This course is offered to grad students in law, philosophy, history, and political science, and to honors students. It is an historical survey of the ius (Recht, derecho, droit, law, right) of war, and we will primarily be reading the works of philosophers writing about the moral, legal and political order. The subject has long been known generally as iustum bellum, but after the Vietnam War the 20th century the linked phrases ius ad bellum and ius in bello became popular. Ius in bello generally refers to international humanitarian law, i.e., the Geneva and other conventions covering the conduct of war. Although we will become familiar with the problems of ius in bello, and its historical development, the focus of the class will be on ius ad bellum. One of the main things we will question is how and why ius in bello is split from ius in bello in contemporary iustum bellum.
Since for much of history the law (ius) of war was not what we normally think of as law (lex), i.e., it was not statutory or positive in nature, the readings will largely consist of juristic writings, and history of juristic ideas. Law that is not positive law is nowadays pejoratively referred to in juristic writings as something to do with “the moral order,” and it is dismissed as subjective, indeterminate and wholly unsatisfactory as law. We will come to have a different appreciation of the relationship between juristic writings and law. Because of the contemporary bias towards positive law (lex) in education about the law, ius is variously described as “ethics,” as “right”, or as something to do with justice The relationship between legal norms applicable to war and the nomenclature developed to describe them will be clear by the end of the class.
The course will begin with readings about war from ancient China and India. From there we turn to Islamic jurisprudence. It is of both historical and contemporary relevance, but in the first part of the class we will treat of it historically. We then will turn to the western canon proper, beginning with classical Greek and Roman writings and ideas. We will read source materials in translation, and contemporary commentary on the same.
Apart from the introduction to non-western norms, content will be divided into four periods in the history of the west, and one period, the final one, that can most accurately, of all the periods, be described as international:
1) India, China & Islam
2) Greece and Rome
3) Augustine - Vitoria
4) Vitoria - Peace of Vienna
5) Peace of Vienna - UN Charter
6) UN Charter - present
The periodization is taken from Grewe and Nussbaum, pre-eminent historians of international law. Excerpts from their works will form the historical backbone of the class.
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