Posted by Eric Posner:
John Fabian Witt responds
http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1234800269
to my [1]post on his Slate [2]essay:
The characteristically sharp-penned Eric Posner seems to me to miss
the mark here. Lincoln as pragmatist is exactly the point I made in
the piece (a well-worn idea about Lincoln, I concede, though it is
not usually applied to the international laws of war). Lincoln
began the war relatively disdainful of the laws of war. When he
eventually embraced the idea of the law of war, it was not out of
what his drafter Francis Lieber scorned as "mawkish
sentimentalism," but out of a very concrete set of strategic aims.
This may not be the "fashionable" IHL view of the 21st century, of
course. But that's exactly the point. In fact I would have thought
that my version of the tradition of Lincoln would appeal to Eric
for precisely the reason it departs from both (a) the slightly
ridiculous gentleman's duel model of Vattel and McClellan, and (b)
the nihilism of those who don't grasp the strategic value that law
has to offer. The former may resemble the IHL orthodoxy of the 21st
century in its awkward divergence from the security interests of
states. But the latter resembles the worst elements of the most
recent Bush administration's engagement with the laws of war.
References
1. http://volokh.com/posts/1234760098.shtml
2. http://www.slate.com/id/2210918/pagenum/all/#p2
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
