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

An exploration into how uncertainty and political and ethical biases affect international law governing the use of force.

Sam Selvadurai (Author)

9781316511985, Cambridge University Press

Hardback, published 7 April 2022

256 pages
23.5 x 15.7 x 2.6 cm, 0.682 kg

'The book takes a unique approach subjecting doctrinal legal questions to a forensic examination of how they are interpreted and applied in practice. It provides a bridge between law and policy, uncovering the reality of how States formulate their legal position on use of force. As such, it will be of much interest to scholars of law as well as those seeking to understanding policy and decision-making in this area.' Professor Noam Lubell, University of Essex

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
Index.

Subject Areas: International organisations & institutions [LBBU], International humanitarian law [LBBS], International relations [JPS]