Critical Context of Law

Critical Context of Law

Part 1:

What is the challenge posed to traditional understanding of international law by the concept of 'just war'? In your own words what do you understand to be the argument in Sir Thomas Draviston's The Death of International Law? Do you agree with it? Give reasons.

The general theme "The thought and action in the power" relate the some thoughts following on the notion of just war. Indeed, war is the exaggerated form of the exercise of political power. The doctrine of just war is a contribution to the theological and philosophical thought to a legitimization of the war. This doctrine, which dates back to St. Augustine, was taken over by secular law school people (Vitoria, Grotius) encloses within relatively narrow limits triggering a war of aggression. The doctrine has been discredited by the positivist school of the nineteenth century but after the First World War, the outbreak of war assault was held to a violation of international law. This solution was confirmed by Article 2 of the UN Charter which admits more than self- defense. The Charter provides that the Security Council United Nations can in the event of breach of the peace; take appropriate action, which may include the use of armed force. However, the recent military operations conducted by NATO against Iraq, against Afghanistan, against Serbia-Montenegro (over Kosovo) were not authorized by the Security Council. These wars are illegal under the Charter. However, Western leaders and some writers have attempted to legitimize these wars by reviving from the ashes of the old doctrine just war, even alleging that a custom in favor of this doctrine is being training. Two answers to this claim: we cannot accept a change the Charter through a custom training; the paradox is that the former doctrine of just war had been passed to restrict the causes of war, while the new doctrine of just war would tend to legitimize wars are triggered in violation of specific provisions of the Charter and formal. Most people argue that the doctrine of just war is of Christian origin and it goes back to St. Augustine. In truth, it was not unknown in antiquity pagan. In The Republic, Plato wondered how to behave towards enemies. It excludes the enslavement of other Greeks and emits the same vow that the Greeks shall refrain from any war between them (469 b and c) .

The first condition excludes any form of private revenge. War is an institution we today call the interstate. At the time of Thomas Aquinas, the unity of Christendom under the imperial authority was replaced by a plurality of sovereigns; each king is emperor in his kingdom. The authority of these princes is of divine origin, subjects owe obedience, guilt that accompanies the triggering an unjust war is that of the sovereign and his advisers the closer. There is no place in the Thomistic system for an objection individual conscience. The sovereign is also authorized to repress by armed force ...