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Of War and Law
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. In Of 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.
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.
- GenresPoliticsLawNonfiction
208 pages, Hardcover
First published August 21, 2006
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59 people want to read
About the author
David Kennedy
11 books9 followersDavid W. Kennedy is Manley O. Hudson Professor of Law and Faculty Director of the Institute for Global Law and Policy at Harvard Law School where he teaches international law, international economic policy, legal theory, law and development and European law.
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Displaying 1 - 4 of 4 reviews
November 12, 2016
Law’s War
In Of War and Law David Kennedy follows his critique of the legalistic human rights regime in The Dark Side of Virtue, with a critique of the legalistic just war doctrine. Whereas the earlier book posited that the hegemonic human rights discourse brings with it a “dark side”—which backgrounds important structures and power relations that subjugate the very rights-holders it purports to defend—the later argues that the hegemony of legal discourse regarding war (and politics) carries its own dangers. But unlike Michael Walzer, Kennedy does not suggest that a universal “moral language,” a timeless, universalism, might be uncovered beneath the historicized, contingent, situated discourses. Moreover, for Kennedy (as for Foucault) power is non-sovereign, diffuse, socially constituted, as is the state, although it relies on a Weberian ratio-legalistic bureaucracy of “legitimate authority.”
For Kennedy, law and war have become continuous, not only because “to use law is to invoke violence” (via its ability to command the force of the state), but also, because “to use violence is to invoke the law,” since law has come to govern every aspect of war. The military is not only professionalized and rationalized but also operates according to texts of international conventions and explicit legal interpretations. George W. Bush did not simply instruct his subordinates to conduct “enhanced interrogation,” he had expert counsel create memos on the legality of such techniques, according to his interpretation of international law. The existence of these memos are compelling evidence of the importance, if not effectiveness, of legal discourse.
Similarly those opposed to “torture” techniques employed legal language to critique them, as did opponents of the Second Iraq War. Many (if not most) of the millions who marched against the war before it began decried it as “illegal.” Moreover, human rights activists and attorneys employ law to condemn the violations and atrocities they seek to end or avenge. Even enemies in contemporary conflicts nearly always employ the “common legal vocabulary” of the law of war.
On the other hand, Kennedy continues, these bureaucracies, within government, private contractors, the legal profession, civil society, have inertias of their own. The “global elite” who come to an “expert consensus” on what wars are necessary or “humanitarian” are often products of these inertias, tendencies, and vocabularies. He posits that once a certain discourse about Iraq and its WMDs began, war became bureaucratically inevitable regardless of Iraqi action.
The “delicate partnership of war and law” arises out of the fact that even as the law of war restrains (at least in theory) when and how states can use force against others, it facilitates acts of war when they meet broad conditions such as self-defense, collateral damage, or necessity. And it absolves everyone from the responsibility of acts of violence falling within the normal conduct of hostilities, except the statesman who decided to begin the war. When a “bad apple” is prosecuted for excesses, it serves to legitimate all other terrible acts and the consequences of hostilities.
The central issue for Kennedy is law’s uncanny ability to help us avoid responsibility. “The transformation of the law in war into a vocabulary of persuasion about legitimacy can erode the sense of professional and ethical responsibility for our decisions—as humanitarians or military professionals” (141). He illustrates with a legalistic evaluation of the bombing of Hiroshima and Nagasaki. It is quite easy to make an argument using the law of war (just war) language to say that it was a just cause, proportional, and necessary; therefore, legitimate, or at least a close call.
Kennedy (a human rights attorney) summarizes his critique, “In the face of the irrationality of war, modern law has built an elaborate discourse of evasion, offering at once the experience of safe ethical distance and careful pragmatic assessment, while parceling out responsibility, attributing it, denying it—even sometimes embracing it—as a tactic of statecraft and war rather than as a personal experience of ethical jeopardy” (167). But as a remedy he proposes, rather than a “moral discourse” like Walzer, the individual taking of responsibility, in a tone evocative of Weber’s lecture “Politics as Vocation.” Rather than abandoning, reforming or attempting to step out of the hegemonic legal discourse, Kennedy suggests, “The challenge for all of us is to re- capture the freedom and the responsibility of exercising discretion in this common tongue” (172).
It is clear that Kennedy and Walzer profess the same project: to urge the public, government, military personnel to engage with and take responsibility for what happens in modern war. But Walzer critiques the “legalistic language” only to propose a language (if you grant him that it is not a mere reiteration of international legal norms) that is equally rule-based, equally black-and-white. It would be just as easy to run from the responsibility of “freedom and free decision” when bound by his language. Kennedy urges us to be aware if this, and to exercise moral agency.
How can this be done, the reader is left wondering. To do this requires a second level of awareness, of the workings of power, the working of other hegemonic discourses that structure or distort reality. This is, unfortunately, only hinted at in the book and is its major flaw.
In Of War and Law David Kennedy follows his critique of the legalistic human rights regime in The Dark Side of Virtue, with a critique of the legalistic just war doctrine. Whereas the earlier book posited that the hegemonic human rights discourse brings with it a “dark side”—which backgrounds important structures and power relations that subjugate the very rights-holders it purports to defend—the later argues that the hegemony of legal discourse regarding war (and politics) carries its own dangers. But unlike Michael Walzer, Kennedy does not suggest that a universal “moral language,” a timeless, universalism, might be uncovered beneath the historicized, contingent, situated discourses. Moreover, for Kennedy (as for Foucault) power is non-sovereign, diffuse, socially constituted, as is the state, although it relies on a Weberian ratio-legalistic bureaucracy of “legitimate authority.”
For Kennedy, law and war have become continuous, not only because “to use law is to invoke violence” (via its ability to command the force of the state), but also, because “to use violence is to invoke the law,” since law has come to govern every aspect of war. The military is not only professionalized and rationalized but also operates according to texts of international conventions and explicit legal interpretations. George W. Bush did not simply instruct his subordinates to conduct “enhanced interrogation,” he had expert counsel create memos on the legality of such techniques, according to his interpretation of international law. The existence of these memos are compelling evidence of the importance, if not effectiveness, of legal discourse.
Similarly those opposed to “torture” techniques employed legal language to critique them, as did opponents of the Second Iraq War. Many (if not most) of the millions who marched against the war before it began decried it as “illegal.” Moreover, human rights activists and attorneys employ law to condemn the violations and atrocities they seek to end or avenge. Even enemies in contemporary conflicts nearly always employ the “common legal vocabulary” of the law of war.
On the other hand, Kennedy continues, these bureaucracies, within government, private contractors, the legal profession, civil society, have inertias of their own. The “global elite” who come to an “expert consensus” on what wars are necessary or “humanitarian” are often products of these inertias, tendencies, and vocabularies. He posits that once a certain discourse about Iraq and its WMDs began, war became bureaucratically inevitable regardless of Iraqi action.
The “delicate partnership of war and law” arises out of the fact that even as the law of war restrains (at least in theory) when and how states can use force against others, it facilitates acts of war when they meet broad conditions such as self-defense, collateral damage, or necessity. And it absolves everyone from the responsibility of acts of violence falling within the normal conduct of hostilities, except the statesman who decided to begin the war. When a “bad apple” is prosecuted for excesses, it serves to legitimate all other terrible acts and the consequences of hostilities.
The central issue for Kennedy is law’s uncanny ability to help us avoid responsibility. “The transformation of the law in war into a vocabulary of persuasion about legitimacy can erode the sense of professional and ethical responsibility for our decisions—as humanitarians or military professionals” (141). He illustrates with a legalistic evaluation of the bombing of Hiroshima and Nagasaki. It is quite easy to make an argument using the law of war (just war) language to say that it was a just cause, proportional, and necessary; therefore, legitimate, or at least a close call.
Kennedy (a human rights attorney) summarizes his critique, “In the face of the irrationality of war, modern law has built an elaborate discourse of evasion, offering at once the experience of safe ethical distance and careful pragmatic assessment, while parceling out responsibility, attributing it, denying it—even sometimes embracing it—as a tactic of statecraft and war rather than as a personal experience of ethical jeopardy” (167). But as a remedy he proposes, rather than a “moral discourse” like Walzer, the individual taking of responsibility, in a tone evocative of Weber’s lecture “Politics as Vocation.” Rather than abandoning, reforming or attempting to step out of the hegemonic legal discourse, Kennedy suggests, “The challenge for all of us is to re- capture the freedom and the responsibility of exercising discretion in this common tongue” (172).
It is clear that Kennedy and Walzer profess the same project: to urge the public, government, military personnel to engage with and take responsibility for what happens in modern war. But Walzer critiques the “legalistic language” only to propose a language (if you grant him that it is not a mere reiteration of international legal norms) that is equally rule-based, equally black-and-white. It would be just as easy to run from the responsibility of “freedom and free decision” when bound by his language. Kennedy urges us to be aware if this, and to exercise moral agency.
How can this be done, the reader is left wondering. To do this requires a second level of awareness, of the workings of power, the working of other hegemonic discourses that structure or distort reality. This is, unfortunately, only hinted at in the book and is its major flaw.
February 23, 2025
"As men and women, our military, political, and legal experts are, in fact, free—free from the comfortable ethical and pragmatic analytics of expertise, but not from responsibility for the havoc they unleash.(...) In a sense, the commander who offloads responsibility for warfare to the civilian leadership is no different than the foot soldier who cites failures of leadership, the lawyer who faults limitations in the rules, or the citizen who repeats what he heard on the evening news. Lay and professional, the languages of war, ethics, and law have become one. The challenge for all of us is to recapture the freedom and the responsibility of exercising discretion in this common tongue. Clausewitz was right—war is the continuation of political intercourse. When we make war, humanitarian and military professionals together, let us experience politics as our vocation and responsibility as our fate."
I consider this book to be one of the most beautiful and academically enlightening books I could have read for my studies. The way in which the author shows how interconnected international law, humanitarian law and war are, is through a line of thought divided in 3 chapters.
David Kennedy starts by giving definitions and clearing key concepts in order to follow correctly his line of thought through the book. He follows by giving historical context, mainly of international law regarding war and particularly of the eighteen and nineteen century. Finally in the last chapter (and personally my favorite) he unifies and illustrates the two main concepts of War and Law in the 21st century, particularly using clear examples as the occupation of Iraq, Nicaragua and Cuba, which were relevant events during the year of writing the book and also great ways to illustrate his thesis.
I consider this book an indispensable ouvre not only for the study of political science, international relations or international law, but also for the understanding of how partially we are all responsible for the identification, correct application and recognition of these concepts if we truly desire a more humane world.
I consider this book to be one of the most beautiful and academically enlightening books I could have read for my studies. The way in which the author shows how interconnected international law, humanitarian law and war are, is through a line of thought divided in 3 chapters.
David Kennedy starts by giving definitions and clearing key concepts in order to follow correctly his line of thought through the book. He follows by giving historical context, mainly of international law regarding war and particularly of the eighteen and nineteen century. Finally in the last chapter (and personally my favorite) he unifies and illustrates the two main concepts of War and Law in the 21st century, particularly using clear examples as the occupation of Iraq, Nicaragua and Cuba, which were relevant events during the year of writing the book and also great ways to illustrate his thesis.
I consider this book an indispensable ouvre not only for the study of political science, international relations or international law, but also for the understanding of how partially we are all responsible for the identification, correct application and recognition of these concepts if we truly desire a more humane world.
September 9, 2020
This book was disappointing on many levels. First, it was not well-written. Professor Kennedy is a well-respected, highly capable legal scholar. However, the text was a slog to get through. His thesis was less than clear. I was uncertain where he was going until the last 15 pages or so. On top of this, I found his arguments to be surprisingly under-informed. He was quite correct in his observations regarding how law has moved into prominence in conflict and, in particular, military decision making; but after composing his algorithm, he reached all of the wrong conclusions. It would have done Professor Kennedy well to speak with some military professionals and judge advocates before he cast them as shallow characters in his representation of the world.
I have to admit that I thought this book was more recent when I started. Knowing that it was written during the Iraq War makes a little more sense to me in digesting some of his positions. That said, I can only relate that I was terribly disappointed in this book.
I have to admit that I thought this book was more recent when I started. Knowing that it was written during the Iraq War makes a little more sense to me in digesting some of his positions. That said, I can only relate that I was terribly disappointed in this book.
July 28, 2014
Good, but the thesis is overly generalizing. One of those books where the thesis gets in the way of what is obviously an excellent historical understanding of the subject. The historical dialectic that he presents, with each successive generation of legal scholars coming as an antithesis to the previous and the final period as synthesis removes all the subtleties of legal analysis and the different trends within.
Still absolutely interesting and enlightening on the topic.
Still absolutely interesting and enlightening on the topic.
Displaying 1 - 4 of 4 reviews