Warfare Should Be Justified With Ethics, Not Law

Though the international legal framework that ostensibly governs warfare is comparatively new, that doesn’t mean it’s not outdated. Hudson Professor of Law David W. Kennedy argues as much in his new book “Of War and Law,” saying that in this modern age of terrorism, international law often obscures the ethical dilemmas that national leaders should consider in regulating wartime conduct.

Kennedy is a peacenik—a conscientious objector during the Vietnam War, in fact (see the interview with him on page B2). But this thin volume reflects two decades of his rethinking on war’s permissibility and the proper role of law—a rethinking that he says was prompted by questions from students who urged military intervention in war-torn Bosnia and Darfur.

The result is spectacular.

Kennedy’s book is extremely nuanced, as it should be, given his subject. And the prose is immensely readable: clearly expressed, full of examples to highlight abstract points, and organized so well that it allows readers to easily understand the framework of Kennedy’s arguments.

He begins by asserting that current international laws governing warfare were made for a different time. Today, it’s hard to say when war begins and when it ends.

Here we should be thankful that Kennedy is a liberal. Instead of immediately writing off international law as irrelevant and advocating an all-powerful executive (as would, say, John C. Yoo ’89 of torture memo notoriety), Kennedy concludes that nations should rather weigh ethical considerations outside of the bounds of the law.

Kennedy does note that international law has its importance in determining what constitutes a just war, but he makes a convincing case that the law’s “humanitarian potential”—its ability to prompt humanitarian interventions in places like Bosnia and Darfur—is overstated. The solution, Kennedy argues, is to ground just war doctrine in ethics, not law.

While Kennedy makes a strong case about the shortcomings of the current international law framework, he does pass over the fact that law gives actions more legitimacy, rightly or wrongly, than any ethics-based justification ever could. Because the application of law is, in theory, consistent, a war sanctioned by an international legal body will often be the most acceptable and diplomatically legitimate.

The solution then seems clear, even if carrying it would be painstaking and difficult: instead of abandoning the established body of law, the world community should reorient it to emphasize ethical considerations. This adjustment would seemingly address Kennedy’s concerns about the law’s humanitarian shortcomings while preserving the legitimacy that law bestows.

—Reviewer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.

Of War and Law
By David Kennedy
Princeton University Press
Out Now