Civil War Time: From Grotius to the Global War on Terror

Law and History Review, 2008

who all taught me to appreciate the importance of law, history, and war. Their interest led me to believe that Law and History Review should address the relationship among these topics in a special issue. Lena Salaymeh and David Lieberman deserve credit for suggesting that Berkeley would be a fitting place for such a symposium. Harry Scheiber's vision, intellect, and energy were the necessary ingredients (combined with generous support from our respective institutions) to put together the memorable conference on which this special issue builds. This symposium issue of Law and History Review examines legal histories of law and war from the ancient world to modern times. Our examination proceeds in four parts. First, we revisit the conduct of war in the ancient world and early Islamic history. Second, we see the generative role of war in shaping religious and legal thought during the Protestant Reformation and later the American Civil War. Third, we explore the governing of space in international law, including colonized and occupied lands as well as the law of the seas. Fourth, we investigate the relationship among law, war,

The Law of Armed Conflict is usually understood to be a regime of exception that applies only during armed conflict and regulates hostilities among enemies. It assigns privileges to states far beyond what they are allowed to do in peacetime, and it mandates certain protections for non-combatants, which can often be defeated by appeals to military necessity or advantage. The Laws of War in International Thought examines the intellectual history of the laws of war before their codification. It reconstructs the processes by which political and legal theorists built the laws’ distinctive vocabularies and legitimized some of their widest permissions, and it situates these processes within the broader intellectual project that from early modernity spelled out the nature, function, and powers of state sovereignty. The book focuses on four historical moments in the intellectual history of the laws of war: the doctrine of just war in Spanish scholasticism; Hugo Grotius’s theory of solemn war; the Enlightenment theory of regular war; and late nineteenth-century humanitarianism. By looking at these moments, Pablo Kalmanovitz shows how challenging and polemical it has been for international theorists to justify the exceptional and permissive character of the laws of war. In this way, he contributes to recover a sense of the historical foundations and many still problematic aspects of the Law of Armed Conflict.

2020

The topic of war and its nature firmly remains among top disputable topics within the international relations domain. One of the enduring questions yet to be answered is whether wars are a principally bad thing. While armed conflict, in the broadest sense, is generally associated with massive destructions and civilian casualty, there still appears to be much discussion on whether, under certain circumstances, wars can be justified. That is where various approaches emerge: while traditional just war theorists assert that just to resort to war is permissible exclusively in self-defence to counteract actual military threats, some scholars still disagree by claiming that there can never be fairly justifiable reasoning to initiate the war. Conversely, other opponents of just war tradition with a rather nationalist stance claim that in the conditions of modern times, in which political self-interests of separate nations play a central role, just war is outdated and unfeasible. Nevertheless, despite all the criticism, just war has made and continues to have a profound influence on global politics and transnational security. In fact, the so-called 'father of international law'-Hugo Grotius who largely contributed to the development of world order, has shared basic principles of this doctrine. However, the vision of Grotius did not fully comply with the traditional theory of just war, which can be traced in such aspects as which purposes it may pursue, how it should be fought and who may wage it. By analysing these and some other points, this paper seeks identify the key divergence in judgements of Hugo Grotius and other thinkers of just war tradition, which in turn may help to delve deeper into the enduring question of war and its justifiability. Before proceeding to discuss whether a war may be justified and under which conditions, for a better understanding of the concept, it is first worth touching upon the definition of war. In the broad sense, war means rivalry of two or more contending political sides, characterized by substantial time frames and enormity of the conflict. Though, in the usage of political disciplines, scientists tend to identify war more specifically: mainly, as a state of declared and waged armed confrontation in compliance with publicly accepted formats. From that angle, wars are regarded as institutions acknowledged "in custom or in law" [1]. From this, it can already be traced that the contemporary society's vision of war initially presumes that a war may occur at any point and as such the practical laws for its conduct are required. Yet, to generate such regulations effectively, as well as to set "predictive models of war", the nature of war occurrence needs to be examined [2]. In that regard, the study of just war offers tangible benefits, covering not only potential

In this course students read and discuss writings on global law and history from the eighteenth century to the present. In the process, they develop insight into the relation between the disciplines of law and history. This course allows students to discuss a variety of perspectives on state-building, nationalism, revolutions, empire, religion, and their relation to the world. This course also questions concepts such as civilization and progress and their impact in the history of global order. By introducing questions, themes, and approaches to the study of global law and history, this course provides a conceptual toolbox that may further students' interest in international relations, political science, international law, or global studies. (4 credits) Prerequisite(s): interest in global, world, international law and history. 7-week session Liliana Obregon, SJD, Associate Professor in International Law, University of Los Andes Law School. Class times: Tuesdays, Thursdays, 6:30-9:30 pm. Course tuition: noncredit, undergraduate credit, graduate credit $2,920 Course reference number: 33424

Cambridge History of International Law, Vol I, 2023

This chapter focuses on the recent (re)turn to history in International Relations (IR) scholarship on international law. We argue that two interrelated trends explain this development. The first is primarily internal to the field, where historically sensitive approaches have gained ground over the past thirty years. The second is external and the result of IR scholars' productive engagement with debates in other fields, including global history, intellectual history, and legal history. Although the new historical IR work on international law remains heavily indebted to histories produced outside the confines of the discipline, IR scholars at the vanguard of this movement are increasingly comfortable with writing histories themselves. New IR historical accounts have thus emerged, spanning broad subjects of international society, order, and transformation, as well as specific areas of international law, including human rights, humanitarian law, and international organizations. We review the history of the disciplinary divide between IR and legal history, outline how IR theoretical approaches have made use of history, highlight some of the thematic areas of the new IR historical work, and lay out possible future research directions.

The Oxford Handbook of the Use of Force in International Law, 2015

European Journal of International Law, 2018

The proposition of so-called liberum ius ad bellum claims that European states in the 19th century were no longer bound by the moral criteria of just war (bellum iustum) but that they held a sovereign right to go to war. This thesis is widely accepted among scholars of the history of international law and international relations alike. Nevertheless, the realist perspective on international relations was challenged in 19th-century international legal discourse. Several contemporary international lawyers were in favour of the legalization of international relations in order to legally ban unilateral war. Not much attention has so far been paid to the controversial debate on liberum ius ad bellum, which appears particularly in late 19th-century legal treatises. In the present article, this dispute will be analysed by comparing different normative justifications and criticism of war in 19th-century international legal doctrine. As will be shown, by confronting legal doctrine with contemporary state practice, the narrative of liberum ius ad bellum constitutes a myth in the history of international law.

International and Comparative Law Quarterly, 2003