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The Oxford Handbook of the Theory of International Law edited by Orford, Anne; Hoffmann, Florian (2nd June 2016)

Part III Regimes and Doctrines, Ch.37 Theorizing the Laws of War

Frédéric Mégret

From: The Oxford Handbook of the Theory of International Law

Edited By: Anne Orford, Florian Hoffmann

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 18 August 2019

Subject(s):
Acts of war — Violations of the laws or customs of war — General principles of international law — Sources of international law

This chapter suggests two predominant modes of theorizing about the laws of war—one ‘internal’, the other ‘external’—both providing a useful shorthand for two relatively irreducible types of exercises. Internal theorizing makes sense of the discipline among its practitioners and within bounds that are taken for granted. It is minimal in that its ambition is largely instrumental: providing the practitioners of the laws of war with the background necessary for them to function. External theorizing is less interested in the laws of war as a system than as an object; it is less focused on explaining the operation of the laws of war than understanding what the laws of war mean generally and for international law specifically. It is more explicitly theoretical precisely in that it seeks to highlight some of the ultimate functioning or purpose of the laws of war behind its dominant implicit theories.

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