Carl Schmitt and the Critique of Lawfare

14 Pages Posted: 30 Mar 2011 Last revised: 20 Jul 2019

See all articles by David Luban

David Luban

Georgetown University Law Center

Date Written: March 28, 2011

Abstract

"Lawfare" is the use of law as a weapon of war against a military adversary. Lawfare critics complain that self-proclaimed "humanitarians" are really engaged in the partisan and political abuse of law - lawfare. This paper turns the mirror on lawfare critics themselves, and argues that the critique of lawfare is no less abusive and political than the alleged lawfare it attacks. Radical lawfare critics view humanitarian law with suspicion, as nothing more than an instrument used by weak adversaries against strong military powers. Casting suspicion on humanitarian law by attacking the motives of humanitarian lawyers, they undermine disinterested argument, and ultimately undermine the validity of their own critique.

The paper then explores the vision of politics and law underlying the lawfare critique through a reading of the most significant theorist who defends that vision, the German theorist Carl Schmitt. Through a reading and critique of Schmitt, the article examines both the force of the lawfare critique and its flaws.

Keywords: Schmitt, Carl, 1888-1985, humanitarian law, military law

JEL Classification: K00, K10

Suggested Citation

Luban, David, Carl Schmitt and the Critique of Lawfare (March 28, 2011). Case Western Reserve Journal of International Law, Vol. 43, Nos. 1 & 2, Pp. 457, 2010, Georgetown Public Law Research Paper No. 11-33, Available at SSRN: https://ssrn.com/abstract=1797904

David Luban (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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