Of War and Law, by David Kennedy, explores the contemporary relationship between war (and peace) and the legal institutions with which it interacts.  One's reaction is likely to be that this book is too short and scantily researched to effectively probe into such an immense topic. While this reaction is not wholly justifiable, it is closer to correct than not.  Kennedy attempts to isolate a specific thread of the topic, but is not nearly successful enough to excuse such a terse examination of this complex subject matter.  The end result is a treatment devoid of much significance for academics, but perhaps a well-written, enticing prelude with insights ripe for deeper exploration by those who wish to pursue the research more thoroughly. 

Kennedy mostly focuses on the United States as he attempts to delineate what makes the institution of war–within the context of military, political, legal, and social institutions–unique throughout history.  Kennedy begins with an examination of how war and peace have evolved from antithetical conditions of a nation into conditions nearly indistinguishable from each other.  The coalescence–whether illusory or literal–of these two historically distinct conditions is the result of the influence of law on the realm of war and peace.  Law, beginning as a domestic institution, gradually moved to the international realm as the global community felt the need to regulate itself.  International association and diplomacy began to codify into legal institutions as the international community sought to generate a peaceful environment in which war is restrained–if not eliminated all together.  In turn, this newly established legal culture began to permeate the sovereign barriers and imbue the domestic legal institutions (especially regarding war) with an international legal color. 

According to Kennedy, the substantial effect of this new international-domestic legal alloy is a narrowing of the distinction between war and peace.  Legal language regarding war begins to infiltrate more of the territory previously occupied by domestic legal language.   The outcome is the creation of hybrids of international-domestic/police-military legal rhetoric and ideology.  These hybrids engender catchphrases such as 'the war on drugs,' 'the war on poverty,'–and perhaps even 'The War on Terror' and 'The Cold War.'

Another significant effect Kennedy enumerates is the influence of this legal amalgam on military strategy, military policy, and political expression surrounding issues of war.  For instance, law, in the form of the international regulation of war has seeped into domestic military institutions and served to restrain the military and provide broader inroads for pacifists and humanitarians to advance their cause.  Ironically though, it has also recently served to provide greater license to military leadership to justify actions within the limits established.  In other words, if the military remains within the limits established by this new legal culture, the actions taken are viewed with a growing sense of justice–regardless of the justice surrounding the cause itself or the effects of the action taken. 

This is not merely a utilitarian-deontological value struggle.  On the contrary, as Kennedy intimates, the law of war has provided license to action that has effectively cast a shadow over the implementation of military violence itself.  One is immediately reminded of Old Testament apologists who claim that the reciprocal justice ("an eye for an eye") that God established was intended to restrain the people from seeking disproportionate justice for criminal acts.  Whether this represents God's intention, or simply represents a method of rhetorical maneuvering by clever apologists, the result was an epoch of individuals who persistently believed that it was their right to reciprocate assailments against them.  Kennedy's parallel point is that just because the military is endowed with jus ad bellum and jus in bello rights, crystallized in a new international legal institution, does not necessarily indicate that they are justified in acting in the name of these rights.  Pursuant to this notion, Kennedy decries the fact that unjust military pursuits proceed under the guise of legal legitimacy.

Of War and Law is divided into three chapters.  In the first chapter, Kennedy seeks to describe war in its new form as a modern legal institution.  Decisions about war are generally made by a global elite comprising two opposing ideologies.  The group adhering to the 'humanitarian' ideology usually seeks to prevent war before it occurs and restrict and stop it once it has begun.  The group adhering to the 'militaristic' ideology usually seeks to efficiently administer military force that is most beneficial to their national affiliation at the least cost.  The overly simplistic view of this dichotomy is of less interest than Kennedy's claim that the two groups are composed of an elite group of individuals that draws its power from occupying key positions in the legal institutions of a society.  Kennedy explains the implications of this notion; he says, "Most importantly, law has become a mark of legitimacy–and legitimacy has become the currency of power. (p.45)" 

Chapter Two will be an appealing interlude for those interested in a historical recollection of the modern marriage between war and law–though, given its self-explanatory nature, it will not be commented on here.  Chapter Three, the main thrust of Kennedy's work, consists of an analysis of the results of the contemporary legal influence on war.  One of the most significant effects is what Kennedy calls the use of lawfare–the implementation of war by means of the law (p. 12).  Kennedy explains two related problems with the entanglement of law and war.  First, the new legal vocabulary surrounding war has provided the tools by which the national leaders and the 'elite' argue for or against war (or its methods) through sophistical rhetoric rather than valid reasoning.  Second, as mentioned above, this new development allows leaders unjust freedom to carry out military pursuits by way of a legal legitimacy that is warranted almost exclusively by society's dependence upon the legitimacy of the rule of law.  So, not only has law served to make the discussions surrounding war a matter of persuasion rather than validity, it has also provided license for military actions by way of a social idolatry of law.

While the topic of this book is fascinating, its failure stems from the criticism mentioned earlier: its vast topic, and diminutive treatment of the subject matter, never allows it to move beyond the superficial.  Moreover, this is not merely a criticism of Kennedy's execution, but also a criticism of his conclusions, which are stunted–and therefore, of limited value–by the fact that Kennedy chooses a rather shallow level of explanation.  This can be seen in the irony of Chapter Two when Kennedy seems to acknowledge the importance of the deeper prerequisites of his conclusions, but standing at the precipice of originality, he turns away and continues with his lean investigation. 

For instance, his declamation of the new emphasis on persuasion over validity, and legal legitimacy over adherence to ethical principles is based on a conclusion with unwarranted premises.  Kennedy does not touch on the fact that the rise of the modern nation-state prompted the new emphasis on the rule of law.  And, this new emphasis, in part, served to beget liberal democracy.  This does not warrant the conclusion that the rule of law is simply a social construction that lacks validity.  Kennedy fails to demonstrate that the law itself is not a representative institution of the ethical values of a society, crystallized as part of a democratic system.  Similarly, Kennedy fails to obviate the simpler explanation for the new use of persuasion over validity in questions of war.  He fails to acknowledge that liberal democracies oblige political leaders to persuade their constituency of decisions.  Just because democratic leaders must regurgitate arguments into campaign slogans and bumper-sticker phraseology–because it is all the electorate can swallow–does not necessarily mean that their arguments lack validity.  Of course, these criticisms are not to say that Kennedy is wrong, but rather to say that he has not demonstrated he is right.  He is culpable of the very thing that he censures, as he attempts to persuade through commentary rather than rigorous research and argumentation.

© 2007 Michael Cesal

Michael Cesal received his B.A. in social and abnormal psychology from Saginaw Valley State University.  He received his M.A. in political and ethical philosophy from Western Michigan University.  He is currently working on his PhD in political science at Temple University where he focuses on political theory, international ethics, and conflict resolution.                            

Categories: Ethics