Freedom to War

• Author: Craig Forcese
• Pages: 169-177

169

Chapter 22

Freedom to War

The obedience which is paid to law mu be a willing obedience, and when a

ate has taken up arms unjuly it is useless to expe it to aciesce in the

imposition of penalties for its a. International law has conseently no

alternative but to accept war, independently of the juice of its origin.

— williaM hall (1895)1

I   after the Caroline, war was simply another

instrument of statecraft, not an event to be reconciled (how-

ever imperfectly) with the niceties of just cause. The intellectual

spirit of the era favoured laissez-faire “positivism” — the notion that

law came only from human conduct and not from a natural, univer-

sal code. International law stemmed from treaties and the customary

practices of states, nothing more. Once a secondary source of princi-

ple for earlier jurists, this state-derived “law of nations” now almost

completely eclipsed the natural law legacy of the ancient world.2

Applied to war, positivist international law did codify some

expectations about the conduct of hostilities, such as the treatment

of wounded and prisoners of war.3 These were what are today called

the jus in bello rules of international law: the standards governing

the actual conduct of war, once begun. But in the long century after

the Caroline, international law had no role in evaluating the choice to

embark on war in the f‌irst place; what today lawyers call jus ad bel-

lum. States enjoyed an inherent competence de guerre: a freedom to

war. International lawyers from the mid-nineteenth century to the

First World War conf‌ined themselves to debates about the precise