Document Type

Article

Publication Date

2003

Abstract

Everything is very simple in war," said Carl von Clausewitz, "but the simplest thing is difficult." This essay will suggest that the resort to the language of war, as "natural" and "starkly simple" as it is, nevertheless has a profound impact on how the law's intervention is shaped, or how the laws governing the transnational use of force are interpreted to accommodate a "war" on terrorism. I argue that although "war" is absent from the principal international legal instruments by which states are guided (and obligated) in their relations with other states, the concepts suppressed by this elision have an evocative power that, when revealed or excavated by the promulgation of a war against terror, shapes both the legal justifications for action as between states and, as such, the legal norms and standards themselves. Thus, war and its rhetoric may indeed create norms, but politics is as much within the service of language as language is of politics. The meaning of law is always located at this intersection. It is in order to see this relation, and to clarify the motives and consequences that entail in the alternative legal and discursive responses to terror following September 11, that this essay begins with a rhetorical analysis of the word and its relationship to law.

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