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Introduction

War, Law, and the Laws of War

This book's premiss is that there is more armed conflict in the world than is good for its inhabitants and the reputation of their species as one characterized by the faculty of reason and a sense of morality. War always has been and still remains a problem and puzzle from many points of view. The author does not believe that war must in all circumstances be a bad thing or the worst of all conceivable things, but he is among those who believe that there has often been and that there continues to be more war and armed struggle than there should be, and that much of it is more deadly, destructive, and cruel than it need be. Law is far from being the only means by which humankind and its civilizations have sought to reduce the incidence and to mitigate the effects of public and political violence, but it is--not least because of its ties to religion and ethics--one of the most interesting of them; one moreover which contemporary preoccupations with humanitarianism and human rights have made rather fashionable. The purpose of this book is to examine its place and usefulness in this global context.

What, then, has law to do with war? The question is all the more worth putting because at first sight law and war appear to be opposites. The Romans, who knew a lot about both, left a broad hint that indeed they were so: inter arma silent leges. If law signifies the calm hearing of ordered arguments and the settlement of disputes not by violence but by lights of justice and reason, how can it be consistent with an institution which represents the turning from rational discourse in order to settle disputes by a trial of armed strength? Resort to the violence of armed conflict, with all its usual chances and accidents, its frequent furies and inhumanities, its lists of casualties, trails of desolation, and legacies of hatred, looks like the antithesis of everything comprised in that ark of civilization's covenant, the rule of law. War unquestionably has those unruly, disreputable, and horrid attributes. They are a truth-telling and legitimate way of representing it. They are among the reasons why pacifists decide to have nothing to do with it and why conscientious non-pacifists hesitate before resorting to war or (supposing that they have any choice) letting it be forced upon them. But

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