David Kennedy is Manley O. Hudson Professor of Law and Director of the European Law Research Center at Harvard Law School.
Review
Of War and Lawis a very thoughtful and fresh analysis of modern law and modern war. David Kennedy argues that the merger of law politics and war is a fact of contemporary society. He believes and I happen to agree that the more we accept this reality the more productively we can begin to understand how law might be useful in achieving the humanitarian purposes for which it was principally designed.
Summary
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.
Table of Contents
Acknowledgments ix
Introduction: War Today 1
Chapter 1: War as a Legal Institution 13 The Political Context for War 13 Professional War 27 Law as the Landscape
for War 33 Law and the Legitimacy of Military Operations 39
Chapter 2: The Historical Context: How Did We Get Here? 46 International Law before the Rise of Modern War and
Statecraft 47 Law Meets Modern Warfare 56 Changes in Legal Thought: An Opening for Humanitarianism 64 International
Institutions and the Rise of a Modern Law of Force 68 Legal Realism and the Transformation of the Law in War 83
Chapter 3: War by Law 99 Battle in the Shadow of Sharp Distinctions and Outsider Ethics: Traces of the Premodern
Legal Order 100 Modern Law and Modern War: Problems of Strategy 111 Legal War and the Elusive Experience of Responsibility
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