfire fail not only to impose new duties on the promisor, but also to transfer new permissions to them. To illustrate: if you accept my promise that I will look after your garden while you are away, I not only acquire a promissory duty to look after your garden, but also permissions that I would not otherwise have to do things that are either instrumentally necessary to, or constitutive of, the successful fulfillment of the promissory duty—for example, I now have permission to access your garden and water the grass. If, for whatever reason, the promise misfires, I now have no duty to take care of your garden and no derivative permission to access or water it (unless, of course, you separately granted that to me).</p><p>Similar considerations apply to the promise between the state and the mercenary. By accepting the mercenary's promissory offer to perform combat tasks on its behalf, and assuming the offer is valid, the state imposes on the mercenary a promissory duty to fight on its behalf. Insofar as, and only insofar as, the use of force is constitutive of, and instrumentally necessary to, the successful discharge of that duty, the state also transfers to the mercenary the moral permission to use force on its behalf. However, if the promise misfires, either because the offer is invalid or the state's acceptance impermissible, the promise cannot transfer to the mercenary a derivative permission to use force on behalf of the state.72 Yet, if the mercenary uses force without permission to do so, they arbitrarily impose force on others, thereby dominating them. The privatization of (many) combat tasks thus entails a threat of <i>double domination</i>: the domination of both the mercenary and of those subject to their use of force.</p><p>It could be objected that states, or state-authorized agents, are not the only parties with permission to use force in war, and that any private party has the right to independently initiate and fight in just wars.73 Therefore, even if mercenaries fail to acquire, through their contract with the state, permission to fight in a war, their use of force need not to amount to domination. My response follows contemporary Kantians who have, in my view compellingly, argued that private parties can neither adjudicate nor enforce rights against others merely unilaterally: that is to say, independently of an omnilateral, political authorization.74 This is so, even if the content of their determinations is correct, insofar as being correct is insufficient to confer on private parties the authority to impose their own unilateral determinations on others. It is true that we have a liberty of self-defense, but this liberty is exceptional. It is not a general authorization to independently enforce one's rights or the rights of others, it is rather a limited, sui generis authorization to do so only when public authorities acting omnilaterally are unavailable.75</p><p>But even if one thinks that private parties are permitted to independently fight wars, the fact remains that one can legitimately enforce rights <i>on behalf of</i> an agent only if one does so in virtue of their authorization.76 Insofar as, in the context of privatized war, the mercenary's job entails enforcing rights on behalf of a state, not independently, the state must grant, through contract, a moral permission to the mercenary to use force on its behalf in order for <i>that</i> use to be non-arbitrary. Insofar as mercenaries lack such permission, their use of force remains arbitrary. Hence the problem of domination.</p><p>The argument developed so far provides us with strong reasons not only to limit the privatization of war, but also to take under state control some professions beyond the military. I recommend that a profession be within the exclusive purview of the state when (1) the profession is morally permissible and socially desirable and (2) can only fulfill its purpose if its members are bound to stay when an imminent risk of death materializes. As we saw, in the case of most risky jobs (logging, constructions, mining, and so on), the purpose of the activity can be fulfilled even if employees retain the right to walk out when a risk of death materializes. In these cases, the activity can be private, and we can simply say that the employee does not wrong the employer when they leave. No moral residue is left.</p><p>By contrast, as we also saw, the case of mercenarism creates a distinctive conflict: the success of the activity itself requires the <i>alienation</i> of the right to decide whether to stay or leave in case of an imminent and very serious risk to one's life, <i>but</i> such right cannot be alienated by private persons through simple promising. If the activity remains private, then, it fails to fulfill its purpose. In such case, the activity ought to be exclusively performed by state agents, because those who bear the corporate person of the state, and only they, occupy a status to which the circumscribed suspension of the right to life can be attached (to the extent necessary to achieve the role's necessary purpose). It is only by making the job public that we can eliminate the moral conflict: no one either violates an alienability condition <i>or</i> fails to achieve a morally acceptable and socially desirable purpose.</p><p>Soldiery, however, may not be the only profession to meet these conditions. Firefighting is arguably another profession of this kind, and there may be others, including providing emergency care during deadly pandemics, and policing. If such professions serve permissible and socially desirable purposes, and if the achievement of such purposes demands that their members be required to stay when a serious risk of death materializes, we may have equally strong reasons to not privatize them. Whether such reasons are conclusive is left for another time.</p><p>The privatization of war, especially when certain military tasks—many combat tasks and potentially also some essential support tasks—are at stake, consists in a system of failed promises between private parties and states that gives rise to a condition of double domination. Since failed promises cannot generate binding duties, attempts to enforce such duties on the mercenary constitute an act of domination against the latter. Since failed promises cannot generate derivative permissions either, the mercenary's use of force on behalf of the state also amounts to the domination of those subject to it. This argument also provides strong reasons to reserve to state agents the performance of other socially necessary functions, such as firefighting.</p><p>None relevant.</p><p>There are no potential conflicts of interest relevant to this article.</p><p>The author declares human ethics approval was not needed for this study.</p>","PeriodicalId":47624,"journal":{"name":"Journal of Political Philosophy","volume":null,"pages":null},"PeriodicalIF":2.9000,"publicationDate":"2023-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jopp.12305","citationCount":"2","resultStr":"{\"title\":\"The wrong of mercenarism: a promissory account\",\"authors\":\"Chiara Cordelli\",\"doi\":\"10.1111/jopp.12305\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"<p>Recent history has seen a rapid growth in the involvement of private parties in war conflicts. In 2020, there were almost twice as many private contractors as US soldiers in Afghanistan.1 In the ongoing war in Ukraine, private actors are allegedly deployed by both parties in the conflict.2 Originally hired by states to provide support services from catering to logistics, private military firms (PMFs) have progressively taken on functions, including combat tasks, that were deemed, at least in the last century, inherently governmental.3 The phenomenon amounts to an unprecedented form of corporatized mercenarism.4</p><p>The condemnation of mercenarism has an illustrious history. While Machiavelli famously deprecated mercenaries' lack of loyalty and tendency to corrupt the state,5 Rousseau worried that hiring mercenaries, rather than having citizens fight wars, would lead the latter to value comfort more than republican freedom. Recent critics argue, among other things, that fighting for profit is inherently wrong;6 that the privatization of war leads to an unjust distribution of access to security;7 that it allows both states and private parties to escape democratic accountability;8 and that it provides incentives to escalate conflicts and to increase the use of violence in the battlefield.9 Some contemporary philosophers have, on the other side, shown a friendlier face towards mercenarism. Most prominently, Cécile Fabre argues that, at least under ideal circumstances, private parties have a right to sell their soldiering services to states, for the purpose of just defensive killing, and states are at liberty to buy those services from them.10</p><p>Departing from Fabre's (qualified) defense of mercenarism, my goal is to provide an account of the wrong of privatized war, which neither rests on the controversial claim that fighting for profit is inherently wrong, nor assumes that privatization leads to unjust distributive outcomes, a lack of accountability, or the disproportionate use of force (although it may). I argue that, even in the absence of such problems, the privatization of (at least some) military tasks would amount to a condition of <i>double domination</i>, whereby both those exposed to the mercenary's use of force and, perhaps more surprisingly, the mercenary themself is dominated: that is to say, subject to the arbitrary will of another. This can occur even within the context of a just war.</p><p>To make my case, I will first argue that the state's outsourcing of certain military tasks to private parties, including most combat tasks, consists of a system of contracts between states and such parties that contain either invalid (not binding) or seriously problematic promises. Either the mercenary's promissory offer to perform those tasks entails the <i>alienation</i> of certain rights that cannot be so alienated, in which case the promise is invalid, or, if limited to the mere <i>waiving</i> of those rights, then the state is generally under a duty not to accept the mercenary's offer. Therefore, either the mercenary acquires no promissory duty to perform the content of the promise, or, if they do acquire it—because the state wrongly accepts the offer—they should be released immediately. Further, insofar as the mercenary comes to acquire a permission to use force <i>on behalf of</i> the state only as a necessary means to discharge their promissory duty to fight on its behalf, if the promise misfires, the mercenary does not acquire any such permission either.</p><p>Two implications follow. On the one hand, any attempt, on the part of the state, to compel the mercenary to perform constitutes an instance of domination over them—an arbitrary imposition of duties on them. On the other hand, since the mercenary lacks permission to exercise force on behalf of the state, and since one can arguably legitimately enforce rights <i>on behalf of</i> a state only if one does so in virtue of a grant of permission therefrom,11 those exposed to this exercise are also dominated—subject to an arbitrary will. One important and difficult part of the argument will be to explain why the relationship between states and regular soldiers does not present the same normative problems that afflict the contractual relationship between the state and mercenaries.</p><p>A concern with double domination provides strong reasons to limit the privatization of war, <i>even if</i> private actors are committed to only fight just wars and to avoid any disproportionate use of force. This does not mean, however, that the privatization of <i>all</i> military tasks, in <i>all</i> circumstances, is equally problematic. My argument provides reasons to condemn the privatization of combat tasks on the ground, and possibly also of non-combat but essential support tasks in dangerous missions for which replacements cannot be easily found, but not the outsourcing of non-essential tasks or of combat tasks with no or very little risk of death to those providing them, such as drone operating. Further, my account condemns the privatization of military tasks by normally functioning states—that is to say, political entities that have both the institutional and economic capacity to maintain a public military—but not necessarily by very weak or failing states. I take these qualifications to be a strength rather than a weakness of the argument, since they reflect the complex nature of the question at stake, and of reality.</p><p>Although the argument relies on empirical assumptions about contemporary mercenarism, some of which could <i>arguably</i> be changed without compromising the conceptual integrity of the practice itself, nevertheless, the objection is robust insofar as, as we shall see, making the changes needed would undermine the reasons why mercenarism exists in the first place.</p><p>Also, and importantly, mercenaries do not occupy an official position within a state's armed forces.</p><p>Although an ethical assessment of the privatization of war is the main focus of this article, it is not its only ambition. The article also provides an opportunity to reflect on what, if anything, makes the occupancy of a public office normatively special, and suggests a plausible, if not conclusive, answer to the broader question of which jobs, if any, should be performed exclusively by public actors. One upshot of my argument is that we have reasons to publicize—to reserve to public agents—the performance of jobs the function of which (1) is both morally permissible and socially desirable, in the sense that a political society has strong reasons to not eliminate the job in question, and (2) can only be fulfilled if employees are bound and can be compelled, by threat of punishment, to stay when an imminent risk of death materializes. Beyond combat tasks, firefighting and, more controversially, also policing and the provision of emergency care during deadly pandemics are plausible candidates.</p><p>If mercenarism consists in a contractual exchange for services between a government and a private actor, then, mercenarism is a promissory phenomenon. For what is a contract if not an enforceable promise?14 This way of defining contracts, still dominant among philosophers, also reflects the way most legal systems understand contracts. For example, US contract law defines a contract as “a promise … for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”15</p><p>Mercenary contracts are legally binding and mutually conditional promises. By outsourcing military tasks (T) to a mercenary (M), government (G) promises to give certain benefits to M <i>if</i> M performs T on G's behalf. Simultaneously, M promises to perform T <i>if</i> G provides, or commits to providing, those benefits to M.</p><p>A moral assessment of the privatization of war should thus grapple with the question of whether mercenary contracts contain valid promises and, if so, whether such promises are promises that a state can permissibly hold their parties to. For even if the law of contract should not perfectly track the <i>morality</i> of promises—for example, a marriage contract in which Joseph marries Bob mostly for pecuniary reasons may be immoral (unethical), but nevertheless binding—still, the validity, and thus the enforceability, of contracts is conditional on the <i>validity</i> of underlying promises. Further, a state should not use legal norms to force people to comply with promises they made to the state, if the state itself should not have accepted those promises, however valid, in the first place. If it turns out, then, that mercenary contracts contain invalid promises, or promises a state ought not to accept, we would have strong reasons to question the contracts' enforceability.</p><p>But what does it mean for a promise to be <i>valid</i>? A promise is valid if it successfully imposes on the promisor a new duty, owed to the promisee, such that the promisor would wrong the promisee by failing to perform. I endorse “the authority view”16 in thinking that what generates promissory obligations is not the fact that the promise creates an expectation in the mind of the promisee, for predictions can do this too, but rather the fact that the promisor transfers to the promisee <i>decisional authority</i> over the promisor, including “the right … to be the one to decide whether to act, how to act and on what grounds.”17 Before promising to buy you a book, I had the right to decide whether to buy it or not. After my promise, you have the right to decide that for me.</p><p>If what generates promissory duties is a transfer of decisional authority, then, to be valid, a promise must meet an <i>alienability condition</i>: the authority that the promisor purports to transfer to the promisee cannot be inalienable. The promise to become someone else's slave is a paradigmatic example of a promise that fails to meet this condition. Why?</p><p>For one thing, the kind of decisional authority slavery promises attempt to transfer is arguably itself inalienable. <i>If</i> individuals' right to autonomously decide how to live—a right the slave gives up—is grounded on the value of moral agency, where to be a moral agent is to be a person endowed with free purposiveness—that is, the ability to develop long-term projects and to revise purposes over time, as well as to live according to them—it is plausible to see the very grounding of the right to autonomous living as internally constraining its own alienability, to the extent that irrevocably transferring decisional control over one's life to another, while remaining a person, would contradict moral agency.18</p><p>Promises that bind someone to irrevocably transfer the right to decide for themselves what they are going to do are invalid because they violate the rationale that justifies having the power to enter into promises in the first place. This invalidates promises to become someone else's slave, and possibly also promises that <i>irrevocably</i> transfer the right to decide on fundamental questions, such as whether one should live or die.</p><p>With these clarifications in mind, I now turn to ask: can a mercenary validly offer their combat services to the state?</p><p>Some answer positively to the question above. Fabre, for example, argues that, in the same way in which a weapon manufacturer can permissibly sell guns to those who need them to justly defend themselves, even though the assistance that they provide involves a contribution to an act of killing, private parties also have the liberty and claim, on grounds of freedom of occupational choice, to offer killing services, as long as the cause they serve is just.20 Just defensive killing also provides, for Fabre, a justification for conferring on states the liberty and power to hire mercenaries for killing services.</p><p>Fabre's argument is intuitively appealing, but a careful analysis of her analogy reveals a problem. Whereas the manufacturer's offer simply transfers to the state a right over the use of an object (a weapon), those who fight for a state generally transfer to it also decisional authority over their life. Take the case of soldiers. By offering their combat services to the state for a just cause, soldiers transfer to it the authority to decide whether and when they should sacrifice their life for that cause. The state acquires the right to <i>demand</i> that, if circumstances necessitate, the soldier stay, even if the risk to their life amounts to almost certainty of death. If the soldier leaves just because things are too risky, they would be seriously wronging the state. The soldier–state contract thus implies the transfer of what Joel Feinberg calls <i>the discretionary right to life</i>—the authority to decide, at any given point in time, and without external interference, whether or not to end or sacrifice one's own life.21</p><p>This right transfer is generally considered morally justified, assuming that the state is committed to only fight just wars and to not demand futile sacrifices from soldiers, because without it, the effectiveness of the military would be compromised.22 The transfer is also legally sanctioned. In the US, for instance, the Uniform Code of Military Justice (UCMJ) makes soldiers who disobey an order on the grounds that it demands self-sacrifice liable to punishment, including execution.23</p><p>If this is the content of the promise between the state and its soldiers, we have prima facie reasons to think that the content of the promise between the state and mercenaries should be the same. After all, if demanding sacrifice is necessary for military effectiveness in the case of soldiers, why would it not be equally necessary in the case of mercenaries? The mercenary promise would then (attempt to) transfer something that Fabre's manufacturer's promise does not transfer: the promisor's discretionary right to life.</p><p>But can the promise, so understood, meet the alienability condition? Whereas the manufacturer can alienate through a private contract their property right over the weapon, it is far less clear that the mercenary, as a private individual, can alienate their discretionary right to life through a simple private contract. As we saw, valid contracts must rely on valid promises, but some promises—for example, slavery promises—are invalid if and because they attempt to transfer rights that cannot be so transferred, and this is so even if compliance with such promises could promote a just cause. Many would agree that slavery contracts would be invalid, even if and when a system of voluntary slavery could promote, say, overall welfare.24</p><p>Now, the same reasons why slavery promises fail to meet the alienability condition also explain why promises that attempt to alienate one's discretionary right to life fail to meet that same condition—the discretionary authority to decide whether one should live or die being perhaps the most fundamental aspect of moral agency, and definitely something we have an authority interest in controlling, since our ability to embark on meaningful projects and plan long term would be seriously diminished if we transferred to others the right to control that more fundamental decision. Therefore, either the discretionary right to life is inherently inalienable, for its alienability would contradict the grounding value of moral agency, or it cannot, in any case, be alienated through promising, for such alienation would contradict the reason for having the normative power to promise—the authority interest. Note that this does not mean that contracts for, say, voluntary euthanasia are necessarily invalid, for in the case of voluntary euthanasia, I do not transfer to someone else the discretionary authority to decide whether I should live or die, regardless of changes in my future will. To the extent that I can change my mind until the last minute, I am myself <i>exercising</i> that authority.25 By contrast, to (attempt to) transfer to another the right to decide whether I should live or die, regardless of potential changes in my future will, is to (attempt to) <i>abandon</i> that authority.</p><p>It follows that, <i>if</i> the mercenary's offer is interpreted, on a par with the soldier's promise, as an attempt to alienate the mercenary's discretionary right to life, then, such an offer (unlike Fabre's manufacturer's offer) ought to be regarded as invalid—even if the state accepts it, no promissory duty to stay in the case of an imminent risk would arise. If the mercenary refuses to die, they would not be wronging the state.</p><p>It could be objected, however, that people sign employment contracts to undertake very risky occupations all the time, and such contracts generally succeed in imposing binding obligations on the employees. Indeed, although mercenaries incur serious risks to their lives,26 professions such as logging or construction working are overall more risky. So why is the mercenary contract, but not, say, the logger contract, invalid? The reason is that the logger's offer does not attempt to alienate their right to life. What the logger agrees to—performing tasks to which some randomly distributed risk of death is attached—is not the same as transferring to another the authority to decide whether they should stay once a risk of death materializes. The logger does not wrong the employer if they leave as soon as they reasonably fear a tree is falling on their head, and this would be so even if they had contractually agreed to do whatever the employer decides. Not only, as Ned Dobos points out, would we “not think it morally justifiable for any civilian employer to demand and enforce obedience <i>unto death</i>”, but also employees, including those in very risky occupations, have a moral and a legal right to disobey an order if they believe that an “imminent danger” exists, where this is legally defined in terms of a reasonable expectation “of death or serious physical harm.”27</p><p>In the same way in which a logger's promise to do whatever the employer demands, including staying in case of imminent danger to the logger's life, would be invalid, so too should be the mercenary's promise to do whatever the commander demands in case of imminent risk of death. Later I will explain why soldiers constitute a sui generis exception to this conclusion.</p><p>It could be objected, however, that in the case of mercenarism, and only in this case, obedience to sacrifice is necessary to fulfill the aim of the profession—an aim that is arguably both morally acceptable and sufficiently valuable.28 Perhaps this fact suffices to justify morally binding the mercenary to do as the commander says.29 The objection, however, encounters a deontological challenge: the expected benefits of alienation would seem insufficient to make alienable what is inalienable. Just as a system of slavery contracts would be invalid, even when necessary to achieve social stability or economic growth, a system of mercenary contracts that entails the alienation of the discretionary right to life would be similarly invalid, even when necessary to achieve better security.</p><p>It would seem, then, that mercenary promises can be both valid and permissible only to the extent that mercenaries are treated as <i>waiving</i>, rather than alienating, their right to life. Just as, say, sex workers can (arguably) sell sexual services in the market, as long as they retain the right to walk out as soon as they change their mind, mercenaries can sell their combat services, assuming that they retain the right to leave when things get too dangerous. They may have a duty to return the money if they provide no service, but no duty to incur any sanctions for failing to perform.30</p><p>While the fact that walkouts are not punished as desertion indicates that mercenaries cannot be compelled to remain against their will, the fact that they break a contract when they leave indicates that they are understood as having a duty to stay, albeit one with “limited enforceability.”</p><p>Regardless of how existing law understands the content of the mercenary contract, morally speaking, the mercenary's offer for services can be valid only if it is limited to waiving.32 But this generates a new problem. If mercenary offers are valid only conditionally on private actors retaining the right to walk out in case of imminent danger, then, this fact would seem to compromise the moral permissibility of a state <i>accepting</i> such offers, since acceptance would endanger the success of military operations,33 thereby contravening the state's moral duty to effectively protect its citizens.</p><p>It could be argued, however, that even if mercenaries are less reliable than soldiers, they may bring other benefits that could outweigh the heightened risk of walkouts, such that accepting mercenary offers would be, all things considered, the best way for states to fulfil their duty to effectively protect their citizens and their own stability. Of course, when it comes to combat tasks on the ground, reduced reliability would seem to be a particularly weighty consideration, since if combatants walk out in the middle of a military operation, the success of the entire operation would be jeopardized, especially if those who walk out have, say, higher skills or better training. But in order to assess the weight of reduced reliability, relative to other considerations, we should be more specific as to what reasons states may have to prefer mercenaries to soldiers as means to discharge their duty to effectively provide security, compatibly with other duties they may have.35</p><p>One often cited reason is that, because of market competition, private companies can provide superior services at lower costs than the state. However, even if we assume, arguendo, that this functional consideration could compensate for reduced reliability, it may simply not apply in the case of most combat tasks, for providing security in conflict zones exhibits, and robustly so, all the features of market failure: scarce competition, a narrow consumer base, and consumers' inability to pass on economic losses.36</p><p>A second reason states may have to prefer private companies is “to acquire the services that they want when they want them, rather than having to maintain an ongoing regular military.”37 This is an important consideration, for security is not the only responsibility a state has, and a political society may reasonably opt to redirect military spending to other causes. However, this consideration holds only if we assume that privatizing military tasks will amount to long-term savings that could then be redirected elsewhere, something that is, again, highly questionable, once the costs involved in monitoring and administrating private contracts are factored in.38</p><p>Third, hiring private armies allows states to avoid politically unpopular choices such as committing additional soldiers to dangerous missions.39 But either a state should do what the people want and not send the troops, or, if it should pursue the aim of security, despite the people's will, then, other things being equal, it is impermissible to prefer private combatants just to avoid political costs, if there is a higher risk that such combatants will leave when things become too dangerous.</p><p>Finally, normally functioning states that have the capacity, if not the willingness, to recruit soldiers cannot generally appeal to the scarcity of soldiers as a justification (as different from an excuse) for hiring mercenaries, as a means to discharge their duty to effectively provide security, for in such states the scarcity of soldiers is often a consequence of previous decisions to hire mercenaries instead.40</p><p>In sum, insofar as private combatants' reduced reliability cannot be easily outweighed by competing considerations, states with the capacity to maintain or recruit alternatives—which excludes very weak states—will <i>generally</i> have strong reasons, grounded on their moral duty to effectively protect their citizens and defend themselves, not to accept the mercenary's promise.41</p><p>But perhaps the assumption that mercenaries are, or can be expected to be, less reliable than soldiers just because they are not subject to threats of punishment is false. After all, economic incentives, such as refusal to renew a firm's contract in case of walkouts, or motives such as comradeship, could and often do suffice to secure the willingness of private combatants to sacrifice their lives.42 In response, we should first notice that incentives can be circumvented. For example, private firms can dissolve and form a different company in order to avoid a ban on bidding for further government contracts.43 As for motives, even if we assume that mercenaries can be motivated, precisely like soldiers, by comradeship and a sense of honor, beyond pecuniary considerations, the threat of punishment may still be necessary to keep cases of desertion under reasonable limits. Otherwise it could not be explained why soldiers, who are similarly motivated, are subject to such threat of punishment.</p><p>But there is more. A state has a duty to secure not just reliability, as far as the provision of security is concerned, but <i>robust</i> reliability—reliability under a set of possible changes in human motivations. The reason is that a state should ensure that its citizens' security does not significantly depend on the good will of its providers44—in the same way as a state committed to the economic security of its citizens should not leave its provision to philanthropy. If mercenaries, however well intentioned, were allowed to discretionally judge the level of risk, and make decisions about whether to leave or stay on that basis, this would raise important concerns of domination. It is thus impermissible for states to exclusively rely on the comradeship of the mercenary, or on their discretional responsiveness to economic incentives, to ensure the successful performance of justified military operations.</p><p>To this we can add that, if mercenaries could not be compelled to remain, states would likely have incentives to deceive them about the risks of certain wars in order to prevent desertion.45 This in turn could generate a lack of trust between mercenaries and state officials, as well as other soldiers, thereby further undermining the effectiveness of the military. Finally, the overall likelihood of desertion would impose higher costs on those remaining in the field of war.46</p><p>All these reasons, then, suggest that functioning states are under a duty, grounded on their prior moral duty to provide security in an effective, non-dominating and fair way, not to accept mercenary offers. We thus reach the following preliminary conclusion: <i>either</i> the mercenary's promissory offer of military services violates the alienability condition, in which case the promise is invalid, <i>or</i>, if limited to waiving, it is generally impermissible for states to accept the offer. It follows that, if the state does what it ought to do, the mercenary would acquire no promissory duty to perform. If, by contrast, the state (wrongly) accepts the mercenary's promise, it would still be wrong for the state to demand that the mercenary comply with the offer's terms. It should release the mercenary instead. In turn, the state should not consider itself wronged if the mercenary fails to comply, for this failure is only possible as a result of the state's previous wrongful failure to release the mercenary.</p><p>Note that this argument does not apply to the provision of services, including some combat tasks such as drone operating, that entails no, or a very low risk of death for those providing them, or to services, however essential, for which replacements could be easily and effectively found, because in such cases leaving would not undermine security. It only applies to the provision of services that are both essential and can only be effectively supplied if those who provide them are willing to stay when a risk of death materializes—for example, combat on the ground by front-line infantry or, depending on circumstances, the operation of bombing campaigns. It may also apply to the provision of non-combat support services, as long as such services are essential for the success of a military mission, their provision in conflict zones entails a non-negligible risk of death, and replacements in cases of walkouts cannot be easily secured.</p><p>But a part of the puzzle is still missing. If mercenaries cannot alienate their discretionary right to life, why can soldiers? Call this <i>the asymmetry question</i>. True, soldiers retain the option of choosing imprisonment as an alternative to making the ultimate sacrifice.47 However, the pair of options between which soldiers can freely choose is imprisonment versus (an imminent and likely risk of) death, as opposed to a free life versus (an imminent and likely risk of) death. Joining the army involves, in this sense, a qualified form of alienation.</p><p>The literature on war suggests two answers to the asymmetry question, both of which are wanting.48 The first answer points to the distinctively financial character of the mercenary's contract. Along these lines, Baker argues that “sacrifice has no place in the cost–benefit analysis that is at the heart of commercial soldiering,” and Pattison contends that “the difference lies in the nature of the agreement.”49 For private contractors, “it is financial and, as such, its fulfillment is not always binding, especially in the face of likely death”; by contrast, the contract between the state and the soldier “is not simply financial … It involves an extensive responsibility of care, expert training, and a special positioning in society.”50</p><p>It is, however, unclear what the financial aspect of the contract refers to and why it is relevant. If it refers to the <i>motives</i> for the sake of which mercenaries agree to fight, this cannot explain the asymmetry between soldiers and mercenaries, because, as Baker himself argues, both parties can have mixed motives.51 Further, the motives an agent has for signing an agreement arguably do not bear on whether they can or cannot alienate their right to life through that agreement. Whether I am motivated to agree to become someone's slave for money, fun, or to pursue a just cause, the other party still wrongs me if they enslave me. If, instead, the financial aspect refers to the <i>rationality</i> of the agreement—whether the expected benefits are worth the expected costs—this cannot explain the asymmetry either, because mercenaries, precisely like soldiers, could in principle expect the benefit of fulfilling a vocation or of obtaining a certain kind of social recognition for their heroic acts, in a way that could make their agreement to stay in case of imminent risk of death rational.52 But, again, the fact that it may be rational for an agent to enter a certain agreement (for example, a contract for voluntary slavery with great benefits attached to it) does not mean that the agent has the moral power to alienate what is in fact inalienable. Nor the fact that soldiers have special responsibilities of care, undergo expert training, and occupy a special position in society explains why they, and only they, can alienate their discretionary right to life. Not only could these features in principle extend to mercenaries, but also a private agent's inalienable rights generally constrain the kind of responsibilities she can reasonably be allocated.</p><p>The second answer is contractarian and argues that soldiery is a role the constitutive rules of which (1) could be agreed by all relevant participants (for example, states) as fair and mutually beneficial, and (2) demand that soldiers acquire sui generis permissions and liabilities that would be ruled out by ordinary morality. Benbaji makes this argument to explain how soldiers, by consenting to their role, lose their moral claim against being unjustly attacked by enemy soldiers, but his argument could be extended to explain why soldiers also lose their claim against being compelled by commanders to face an imminent risk of death against their will.53</p><p>However compelling in its own case, Benbaji's argument cannot suffice to answer the asymmetry question, for two reasons. First, one could argue that a practice of mercenarism, the constitutive rules of which required private parties to alienate their right to life, would also be mutually beneficial and fair to all relevant parties, for the same reasons why that is the case for soldiers: most states are not able to efficiently fight just wars except with armies compelled to remain when a risk of death materializes. Mercenaries could then acquire a duty to stay by simply consenting to become mercenaries. Therefore, fairness, mutual benefit and consent cannot by themselves explain the asymmetry between soldiers and mercenaries with regards to alienation. Second, as Benbaji himself acknowledges, the contractualist argument is subject to an important deontological objection. In Benbaji's own words “a person's claim against being unjustly killed is not alienable just by her consent to morally optimal rules.”54 That is correct and applies as well to a person's claim against being compelled to die against their will. Neither a soldier nor a mercenary can alienate their inalienable rights through simple consent, no matter how optimal the rules they consent to.</p><p>In sum, the reason why soldiers but not mercenaries can be treated as if they have alienated their right to life cannot be reduced either to the non-financial nature of their agreement or to the fact that they consent to optimal constitutive rules. Rather, the asymmetry must ultimately have to do with a difference in their (public/private) status or identity.</p><p>The above conclusion comes with a first, interesting implication. If the mercenary offer is invalid, or if it is valid but the state does what it ought to do (decline the offer), no promissory duty of performance on the part of the mercenary arises. Therefore, whenever a state attempts to enforce that duty on the mercenary—including, for example, by threatening them with economic sanctions if they do not perform—the state wrongs the mercenary. This wrong amounts to a form of domination, insofar as the state arbitrarily interferes with the mercenary's freedom by trying to enforce duties upon them that they do not in fact have (or that they may have, but just as a result of the state's wrongful failures to refuse the promise and to release the promisor), and by claiming the authority to do so on the basis of a contractual relationship that the state itself should have refused.</p><p>But there is a further implication. Sometimes promises that misfire fail not only to impose new duties on the promisor, but also to transfer new permissions to them. To illustrate: if you accept my promise that I will look after your garden while you are away, I not only acquire a promissory duty to look after your garden, but also permissions that I would not otherwise have to do things that are either instrumentally necessary to, or constitutive of, the successful fulfillment of the promissory duty—for example, I now have permission to access your garden and water the grass. If, for whatever reason, the promise misfires, I now have no duty to take care of your garden and no derivative permission to access or water it (unless, of course, you separately granted that to me).</p><p>Similar considerations apply to the promise between the state and the mercenary. By accepting the mercenary's promissory offer to perform combat tasks on its behalf, and assuming the offer is valid, the state imposes on the mercenary a promissory duty to fight on its behalf. Insofar as, and only insofar as, the use of force is constitutive of, and instrumentally necessary to, the successful discharge of that duty, the state also transfers to the mercenary the moral permission to use force on its behalf. However, if the promise misfires, either because the offer is invalid or the state's acceptance impermissible, the promise cannot transfer to the mercenary a derivative permission to use force on behalf of the state.72 Yet, if the mercenary uses force without permission to do so, they arbitrarily impose force on others, thereby dominating them. The privatization of (many) combat tasks thus entails a threat of <i>double domination</i>: the domination of both the mercenary and of those subject to their use of force.</p><p>It could be objected that states, or state-authorized agents, are not the only parties with permission to use force in war, and that any private party has the right to independently initiate and fight in just wars.73 Therefore, even if mercenaries fail to acquire, through their contract with the state, permission to fight in a war, their use of force need not to amount to domination. My response follows contemporary Kantians who have, in my view compellingly, argued that private parties can neither adjudicate nor enforce rights against others merely unilaterally: that is to say, independently of an omnilateral, political authorization.74 This is so, even if the content of their determinations is correct, insofar as being correct is insufficient to confer on private parties the authority to impose their own unilateral determinations on others. It is true that we have a liberty of self-defense, but this liberty is exceptional. It is not a general authorization to independently enforce one's rights or the rights of others, it is rather a limited, sui generis authorization to do so only when public authorities acting omnilaterally are unavailable.75</p><p>But even if one thinks that private parties are permitted to independently fight wars, the fact remains that one can legitimately enforce rights <i>on behalf of</i> an agent only if one does so in virtue of their authorization.76 Insofar as, in the context of privatized war, the mercenary's job entails enforcing rights on behalf of a state, not independently, the state must grant, through contract, a moral permission to the mercenary to use force on its behalf in order for <i>that</i> use to be non-arbitrary. Insofar as mercenaries lack such permission, their use of force remains arbitrary. Hence the problem of domination.</p><p>The argument developed so far provides us with strong reasons not only to limit the privatization of war, but also to take under state control some professions beyond the military. I recommend that a profession be within the exclusive purview of the state when (1) the profession is morally permissible and socially desirable and (2) can only fulfill its purpose if its members are bound to stay when an imminent risk of death materializes. As we saw, in the case of most risky jobs (logging, constructions, mining, and so on), the purpose of the activity can be fulfilled even if employees retain the right to walk out when a risk of death materializes. In these cases, the activity can be private, and we can simply say that the employee does not wrong the employer when they leave. No moral residue is left.</p><p>By contrast, as we also saw, the case of mercenarism creates a distinctive conflict: the success of the activity itself requires the <i>alienation</i> of the right to decide whether to stay or leave in case of an imminent and very serious risk to one's life, <i>but</i> such right cannot be alienated by private persons through simple promising. If the activity remains private, then, it fails to fulfill its purpose. In such case, the activity ought to be exclusively performed by state agents, because those who bear the corporate person of the state, and only they, occupy a status to which the circumscribed suspension of the right to life can be attached (to the extent necessary to achieve the role's necessary purpose). It is only by making the job public that we can eliminate the moral conflict: no one either violates an alienability condition <i>or</i> fails to achieve a morally acceptable and socially desirable purpose.</p><p>Soldiery, however, may not be the only profession to meet these conditions. Firefighting is arguably another profession of this kind, and there may be others, including providing emergency care during deadly pandemics, and policing. If such professions serve permissible and socially desirable purposes, and if the achievement of such purposes demands that their members be required to stay when a serious risk of death materializes, we may have equally strong reasons to not privatize them. Whether such reasons are conclusive is left for another time.</p><p>The privatization of war, especially when certain military tasks—many combat tasks and potentially also some essential support tasks—are at stake, consists in a system of failed promises between private parties and states that gives rise to a condition of double domination. Since failed promises cannot generate binding duties, attempts to enforce such duties on the mercenary constitute an act of domination against the latter. Since failed promises cannot generate derivative permissions either, the mercenary's use of force on behalf of the state also amounts to the domination of those subject to it. This argument also provides strong reasons to reserve to state agents the performance of other socially necessary functions, such as firefighting.</p><p>None relevant.</p><p>There are no potential conflicts of interest relevant to this article.</p><p>The author declares human ethics approval was not needed for this study.</p>\",\"PeriodicalId\":47624,\"journal\":{\"name\":\"Journal of Political Philosophy\",\"volume\":null,\"pages\":null},\"PeriodicalIF\":2.9000,\"publicationDate\":\"2023-06-18\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jopp.12305\",\"citationCount\":\"2\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Journal of Political Philosophy\",\"FirstCategoryId\":\"98\",\"ListUrlMain\":\"https://onlinelibrary.wiley.com/doi/10.1111/jopp.12305\",\"RegionNum\":1,\"RegionCategory\":\"哲学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q1\",\"JCRName\":\"ETHICS\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Journal of Political Philosophy","FirstCategoryId":"98","ListUrlMain":"https://onlinelibrary.wiley.com/doi/10.1111/jopp.12305","RegionNum":1,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"ETHICS","Score":null,"Total":0}
引用次数: 2

摘要

此外,我的叙述谴责正常运作的国家——也就是说,既有体制和经济能力维持公共军队的政治实体——将军事任务私有化,但不一定是非常软弱或失败的国家。我认为这些资格是论点的优势而不是弱点,因为它们反映了所涉问题和现实的复杂性。尽管这一论点依赖于对当代雇佣军制度的经验假设,其中一些假设可以在不损害实践本身概念完整性的情况下加以改变,但反对意见是强烈的,因为正如我们将看到的那样,做出所需的改变将首先破坏雇佣军制度存在的原因。同样重要的是,雇佣军在一个国家的武装部队中并不占据官方地位。尽管对战争私有化的伦理评估是本文的主要关注点,但这并不是其唯一的野心。这篇文章还提供了一个机会,让我们反思是什么使担任公职在规范上具有特殊性,并对哪些工作(如果有的话)应该完全由公共行为者履行这一更广泛的问题提出了一个看似合理(如果不是决定性的话)的答案。我的论点的一个结果是,我们有理由宣传——保留给公共代理人——工作的表现,这些工作的功能(1)在道德上是允许的,在社会上也是可取的,从某种意义上说,政治社会有充分的理由不取消有问题的工作,(2)只有当员工受到约束,当迫在眉睫的死亡风险出现时留下来。除了作战任务外,消防以及更具争议的是,在致命的流行病期间维持治安和提供紧急护理也是可行的选择。如果雇佣军活动包括政府和私人行为者之间的服务合同交换,那么,雇佣军活动就是一种有希望的现象。因为如果不是可执行的承诺,合同是什么?14这种定义合同的方式,在哲学家中仍然占主导地位,也反映了大多数法律体系理解合同的方式。例如,美国合同法将合同定义为“一种承诺……对违反该承诺的行为,法律给予补救,或者法律在某种程度上承认履行该承诺是一种义务。”15雇佣军合同是具有法律约束力的相互有条件的承诺。通过将军事任务(T)外包给雇佣兵(M),政府(G)承诺,如果M代表G执行T,将为M提供一定的利益。同时,如果G向M提供或承诺提供这些利益,M承诺履行T。因此,对战争私有化的道德评估应该解决雇佣军合同是否包含有效承诺的问题,如果是,这种承诺是否是一个国家可以允许其当事人履行的承诺。因为即使合同法不应该完美地追踪承诺的道德性——例如,约瑟夫主要出于金钱原因与鲍勃结婚的婚姻合同可能是不道德的(不道德的),但仍然具有约束力——然而,合同的有效性和可执行性是以基本承诺的有效性为条件的。此外,一个州不应该使用法律规范来强迫人们遵守他们对该州做出的承诺,如果该州本身一开始就不应该接受这些承诺,无论这些承诺多么有效。那么,如果雇佣军合同包含无效的承诺,或者一个国家不应该接受的承诺,我们将有充分的理由质疑这些合同的可执行性。但是,承诺有效意味着什么呢?如果承诺成功地将对受承诺人的新义务强加给承诺人,使得承诺人不履行义务会使受承诺人犯错,则该承诺是有效的。我赞同“权威观点”16,认为产生承诺义务的不是承诺在被承诺人心中产生期望的事实,因为预测也可以做到这一点,而是承诺人将对承诺人的决策权转移给被承诺人的事实,包括“决定是否采取行动、如何采取行动以及基于何种理由的权利。”17在承诺给你买一本书之前,我有权决定是否购买。在我的承诺之后,你有权为我做出决定。如果产生承诺义务的是决策权的转移,那么,要使承诺有效,承诺必须满足可转让条件:承诺人声称转让给受承诺人的权力不能是不可转让的。成为他人奴隶的承诺就是一个未能满足这一条件的承诺的典型例子。为什么?首先,奴隶制承诺试图转移的那种决策权本身就可以说是不可剥夺的。 24现在,奴隶制承诺未能满足可剥夺性条件的同样原因也解释了为什么试图疏远一个人自由裁量的生命权的承诺未能满足同样的条件——决定一个人是生是死的自由裁量权可能是道德能动性的最基本方面,这肯定是我们有权控制的事情,因为如果我们将控制这一更基本决策的权利移交给他人,我们开展有意义的项目和长期规划的能力将严重削弱。因此,要么自由裁量的生命权本质上是不可剥夺的,因为它的可转让性与道德能动性的基础价值相矛盾,要么它在任何情况下都不能通过承诺而被异化,因为这种异化与拥有承诺的规范权力——权威利益——的理由相矛盾。请注意,这并不意味着自愿安乐死的合同一定无效,因为在自愿安乐死的情况下,无论我未来的意愿如何变化,我都不会将决定我是生是死的自由裁量权移交给其他人。只要我能在最后一刻改变主意,我自己就是在行使这一权力。25相比之下,无论我未来的意愿可能发生什么变化,(试图)将决定我是生是死的权利转移给他人,就是(试图)放弃这一权力。因此,如果雇佣军的报价与士兵的承诺一样,被解释为试图疏远雇佣军的自由支配生命权,那么,这样的报价(与Fabre制造商的报价不同)应该被视为无效——即使国家接受了它,也不会产生在迫在眉睫的风险情况下留下来的承诺义务。如果雇佣兵不肯死,他们就不会冤枉国家。然而,有人可能会反对,人们总是签订雇佣合同从事风险很大的职业,而这种合同通常会成功地对雇员施加有约束力的义务。事实上,尽管雇佣军的生命面临严重风险,但伐木或建筑等26种职业的风险总体上更大。那么,为什么雇佣兵合同,而不是伐木合同,是无效的呢?原因是伐木工人的提议并没有试图疏远他们的生命权。记录者同意的——执行一些随机分布的死亡风险所附加的任务——并不等同于一旦死亡风险出现,就将决定他们是否应该留下的权力移交给另一个人。如果伐木工人在合理地担心一棵树掉在他们头上时就离开,他们不会责怪雇主,即使他们按照合同约定同意做雇主决定的任何事情,情况也是如此。正如内德·多博斯所指出的,我们不仅会“认为任何文职雇主要求并强制服从死亡在道德上都是不合理的”,而且员工,包括那些从事非常危险职业的员工,如果他们认为存在“迫在眉睫的危险”,就有道德和法律权利不服从命令,在法律上,这是根据“死亡或严重身体伤害”的合理预期来定义的。27同样,伐木工人承诺做雇主要求的任何事情,包括在伐木工人的生命面临迫在眉睫的危险时留下来,都是无效的,雇佣兵承诺在面临迫在眉睫的死亡风险时做指挥官要求的任何事也应该是无效的。稍后我将解释为什么士兵是这个结论的一个特殊例外。然而,有人可能会反对,在雇佣军的情况下,也只有在这种情况下,服从牺牲是实现职业目标所必需的——这个目标可以说在道德上是可以接受的,也足够有价值。28也许这一事实足以证明在道德上约束雇佣军按照指挥官所说的去做,遭遇了义务论的挑战:异化的预期利益似乎不足以使不可剥夺的东西变得可转让。正如奴役合同制度是无效的,即使在实现社会稳定或经济增长所必需的情况下也是无效的一样,要求转让自由裁量生命权的雇佣军合同制度也是无效的,甚至在实现更好的安全所必需的情况下也是如此。因此,雇佣军的承诺似乎只有在雇佣军被视为放弃而不是疏远其生命权的情况下才是有效和允许的。就像性工作者可以(可以说)在市场上出售性服务一样,只要他们保留一旦改变主意就离开的权利,雇佣兵也可以出售他们的作战服务,假设他们在情况变得太危险时保留离开的权利。 如果他们不提供服务,他们可能有义务退还这笔钱,但没有义务因不履行义务而受到任何制裁,尽管“可执行性有限”。无论现行法律如何理解雇佣军合同的内容,从道德上讲,雇佣军的服务要约只有在被限制为放弃的情况下才能有效。32但这产生了一个新的问题。如果雇佣军的提议只有在私人行为者保留在迫在眉睫的危险情况下退出的权利的条件下才有效,那么,这一事实似乎会损害国家接受此类提议的道德允许性,因为接受这种提议将危及军事行动的成功,33从而违反国家有效保护公民的道德义务。然而,可以说,即使雇佣军不如士兵可靠,他们也可能带来其他好处,这些好处可能超过罢工风险的增加,因此,从各个方面来看,接受雇佣军的提议将是各国履行有效保护公民和自身稳定职责的最佳方式。当然,在地面作战任务方面,降低可靠性似乎是一个特别重要的考虑因素,因为如果战斗人员在军事行动中撤离,整个行动的成功将受到威胁,特别是如果那些撤离的人有更高的技能或更好的训练。但是,为了评估可靠性降低相对于其他考虑因素的重要性,我们应该更具体地说明,国家可能有什么原因更喜欢雇佣兵而不是士兵,以履行其有效提供安全的职责,与他们可能承担的其他职责相兼容。35一个经常被引用的原因是,由于市场竞争,私营公司可以以比国家更低的成本提供优质服务。然而,即使我们有争议地假设,这种功能性考虑可以弥补可靠性的降低,它也可能根本不适用于大多数作战任务,因为在冲突地区提供安全表现出市场失灵的所有特征:竞争稀缺、消费者基础狭窄、,以及消费者无法转嫁经济损失。36各州可能不得不选择私营公司的第二个原因是“在他们想要的时候获得他们想要的服务,而不是必须维持一支持续的正规军队。”37这是一个重要的考虑因素,因为安全不是国家的唯一责任,一个政治社会可以合理地选择将军费开支转向其他事业。然而,只有当我们假设军事任务私有化将带来长期节约,然后可以转移到其他地方时,这种考虑才会成立。一旦考虑到监督和管理私人合同所涉及的成本,这一点再次非常值得怀疑。38第三,雇佣私人军队可以让各州避免政治上不受欢迎的选择,比如增派士兵执行危险任务。39但是,要么一个州应该按照人民的意愿行事,不派遣军队,要么,如果它应该追求安全目标,尽管人民有意愿,那么,在其他条件相同的情况下,仅仅为了避免政治成本而选择私人战斗人员是不允许的,如果情况变得过于危险时,这些战斗人员离开的风险更高。最后,那些有能力(如果不是有意愿的话)招募士兵的正常运作的国家通常不能以士兵稀少为理由(不同于借口)雇佣雇佣军,以此履行其有效提供安全的义务,因为在这些州,士兵短缺往往是以前决定雇佣雇佣军而不是雇佣雇佣军的结果。40总之,只要私人战斗人员的可靠性降低不能轻易被相互竞争的考虑所抵消,那么有能力维持或招募替代品的州——不包括非常脆弱的州——通常都有充分的理由,基于他们有效保护公民和自卫的道德义务,而不是接受雇佣军的承诺。41但也许仅仅因为雇佣军没有受到惩罚的威胁,他们就不如士兵可靠的假设是错误的。毕竟,经济激励措施,如在罢工时拒绝续签公司合同,或同志情谊等动机,可以而且往往足以确保私人战斗人员牺牲生命的意愿。42作为回应,我们应该首先注意到,激励措施是可以绕过的。 例如,私营公司可以解散并组建一家不同的公司,以避免被禁止竞标更多的政府合同。43至于动机,即使我们认为雇佣军的动机可以像士兵一样,出于友谊和荣誉感,而不是金钱考虑,惩罚的威胁可能仍然是必要的,以将逃兵案件控制在合理的限度内。否则,就无法解释为什么同样有动机的士兵会受到如此惩罚的威胁。但还有更多。就提供安全性而言,一个国家不仅有责任确保可靠性,而且有责任确保稳健的可靠性——在人类动机可能发生的一系列变化下的可靠性。原因是,一个国家应该确保其公民的安全在很大程度上不取决于其提供者的善意44——就像一个致力于其公民经济安全的国家不应该把其福利留给慈善事业一样。如果允许雇佣军,无论其意图如何,自由判断风险水平,并在此基础上决定是离开还是留下,这将引发对统治的重要担忧。因此,各国不允许完全依靠雇佣军的同志情谊,或对经济激励的随意反应,来确保合理的军事行动的成功实施。除此之外,我们还可以补充一点,如果雇佣军不能被迫留下来,国家可能会有动机在某些战争的风险上欺骗他们,以防止逃兵。45这反过来可能会导致雇佣军与国家官员以及其他士兵之间缺乏信任,从而进一步削弱军队的效力。最后,逃兵的总体可能性将给留在战场上的人带来更高的成本。46因此,所有这些原因都表明,运作正常的国家有义务,基于其先前的道德义务,以有效、非支配性和公平的方式提供安全,不接受雇佣军的提议。因此,我们得出以下初步结论:要么雇佣军承诺提供军事服务违反了可转让条件,在这种情况下,承诺无效,要么,如果仅限于放弃,国家通常不允许接受这一提议。因此,如果国家做了它应该做的事,雇佣军将不会获得履行义务的承诺。相比之下,如果国家(错误地)接受雇佣军的承诺,那么国家要求雇佣军遵守要约的条款仍然是错误的。它应该释放雇佣兵。反过来,如果雇佣军不遵守规定,国家不应认为自己受到了委屈,因为这种失败只有在国家以前错误地没有释放雇佣军的情况下才有可能发生。请注意,这一论点不适用于服务的提供,包括一些作战任务,如无人机操作,这对提供服务的人来说不需要死亡风险或死亡风险非常低,也不适用于无论多么重要的服务,因为在这种情况下,离开不会破坏安全,因此可以轻松有效地找到替代品。它只适用于提供既重要又有效的服务,前提是提供服务的人愿意在出现死亡风险时留下来——例如,前线步兵在地面作战,或者根据情况,轰炸行动。它也可以适用于提供非战斗支持服务,只要这些服务对军事任务的成功至关重要,在冲突地区提供这些服务会带来不可忽视的死亡风险,而且在罢工时无法轻易获得替代服务。但这个谜题的一部分仍然缺失。如果雇佣军不能疏远他们自由支配的生命权,为什么士兵可以呢?这就是不对称问题。的确,士兵们保留了选择监禁作为最终牺牲的替代方案的选择。47然而,士兵们可以自由选择的两种选择是监禁与(迫在眉睫且可能的)死亡,而不是自由生活与(迫在眉睫并可能的)死亡。从这个意义上说,参军是一种合格的异化形式。关于战争的文献对不对称问题提出了两个答案,这两个答案都是想要的。48第一个答案指出了雇佣军合同的独特财务特征。根据这些思路,Baker认为“牺牲在商业士兵的核心成本效益分析中没有立足之地”,Pattison认为“区别在于协议的性质。 这种错误相当于一种统治形式,因为国家任意干涉雇佣军的自由,试图强制执行他们实际上没有的义务(或者他们可能有,但只是由于国家错误地没有拒绝承诺和释放承诺人),并声称有权根据国家本身本应拒绝的合同关系这样做。但还有更深层的含义。有时,不成功的承诺不仅没有给承诺人强加新的义务,也没有向他们转移新的权限。举例来说:如果你接受我的承诺,在你不在的时候我会照顾你的花园,我不仅获得了照顾你花园的承诺义务,而且还获得了许可,否则我不必做成功履行承诺义务所必需或构成的事情——例如,我现在获准进入你的花园并给草浇水。无论出于何种原因,如果承诺落空,我现在没有义务照顾你的花园,也没有进入或浇水的衍生许可(当然,除非你单独授予我)。类似的考虑也适用于国家和雇佣军之间的承诺。通过接受雇佣军代表其执行作战任务的承诺要约,并假设该要约有效,国家对雇佣军施加了代表其作战的承诺义务。只要使用武力是成功履行义务的组成部分,也是成功履行义务所必需的工具,国家也会向雇佣军转让为其使用武力的道德许可。然而,如果由于要约无效或国家不允许接受而导致承诺不符,则承诺不能向雇佣军转让代表国家使用武力的衍生许可。72然而,如果雇佣军未经许可使用武力,他们就会任意对他人施加武力,从而支配他人。因此,(许多)作战任务的私有化带来了双重统治的威胁:雇佣军和受其使用武力影响的人都受到统治。73因此,即使雇佣军未能通过与国家签订的合同获得战争许可,他们使用武力也不必构成统治。我的回应遵循了当代康德主义者的观点,在我看来,他们令人信服地认为,私人当事人既不能单方面裁决也不能强制执行针对他人的权利:也就是说,独立于全能的政治授权。74事实确实如此,即使他们的决定内容是正确的,只要是正确的,就不足以赋予私人当事方将自己的单方面决定强加给他人的权力。我们确实有自卫的自由,但这种自由是特殊的。独立行使自己或他人的权利并不是一种普遍授权, 独特的 75但是,即使人们认为私人各方可以独立作战,事实仍然是,只有在代理人授权的情况下,人们才能代表代理人合法地执行权利。76在私有化战争的背景下,雇佣军的工作需要代表国家而非独立地行使权利,国家必须通过合同授予雇佣军代表其使用武力的道德许可,以使这种使用不具有任意性。只要雇佣军得不到这种许可,他们使用武力仍然是任意的。因此产生了统治问题。迄今为止形成的论点为我们提供了强有力的理由,不仅可以限制战争的私有化,还可以将军队之外的一些职业置于国家控制之下。我建议,当(1)职业在道德上是允许的,在社会上是可取的,(2)只有当迫在眉睫的死亡风险出现时,其成员必须留下来,才能实现其目的时,该职业才属于国家的专属权限。正如我们所看到的,在风险最大的工作(伐木、建筑、采矿等)中,即使员工在出现死亡风险时保留离职的权利,活动的目的也可以实现。在这些情况下,活动可以是私人的,我们可以简单地说,员工离开时没有责怪雇主。没有留下任何道德残余。 相反,正如我们也看到的那样,雇佣军的情况造成了一种独特的冲突:活动本身的成功需要在生命面临迫在眉睫的非常严重的风险时,剥夺决定留下还是离开的权利,但私人不能通过简单的承诺来剥夺这种权利。如果该活动仍然是私人的,那么它就无法实现其目的。在这种情况下,这项活动应该完全由国家代理人进行,因为那些身为国家法人的人,而且只有他们,才拥有一种可以被限制地中止生命权的地位(在实现该角色的必要目的所必需的范围内)。只有公开这份工作,我们才能消除道德冲突:没有人违反可异化条件,也没有人未能实现道德上可接受和社会上可取的目的。然而,士兵可能不是唯一符合这些条件的职业。消防可以说是另一种职业,可能还有其他职业,包括在致命的流行病期间提供紧急护理和警务。如果这些职业服务于允许的和社会期望的目的,如果实现这些目的要求其成员在出现严重死亡风险时留下来,我们可能有同样有力的理由不将其私有化。这样的理由是否确凿,还要等待下一次。战争的私有化,尤其是当某些军事任务——许多作战任务,以及可能还有一些重要的支援任务——处于危险之中时,由私人政党和国家之间的失败承诺体系组成,这导致了双重统治的条件。由于未兑现的承诺不能产生具有约束力的义务,企图对雇佣军强制执行这些义务构成了对雇佣军的统治行为。由于失败的承诺也不能产生衍生许可,雇佣军代表国家使用武力也相当于对受其支配的人的统治。这一论点也为国家特工保留履行其他社会必要职能(如消防)提供了有力的理由。无相关。本条不存在潜在的利益冲突。作者宣称这项研究不需要人类伦理的批准。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The wrong of mercenarism: a promissory account

Recent history has seen a rapid growth in the involvement of private parties in war conflicts. In 2020, there were almost twice as many private contractors as US soldiers in Afghanistan.1 In the ongoing war in Ukraine, private actors are allegedly deployed by both parties in the conflict.2 Originally hired by states to provide support services from catering to logistics, private military firms (PMFs) have progressively taken on functions, including combat tasks, that were deemed, at least in the last century, inherently governmental.3 The phenomenon amounts to an unprecedented form of corporatized mercenarism.4

The condemnation of mercenarism has an illustrious history. While Machiavelli famously deprecated mercenaries' lack of loyalty and tendency to corrupt the state,5 Rousseau worried that hiring mercenaries, rather than having citizens fight wars, would lead the latter to value comfort more than republican freedom. Recent critics argue, among other things, that fighting for profit is inherently wrong;6 that the privatization of war leads to an unjust distribution of access to security;7 that it allows both states and private parties to escape democratic accountability;8 and that it provides incentives to escalate conflicts and to increase the use of violence in the battlefield.9 Some contemporary philosophers have, on the other side, shown a friendlier face towards mercenarism. Most prominently, Cécile Fabre argues that, at least under ideal circumstances, private parties have a right to sell their soldiering services to states, for the purpose of just defensive killing, and states are at liberty to buy those services from them.10

Departing from Fabre's (qualified) defense of mercenarism, my goal is to provide an account of the wrong of privatized war, which neither rests on the controversial claim that fighting for profit is inherently wrong, nor assumes that privatization leads to unjust distributive outcomes, a lack of accountability, or the disproportionate use of force (although it may). I argue that, even in the absence of such problems, the privatization of (at least some) military tasks would amount to a condition of double domination, whereby both those exposed to the mercenary's use of force and, perhaps more surprisingly, the mercenary themself is dominated: that is to say, subject to the arbitrary will of another. This can occur even within the context of a just war.

To make my case, I will first argue that the state's outsourcing of certain military tasks to private parties, including most combat tasks, consists of a system of contracts between states and such parties that contain either invalid (not binding) or seriously problematic promises. Either the mercenary's promissory offer to perform those tasks entails the alienation of certain rights that cannot be so alienated, in which case the promise is invalid, or, if limited to the mere waiving of those rights, then the state is generally under a duty not to accept the mercenary's offer. Therefore, either the mercenary acquires no promissory duty to perform the content of the promise, or, if they do acquire it—because the state wrongly accepts the offer—they should be released immediately. Further, insofar as the mercenary comes to acquire a permission to use force on behalf of the state only as a necessary means to discharge their promissory duty to fight on its behalf, if the promise misfires, the mercenary does not acquire any such permission either.

Two implications follow. On the one hand, any attempt, on the part of the state, to compel the mercenary to perform constitutes an instance of domination over them—an arbitrary imposition of duties on them. On the other hand, since the mercenary lacks permission to exercise force on behalf of the state, and since one can arguably legitimately enforce rights on behalf of a state only if one does so in virtue of a grant of permission therefrom,11 those exposed to this exercise are also dominated—subject to an arbitrary will. One important and difficult part of the argument will be to explain why the relationship between states and regular soldiers does not present the same normative problems that afflict the contractual relationship between the state and mercenaries.

A concern with double domination provides strong reasons to limit the privatization of war, even if private actors are committed to only fight just wars and to avoid any disproportionate use of force. This does not mean, however, that the privatization of all military tasks, in all circumstances, is equally problematic. My argument provides reasons to condemn the privatization of combat tasks on the ground, and possibly also of non-combat but essential support tasks in dangerous missions for which replacements cannot be easily found, but not the outsourcing of non-essential tasks or of combat tasks with no or very little risk of death to those providing them, such as drone operating. Further, my account condemns the privatization of military tasks by normally functioning states—that is to say, political entities that have both the institutional and economic capacity to maintain a public military—but not necessarily by very weak or failing states. I take these qualifications to be a strength rather than a weakness of the argument, since they reflect the complex nature of the question at stake, and of reality.

Although the argument relies on empirical assumptions about contemporary mercenarism, some of which could arguably be changed without compromising the conceptual integrity of the practice itself, nevertheless, the objection is robust insofar as, as we shall see, making the changes needed would undermine the reasons why mercenarism exists in the first place.

Also, and importantly, mercenaries do not occupy an official position within a state's armed forces.

Although an ethical assessment of the privatization of war is the main focus of this article, it is not its only ambition. The article also provides an opportunity to reflect on what, if anything, makes the occupancy of a public office normatively special, and suggests a plausible, if not conclusive, answer to the broader question of which jobs, if any, should be performed exclusively by public actors. One upshot of my argument is that we have reasons to publicize—to reserve to public agents—the performance of jobs the function of which (1) is both morally permissible and socially desirable, in the sense that a political society has strong reasons to not eliminate the job in question, and (2) can only be fulfilled if employees are bound and can be compelled, by threat of punishment, to stay when an imminent risk of death materializes. Beyond combat tasks, firefighting and, more controversially, also policing and the provision of emergency care during deadly pandemics are plausible candidates.

If mercenarism consists in a contractual exchange for services between a government and a private actor, then, mercenarism is a promissory phenomenon. For what is a contract if not an enforceable promise?14 This way of defining contracts, still dominant among philosophers, also reflects the way most legal systems understand contracts. For example, US contract law defines a contract as “a promise … for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”15

Mercenary contracts are legally binding and mutually conditional promises. By outsourcing military tasks (T) to a mercenary (M), government (G) promises to give certain benefits to M if M performs T on G's behalf. Simultaneously, M promises to perform T if G provides, or commits to providing, those benefits to M.

A moral assessment of the privatization of war should thus grapple with the question of whether mercenary contracts contain valid promises and, if so, whether such promises are promises that a state can permissibly hold their parties to. For even if the law of contract should not perfectly track the morality of promises—for example, a marriage contract in which Joseph marries Bob mostly for pecuniary reasons may be immoral (unethical), but nevertheless binding—still, the validity, and thus the enforceability, of contracts is conditional on the validity of underlying promises. Further, a state should not use legal norms to force people to comply with promises they made to the state, if the state itself should not have accepted those promises, however valid, in the first place. If it turns out, then, that mercenary contracts contain invalid promises, or promises a state ought not to accept, we would have strong reasons to question the contracts' enforceability.

But what does it mean for a promise to be valid? A promise is valid if it successfully imposes on the promisor a new duty, owed to the promisee, such that the promisor would wrong the promisee by failing to perform. I endorse “the authority view”16 in thinking that what generates promissory obligations is not the fact that the promise creates an expectation in the mind of the promisee, for predictions can do this too, but rather the fact that the promisor transfers to the promisee decisional authority over the promisor, including “the right … to be the one to decide whether to act, how to act and on what grounds.”17 Before promising to buy you a book, I had the right to decide whether to buy it or not. After my promise, you have the right to decide that for me.

If what generates promissory duties is a transfer of decisional authority, then, to be valid, a promise must meet an alienability condition: the authority that the promisor purports to transfer to the promisee cannot be inalienable. The promise to become someone else's slave is a paradigmatic example of a promise that fails to meet this condition. Why?

For one thing, the kind of decisional authority slavery promises attempt to transfer is arguably itself inalienable. If individuals' right to autonomously decide how to live—a right the slave gives up—is grounded on the value of moral agency, where to be a moral agent is to be a person endowed with free purposiveness—that is, the ability to develop long-term projects and to revise purposes over time, as well as to live according to them—it is plausible to see the very grounding of the right to autonomous living as internally constraining its own alienability, to the extent that irrevocably transferring decisional control over one's life to another, while remaining a person, would contradict moral agency.18

Promises that bind someone to irrevocably transfer the right to decide for themselves what they are going to do are invalid because they violate the rationale that justifies having the power to enter into promises in the first place. This invalidates promises to become someone else's slave, and possibly also promises that irrevocably transfer the right to decide on fundamental questions, such as whether one should live or die.

With these clarifications in mind, I now turn to ask: can a mercenary validly offer their combat services to the state?

Some answer positively to the question above. Fabre, for example, argues that, in the same way in which a weapon manufacturer can permissibly sell guns to those who need them to justly defend themselves, even though the assistance that they provide involves a contribution to an act of killing, private parties also have the liberty and claim, on grounds of freedom of occupational choice, to offer killing services, as long as the cause they serve is just.20 Just defensive killing also provides, for Fabre, a justification for conferring on states the liberty and power to hire mercenaries for killing services.

Fabre's argument is intuitively appealing, but a careful analysis of her analogy reveals a problem. Whereas the manufacturer's offer simply transfers to the state a right over the use of an object (a weapon), those who fight for a state generally transfer to it also decisional authority over their life. Take the case of soldiers. By offering their combat services to the state for a just cause, soldiers transfer to it the authority to decide whether and when they should sacrifice their life for that cause. The state acquires the right to demand that, if circumstances necessitate, the soldier stay, even if the risk to their life amounts to almost certainty of death. If the soldier leaves just because things are too risky, they would be seriously wronging the state. The soldier–state contract thus implies the transfer of what Joel Feinberg calls the discretionary right to life—the authority to decide, at any given point in time, and without external interference, whether or not to end or sacrifice one's own life.21

This right transfer is generally considered morally justified, assuming that the state is committed to only fight just wars and to not demand futile sacrifices from soldiers, because without it, the effectiveness of the military would be compromised.22 The transfer is also legally sanctioned. In the US, for instance, the Uniform Code of Military Justice (UCMJ) makes soldiers who disobey an order on the grounds that it demands self-sacrifice liable to punishment, including execution.23

If this is the content of the promise between the state and its soldiers, we have prima facie reasons to think that the content of the promise between the state and mercenaries should be the same. After all, if demanding sacrifice is necessary for military effectiveness in the case of soldiers, why would it not be equally necessary in the case of mercenaries? The mercenary promise would then (attempt to) transfer something that Fabre's manufacturer's promise does not transfer: the promisor's discretionary right to life.

But can the promise, so understood, meet the alienability condition? Whereas the manufacturer can alienate through a private contract their property right over the weapon, it is far less clear that the mercenary, as a private individual, can alienate their discretionary right to life through a simple private contract. As we saw, valid contracts must rely on valid promises, but some promises—for example, slavery promises—are invalid if and because they attempt to transfer rights that cannot be so transferred, and this is so even if compliance with such promises could promote a just cause. Many would agree that slavery contracts would be invalid, even if and when a system of voluntary slavery could promote, say, overall welfare.24

Now, the same reasons why slavery promises fail to meet the alienability condition also explain why promises that attempt to alienate one's discretionary right to life fail to meet that same condition—the discretionary authority to decide whether one should live or die being perhaps the most fundamental aspect of moral agency, and definitely something we have an authority interest in controlling, since our ability to embark on meaningful projects and plan long term would be seriously diminished if we transferred to others the right to control that more fundamental decision. Therefore, either the discretionary right to life is inherently inalienable, for its alienability would contradict the grounding value of moral agency, or it cannot, in any case, be alienated through promising, for such alienation would contradict the reason for having the normative power to promise—the authority interest. Note that this does not mean that contracts for, say, voluntary euthanasia are necessarily invalid, for in the case of voluntary euthanasia, I do not transfer to someone else the discretionary authority to decide whether I should live or die, regardless of changes in my future will. To the extent that I can change my mind until the last minute, I am myself exercising that authority.25 By contrast, to (attempt to) transfer to another the right to decide whether I should live or die, regardless of potential changes in my future will, is to (attempt to) abandon that authority.

It follows that, if the mercenary's offer is interpreted, on a par with the soldier's promise, as an attempt to alienate the mercenary's discretionary right to life, then, such an offer (unlike Fabre's manufacturer's offer) ought to be regarded as invalid—even if the state accepts it, no promissory duty to stay in the case of an imminent risk would arise. If the mercenary refuses to die, they would not be wronging the state.

It could be objected, however, that people sign employment contracts to undertake very risky occupations all the time, and such contracts generally succeed in imposing binding obligations on the employees. Indeed, although mercenaries incur serious risks to their lives,26 professions such as logging or construction working are overall more risky. So why is the mercenary contract, but not, say, the logger contract, invalid? The reason is that the logger's offer does not attempt to alienate their right to life. What the logger agrees to—performing tasks to which some randomly distributed risk of death is attached—is not the same as transferring to another the authority to decide whether they should stay once a risk of death materializes. The logger does not wrong the employer if they leave as soon as they reasonably fear a tree is falling on their head, and this would be so even if they had contractually agreed to do whatever the employer decides. Not only, as Ned Dobos points out, would we “not think it morally justifiable for any civilian employer to demand and enforce obedience unto death”, but also employees, including those in very risky occupations, have a moral and a legal right to disobey an order if they believe that an “imminent danger” exists, where this is legally defined in terms of a reasonable expectation “of death or serious physical harm.”27

In the same way in which a logger's promise to do whatever the employer demands, including staying in case of imminent danger to the logger's life, would be invalid, so too should be the mercenary's promise to do whatever the commander demands in case of imminent risk of death. Later I will explain why soldiers constitute a sui generis exception to this conclusion.

It could be objected, however, that in the case of mercenarism, and only in this case, obedience to sacrifice is necessary to fulfill the aim of the profession—an aim that is arguably both morally acceptable and sufficiently valuable.28 Perhaps this fact suffices to justify morally binding the mercenary to do as the commander says.29 The objection, however, encounters a deontological challenge: the expected benefits of alienation would seem insufficient to make alienable what is inalienable. Just as a system of slavery contracts would be invalid, even when necessary to achieve social stability or economic growth, a system of mercenary contracts that entails the alienation of the discretionary right to life would be similarly invalid, even when necessary to achieve better security.

It would seem, then, that mercenary promises can be both valid and permissible only to the extent that mercenaries are treated as waiving, rather than alienating, their right to life. Just as, say, sex workers can (arguably) sell sexual services in the market, as long as they retain the right to walk out as soon as they change their mind, mercenaries can sell their combat services, assuming that they retain the right to leave when things get too dangerous. They may have a duty to return the money if they provide no service, but no duty to incur any sanctions for failing to perform.30

While the fact that walkouts are not punished as desertion indicates that mercenaries cannot be compelled to remain against their will, the fact that they break a contract when they leave indicates that they are understood as having a duty to stay, albeit one with “limited enforceability.”

Regardless of how existing law understands the content of the mercenary contract, morally speaking, the mercenary's offer for services can be valid only if it is limited to waiving.32 But this generates a new problem. If mercenary offers are valid only conditionally on private actors retaining the right to walk out in case of imminent danger, then, this fact would seem to compromise the moral permissibility of a state accepting such offers, since acceptance would endanger the success of military operations,33 thereby contravening the state's moral duty to effectively protect its citizens.

It could be argued, however, that even if mercenaries are less reliable than soldiers, they may bring other benefits that could outweigh the heightened risk of walkouts, such that accepting mercenary offers would be, all things considered, the best way for states to fulfil their duty to effectively protect their citizens and their own stability. Of course, when it comes to combat tasks on the ground, reduced reliability would seem to be a particularly weighty consideration, since if combatants walk out in the middle of a military operation, the success of the entire operation would be jeopardized, especially if those who walk out have, say, higher skills or better training. But in order to assess the weight of reduced reliability, relative to other considerations, we should be more specific as to what reasons states may have to prefer mercenaries to soldiers as means to discharge their duty to effectively provide security, compatibly with other duties they may have.35

One often cited reason is that, because of market competition, private companies can provide superior services at lower costs than the state. However, even if we assume, arguendo, that this functional consideration could compensate for reduced reliability, it may simply not apply in the case of most combat tasks, for providing security in conflict zones exhibits, and robustly so, all the features of market failure: scarce competition, a narrow consumer base, and consumers' inability to pass on economic losses.36

A second reason states may have to prefer private companies is “to acquire the services that they want when they want them, rather than having to maintain an ongoing regular military.”37 This is an important consideration, for security is not the only responsibility a state has, and a political society may reasonably opt to redirect military spending to other causes. However, this consideration holds only if we assume that privatizing military tasks will amount to long-term savings that could then be redirected elsewhere, something that is, again, highly questionable, once the costs involved in monitoring and administrating private contracts are factored in.38

Third, hiring private armies allows states to avoid politically unpopular choices such as committing additional soldiers to dangerous missions.39 But either a state should do what the people want and not send the troops, or, if it should pursue the aim of security, despite the people's will, then, other things being equal, it is impermissible to prefer private combatants just to avoid political costs, if there is a higher risk that such combatants will leave when things become too dangerous.

Finally, normally functioning states that have the capacity, if not the willingness, to recruit soldiers cannot generally appeal to the scarcity of soldiers as a justification (as different from an excuse) for hiring mercenaries, as a means to discharge their duty to effectively provide security, for in such states the scarcity of soldiers is often a consequence of previous decisions to hire mercenaries instead.40

In sum, insofar as private combatants' reduced reliability cannot be easily outweighed by competing considerations, states with the capacity to maintain or recruit alternatives—which excludes very weak states—will generally have strong reasons, grounded on their moral duty to effectively protect their citizens and defend themselves, not to accept the mercenary's promise.41

But perhaps the assumption that mercenaries are, or can be expected to be, less reliable than soldiers just because they are not subject to threats of punishment is false. After all, economic incentives, such as refusal to renew a firm's contract in case of walkouts, or motives such as comradeship, could and often do suffice to secure the willingness of private combatants to sacrifice their lives.42 In response, we should first notice that incentives can be circumvented. For example, private firms can dissolve and form a different company in order to avoid a ban on bidding for further government contracts.43 As for motives, even if we assume that mercenaries can be motivated, precisely like soldiers, by comradeship and a sense of honor, beyond pecuniary considerations, the threat of punishment may still be necessary to keep cases of desertion under reasonable limits. Otherwise it could not be explained why soldiers, who are similarly motivated, are subject to such threat of punishment.

But there is more. A state has a duty to secure not just reliability, as far as the provision of security is concerned, but robust reliability—reliability under a set of possible changes in human motivations. The reason is that a state should ensure that its citizens' security does not significantly depend on the good will of its providers44—in the same way as a state committed to the economic security of its citizens should not leave its provision to philanthropy. If mercenaries, however well intentioned, were allowed to discretionally judge the level of risk, and make decisions about whether to leave or stay on that basis, this would raise important concerns of domination. It is thus impermissible for states to exclusively rely on the comradeship of the mercenary, or on their discretional responsiveness to economic incentives, to ensure the successful performance of justified military operations.

To this we can add that, if mercenaries could not be compelled to remain, states would likely have incentives to deceive them about the risks of certain wars in order to prevent desertion.45 This in turn could generate a lack of trust between mercenaries and state officials, as well as other soldiers, thereby further undermining the effectiveness of the military. Finally, the overall likelihood of desertion would impose higher costs on those remaining in the field of war.46

All these reasons, then, suggest that functioning states are under a duty, grounded on their prior moral duty to provide security in an effective, non-dominating and fair way, not to accept mercenary offers. We thus reach the following preliminary conclusion: either the mercenary's promissory offer of military services violates the alienability condition, in which case the promise is invalid, or, if limited to waiving, it is generally impermissible for states to accept the offer. It follows that, if the state does what it ought to do, the mercenary would acquire no promissory duty to perform. If, by contrast, the state (wrongly) accepts the mercenary's promise, it would still be wrong for the state to demand that the mercenary comply with the offer's terms. It should release the mercenary instead. In turn, the state should not consider itself wronged if the mercenary fails to comply, for this failure is only possible as a result of the state's previous wrongful failure to release the mercenary.

Note that this argument does not apply to the provision of services, including some combat tasks such as drone operating, that entails no, or a very low risk of death for those providing them, or to services, however essential, for which replacements could be easily and effectively found, because in such cases leaving would not undermine security. It only applies to the provision of services that are both essential and can only be effectively supplied if those who provide them are willing to stay when a risk of death materializes—for example, combat on the ground by front-line infantry or, depending on circumstances, the operation of bombing campaigns. It may also apply to the provision of non-combat support services, as long as such services are essential for the success of a military mission, their provision in conflict zones entails a non-negligible risk of death, and replacements in cases of walkouts cannot be easily secured.

But a part of the puzzle is still missing. If mercenaries cannot alienate their discretionary right to life, why can soldiers? Call this the asymmetry question. True, soldiers retain the option of choosing imprisonment as an alternative to making the ultimate sacrifice.47 However, the pair of options between which soldiers can freely choose is imprisonment versus (an imminent and likely risk of) death, as opposed to a free life versus (an imminent and likely risk of) death. Joining the army involves, in this sense, a qualified form of alienation.

The literature on war suggests two answers to the asymmetry question, both of which are wanting.48 The first answer points to the distinctively financial character of the mercenary's contract. Along these lines, Baker argues that “sacrifice has no place in the cost–benefit analysis that is at the heart of commercial soldiering,” and Pattison contends that “the difference lies in the nature of the agreement.”49 For private contractors, “it is financial and, as such, its fulfillment is not always binding, especially in the face of likely death”; by contrast, the contract between the state and the soldier “is not simply financial … It involves an extensive responsibility of care, expert training, and a special positioning in society.”50

It is, however, unclear what the financial aspect of the contract refers to and why it is relevant. If it refers to the motives for the sake of which mercenaries agree to fight, this cannot explain the asymmetry between soldiers and mercenaries, because, as Baker himself argues, both parties can have mixed motives.51 Further, the motives an agent has for signing an agreement arguably do not bear on whether they can or cannot alienate their right to life through that agreement. Whether I am motivated to agree to become someone's slave for money, fun, or to pursue a just cause, the other party still wrongs me if they enslave me. If, instead, the financial aspect refers to the rationality of the agreement—whether the expected benefits are worth the expected costs—this cannot explain the asymmetry either, because mercenaries, precisely like soldiers, could in principle expect the benefit of fulfilling a vocation or of obtaining a certain kind of social recognition for their heroic acts, in a way that could make their agreement to stay in case of imminent risk of death rational.52 But, again, the fact that it may be rational for an agent to enter a certain agreement (for example, a contract for voluntary slavery with great benefits attached to it) does not mean that the agent has the moral power to alienate what is in fact inalienable. Nor the fact that soldiers have special responsibilities of care, undergo expert training, and occupy a special position in society explains why they, and only they, can alienate their discretionary right to life. Not only could these features in principle extend to mercenaries, but also a private agent's inalienable rights generally constrain the kind of responsibilities she can reasonably be allocated.

The second answer is contractarian and argues that soldiery is a role the constitutive rules of which (1) could be agreed by all relevant participants (for example, states) as fair and mutually beneficial, and (2) demand that soldiers acquire sui generis permissions and liabilities that would be ruled out by ordinary morality. Benbaji makes this argument to explain how soldiers, by consenting to their role, lose their moral claim against being unjustly attacked by enemy soldiers, but his argument could be extended to explain why soldiers also lose their claim against being compelled by commanders to face an imminent risk of death against their will.53

However compelling in its own case, Benbaji's argument cannot suffice to answer the asymmetry question, for two reasons. First, one could argue that a practice of mercenarism, the constitutive rules of which required private parties to alienate their right to life, would also be mutually beneficial and fair to all relevant parties, for the same reasons why that is the case for soldiers: most states are not able to efficiently fight just wars except with armies compelled to remain when a risk of death materializes. Mercenaries could then acquire a duty to stay by simply consenting to become mercenaries. Therefore, fairness, mutual benefit and consent cannot by themselves explain the asymmetry between soldiers and mercenaries with regards to alienation. Second, as Benbaji himself acknowledges, the contractualist argument is subject to an important deontological objection. In Benbaji's own words “a person's claim against being unjustly killed is not alienable just by her consent to morally optimal rules.”54 That is correct and applies as well to a person's claim against being compelled to die against their will. Neither a soldier nor a mercenary can alienate their inalienable rights through simple consent, no matter how optimal the rules they consent to.

In sum, the reason why soldiers but not mercenaries can be treated as if they have alienated their right to life cannot be reduced either to the non-financial nature of their agreement or to the fact that they consent to optimal constitutive rules. Rather, the asymmetry must ultimately have to do with a difference in their (public/private) status or identity.

The above conclusion comes with a first, interesting implication. If the mercenary offer is invalid, or if it is valid but the state does what it ought to do (decline the offer), no promissory duty of performance on the part of the mercenary arises. Therefore, whenever a state attempts to enforce that duty on the mercenary—including, for example, by threatening them with economic sanctions if they do not perform—the state wrongs the mercenary. This wrong amounts to a form of domination, insofar as the state arbitrarily interferes with the mercenary's freedom by trying to enforce duties upon them that they do not in fact have (or that they may have, but just as a result of the state's wrongful failures to refuse the promise and to release the promisor), and by claiming the authority to do so on the basis of a contractual relationship that the state itself should have refused.

But there is a further implication. Sometimes promises that misfire fail not only to impose new duties on the promisor, but also to transfer new permissions to them. To illustrate: if you accept my promise that I will look after your garden while you are away, I not only acquire a promissory duty to look after your garden, but also permissions that I would not otherwise have to do things that are either instrumentally necessary to, or constitutive of, the successful fulfillment of the promissory duty—for example, I now have permission to access your garden and water the grass. If, for whatever reason, the promise misfires, I now have no duty to take care of your garden and no derivative permission to access or water it (unless, of course, you separately granted that to me).

Similar considerations apply to the promise between the state and the mercenary. By accepting the mercenary's promissory offer to perform combat tasks on its behalf, and assuming the offer is valid, the state imposes on the mercenary a promissory duty to fight on its behalf. Insofar as, and only insofar as, the use of force is constitutive of, and instrumentally necessary to, the successful discharge of that duty, the state also transfers to the mercenary the moral permission to use force on its behalf. However, if the promise misfires, either because the offer is invalid or the state's acceptance impermissible, the promise cannot transfer to the mercenary a derivative permission to use force on behalf of the state.72 Yet, if the mercenary uses force without permission to do so, they arbitrarily impose force on others, thereby dominating them. The privatization of (many) combat tasks thus entails a threat of double domination: the domination of both the mercenary and of those subject to their use of force.

It could be objected that states, or state-authorized agents, are not the only parties with permission to use force in war, and that any private party has the right to independently initiate and fight in just wars.73 Therefore, even if mercenaries fail to acquire, through their contract with the state, permission to fight in a war, their use of force need not to amount to domination. My response follows contemporary Kantians who have, in my view compellingly, argued that private parties can neither adjudicate nor enforce rights against others merely unilaterally: that is to say, independently of an omnilateral, political authorization.74 This is so, even if the content of their determinations is correct, insofar as being correct is insufficient to confer on private parties the authority to impose their own unilateral determinations on others. It is true that we have a liberty of self-defense, but this liberty is exceptional. It is not a general authorization to independently enforce one's rights or the rights of others, it is rather a limited, sui generis authorization to do so only when public authorities acting omnilaterally are unavailable.75

But even if one thinks that private parties are permitted to independently fight wars, the fact remains that one can legitimately enforce rights on behalf of an agent only if one does so in virtue of their authorization.76 Insofar as, in the context of privatized war, the mercenary's job entails enforcing rights on behalf of a state, not independently, the state must grant, through contract, a moral permission to the mercenary to use force on its behalf in order for that use to be non-arbitrary. Insofar as mercenaries lack such permission, their use of force remains arbitrary. Hence the problem of domination.

The argument developed so far provides us with strong reasons not only to limit the privatization of war, but also to take under state control some professions beyond the military. I recommend that a profession be within the exclusive purview of the state when (1) the profession is morally permissible and socially desirable and (2) can only fulfill its purpose if its members are bound to stay when an imminent risk of death materializes. As we saw, in the case of most risky jobs (logging, constructions, mining, and so on), the purpose of the activity can be fulfilled even if employees retain the right to walk out when a risk of death materializes. In these cases, the activity can be private, and we can simply say that the employee does not wrong the employer when they leave. No moral residue is left.

By contrast, as we also saw, the case of mercenarism creates a distinctive conflict: the success of the activity itself requires the alienation of the right to decide whether to stay or leave in case of an imminent and very serious risk to one's life, but such right cannot be alienated by private persons through simple promising. If the activity remains private, then, it fails to fulfill its purpose. In such case, the activity ought to be exclusively performed by state agents, because those who bear the corporate person of the state, and only they, occupy a status to which the circumscribed suspension of the right to life can be attached (to the extent necessary to achieve the role's necessary purpose). It is only by making the job public that we can eliminate the moral conflict: no one either violates an alienability condition or fails to achieve a morally acceptable and socially desirable purpose.

Soldiery, however, may not be the only profession to meet these conditions. Firefighting is arguably another profession of this kind, and there may be others, including providing emergency care during deadly pandemics, and policing. If such professions serve permissible and socially desirable purposes, and if the achievement of such purposes demands that their members be required to stay when a serious risk of death materializes, we may have equally strong reasons to not privatize them. Whether such reasons are conclusive is left for another time.

The privatization of war, especially when certain military tasks—many combat tasks and potentially also some essential support tasks—are at stake, consists in a system of failed promises between private parties and states that gives rise to a condition of double domination. Since failed promises cannot generate binding duties, attempts to enforce such duties on the mercenary constitute an act of domination against the latter. Since failed promises cannot generate derivative permissions either, the mercenary's use of force on behalf of the state also amounts to the domination of those subject to it. This argument also provides strong reasons to reserve to state agents the performance of other socially necessary functions, such as firefighting.

None relevant.

There are no potential conflicts of interest relevant to this article.

The author declares human ethics approval was not needed for this study.

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来源期刊
CiteScore
4.10
自引率
5.60%
发文量
17
期刊介绍: The Journal of Political Philosophy is an international journal devoted to the study of theoretical issues arising out of moral, legal and political life. It welcomes, and hopes to foster, work cutting across a variety of disciplinary concerns, among them philosophy, sociology, history, economics and political science. The journal encourages new approaches, including (but not limited to): feminism; environmentalism; critical theory, post-modernism and analytical Marxism; social and public choice theory; law and economics, critical legal studies and critical race studies; and game theoretic, socio-biological and anthropological approaches to politics. It also welcomes work in the history of political thought which builds to a larger philosophical point and work in the philosophy of the social sciences and applied ethics with broader political implications. Featuring a distinguished editorial board from major centres of thought from around the globe, the journal draws equally upon the work of non-philosophers and philosophers and provides a forum of debate between disparate factions who usually keep to their own separate journals.
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