Product 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. 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.

Product Details

• Amazon Sales Rank: #648683 in Books
• Published on: 2006-08-21
• Original language: English
• Number of items: 1
• Binding: Hardcover
• 206 pages

Review
"... 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

Review
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 )

Review
That the line between war and peace has been blurred becomes more evident with each incident from Afghanistan to Iraq. But the complexity and depth of legal implications that affect policymakers and military commanders have not been understood. Kennedy's book brilliantly and deftly probes both the uncertainty and the importance of legal rules in the changed civil and military environments.
(Antonia Chayes, Visiting Professor of International Politics and Law, Tufts University )

Customer Reviews

"On Lawfare": Short and Focused
In this short book, David Kennedy refers to what military commanders call "lawfare", the use of law, particularly humanitarian law, as a shield and a sword, by organized militaries, partisans, insurgents, and terrorists alike. In a much longer but less effective book, the Shield of Achilles Phillip Bobbitt has recently written in different terms on the mutual relation between law and strategy. In the realm of emergency, the distinction between the two becomes relatively thin. Bobbitt's book demonstrates that at certain times, strategic "imperatives" have generated legal regimes. A point that Bobbit has overlooked, however, is the use of law as a strategic instrument. This is what might be called, not so much the instrumentalization, but the "weaponization" of law, and a focus on this is Kennedy's contribution to contemporary discussions on law and strategy.

Law as an Operational Level of War
Professor David Kennedy's book is a ground-breaking study for strategic theorists since he opens to theory the operational level dimension of law in war.

"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, the players are legal institutions, their powers expanded and limited by law. . . to understand modern war, we must understand the global and national context within which the politics of power and war are waged." Page 14.

Kennedy bases his study on Clausewitzian theory, that is war being a continuation of politics by other (organized violent) means. Also modern war is very much a "dialogue" that takes place among elites in which the actual nature of the specific war in question in defined. Not only humanitarian institutions, but also the military have an interest in establishing a legal framework in which military activity can operate and thus gain "legitimacy". This was not always the case as Kennedy shows in his discussion of how our view of war and law have changed over the last 200 years.

I do find several weaknesses to this otherwise strong argument however. First, this operational view of war is very much US-centric having to do with 21st Century American society and how we look at the world. The importance of this operational level is thus connected with the place of the US on the geo-strategic stage, a weakening of US power/influence would thus affect this level as well.

Second, existing at the operational level means that it can be "trumped" so to speak at the higher or strategic level, that is this level is very much tied to a strategy of attrition. By achieving strategic success by way of a strategy of annihilation one can neutralize this legal operational level, that is rapid success on the ground and attaining strategic success quickly can preclude this element having much influence. Witness the recent conflict in Georgia in this regard.

Finally, as Kennedy points out the trend is that legal operations do not enhance legitimacy for one side or the other but over time tend to favor the weaker side. The very relevance of the level of legal operations rests on the assumption of credibility and legitimacy, but legal operations, especially done by powerful states to mask what their actual political (and economic) objectives are, only tend to discredit the question of legality of their resorting to war in general.

In all this is a very interesting and groundbreaking work especially for strategic theorists who are not use to thinking about war in this way.

Essential Reading
Of War and Law is a deceiving complex book. Like Kennedy's other books, it is very readable, and offers brilliant reflections into global governance - in this case, the heavy topic of war. Or maybe it isn't such a 'heavy' topic, since after all, everything nowadays is framed as a war in America: war on terror, war on drugs, war on fast food... there is even (if we listen to Fox News) a war on Christmas. In such a world where war is no longer bracketed off, where we supposedly are living daily in various states of warfare, it is easy to become desensitized, to stop taking its implications seriously.

At the same time, progressives have a tendency to distance themselves, in the context of foreign affairs, from war. Against warfare, the rally cry is some version of the 'rule of law', which is supposed to stand in contrast to the cynical politics of warfare. But if war has permeated our culture, Kennedy demonstrates in what seems so obvious but only after it is pointed out, there is simply no way to separate law from politics, or for that matter, law from war - what the military has come to term, 'lawfare'.

This has led progressives to view war from afar - both unwittingly desensitized to its effects (e.g., do we still keep count of the civilian casualties in Iraq, or even our troops), and unwilling to venture outside of the formal confines of legal condemnation (e.g., 'The Iraq War is Illegal'). OWAL analyzes the nature of this disengagement, but more importantly, puts forward a passionate, and even radical, polemic that challenges us to reawaken to the implications of the warfare all around us, and to regain our sense of agency. Is war/politics inescapable, even within the confines of legal humanitarianism? Yes. But what Kennedy shows us, this is not cause for despair, but the very grounds for a radical new politics of progressive engagement.

It is easy to read OWAL within the American philosophical tradition of pragmatism, and within the 'skepticism' characteristic of American IR literature, or perhaps even as an offshoot of Sartrian (or Camus) existentialism. While these may be true to varying degrees (more to the first and third streams than the second), OWAL can also be read in light of the French anti-philosophy of A. Badiou, and as a response to the post-Frankfurt school and the rise of postmodern thought. What Kennedy reminds us of, is that to speak truth to power is not merely a catchy phrase to echo at demonstrations, but a grounds for a progressive militancy that is altogether sustainable in our daily cosmopolitan existence. In short, Kennedy reminds us that political success of any form is not acheived through complacency and denunciations, but through organized political action, through serious commitment, and that if international law means anything, if it is a language ultimately of love, of togetherness, that this demands labour and sacrafice. Kennedy's book offers us nothing less than the first openings towards a way beyond the cosmopolitan irony and progressive deprication that characterizes the modern progressive movement.

This book is a must-read (and re-read) for anyone who cares about the idea of making the world a better place and wants to think seriously about the strategies and costs attached to this commitment.