Amanda Alexander writes in 2023:
Abstract: This article traces the expansion of international law from the Hague Conventions, where only a state’s soldiers had legal status, to the contemporary understanding that international law governs all participants in conflict. This can be seen as a humanitarian shift that diminishes state power. This article, however, argues that the Hague Conventions only established a limited sphere of formal law because delegates deliberately left free-fighters outside the law, to be governed by their own will and moral code. In doing so, delegates echoed a philosophical tradition that situates true freedom outside the state. As this article shows, the expansion of law to include such fighters required the replacement of such alternative codes with a renewed and extended range of formal legal criteria. As such, the expansion of international law to the realm outside the state has led to a reaffirmation of that law which is synonymous with the state.
…These requirements left many people outside the law – in particular, the ‘uncivilised’ and the ‘savage’. They were denied what legal protection existed; their struggles were not regarded as real wars or conflicts. In 1927, Colby listed an array of legal opinions that insisted that ‘the rules of International Law apply only to warfare between civilized nations, where both parties understand them and are prepared to carry them out.’3 Savage tribes were incapable of waging war in the sense of international law – ‘barbarous and loosely organized bands are incapable of attaining a status of belligerency.
The fact that so many people and incidents fell outside the law led, as has been rightly noted, to some horrific political and ethical consequences as well as an array of practical problems.5 As a result, there were repeated, if slow, attempts to fill the gaps in international law.
…Discipline, according to Weber, means that the obedience of a plurality of men is rationally uniform.17 Discipline is impersonal and neutral; it places itself at the disposal of every power that claims its service and knows how to promote it.18 In this way, the soldiers of the modern state do not fight for individual or group causes, nor do they follow personal motivations or values. They simply obey and represent the state. As Weber writes, ‘Discipline puts the drill for the sake of habitual routinized skill in place of heroic ecstasy, loyalty, spirited enthusiasm for a leader and personal devotion to him, the cult of honor, or the cultivation of personal fitness as an art’.19 The state’s monopoly on force requires, according to Weber, continuous administration, the control of the material goods needed for violence, and an associated administrative staff that is separated from the material means of violence.20 Alongside the creation of this bureaucratic state, societies develop a legal system with a formal, “rational” character.
Moreover, when violence belongs only to the state, this right to use violence, to dominate men, must rest on some form of legitimation.22 This distinguishes it from the violence of the warrior group, which required no legitimation or normativity.23 In the modern state, the most characteristic form of legitimation is domination ‘by virtue of “legality”, by virtue of the belief in the validity of legal statute and functional “competence” based on rationally created rules’.
Thus, there is a link between the modern state’s monopoly on violence, and the idea of a formal rule of law, also characteristic of the modern civilised state.
…The asceticism and self-control of Protestantism, Weber says, is aimed against one thing – the spontaneous enjoyment of life and all that it has to offer.
