Rights and Rules: Revisionism, Contractarianism, and the Laws of War

Abstract

This article considers two philosophical approaches to the laws of war: revisionism and contractarianism. Revisionists argue that many of our commonsense judgments about the justice of war are mistaken and that fundamental moral principles generate conclusions that challenge conventional understandings of the laws of war doctrine. Contractarians argue that the laws of war are best understood as the product of an agreement among states, designed to serve their mutual interests. This article argues that contractarianism provides a more promising philosophical foundation for the laws of war than revisionism. It defends a contractarian approach against several objections and shows how it can account for many of the central features of the laws of war, including their focus on state-on-state conflict, their distinction between combatants and noncombatants, and their embrace of military necessity. The article concludes by considering the implications of a contractarian approach for contemporary debates about the future of the laws of war.