In Of War and Law David Kennedy follows his critique of the legalistic human rights regime in The Dark Side of Virtue, with a critique of the legalistic just war doctrine. Whereas the earlier book posited that the hegemonic human rights discourse brings with it a “dark side”—which backgrounds important structures and power relations that subjugate the very rights-holders it purports to defend—the later argues that the hegemony of legal discourse regarding war (and politics) carries its own dangers. But unlike Michael Walzer, Kennedy does not suggest that a universal “moral language,” a timeless, universalism, might be uncovered beneath the historicized, contingent, situated discourses. Moreover, for Kennedy (as for Foucault) power is non-sovereign, diffuse, socially constituted, as is the state, although it relies on a Weberian ratio-legalistic bureaucracy of “legitimate authority.”
For Kennedy, law and war have become continuous, not only because “to use law is to invoke violence” (via its ability to command the force of the state), but also, because “to use violence is to invoke the law,” since law has come to govern every aspect of war. The military is not only professionalized and rationalized but also operates according to texts of international conventions and explicit legal interpretations. George W. Bush did not simply instruct his subordinates to conduct “enhanced interrogation,” he had expert counsel create memos on the legality of such techniques, according to his interpretation of international law. The existence of these memos are compelling evidence of the importance, if not effectiveness, of legal discourse.
Similarly those opposed to “torture” techniques employed legal language to critique them, as did opponents of the Second Iraq War. Many (if not most) of the millions who marched against the war before it began decried it as “illegal.” Moreover, human rights activists and attorneys employ law to condemn the violations and atrocities they seek to end or avenge. Even enemies in contemporary conflicts nearly always employ the “common legal vocabulary” of the law of war.
On the other hand, Kennedy continues, these bureaucracies, within government, private contractors, the legal profession, civil society, have inertias of their own. The “global elite” who come to an “expert consensus” on what wars are necessary or “humanitarian” are often products of these inertias, tendencies, and vocabularies. He posits that once a certain discourse about Iraq and its WMDs began, war became bureaucratically inevitable regardless of Iraqi action.
The “delicate partnership of war and law” arises out of the fact that even as the law of war restrains (at least in theory) when and how states can use force against others, it facilitates acts of war when they meet broad conditions such as self-defense, collateral damage, or necessity. And it absolves everyone from the responsibility of acts of violence falling within the normal conduct of hostilities, except the statesman who decided to begin the war. When a “bad apple” is prosecuted for excesses, it serves to legitimate all other terrible acts and the consequences of hostilities.
The central issue for Kennedy is law’s uncanny ability to help us avoid responsibility. “The transformation of the law in war into a vocabulary of persuasion about legitimacy can erode the sense of professional and ethical responsibility for our decisions—as humanitarians or military professionals” (141). He illustrates with a legalistic evaluation of the bombing of Hiroshima and Nagasaki. It is quite easy to make an argument using the law of war (just war) language to say that it was a just cause, proportional, and necessary; therefore, legitimate, or at least a close call.
Kennedy (a human rights attorney) summarizes his critique, “In the face of the irrationality of war, modern law has built an elaborate discourse of evasion, offering at once the experience of safe ethical distance and careful pragmatic assessment, while parceling out responsibility, attributing it, denying it—even sometimes embracing it—as a tactic of statecraft and war rather than as a personal experience of ethical jeopardy” (167). But as a remedy he proposes, rather than a “moral discourse” like Walzer, the individual taking of responsibility, in a tone evocative of Weber’s lecture “Politics as Vocation.” Rather than abandoning, reforming or attempting to step out of the hegemonic legal discourse, Kennedy suggests, “The challenge for all of us is to re- capture the freedom and the responsibility of exercising discretion in this common tongue” (172).
It is clear that Kennedy and Walzer profess the same project: to urge the public, government, military personnel to engage with and take responsibility for what happens in modern war. But Walzer critiques the “legalistic language” only to propose a language (if you grant him that it is not a mere reiteration of international legal norms) that is equally rule-based, equally black-and-white. It would be just as easy to run from the responsibility of “freedom and free decision” when bound by his language. Kennedy urges us to be aware if this, and to exercise moral agency.
How can this be done, the reader is left wondering. To do this requires a second level of awareness, of the workings of power, the working of other hegemonic discourses that structure or distort reality. This is, unfortunately, only hinted at in the book and is its major flaw.
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