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Law, War and the Penumbra of Uncertainty: Legal Cultures, Extra-legal Reasoning and the Use of Force

Law, War and the Penumbra of Uncertainty: Legal Cultures, Extra-legal Reasoning and the Use of Force

Author: Sam Selvadurai
Publisher: Cambridge University Press
ISBN: 9781316511985
Published In: April 2022
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents

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This book argues that lawyers must often rely on contestable ethical and strategic intuitions when dealing with legal and factual uncertainties in 'hard cases' of resort to force. This area of international law relies on multiple tests which can be interpreted in different ways, do not yield binary 'yes/no' answers, and together define 'paradigms' of lawful and unlawful force. Controversial cases of force differ from these paradigms, requiring lawyers to assess complex, incomplete factual evidence, and to forecast the immediate and long-term consequences of using and not using force. Legal rules cannot resolve such uncertainties; instead, techniques from legal risk management, strategic intelligence assessment and political forecasting may help. This study develops these arguments using the philosophy of knowledge, socio-legal, politico-strategic and ethical theory, structured interviews and a survey with 31 UK-based international lawyers, and systematic analysis of key International Court of Justice cases and scholarly assessments of US-led interventions.

1. Introduction: investigating law, war and the penumbra of uncertainty

Part I. Varieties of uncertainty in the jus ad bellum:

2. Uncertainty about law in the jus ad bellum

3. Uncertainty about facts in the jus ad bellum

Part II. The international court of justice, UK-based lawyers and the jus ad bellum:

4. Competing interpretive cultures of war

5. Competing strategic cultures of law

Part III. Managing uncertainty: reconciling legal and extra-legal reasoning:

6. Legal risk, strategic assessment, forecasting and the jus ad bellum

7. Uncertainty, risk management and duty to the law

8. Conclusion: competing normative cultures of war

Bibliography