Formalization and Deformalization as Narratives of the Law of War

Abstract

In his seminal Of War and Law, David Kennedy demonstrates how the shift from formalism to realism can be observed in the evolution of the law of war. This shift, which can be characterized as a ‘‘deformalization’’ narrative of the law of war, is the main object of this chapter. More precisely, I argue that, especially in regard to the codification of relevant rules in jus contra bellum and in jus in bello, formalism must not be underestimated. On the one hand, the formalization narrative appears far more convincing than the deformalization one to understand the evolution of the law of war from the nineteenth century. Every time a war is waged, it leaves no doubt that a large range of actors will debate about its formal legality. On the other hand, formalism must not be overestimated. It provides only a strategy which can — or not, depending on the circumstances of the case at hand — be used to support or combat a war. And, of course, the efficiency of the argument will depend both on the audience concerned and on the political context in which the debate takes place.