Academic

McMahon on the Laws of War

By Lawrence Solum

Jeff McMahon (Rutgers, New Brunswick) has posted Laws of War on the Internet. Here is a taste:

Doctrines of the just war predate formulations of the law of war by many centuries. Yet classical accounts of the just war are presented as matters of law ? not positive law or law devised by human beings, but natural law, or law that is inherent in the nature of things. War, like other human activities that raise moral issues, was held by the classical just war theorists to be governed by immutable moral laws that were part of the natural order, no less real or objective than the laws of nature. This early presentation of morality as a matter of law prefigured, or perhaps inaugurated, the recurring tendency to blur the distinction between the morality of war and the law of war, a tendency that persists to this day.

In this essay I will offer a brief sketch of the evolution of thought about the morality of war and the law of war, noting the reciprocal influence of each upon the other.i I will argue that despite our tendency to conflate them, the laws of war are quite distinct from the moral principles governing war, and that what these laws permit and prohibit must at present diverge in fundamental ways from what is permitted and prohibited by morality. I will also argue, however, that our ultimate aim should be to achieve the greatest possible congruence between law and morality in this area, and that this will require both rigorous moral analysis and innovations in the design of new international legal institutions.

Full post as published by Legal Theory Blog on March 24, 2008 (boomark / email).