The Laws of War: Constraints on Warfare in the Western World
Schmitt, Michael N., Naval War College Review
Howard, Michael, George J. Andreopoulos, and Mark R. Shulman, eds. The Laws of War: Constraints on Warfare in the Western World. New Haven, Conn.: Yale Univ. Press, 1995. 303pp. $30
The law of war is all too often understood from a positivist perspective, one that is rule-oriented, textually based, and the product of supposedly systematic and orderly transformation. In this approach, ascertaining what norm to apply in a given situation requires only resort to the law-of-war manuals of the various services. When the law changes, the manuals are merely updated.
If it were only that simple. In fact, law is contextual. It evolves and is understood on the basis ofthe multifaceted context (social, ideological, religious, historical, practical, etc.) in which it is applied. Thus neither the valence of particular "rules" nor the understanding of them is a constant. This is true regardless of whether the source of a "rule" is a treaty, custom, or a general principle of law.
Unfortunately, this abstract understanding of law is almost exclusively the province of legal theorists. For the warfighter or operational judge advocate, it is far easier to pick up the rule book than to consider the genesis and development of the law. Yet in the same way that knowledge of the evolution and application of strategy through time makes for a better strategist (hence war colleges), grasping how and why constraints on warfare have shifted will necessarily contribute to reasoned, legal, and moral use of force. The Laws of War: Constraints on Warfare in the Western World is a superb product that clearly fosters such understanding.
Edited by three eminently qualified scholars, this book is a collection of essays that trace the development of constraints on warfare, formal and informal, across both time (from classical Greece to the age of national liberation movements) and medium (maritime, land, and air warfare). The list of contributors is impressive indeed. Particularly familiar to war college readers are John Hattendorf, the Naval War College's Ernest J. King Professor of Maritime History; Adam Roberts, Oxford's Montague Burton Professor of International Relations and long a friend of the Naval War College's law department; and Harold Selesky, who directs the military history degree program at Air University. The fact that most of the contributors are historians considering prescriptive norms (vice lawyers addressing law proper) is a unique benefit, for they tend to deemphasize the legalistic process by which law develops and emphasize its dependence on cultural and technological influences. In other words, causeand-effect, rather than process, is the focus of the studies. This approach, presented here in a well organized, wonderfully written work, fills a lacuna for those (academics and operators alike) who think about such matters.
Editor Michael Howard's introductory chapter on constraints sets the stage for the individual studies. It is here that he distinguishes between the jus ad bellum, norms governing when force may be resorted to, and jus in bello, those addressing how it may be used. The essays concentrate on the latter. Introducing a theme that pervades most of the case studies, Howard notes that the content of the applicable norms often depends on who is to be protected by them. Thus during the Middle Ages the nascent protections that did exist applied only during bellum hostile, conflict within Christendom; beyond that confine, bellum Romanum, or unbounded conflict, was the rule. The same sorts of distinction were evident in classical antiquity (i.e., Hellenes versus non-Hellenes), through the colonial period in America (settlers or natives), up to the present (distinctions based on national liberation movements). The essays clearly establish that the inclusivity of constraints on warfare is determined by the way "we" and "they" are defined by the group resorting to force.
This point is reemphasized in the excellent concluding chapter by Howard's coeditors, George Andreopoulos and Mark Shulman. …