There is a categorical difference in the way in which one can relate to otherness that I think is dissolved when we transmute struggle into warfare. We can do our best to mitigate it by coming up with new definitions of “war”, but I think ultimately we fail by relying on a term that functions differently than we want it to. There’s an interview with Said in “Power, Politics, and Culture” (I seem to have lost the reference) where he brings up the self-defeating qualities of seeing everything in terms of zero-sum struggles. He’s addressing the dual facts of his political critique of and enjoyment/admiration for the western literary tradition, and he basically says (if I’m remembering correctly), “yes, there is an opposition, but this opposition can only really function by being involved with its object of derision, not by standing outside of it or rejecting it.” And it’s this distinction in the terms on which we conduct the struggle/war which, to me, lies between the notions of society as being fundamentally about struggle or fundamentally about war. And again, this comes out of a sense that I still don’t know precisely what Foucault means when he speaks of “war”. But also a sense that my confusion may be related not to a mis-understanding of his text, but to a certain reservation in adopting his mode of analysis (I just finished Society Must be Defended a few days ago, so all of this is very fresh in my mind).

Now, what does this have to do with your reply? Good question. I think the part I’m having trouble with is where we come to the problem of deligitimizing war if it is constitutive of social relations. My confusion pops up because I’m immediately uncertain: what is the “war” here? What is it we’re fighting against, and what is it that is constitutive of our relations? You say that delegitimizing war will require “something akin to de-militarising modernity”. To be honest, for me that works at a level of abstraction that becomes irrelevant. I have no idea what a de-militarised modernity would look like or even if I want one. I certainly don’t want a society without struggle, but maybe I want a society without war? Again, the confusion gets me.

Many thanks for this, and I broadly agree on the necessity of tying how and why together. I think the problem that Kyle shows well is that a focus on whether actions of some pilots accorded with the ROEs/laws of war fails to do precisely this. So the tactical point for our posts has been to argue for a shifting of attention from whether this activity accorded with codified norms to larger questions about the ethico-political legitimacy of (this) war itself.

I would also add that I do not want – as some do – to simply and cynically decry all uses of law as insignificant. On the contrary in my work I have argued that a turn to law might be one way to contest the social understandings of what is and is not a legitimate target. And I was careful to indicate that I regard the holding to account of those who have committed rimes against humanity such as genocide to be an important political tool. You are right, of course, that the law is not static and it is precisely through bringing cases and adding to the evolving body of case law that our perceptions of legitimacy are changed.

That said, I am frustrated about a larger question that this legal contestation ignores – namely the desirability of living in the international system within which the laws of state conduct have evolved. The point is that inter-national law evolved in order to regulate a system of states in which war is taken to be endemic. Deploying that law tacitly accepts this system. And here I diverge from your account of Foucault. I am not arguing that we should leave law to the state (though I am arguing that militaries are very happy these days to have to deal with contestation in the legal sphere and so we might ask as to whether this is the space in which we will achieve the best results). I am drawing on Foucault’s insight that war is constitutive of the very fabric of social relations in western modernity. Delegitimising war thus requires understanding this constitutivity – not regarding war as a separate, abhorrent event to be regulated like criminal behavior. It will require something akin to de-militarising modernity. This is a larger question than simply going to court (partly because the adversarial relations of the court are yet more evidence that politics is war by other means). It was this I wanted to point out. Yes contesting the legitimacy of these pilots behavior is important, but it should not occlude the larger question of how war is integral to our societies. But of course this brings us back to your point that how and why are inseparable.

Since you brought up Society Must Be Defended, I wanted to say something about the way in which many who use Foucault often do so to dismiss rather than appropriate strategic options. In this case, there seems to be an assertion that the state uses the law to legitimate itself, and that therefore we ought not take recourse to it in our own strategies. “The law is the state’s, so we good non-state folks ought to have something else”.

But it seems to me that the story Foucault tells in the first half of Society Must Be Defended is precisely the story of how history began as the law through which the state legitimized itself, but later was appropriated by forces which sought to contest the state. In other words, the strategic lesson is precisely the adaptability of discourse rather than its timeless allegiance to a particular set of forces, and the way in which the power of history was embedded within its forms rather than its substance. In this way, I think the law ought to be understood as a primary point of contestation rather than merely an apparatus of the state. Because the question of law is not just what is and isn’t permissible, but what ought or ought not be permissible. In that space, there is plenty of room to address the key questions this video raises.