Abstract

There is a general presumption that the law should be congruent with morality – that is, that the prohibitions and permissions in the law should correspond to the prohibitions and permissions of morality. And indeed in most areas of domestic law, and perhaps especially in the criminal law, the elements of the law do in general derive more or less directly from the requirements of morality. I will argue in this essay, however, that this correspondence with morality does not and at present cannot hold in the case of the international law of war. For various reasons, largely pragmatic in nature, the law of war must be substantially divergent from the morality of war.