It is often said that “in times of war, law is silent,” but this
essay argues that the experience of the twentieth century
provides a sharp contrast to this old saying. It is not just
that law was not silent during warfare, but that law provided a
language within which war could be seen. War is not a natural
category outside the law, but is in part produced by it. Across
decades of conflict, law was a marker that defined for the
nation some of those times when conflict would be contemplated
as a “war,” and helped cabin other uses of force as
“peacekeeping,” or other non-“war” actions. The laws of war, by
identifying forms of warfare that crossed the humanitarian line,
also helped carve out forms of warfare that were right and
noble. It was in the realm of international law that law was
turned to with utopian hopes more than once during the century,
first to outlaw war itself, and then the more modest, but still
ill-fated quest to create a world body that would broker
disputes between nations and avoid the ine