Of War and Law

Of War and Law

David Kennedy
Copyright Date: 2006
Pages: 206
https://www.jstor.org/stable/j.ctt7rqc9
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  • Book Info
    Of War and Law
    Book Description:

    Modern war is law pursued by other means. Once a bit player in military conflict, law now shapes the institutional, logistical, and physical landscape of war. At the same time, law has become a political and ethical vocabulary for marking legitimate power and justifiable death. As a result, the battlespace is as legally regulated as the rest of modern life. InOf War and Law, David Kennedy examines this important development, retelling the history of modern war and statecraft as a tale of the changing role of law and the dramatic growth of law's power. Not only a restraint and an ethical yardstick, law can also be a weapon--a strategic partner, a force multiplier, and an excuse for terrifying violence.

    Kennedy focuses on what can go wrong when humanitarian and military planners speak the same legal language--wrong for humanitarianism, and wrong for warfare. He argues that law has beaten ploughshares into swords while encouraging the bureaucratization of strategy and leadership. A culture of rules has eroded the experience of personal decision-making and responsibility among soldiers and statesmen alike. Kennedy urges those inside and outside the military who wish to reduce the ferocity of battle to understand the new roles--and the limits--of law. Only then will we be able to revitalize our responsibility for war.

    eISBN: 978-1-4008-2736-7
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-xiv)
  4. INTRODUCTION: War Today
    (pp. 1-12)

    War is a profound topic—like truth, love, death, or the divine. Intellectuals from every field have cut their teeth on it: political scientists, historians, ethicists, philosophers, novelists, and literary critics. But war is not one thing, always and everywhere. People write about the wars of their own time and their own country.

    The wars of my time and my country—the America of the “postwar” half century—have been varied. We have fought a cold war, postcolonial wars, and innumerable metaphoric wars on things like “poverty” and “drugs.” Our military has intervened here and there for various humanitarian and...

  5. 1 War as a Legal Institution
    (pp. 13-45)

    Nearly two hundred years after he made the observation, Clausewitz remains correct: war is still the continuation of politics by other means. In broader terms, modern war reflects modern political life. In large measure, our modern politics is legal politics: the terms of engagement are legal, and the players are legal institutions, their powers expanded and limited by law. The tools and outputs of the political process are often legal norms; the tactics of political maneuver now moves in an increasingly complex legal process. We are not surprised by the number of politicians—not to mention lobbyists and political professionals—...

  6. 2 The Historical Context: How Did We Get Here?
    (pp. 46-98)

    We know that international politics, statecraft, and warfare have all been transformed since the Second Continental Congress sent Benjamin Franklin to France in 1776 to secure what assistance he could for the thirteen colonies in their war with Britain. Over the same years, law has also been dramatically rethought and remade. Statecraft, warfare, and law each has its own history, to be sure, but their stories also overlap and have influenced one another. To understand law’s contemporary function as a vernacular of political judgment, we need to pay particular attention to changes in ideas about law that came after von...

  7. 3 War by Law
    (pp. 99-164)

    Warfare today takes place in a political and legal context that draws on each phase in the history I have been tracing. Little has been lost. Military action is routinely challenged—and defended—in a rhetoric of “just war” that is hundreds of years old, updated by modern political theories of justice and ethical or religious theories of virtue. The sharp distinctions of nineteenth-century legal thought, confidence in the convergence of legitimate interests, and in the peaceful effects of an expanding global economic and commercial system structured by private ordering, remain vivid in the minds and discourse of international elites...

  8. Epilogue
    (pp. 165-172)

    Law and force flow into one another. We make war in the shadow of law, and law in the shadow of force. Law has infiltrated the decision to make war and crept into the conduct of warfare. We have bureaucratized and professionalized warfare—shifting responsibility always elsewhere in a war of the pentagon rather than a war of the spear. At the same time, the hand of force animates the world of law—enforcing its contracts, defending property, making its norms real in the world—making war on the enemies of the UN Charter. The boundary between war and peace...

  9. NOTES
    (pp. 173-178)
  10. INDEX
    (pp. 179-191)