Just War Theory
This theory dates back to St Augustine who had to persuade the pacifist Christian tradition in Roman times that war can sometimes be necessary. St Aquinas and other theologians later developed this theory. There are three parts to this ethical theory JUS AD BELLUM –rules set out for going to war, JUS IN BELLO – rules set out for being in war and JUS POST BELLO – the nature of how a war is ended.
So what are the Jus Ad Bellum Conditions?
- Just cause – in order for a war to be declared there must be a just cause. But who is to judge what is a just cause?
- Right intention – It is linked with the part of Natural Law that states that intention is really important. Ulterior motives such as acquiring land or protecting oneself should not be intended. But how can you test/measure intention?
Proportionality – The damage caused by the war should not exceed the good expected to come out. How are you supposed to predict this?
- Declaration by a legitimate authority – This principle is linked with this quote from the Bible “Obey the powers that be for they are ordained by God” Romans 13:1-2. Some like Wilcockson say that this principle has been overlooked so that terrorists now have rights of this nature.
- Last resort – Every other must have been used before going to war e.g. peaceful negotiations. If an authority has already decided this is what they want to do is there any point in negotiations?
- Formal declaration of war – Some countries do not recognise the UN rules for going to war and they may not recognise this principle. We have seen some of the most horrific example of when this rule has been violated e.g. Pearl Harbour
- Reason chance of success – There should be a relative chance of success but if one knows they don’t have a chance of success they may feel ashamed in declaring it.
Then what are the Jus In Bello conditions?
There are two conditions according to Just War Theory for how we should behave in war. Jus In Bello requires agents of war to be responsible for their actions.
- Principle of discrimination – innocent people or ‘non- combatants’ should not be directly or directly attacked according to the Geneva Convention. Is this really possible?
- Principle of proportionality – Minimum force should be used to achieve good and just like with proportionality before the damage caused should not outweigh the good. With nuclear weapons is this really possible?
And what about Jus Post Bello then?
This is a fairy new addition to the Just War Theory. This concerns the aftermath of war and restoring peace and fairness.
Restoring human rights – bringing back the equality and rights that everyone has.
- Distinguishing between innocent civilians and those who should be punished
- Bringing to trial war criminals and ensuring they receive justice
- Giving the defeated country the opportunity to reform.
In this video I introduce the legal concept of a trust by addressing the following questions:
1. What is a trust? Why is preferred over a contractual arrangement?
2. How can one create a trust?
3. What are the essential elements of a trust?
4. What is the moral basis of a trust? And is it still relevant today?
Please find written notes below.
Basics of trusts
What is a trust? Why is it preferred over contracts?
- A trust is a form of ownership which whereby the legal rights are separate to the equitable rights.
There are significant advantages to utilizing a trust mechanism over say a contractual arrangement which it is often compared too:
- If the property is sold by the trustee under a breach, the beneficiaries benefits would be overridden even though the third party knew all knew all along because of privity of contract. And the only way to solve this would be to make the beneficiary party to contracts between settlers and trustees.
- In a contract, yes the settlor could bring action against trustee but in a trust, the beneficiary can and this actually makes more sense as the whole purpose of the contract would be for the beneficiaries to benefit.
- There are situation such as ones where children are involved and those to benefit can’t enter contracts because they do not have the capacity to enter one.
What are the essential elements of a trust ?
- The three certainties:
(i) Certainty of intention, that the settlor intended to create a trust
(ii) Certainty of subject matter, what the trust property is and the quantum each beneficiary is to receive
(iii)Certainty of objects, who the beneficiaries are
2. Beneficiary principle – the trust must be designed for identifiable humans to benefit
3. Any formalities are complied with e.g. for the legal transfer of land a deed and registration is required
How do you create a trust?
- Either you transfer your property to a trustee
- You declare yourself as a trustee holding it for the benefit of another individual.
What is the moral basis of a trust and is it still relevant today?
The moral basis of a trust refers to a ‘confidence reposed in some other’ (Lord Chief Justify Coke), such a confidence gives rise to moral obligation and this has given rise to legal principles.
Essentially, the moral basis is still important today because it goes someway in explaining fiduciary duties which are imposed on trustees.