Title: After the war: Reestablishing rights and institutions
Name: Pablo Kalmanovitz

Max Weber Fellow 2013-2015
Department of Law
European University Institute

Year: 2009
Type: Dissertation Fellowship
Summary:

Wars are evaluated on the basis of legal and ethical norms which sometimes conflict. Contemporary war ethicists argue that even civilians who are morally responsible for acts of aggression maybe lawfully targeted in war; they have objected to the legal immunities of prisoners of war, which prescribe punishment except for violations of International Humanitarian Law and, most polemically, have challenged the very permission to use force in aggressive states.

These contemporary debates have in fact an old history. They can be traced back at least to the 18th century, when the legal doctrine of regular warfare was first formulated in opposition to the long-standing theory of just war. Today the term irregular war is more commonly used than regular war, but conceptually and historically the former derives from the latter. The neglected theory of regular war grew within the tradition of natural law and the law of nations, but its articulation by modern legal and political theorists is in important ways inconsistent with medieval, early modern, and contemporary accounts of just war.

My project reconstructs the theory of regular war in the history of legal and political thought, and spells out its significant for contemporary debates. While just war theory has been the dominant paradigm for the ethical evaluation of war over the past decades, the theory of regular war offers valuable insights about the justification of the norms of International Humanitarian Law, the uses and abuses of the concept of aggression, and the legitimate termination of war.

Most notably, the theory of regular war rejects the high-minded but unviable idealism of a great deal of war ethics and takes instead a realist conception of international society as its starting point, emphasizing the inherently political and contestable nature of war. Predominantly institutional in orientation, it highlights the marked differences between international and domestic adjudication and enforcement, and on this basis defends a relatively modest view of what justice can require in war and its aftermath. This view is skeptical about the practical relevance of the categorical distinction between aggressor and victim of aggression, and prioritizes the humanitarian imperatives of moderating violence and facilitating the termination of war.

I am currently completing a book manuscript on the history of the idea of regular war how it emerged and broke away from the just war tradition, and how it waned in the 20th century. Self-standing sections of the project will be published in the Oxford Handbook of the Ethics of War and in the journal International Theory. The book manuscript is a substantive enlargement of my doctoral dissertation, which focused on the doctrine of post-war or transitional justice in both just war and regular war theory.