, Volume 93, Number 2

Ian Clark
The laws of war are under mounting pressure and yet recent developments in the ethics of war have encouraged a growing disjunction between ethics and the law. Is this a problem, and does just war have a responsibility to address it? How then should we think about the relationship between ethics and law in war? Focusing on the debates between orthodox and revisionist theorists about principles of liability and immunity in war, I argue that these are actually about competing conceptions of justness. Revisionists privilege a ‘best ethics’ approach to justness, whereas orthodox theorists tend to work within a more rounded conception that embraces the legal and political dimensions of the regulation of war. I argue that there is a danger that those revisionist theorists, despite their impressive ethical innovations, nonetheless operate in a reductive way that does little to assist with the contemporary plight of law, and may inadvertently offer but ‘miserable comfort’ to those caught up in the battlefield. In contrast, the just war tradition generally is rooted in a practice that makes greater allowance for a politically configured concept of war, and takes more seriously the requirement for effective law.

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