Carl Schmitt and the Critique of Lawfare
David J. Luban
Georgetown University Law Center
March 28, 2011
Case Western Reserve Journal of International Law, Forthcoming
Georgetown Public Law Research Paper No. 11-33
"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.
Number of Pages in PDF File: 14
Keywords: Schmitt, Carl, 1888-1985, humanitarian law, military law
JEL Classification: K00, K10
Date posted: March 30, 2011