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.
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).
"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
"Twenty-first-century warfare jars us with precision, lethality, and reach juxtaposed against terrorists, street fighting, and weapons of mass destruction. The laws of war strain to keep pace and Professor Kennedy brilliantly tells why in this legal tour de force."—Lt. Gen. Arlen D. Jameson, U.S. Air Force (retired), former Deputy Commander, U.S. Strategic Command
"David Kennedy's elegant little essay contains a brilliant analysis of the linguistic fault lines that dominate our approach to diplomatic and military politics, and which utterly obscure the very difficult decisions that ought to be made on quite other grounds and for better reasons than adherence to unhelpful old categories. The book should be of great significance for lawyers, politicians, and military officers. It should become the prism through which the issues arising out of 'humanitarian intervention' are seen and discussed."—Thomas Franck, New York University School of Law
Of War and Law is 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."—Maj. Gen. Charles J. Dunlap Jr., U.S. Air Force
