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NUMERO 5 - 06/03/2019

 Parliaments and ''Just War''

The assessments regarding the possibility to consider an armed intervention as legitimate, linked to the issue of the involvement of national Parliaments in the procedures for the adoption of the military decision, entail – also from a philosophical point of view – the theory of the “just war”. The need to recover the doctrinal tradition of the just war in the contemporary era was particularly emphasized by Hans Kelsen, who, in theorizing the unity of law and the primacy of international law, highlighted the need to identify a set of rules able to distinguish when the use of violence among States is lawful or unlawful, precisely to confirm the legal nature of international law. In this approach, Kelsen evidently accepted the theory of just war in a precise legal perspective, in which the military intervention assumes the characteristic of the sanction. Some aspects of this approach are evidently very current, especially where it takes into consideration the “external” dimension of the legitimization to the use of force by a State that operates as an organ of the international community. However, Kelsen’s elaboration is only one of the many different possible conceptualizations through which the theory of the just war has been explained over the centuries. In fact, the notion of just war assumed different connotations in different eras and contexts, according to a not always linear trend. As is known, the expression “just war”, or more precisely “bellum iustum”, understood as a parameter of relationship between different populations, was born within Roman law, and in particular in Cicero’s elaboration. Of course, previously other cultures had already addressed the issue of war, but dealing with it mainly from a philosophical point of view (which perhaps referred to elements somehow connected to the moral level, then fully resumed and developed with reference to armed interventions in the Middle Ages). In particular, in ancient Greece Aristotle had identified three right reasons to practice war, built around the concept of dìkaios pòlemos. In Roman culture the concept of just war is centered on the ius fetiale and identifies the armed intervention performed respecting the expected rituals. In other words, for the Romans the just war is the respect of a legal procedure established by law and in fact is independent from any moral evaluation. Therefore, the justice of the war for the Romans does not lie in the presence or not of a positive ethical evaluation, but in the respect of strict legal procedures. This point of view changes radically in the Middle Ages, in particular starting from St. Augustine’s thinking, later developed by St. Thomas Aquinas. In these elaborations the justification of war leaves the world of the “legal” and comes to that of morality, which for St. Augustine and St. Thomas Aquinas can only be the divine one. Therefore in this context the just war is seen in its theological perspective… (segue)

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