States at War: A Fantasy of Lawyers

There is no substitute for honor, nor will there ever be.

A couple of days ago Max Fisher at The Washington Post wrote a blog post summarizing events and situation in Syria entitled 9 questions about Syria you were too embarrassed to ask. It really is a good little post, and worth reading on its own merits, but is informed by a very common modern myopia that just bugs the tar out of me.

In the post Fisher attempts to address the difficulties and complexities of dealing with chemical weapons by saying that the whole "rules in war" thing has been around for less than a century. Less than a century?! Since we are drawing breath in this year of our Lord two thousand thirteen, that puts the earliest date for there to be any "rules in war" at 1914. According to Mr. Fisher,
The whole idea that there are rules of war is a pretty new one: the practice of war is thousands of years old, but the idea that we can regulate war to make it less terrible has been around for less than a century. The institutions that do this are weak and inconsistent; the rules are frail and not very well observed. But one of the world’s few quasi-successes is the “norm” (a fancy way of saying a rule we all agree to follow) against chemical weapons. This norm is frail enough that Syria could drastically weaken it if we ignore Assad’s use of them, but it’s also strong enough that it’s worth protecting. So it’s sort of a low-hanging fruit: firing a few cruise missiles doesn’t cost us much and can maybe help preserve this really hard-won and valuable norm against chemical weapons.
Wait, wait, wait, wait...

I see what the problem is.

Mr. Fisher thinks that rules are the same thing as laws.

Laws come from States. "We can regulate war." States came up with treaties and laws on war only recently, so the idea of rules in war must be recent.

To say that the idea that there are rules of war is a new one, even if said from a state-centric and Enlightenment-focused perspective, is extremely lazy. But if we allow that to pass, saying that Mr. Fisher was, after all, only writing a brief summa for the masses, we are still left with the problem of the myopia of his worldview.

States have existed since the days of Nimrod Mighty Hunter Before The Lord, but there can be no doubt that the Enlightenment and modernism ushered in a golden age for the State. From the perspective of modernity this is simply a natural evolution, and so sometimes goes uncommented on. You can tell that a person thinks that way when they forget about all the history that came before, oh, let's say 1750.

Reading this post made me think immediately of a favorite author, one who was at the top in influencing my thought. Sir John Keegan wrote many wonderful military histories, but the work that most often reminds itself to me is 1993's A History of Warfare. The entire book is compelling, but the sections on primitive and ancient warfare are must-read, because they establish the platform upon which the rest of his history is built. That platform is a rejection of Clausewitz's great inanity, that war is the extension of politics by other means.

Only a modern would say something like that. Politics are, after all, the stuff of the state. Politics and lawyering, that is, which might be said to be the same thing. But, historically, it has not always been the state that has been the preeminent institution. Tribes and clans and nations and churches have all gone to war. Some have had their own armies, some have used the state's. Nor do institutions only go to war. Peoples and nations and ethnicities and classes and families have gone to war. Some have had their own armies, some have used the state's.

I think no one will argue that the state is best at making armies and war. And this is why the age of the state has been the most terrible.

War as an extension of politics is necessarily amoral. The Geneva Conventions are a last-gasp by the Christian West to operate in the world of politics and lawyering. I believe that Christian war is the kindest war (go ahead, bring me your tales of Christian rape and desecration), but Christian or not, humans have had rules of war since the days of Nimrod. Historian Kenneth Anderson remembers conversations with John Keegan:
The dream of an international culture of legality that has all the virtues of a settled and legitimate domestic legal order is the ancient dream of a deus ex machina. Faith in legality as the engine driving such adherence as exists to the laws of war seems to me, however, entirely misplaced; it is a fantasy tailor-made for lawyers, and especially for American lawyers. Lawyers believe the problem is one of enforcement, whereas in fact it is one of allegiance. Codifications of international law are a useful template for organizing the categories of a soldier’s duties. But, in the end, the culture relevant to respect for inter-national humanitarian law is not the culture of legality and the cult of lawyers, but instead it is the culture of the professional honour of soldiers, and what they are willing or not willing to do on the battlefield. 
Which is why the profoundest remarks in some years about war and law were those written three years ago in this paper [TLS] by John Keegan. “The experience of land war in two world wars”, Adam Roberts observes in The Laws of War, the book Keegan is reviewing, “‘must necessarily raise a question as to whether formal legal codification is necessarily superior to notions of custom, honour, professional standards, and natural law’ in making for battlefield decencies.” Keegan answers simply, “There is no substitute for honour as a medium for enforcing decency on the battlefield, never has been, and never will be.” (TLS, November 24, 1995.) 
That's the real problem. There is no ethic, no culture of war. There is simply violence. Would the State our Savior care to teach us the way of honor? Would it be pleased to teach me why killing women and children is wrong? I wait at its feet. And while I learn, let those who are greater than I in the Way of State let fly their missiles.

There have always been rules for war. At times cultures with very different rules met, or exceptional nations abandoned rules, and tales of their horror and barbarism would be told. But there have always been rules. It is now, in this proliferation of regulations, that the West founders and is lost. It is now that the American president ends up speaking of punishment instead of justice.


  1. Even for Enlightenment Centralism this is an unsupportable statement. I think there was still dueling in the 18th centaury. Why would gentleman have rules for how to settle private disputes with guns and swords, but the same gentleman given commissions as officers, would suddenly abandon all codes of conduct and decency? Of course they had rules, or "norms" for warfare.

    Not to mention the Bushido, the Chivalric codes and the Old Testament that has explicit rules for war. Three well documented examples off the top of my head. I suppose this man has never read/ watched anything with samurai in it, or any Arthurian legends.


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