Brandt, Utilitarianism, and the Rules of War

In "Utilitarianism and the Rules of War" (1972) Richard B. Brandt, like any rationalist, misconstrues a constraint on rule acceptance as a source of rules. Of course, any acceptable moral rule must meet the constraint that they be acceptable to impartial and rational people; no acceptable moral rule would be unacceptable to them. But there is a large range of mutually inconsistent moral rules that would be acceptable to them. The constraint simply won't determine which rules are right.

Brandt believes that only his preferred rules would be acceptable to them: utilitarian rules. His reason is that it is in the interests of anyone self-interested, impartial and rational to prefer these when he doesn't yet know who he will be: when he is behind the Rawlsian veil of ignorance. If we have an altruistic fellow behind the veil, then he should choose utilitarian rules, too, as they are in others' interests. Utilitarian rules maximize the chance of maintaining his own and others' welfare. So, they are the right moral rules.

There are two problems with this position. One is that Rawls draws different conclusions when he steps behind the veil. He chooses rules that would minimize the maximum loss of welfare he might suffer. This minimax position is inconsistent with Brandt's utilitarianism. So, apparently the impartial and rational space behind the veil does not lead to the determinate conclusions even amongst those philosophers who claim that it does. When the experts' divinations disagree, one concludes that divination doesn't work.

Also, an impartial and rational agent can also prefer not to treat a few people badly as a means of maximizing the net welfare. Or he may not wish to allow the aggressor in the war mercy sufficient to maximize utility because such mercy comes at the expense of the aggressor's innocent victims. Or he may make distinctions between the treatment of enemy non-combatants and the treatment of enemy soldiers on the grounds of decency, knowing full well that these distinctions may reduce his chances of survival when he emerges from behind the veil and enters the war. There is a variety of moral principles which can come into impartial and rational decision making. This is because there is a variety of anti-utilitarian moral principles that impartial agents might embrace. This is the simple fact that refutes the Rawlsian (Kantian) theory of moral deliberation.

Brandt himself admits that there will be a restriction on the rules. The only acceptable rules are those that are consistent with any country having the right to exert force sufficient to overpower the enemy. For it is a fact that no country will not exert such force. But if there is this restriction issuing from human nature, why are there not more restrictions issuing from human nature, such as those I've listed above? Brandt allowed for one, and I listed three. There are more. This is sufficient to refute Brandt's case for utilitarianism. All attempts to divine moral principles out of the thin air of the space behind the veil fail. They have done so since the first emerged with Kant. Only human beings can determine moral rules, not abstract agents.