Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Legality, Morality, and Plausibility in the Crimean Crisis
By Bradford Littlejohn
March 14, 2014
When Russian troops entered Crimea at the beginning of this month, Western media and diplomats quickly sought to outdo one another in their expressions of incredulity, outrage, and bellicosity, with Secretary of State John Kerry’s March 2nd NBC interview probably taking first prize in all three categories. But this firestorm of outrage has tried to make up in intensity for what it has lacked in clarity. Is Russia’s action being condemned on moral grounds, legal grounds, or both? Most of the rhetoric has centered upon Russia’s violation of “international law,” a somewhat curious emphasis given current international law’s noted shortcomings both as a rule of law and a standard of morality, and given the legal complexity of the present situation.
Although the rule of law always aspires to reflect the rule of justice, law and morality never achieve anything like perfect congruence, leaving us with uncomfortable ambiguities in both domestic and foreign policy. Some things not obviously illegal are nevertheless generally judged immoral, and some things prohibited by law may yet be judged morally licit. To these two categories we would do well to add a third, dubbed (for lack of a better word) plausibility—some actions may fall short of either morality or legality, but with sufficient ambiguity that they warrant nuanced treatment. Failure to distinguish these three often leads to ill-conceived expressions of outrage and hasty acts of retaliation that do little to correct the perceived injustice.
Last summer’s George Zimmerman trial was a case in point. Most agreed that he had not acted morally in his actions toward Trayvon Martin, and it was not at all clear that he acted legally. However, there was substantial reason to believe that he plausibly could have understood himself to have been acting in legitimate self-defense, particularly given the ambiguities of the Florida law, and this provided grounds of acquittal from the grave charge of murder. But the resulting public outrage was aimed more at the verdict itself than at Zimmerman’s actions, or the law that allowed such leeway in self defense.
What then of Russia?
The main charge lodged against Russia has been illegality: international law has been violated by Russia’s invasion of a sovereign country. To this charge, Russia has had at least three lines of defense. First, it could argue that technically no invasion has occurred since an existing treaty with Ukraine allows up to 25,000 Russian troops in Crimea. Second, Russia can claim to be acting on the invitation of the (to it) most legitimate current Ukrainian authority, President Yanukovych, since the interim government in Ukraine was swept into power by a partially violent revolution. Third, Russia can also claim that some eastern provinces have not acknowledged the authority of the new interim government, and that in a time of revolution, sovereignty devolves to these regional authorities. This claim is particularly plausible in the case of the Autonomous Republic of Crimea, with its substantial constitutional powers of self-government. To both latter claims, it may be retorted that overwhelming Ukrainian parliamentary approval of the new government rendered it valid, whatever irregularities may have taken place in the ousting of Yanukovych, though it is easy to see why Russia might not see things that way.
What then of immorality? Much of the outrage seems to proceed from the understandable conviction that Russia’s legal arguments are simply pretexts for a power grab, which must be opposed by all who value genuine justice in international affairs. This judgment is informed by our estimation of the relative moral quality of the two parties: Ukraine’s Euromaidan protests powerfully symbolized the “freedom” and “democracy” that we hold dear, while Putin’s Russia symbolizes all that is opposed to those values. But the law/morality dichotomy cuts both ways, as Russia can argue and has argued. Whatever the formal international law requirements against incursions in sovereign nations may be, these are regularly set aside for the widely recognized principle of the “responsibility to protect” oppressed minorities in a nation racked by civil strife. The presence of neo-Nazi elements in the new Ukrainian government and the early moves to suppress the Russian language lent some plausibility to Russia’s claim of intervention to protect Russian minorities, though most Western observers remained skeptical.
In some cases, the appeal to plausible legality or morality may be strong enough to force us to withhold judgment altogether; in other cases, however, it should inform how we implement judgment. We may deem that Russia’s various arguments for legality and morality are specious when judged against the facts on the ground. However, this does not necessarily render them “completely trumped-up pretexts,” to use John Kerry’s label. We need to consider that such arguments may have genuine plausibility in the eyes of many Russians, much as the dubious arguments for the Iraq War seemed genuinely compelling to many leaders at the time. The current imperative to demonize Putin’s Russia renders impossible the exercise of empathy required to discern such degrees of plausibility. Without such an exercise, without seeking to understand how Russia itself sees the current crisis, we virtually guarantee that our responses will merely exacerbate, rather than resolve it.
- Bradford Littlejohn has a Ph.D. from the University of Edinburgh in Theological Ethics. He researches and writes in the areas of Christian Ethics, Political Theology, and Reformation History and is president of The Davenant Trust. He is also managing editor of Political Theology Today and a regular columnist for several blogs.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”