Of War and Law

David Kennedy is Manley O. Hudson Professor of Law and Director of the European Law Research Center at Harvard Law School. He is the author of "The Dark Sides of Virtue" and coauthor of "The Canon of American Legal Thought" (both Princeton).

"The provocative new book, Of War and Law ... [is] a cautionary tale of what can go wrong when military leaders and outside observers use legal language as a substitute for independent ethical thinking. According to Kennedy, the military's increasing reliance on the law creates the illusion that there is an objective way to balance civilian lives and military goals. It relieves the decider of responsibility for judgment... Kennedy traces the evolving relationship of law and warfare as the boundaries between war and peace have steadily grown less distinct."--Bill Ibelle, Harvard Law Bulletin "This powerful work by a Harvard legal scholar probes the modern transformation of warfare and the growing 'merger' of the 'professional vernaculars' of military force and law... This is an original contribution to the debate about the perils of liberal democracy in an age of limited but unending war."--G. John Ikenberry, Foreign Affairs "In this provocative and timely book, Professor David Kennedy probes the relationship between war and law, incisively unraveling two concepts that have become increasingly intertwined since the Second World War ... offering lessons for politicians and citizens alike."--Harvard Law Review "Kennedy's [book] is an innovative and provocative assessment of the contemporary uses of the laws of war. [It] makes an utterly invaluable contribution to our understanding of the role of legal ideas in regulating, constituting and debating the use of force."--Alex J. Bellamy, International Affairs "Kennedy is always an interesting thinker and writer and the themes he deals within this book are fascinating... Kennedy's points should be studied and his effort to disentangle the web of law, war and politics should be wholeheartedly supported and furthered. In this sense, Of War and Law can be viewed as an interesting contribution to a useful and intriguing debate."--Ioannis Kalpouzos, Journal of Conflict & Security Law "Kennedy's emphasis on ethics and politics is a welcome respite from the excesses of legal categories, all the more so coming from a humanitarian professional. Indeed, he wants to return the experience of responsibility to violent conflict--and to all participants. His thoughtful book is a laudable contribution in that direction."--Christian R. Donath, The European Legacy "Readers who plow through this brief book will be rewarded with unique insights concerning modern law of armed conflict (LOAC)... This is a thoughtful and intelligent hook, with a significant point. The epilogue is particularly well-done."--Gary Solis, Journal of Military History

• 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 141 Epilogue 165 Notes 173 Index 179