The Long Neutralization

Posted on March 19, 2026 by Luke Ford

The smoke had barely cleared over Europe in 1945 when the decision was made. The political — with its raw friend-enemy lines, its coarse loyalties, its willingness to name an adversary and fight for a particular way of life — had led to the camps. So it would be replaced. Not abolished, exactly. Managed. Moralized. Proceduralized. Handed upward to committees, courts, commissions, central banks, treaty bodies, and a new class of experts who spoke the language of necessity rather than choice. The noble actor was no longer the man who stood with his people. He was the man who rose above them. The judge interpreting a human-rights convention. The commissioner harmonizing regulations. The analyst explaining why a border had to open. They did not say we want this. They said the situation requires this. Conflict became a data error. Passion became a symptom.
The settlement carried achievements that were real and immense. It made another European civil war less likely. It restrained open imperial ambition within the West. It expanded rights protections, embedded legal review, and discredited open appeals to ethnic supremacy. But it also carried a second effect, less visible because it was experienced not as a decision but as a necessity. It progressively narrowed the range of what democratic politics was allowed to decide. More and more questions were removed from the arena of popular contest and relocated into domains where they would be treated as matters of expertise, law, administration, or moral hygiene. The old language of politics had never been noble. It was coarse, local, interested, sometimes vulgar, often unjust. But it had one virtue the new order increasingly lacked. It allowed people to understand themselves as participants in rule. The postwar settlement increasingly asked them to understand themselves instead as the objects of administration.
Frank Sobotka stands on the dock in Baltimore and looks at the cranes that no longer lift anything made here. We used to make shit in this country, he says. Build shit. Now we just put our hand in the next guy’s pocket. He is not making an economic argument. He is naming a loss of standing, a world where men knew what they were for. The room processes it as a labor dispute. A transition problem. A funding request. His words land in the wrong register and die there. The system has no category for dignity that cannot be quantified. It hears the complaint and offers retraining.
In a pub in Sheffield a steelworker watches his plant close and tries to say what he is losing. It is not just the wages. It is the thing the wages were attached to. He has made things with his hands for twenty years inside a community of men who did the same. He knows how to talk about steel. He does not know how to talk about the feeling that his kind of life has been declared surplus. The television explains that the economy is restructuring. The politician explains that new opportunities will emerge. The social worker explains that retraining programs are available. At no point does anyone explain why what he had should have been taken. At no point is he treated as someone who has lost something worth mourning. He is a transition problem. He is managed.
At a town-hall meeting in a northern English constituency a man in his sixties stands up. His hands shake slightly. I don’t recognize my street anymore, he says. I feel like a stranger in my own town. The moderator thanks him for sharing his feelings. Then she rephrases: what we’re hearing is a natural anxiety about demographic change and the challenges of integration in a dynamic economy. The man opens his mouth to answer. Nothing comes. He has heard this translation before. He knows the next words he want to use are already marked as contaminated. He sits down. The meeting moves on to stakeholder consultations.
The same scene repeats in a thousand variations across the West. A French worker says his neighborhood no longer feels like his. He is told that identity is fluid and that attachment to place is a form of nostalgia best addressed through community outreach programs. An American in a postindustrial town says he wants his leaders to put his people first. He is told that such preferences are atavistic and that true leadership requires cosmopolitan vision. At no point is he argued with. He is corrected. The correction is delivered in the calm, reasonable tone of people who have already decided what reality is and have classified his attachment to a different reality as a failure of understanding.
Carl Schmitt had watched the center of human attention drift from theology to metaphysics to ethics to technology, each step a flight from conflict, until in the technical age there were no enemies, only problems. Conflict became a data error. Passion became a symptom. The postwar order perfected this technique. Questions that used to be settled by democratic contest — borders, belonging, what a nation owes its own before it owes the world — were reclassified as technical or moral minima. Once framed that way, ordinary bargaining became suspect. The side that wanted to contest the issue no longer appeared as a political actor with interests and loyalties. It appeared as a threat to a moral floor that civilization itself required. You could still argue about tax rates. You could not easily argue about the pace and scale of demographic change once that change had been folded into anti-discrimination law and human-rights jurisprudence. The language of the court won by default. The language of the kitchen table was told it had no standing.
Rights language performed the same trick that expertise performed in economics. It protected real people from real cruelty, and that achievement was genuine. But it also removed whole domains of life from democratic contest by reclassifying political questions as pre-political. The side that acquired the language of universal rights did not need to win arguments. It needed only to establish that its opponents were making a different kind of speech — not a rival political claim but a moral violation. Once that move succeeded, the opponent was no longer a political actor to be engaged. He was a symptom to be treated. The expert did not argue with him. The expert explained him.
The people who felt this most keenly were the least equipped to name it. They did not read Schmitt. They did not speak of the neutralization of the political or the migration of sovereign authority into courts and commissions and treaty bodies. They simply noticed that every strong attachment they held — to a particular place, a particular people, a particular inheritance, a particular way of organizing life — arrived in public already half-condemned. They learned to hesitate before speaking. They started sentences and abandoned them mid-breath, because they could feel the word they wanted was the wrong word, and they had watched what happened to people who used it. They watched their words being lifted out of their mouths and replaced with safer ones. The cleverer the translator, the deeper the silence that followed.
What is hardest to recover now is the texture of that muteness. It is easy after the fact to read coherent ideology back into the revolt. But for many people the experience was less articulate than that. A man begins to say what he thinks. He gets as far as it just doesn’t feel and then stops. He knows the next word will be the wrong word. He changes the sentence. By the time he finishes, he has said nothing he meant. He is not stupid. He is not manipulated. He has simply learned, over years of being translated, that the language he thinks in does not have a public form that will be heard as legitimate speech. He has been renamed by strangers and he has no counter-vocabulary because the strangers control the vocabulary.
The more this happened, the more resistance to the order was pathologized. If people objected to immigration, they were anxious, provincial, bigoted, left behind, nostalgic, or deceived by demagogues. If they objected to supranational governance, they were parochial nationalists incapable of grasping interdependence. If they objected to the erosion of common national forms, they were tribal. There were often grains of truth in these descriptions. There were also lies. What they systematically refused to see was that they were themselves political acts. They were the sorting machine applied to democratic populations. They did not describe a pathology outside the order. They protected the order by defining dissent as a symptom.
The genuinely novel thing about the postwar neutralization was not that elites governed in their own interests. Elites have always done that. The novel thing was that the governing class persuaded itself, with considerable sincerity, that it was not a governing class at all. It was a stewardship. It was the custodianship of norms that stood above politics. It was civilization protecting itself from its own temptations. The judge did not rule. He interpreted. The commissioner did not choose. He harmonized. The central banker did not redistribute. He managed. The human rights monitor did not favor one political order over another. He held everyone accountable equally. The sincerity was real. The political nature of the enterprise was invisible to those inside it, which made it invisible to the institutions they ran, which made it impossible to contest on its own terms. To say that the human rights apparatus was itself a political project was to mark yourself as someone who did not understand human rights. The circle closed.
The financial crisis of 2008 cracked the circle without breaking it. Expert stewardship had failed at its own stated task. The managers of complexity had not managed it. The people who paid the heaviest price were not the ones who had designed the system. The technocratic response was more technocracy: stress tests, regulatory reform, quantitative easing, recovery frameworks. The political nature of the choices being made — who would bear the losses, whose savings would be eroded, whose public services would be cut to stabilize the currency unions the elites had built — was dressed in the language of necessity at every stage. There is no alternative, the phrase that had been coined a generation earlier to describe a different set of choices, was pressed back into service. The population was living through a vast redistribution of costs that had been decided by people they had not elected, could not remove, and could barely name. The experts explained that this was how modern economies worked. The explanation did not satisfy. It was not meant to. It was meant to end the conversation.
The Iraq War had done similar damage by different means. A war justified in the language of universal values — democracy, human rights, the responsibility to protect, the civilization of the rules-based order — had produced a catastrophe that the people who promoted it never paid for in any meaningful sense. The language had been borrowed and spent. When the next politician reached for it, it rang hollow in the hands of populations who had watched it authorize disaster. The humanitarian vocabulary did not disappear. But it lost some of its power to shame. People began to hear it differently, as the sound a certain kind of confidence makes when it has not yet noticed that it lost.
Mass migration made the distance between democratic publics and transnational management most visible because it was most concrete. You could not explain away the change to your street with a graph. You could not feel reassured by a commissioner’s statement that integration programs were being funded. The question of how fast and on whose terms a society changes is among the most consequential political questions a democracy can face. The postwar order had progressively insulated it from ordinary political will, classifying the preference for slower change as either an economic misunderstanding or a moral failure. The populations who held the preference were not consulted. They were educated. When they voted for parties that promised to take the question back, those parties were described as dangerous. The description was not wrong about every danger. It was wrong about who had created the conditions.
Social media broke the old monopoly on public speech without replacing it with anything that could channel the energy it released. The respectable world still controlled the institutions. The unrespectable world now had a voice. What came out of that voice was not always coherent, not always admirable, sometimes ugly in ways that the respectable world cited as evidence for everything it had always believed about the people beyond its borders. But the ugliness was also a measure of how long the pressure had been building without release, how many sentences had been started and abandoned, how many translations had been imposed and endured. You do not scream articulately. You scream.
By the early months of 2016 the architecture looked solid. The institutions still met. The papers still printed their editorials. The courts still issued rulings in the language of universal norms. The experts still briefed governments on the necessity of further integration, further mobility, further management. The rules-based liberal order hummed along in its familiar key. The respectable world still believed that history, though occasionally turbulent, remained broadly on its side.
What it could not see, or would not, was that the silence had changed quality. It was no longer the silence of acceptance. It was the silence of people who had stopped trying to speak in a language that had never been built for them, and were waiting for a different kind of speech to become possible.
The table in the diner is set. The song is playing on the jukebox. Meadow is outside, struggling with the curb, getting the wheels straight. A man in a Members Only jacket rises from the counter. He walks toward the bathroom with a purpose no one at the table notices. He passes the framed pictures on the wall. He reaches the door.
The bell rings.
Tony looks up.
The screen goes black.

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The Sovereign Decision: What the Laws of War Say About Who Rules

Posted on March 19, 2026 by Luke Ford

Every legal system requires someone to decide what the law cannot cover. The rules run out at some point — in the hard case, the emergency, the situation the drafters did not anticipate — and at that point someone must decide. The identity of that someone, the question of who holds the authority to make the call when the categories break down, is the deepest political question any legal order faces. In domestic law it surfaces in debates about judicial review and executive power. In international humanitarian law it surfaces in the question of who gets to decide who counts as innocent, who counts as a legitimate target, and who counts as a threat serious enough to justify killing outside any judicial process. That question is not a technical one. It is a sovereignty question. And the history of the laws of war, read carefully, is a history of that question being answered differently in each successive era, with each new answer presented as the natural evolution of humanitarian concern rather than as a redistribution of the most fundamental political power.
Sovereignty is not primarily a legal concept, though lawyers have spent centuries trying to make it one. It is a political fact: the capacity to make the decision that others must live with, including the decision about who falls inside the law’s protection and who falls outside it. In war, that capacity expresses itself most nakedly in the authority to classify. The soldier or the civilian. The legitimate combatant or the unlawful fighter. The innocent bystander or the direct participant. The protected person or the targetable threat. These classifications determine who can be killed with legal sanction and who cannot, and whoever holds the authority to make them holds the power of life and death over everyone the classification touches. The laws of war have always regulated that authority, but they have never eliminated it. What they have done, across more than a century of humanitarian development, is move it.
At the Hague Conferences of 1899 and 1907, the answer was unambiguous. The classification authority sat with states, specifically with the great powers whose negotiators wrote the rules and whose consent determined what counted as binding. The laws of war at this stage are an expression of sovereign equality among the powers that mattered, with the rest of the world irrelevant to the negotiation. The relevant classification was between the lawful combatant and the unlawful fighter, and the criteria for that classification — uniform, open arms, responsible command, fixed distinctive sign — were designed by states to protect the state’s monopoly on legitimate violence. The franc-tireur, the farmer who took up a rifle without satisfying these formal conditions, was placed outside the law’s protection not because he was more dangerous than a regular soldier but because he represented a claim to legitimate violence that bypassed the state entirely. That claim was the threat. The Hague rules addressed it by excluding it: the irregular fighter received admiration, in some quarters genuine admiration, but no legal recognition. The admiration was safe precisely because it came without recognition. You could praise the heroic partisan while executing him, and the law would support the execution.
The Martens Clause, inserted into the 1899 Convention as a resolution to a genuine disagreement between delegations, has been read ever since as a humanitarian concession to the reality of popular resistance. It declared that in cases not covered by the written rules, populations and belligerents remained under the protection of the law of nations as established by the usages of nations and the laws of humanity. This sounds generous. In practice it left the irregular fighter in exactly the position he had occupied before, outside the formal legal order, subject to the judgment of the very commanders whose authority he was challenging. The clause acknowledged the existence of a moral reality it declined to protect legally. That is not a concession. It is the sovereign decision to maintain the boundary while appearing to soften it.
Nuremberg fractured this boundary in ways that have not been fully resolved since. The International Military Tribunal asserted, for the first time in the history of international law with binding force, that the sovereign decision to go to war could itself be a crime. This was a direct challenge to the Westphalian premise that states are answerable to no external authority for their decisions about the use of force. When Robert Jackson argued that the supreme crime is aggression because it contains within it the accumulated evil of everything that follows, he was not just making a legal claim. He was asserting a form of sovereignty above the state, a jurisdiction that could reach inside the cabinet room and judge the decision that sovereignty had previously made unreachable.
The language in this assertion reveals the political structure of the claim. Jackson and the other prosecutors framed Nuremberg as civilization judging barbarism, humanity judging its enemies, reason overcoming revenge. This framing did something precise and consequential. It stripped the Nazi leadership of the status of a legitimate enemy, a justus hostis in the classical law of nations sense, someone you fight, defeat, and eventually make peace with. The Nuremberg defendants were not defeated enemies. They were criminals against humanity itself. That reclassification had a political logic. If your enemy is merely a rival sovereign, he retains dignity in defeat and the possibility of reconciliation. If your enemy is the enemy of humanity, he forfeits both. The classification determines the treatment, and the classification was made by the victors.
This does not mean Nuremberg was unjust. The crimes were real and the accountability was genuine. But it does mean that the assertion of a sovereignty above the state at Nuremberg was not a neutral legal development. It was a political act performed by specific powers in specific circumstances that happened to align the judgment of the victors with the judgment of history. The authority to declare that a state’s use of force is not merely wrong but criminal, that its leaders are not merely mistaken but outlaws, is an enormously powerful instrument, and its exercise is never separate from the political interests of those who wield it.
The 1949 Geneva Conventions performed a quieter but in some ways more durable migration of the classification authority. They remained formally state-centric: negotiated by states, ratified by states, enforced through state cooperation. But by placing individual human beings at the center of the protective framework, by insisting that the prisoner of war, the wounded soldier, and the occupied civilian hold rights that no state can simply override, they introduced a competing locus of authority that was not the state. The sovereign claim embedded in the Geneva Conventions is modest but real: that the state’s power over the bodies of those it holds is not unlimited, that there is a standard external to state discretion against which that power can be measured and found wanting. The standard was not yet enforced by any effective mechanism. But its existence changed the structure of the claim. The state was no longer the sole judge of its own conduct.
The shift became explicit in 1977. The Additional Protocols’ recognition of wars of national liberation as international armed conflicts was a sovereignty statement of the first order, and it was understood as such by the states that resisted it most vigorously. To say that a movement without a state can hold rights and obligations under international law, that the PLO has standing at a diplomatic conference that is shaping the laws of war, is to say that sovereignty is not the precondition of legal personality but something that can be claimed in the course of struggle. The traditional international legal order had treated the state as the only relevant subject. The Protocols opened a crack in that premise.
But the crack was immediately controlled. The liberation fighter who received recognition had to accept the disciplinary framework of the laws of war as the price of that recognition. He had to carry arms openly, distinguish himself from the civilian population, operate under a responsible command structure. He had to become, in the formal sense, something like a soldier of a state-in-formation. The revolutionary was absorbed into the state form even as his revolutionary cause was acknowledged. The civilian population that fed him, sheltered him, and sustained his movement remained in their previous position: protected in principle, exposed in practice, always at risk of losing protection at the moment they acted. The crack in state sovereignty was real, but the framework closed around it quickly.
What happened in the 1990s was more radical, and more insidious, because it happened without anyone quite declaring it. When the legal literature on the Kosovo campaign in 1999 turned to Human Rights Watch and Amnesty International as the authoritative sources for what Additional Protocol I required as customary law, the classification authority migrated to institutions that held none of sovereignty’s traditional attributes. No territory. No population. No army. No formal democratic mandate. No process of ratification or consent. What HRW and Amnesty held was credibility, access, and the ability to fix events in the public record in ways that the legal academy then treated as authoritative. They declared Additional Protocol I binding on all states without citing evidence of customary practice, and the academic lawyers who wrote about Kosovo followed their footnotes. The moment of choice, the political decision about whose violence would be constrained and whose would be legitimized, disappeared into the appearance of expert consensus.
This is sovereignty at its most effective and most opaque. The great power at least has a flag. The international tribunal at least has a charter and a defined jurisdiction. The NGO that declares what custom requires has neither, yet exercises something functionally equivalent to the classification authority that has always been the heart of sovereign power in the laws of war. It decides, in its reports, who counts as a civilian victim and who counts as a legitimate target. It decides whether a particular attack satisfies the proportionality standard or violates it. It decides, by the pattern of its documentation and the conclusions of its analyses, which deaths the international community is invited to mourn and which are explained away as the unfortunate but lawful consequences of military necessity. These decisions shape law, shape policy, and shape the conditions under which future violence will be conducted. The entity making them is accountable to no electorate and subject to no constitutional constraint. Its authority rests entirely on the willingness of others to treat it as authoritative, which is itself a political fact, sustained by the same kind of consensus that sustained the dominance of military lawyers before the 1990s and will sustain whatever comes next.
The Israeli Supreme Court’s 2006 targeted killings decision crystallized the next migration. President Barak’s declaration that there are no black holes in international law, that every person in every conflict falls within the law’s reach, is one of the most consequential sovereignty claims in the history of the field. On its surface it sounds like an expansion of legal protection: no one is beyond the law’s concern. In practice it works in the opposite direction. By insisting that there are no spaces outside the law, Barak ensured that the state’s authority reaches everywhere, because the law the state brings with it is the law the state interprets. The terrorist who does not qualify as a lawful combatant must be a civilian. The civilian who takes a direct part in hostilities loses protection for such time as she does so. The determination of what counts as direct participation, what continuous combat function means, how long the loss of protection lasts, all of this opens into a field of legal argumentation that the state’s lawyers control.
What the court built was a legal architecture in which the classification authority the state exercises is legitimized by the law rather than constrained by it. The targeting decision is not a political decision anymore, or not only a political decision. It is a legal determination, made by officials trained in international humanitarian law, applying criteria that humanitarian lawyers helped develop, subject in principle to judicial review. The decision to kill has been laundered through a legal process that gives it a quality of legitimacy that the naked sovereign decision would lack. The classification is no longer the general deciding that this farmer with a rifle deserves to die. It is the targeting lawyer deciding that this individual’s pattern of life meets the threshold for continuous combat function, that the anticipated military advantage exceeds the expected civilian harm, that the strike is therefore lawful. The political decision and the legal authorization have become the same act.
The development of algorithmic targeting systems has extended this logic to its present extreme. Systems designed to identify targets process behavioral telemetry, location data, communication patterns, and associational networks to generate lists of people who meet the threshold for targeting. The classification decision, which has always been the core sovereign act in the laws of war, is now made upstream, embedded in the design of the system, expressed in the choice of which signals to weight and which thresholds to apply. The person who writes the code that defines suspicious behavior is exercising a form of sovereignty over everyone whose behavior the system will subsequently evaluate. The decision is made once, abstractly, in an office somewhere, and then applied automatically to thousands of people who will never know they have been classified.
This is not a departure from the history of the classification authority. It is its culmination. The Hague commanders decided case by case, looking at individual fighters and making individual judgments. The Nuremberg tribunal decided retrospectively, looking at the decisions of leaders after the war was over. The Geneva framework decided categorically, defining classes of protected persons and leaving individual determination to the parties in the field. The NGO analysts decided publicly, in reports that shaped the framework of accountability. The targeting lawyer decided procedurally, within a legal architecture designed to legitimize the decision while maintaining its practical effect. The algorithm decides structurally, by building the classification into the system itself so that no individual decision is visible and no individual decision-maker is fully accountable.
At each stage, the migration was presented as an improvement. The categorical protections of Geneva were more reliable than individual commander discretion. The procedural safeguards of the modern targeting process were more accountable than the informal decisions of the Cold War. The algorithmic system is more consistent than human judgment, less susceptible to the biases and errors of the individual analyst. Each of these claims contains some truth. What none of them acknowledges is that the migration of the classification authority is simultaneously a migration of sovereign power, and that the direction of the migration has consistently been toward less visible, less accountable, and less contestable forms of decision-making.
The populist nationalist movements currently challenging the authority of international humanitarian law and international criminal law are, whatever else they are, a reassertion of the visibility principle. When a leader refuses to submit to ICC jurisdiction, he is saying that the classification authority belongs to the state, that the decision about whose violence is legitimate is a political decision that must be made by a politically accountable actor, not by an international institution whose democratic legitimacy is unclear and whose enforcement capacity is dependent on the cooperation of the very states it purports to judge. This argument is sometimes made in bad faith, as cover for impunity. It is also sometimes made in good faith, as a genuine objection to the opacity of the authority that the humanitarian framework has accumulated. The objection deserves engagement rather than dismissal, because the accumulation is real and the opacity is real, and the question of whether the entity that now holds something like the classification authority in international humanitarian law is more or less legitimate than the state it has partially displaced is not one that the humanitarian framework can answer from within its own terms.
The search for a new framework that might recognize the legitimate self-defense of the stateless, that might detach innocence from passivity and protect the person who acts as well as the person who endures, runs into the same problem at a deeper level. The moment you say that protection should follow from the justness of the position, you must answer the question that has no neutral answer: just according to whom? Every party to every conflict believes its violence is justified. The formal neutrality of the humanitarian framework, which treats aggressors and defenders alike once the war has begun, is not a moral failure. It is the condition under which the framework can operate without becoming merely the legal expression of one side’s political claim. Abandon that neutrality and you are no longer in the domain of law as it has existed since the Hague Conventions. You are in the domain of the political, where the authority to decide is always someone’s authority, always exercised from some position, always serving some interests alongside the universal ones it claims to serve.
This is not a counsel of despair. It is a counsel of honesty. The classification authority has always been political. The history of the laws of war is the history of that authority migrating across different institutions, each presenting itself as more neutral, more principled, more humanitarian than the one it replaced, none of them fully delivering on that claim because none of them could. The state commander was political. The international tribunal was political. The NGO analyst was political. The targeting algorithm is political, most of all when it looks most like a technical process. The question is not how to find an institution that can make the classification decision without politics. That institution does not exist. The question is how to make the decision visible, contestable, and accountable enough that those who bear its consequences have some meaningful capacity to challenge it.
That is a harder question than the one the humanitarian framework has been asking. The humanitarian framework has been asking how to make the classification more precise, more consistent, more legally defensible. Precision, consistency, and legal defensibility are real goods. They are not the same good as accountability. A system can be extremely precise in its classifications and entirely opaque about who made the decision and on what grounds. A system can be legally defensible from within its own framework and still exercise a form of power over human lives that no democratic theory can justify. The history of sovereign authority in the laws of war is a history of institutions learning to be more precise while becoming less visible, of the classification decision becoming more technically sophisticated and simultaneously harder to contest.
The next chapter in that history is being written now, in the design of algorithmic targeting systems, in the legal arguments about what continuous combat function means and how long it lasts, in the political battles over ICC jurisdiction and the definition of aggression, in the questions about whether a state can strike anywhere it identifies a threat regardless of the territorial sovereignty of the state where the threat resides. Each of these debates is a debate about where the classification authority sits and who can challenge it. They are sovereignty debates dressed in the language of law. They always have been.

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Redemption Machines: Hero Systems in the History of the Laws of War

Posted on March 19, 2026 by Luke Ford

The laws of war endure not because they solve violence but because they offer those who administer them a way to believe that violence can be redeemed. This is not a cynical observation. It is a structural one. Any system of rules that asks human beings to regulate organized killing, to draw lines inside catastrophe and hold them under pressure, must supply its participants with something more than a job description. It must supply a story about why the work matters, what kind of person the work makes them, and how their contribution connects to something larger and more durable than the immediate event. Without that story, the rules become unenforceable not because they lack sanctions but because they lack believers. The history of the laws of war is, among other things, a history of the successive hero systems that have made believers out of lawyers, officers, diplomats, and humanitarian workers across more than a century of industrial violence.
What changes across that century is not the need for such a story. That need is constant. What changes is the specific form the hero takes, the sacrifice required to earn that status, and the particular kind of innocence the system needs to protect in order to make the hero’s work meaningful. Each framework installs a different hero and a different innocent, presents itself as the natural continuation of what came before, and conceals the fact that it has made a choice. The concealment is not dishonest in any simple sense. It is the condition of the framework’s psychological effectiveness. A hero system that announced itself as a choice, as one possible answer among others to the question of how violence should be organized and explained, would lose the quality of moral necessity that makes people willing to sacrifice for it. The story must feel like the truth, not like a story.
At the turn of the twentieth century, under the Hague Conventions, the available hero is the disciplined officer. The framework treats war as a permanent feature of relations between states, neither to be celebrated nor abolished but to be conducted within professional limits. Suffering, in this account, is caused by technical excess — the use of weapons or tactics that inflict more harm than is necessary to defeat an enemy. The innocent is the civilian who stays in his place and does not participate. The sacrifice the hero must make is restraint: he earns his standing by refusing to use every means available to him even when the state authorizes it, even when doing so might be militarily efficient. This is a genuinely demanding sacrifice. It requires the officer to hold a line inside the heat of battle that serves no immediate tactical purpose. The framework makes that sacrifice feel noble by embedding it in a story about civilization and professional honor. The disciplined officer is the man who can kill without becoming barbaric. He proves that violence and civilization are not incompatible, that war can be conducted within limits that distinguish modern states from the savage violence they claim to have left behind.
The cost of this hero system is what it leaves untouched. The larger structure of imperial war, the economic and territorial interests that drive states to fight, the populations of colonized peoples who bear the consequences of conflicts they did not choose, none of this appears within the frame. The officer who follows the rules of his profession participates in empire while feeling that he transcends it. The framework asks him to be precise and restrained, not to question what he is being precise and restrained in the service of. That question is outside the story.
The First World War destroyed the plausibility of the officer hero without immediately replacing him. The slaughter on the Western Front was conducted within the rules. The gas attacks were the most visible violation, and they were condemned, but the mass death of millions of conscripts in tactically pointless campaigns was legal. Professional restraint had not prevented the worst war in human history. Something was wrong with the diagnosis. If suffering was caused by technical excess, by the use of prohibited means, then following the permitted means should have produced tolerable outcomes. It had not. A new causal story was needed, and with it a new hero.
What emerged from the wreckage, slowly through the interwar period and crystallized at Nuremberg, was the prosecutor. The diagnosis shifted from how wars are fought to the fact of their being fought at all. Suffering is caused not by the field commander who uses a prohibited weapon but by the political leader who decides to launch an aggressive war. Responsibility moves upward, from the battlefield to the cabinet room. The hero is the man who names that crime, who insists that law sits above sovereignty and that leaders can be judged for the decision to go to war. The sacrifice required is a willingness to break with the state, to condemn power rather than serve it, to risk the accusation of treason or hypocrisy in the name of a principle that transcends national interest. This is a heroism of detachment, of the capacity to judge from outside the loyalties that bind ordinary political actors.
The Nuremberg framework offered something the officer framework could not: a way to make the war itself — the decision to launch it, the imperial ambition behind it — the primary crime. Jackson’s opening statement was not just a legal argument. It was a declaration about what kind of story civilization needed to tell about itself. The hero of that story was reason overcoming revenge, law overcoming power, the impartial tribunal overcoming the desire for mere victor’s justice. The framework promised that violence could be made permanently meaningful by being judged, that the deaths of millions could be given significance by the accountability of the men who ordered them.
The cost of this hero system was its dependence on victory. The prosecutor can only function when his side has won. The framework offers no hero for the defeated, no role for the lawyer who must judge her own side’s crimes. It also, in its focus on the supreme crime of aggressive war, made everything that happened within war secondary, including the specific suffering of specific people. Crimes against humanity existed at Nuremberg but were legally subordinated to crimes against peace. The individual victim was evidence of the system’s operation, not the primary object of legal attention. The framework named the engine of destruction with considerable force. It had less to say about the people the engine destroyed.
The 1949 Geneva Conventions made the opposite choice with great deliberateness. They turned away from the question of why wars start and toward the question of how people are treated once wars exist. The hero is no longer the prosecutor who judges from outside but the humanitarian guardian who protects from within: the medic, the delegate, the legal adviser who accompanies the machinery of war and insists on the humanity of those caught in it. Suffering is the abuse of the defenseless, the prisoner mistreated, the wounded left without care, the civilian subjected to reprisals. The innocent is whoever is hors de combat or never in combat at all. The sacrifice required is neutrality, the most counterintuitive demand in the entire history of the laws of war. The guardian must refuse to take sides even when confronted with clear injustice, must extend protection to the enemy’s wounded as readily as to his own side’s, must bracket his judgment about the war’s justice entirely. Standing comes from proximity to suffering without political alignment.
This framework makes violence bearable by promising that humanity can survive inside it, that even the worst wars contain people who hold the line against total degradation. The guardian’s heroism is quieter than the prosecutor’s, less dramatic, but in some ways more demanding precisely because it requires the suspension of the moral judgments that most people consider the foundation of ethical action. You cannot ask which side is right. You can only ask whether this person in front of you is hors de combat and what they need. The framework produces genuine protection for genuine people. It also produces something else: the demand that the protected remain passive, that they earn their protection by not acting, by being the kind of innocent that the guardian can recognize and assist. The active defender, the person who fights back without a uniform, the civilian who organizes resistance under occupation, complicates the picture in ways the guardian framework cannot accommodate. That person sits at the edge of the category, and the framework’s integrity depends on pushing them out of it.
The 1977 Additional Protocols attempted to hold the prosecutor’s framework and the guardian’s framework together while incorporating the politics of decolonization. Wars of national liberation were recognized as international armed conflicts. The fighter whose cause involved resistance to colonial domination could, under certain conditions, qualify for combatant status. The law seemed to be acknowledging that the justice of the cause mattered, that the guardian’s enforced neutrality was insufficient in a world still organized around imperial relationships. At the same time, the Protocols deepened the civilian protection framework, introducing formal principles of distinction and proportionality that placed new burdens on military planners. The hero was now dual: the legal adviser who tightened the rules of attack and the liberation fighter whose struggle was recognized as legitimate.
The marriage produced a hero system under internal tension. The liberation fighter who received recognition had to accept, as the price of that recognition, the disciplinary framework of the laws of war. His cause was acknowledged; his methods were regulated. The justice of the struggle did not exempt him from the requirement to distinguish himself from the civilian population, to carry arms openly, to follow a responsible command structure. What the revolutionary movements got was not validation of their moral legitimacy but absorption into a framework of formal legal criteria that governed them on the same terms as everyone else. The heroic outsider became a regulated insider. And the civilian population that supported them, that fed and sheltered and sustained the resistance, remained subject to the passivity requirement. Their support was understandable, even admirable in some human sense, but it was legally hazardous. The framework could not offer them a heroic role. It could only offer them protection, conditional on their remaining visibly uninvolved.
The 1990s brought a new hero who had not previously been central to the field: the investigator and the witness. The ad hoc tribunals for the former Yugoslavia and Rwanda, and later the International Criminal Court, created institutional roles for people whose primary function was to document atrocity, construct the evidentiary record of mass violence, and turn that record into accountability. Suffering was now atrocity — genocide, crimes against humanity, ethnic cleansing — deliberate campaigns of organized destruction directed against civilian populations defined by identity. The innocent was the member of a targeted group, persecuted as such. The hero was the person who refused to let the violence disappear into silence, who gathered testimony and preserved evidence and argued in court that what had happened was not the fog of war but crime.
The sacrifice required was a particular kind of emotional labor: the willingness to confront horror in systematic and sustained ways, to sit with survivors and their accounts, to treat catastrophic suffering as material for legal process without losing sight of the human reality behind the evidence. The framework offered a form of immortality through the archive. The record would outlast the events it documented. The crimes would be named. The perpetrators would be judged. The victims would not be forgotten. This was a genuine moral achievement and a genuine expansion of what international law could see. It also introduced new invisibilities. The criminal tribunal framework could accommodate the organized massacre of a passive population. It could accommodate command responsibility for deliberate targeting. It could not easily accommodate the structural economic and political conditions that produced the massacre, the imperial relationships or resource conflicts or great-power interventions that created the conditions for the violence. Those things were not crimes in the relevant sense. They were context. The framework required a perpetrator, a victim, and an act. It was less suited to addressing systems.
After 2001 the hero system fractured rather than evolved. Counterterrorism produced two competing heroes who could not be reconciled within a single framework. The security professional who prevents attacks and accepts legal risk to protect his community is one figure. The human rights advocate who constrains that professional in the name of universal civilian immunity is another. Each claims to save lives. Each offers a story about what good action looks like under conditions of extreme uncertainty. For the security professional, suffering is caused by enemies who exploit legal and social openness, who embed themselves among civilians precisely because the law makes that embedding advantageous. The innocent is the citizen who might be attacked. The sacrifice is the willingness to act under uncertainty, to make targeting decisions that may turn out to be wrong, and to accept the political and legal consequences of that willingness. For the advocate, suffering is caused by the overreach of power, by states that use security as a cover for expanding violence beyond any defensible limit. The innocent is the civilian subject to state force. The sacrifice is persistence in the face of political pressure, the defense of limits that may be temporarily unpopular.
These are not refinements of each other. They rest on different diagnoses of what causes unjust suffering and different identifications of who the primary threat to innocent life is. The law became the site where these rival heroes met and contested the meaning of protection, without either being able to displace the other. The NGO analyst who documented civilian casualties and constructed public counts of the innocent dead added a third figure, a parallel sorter whose authority rested not on state power or legal standing but on the credibility of the evidentiary process. The state sorts for action. The advocate sorts for accountability. The analyst sorts for recognition and mourning. None of these systems talks to the others except in the language of critique.
What has emerged most recently, in the era of data-driven targeting, autonomous systems, and algorithmic warfare, is a hero whose primary virtue is precision. The targeting lawyer and the system designer earn their standing by building and operating processes that minimize error, that apply legal categories consistently, that produce decisions that can be defended as careful and controlled. Suffering is error to be minimized within a framework. The innocent is whoever falls below the relevant risk threshold in the relevant probabilistic model. The sacrifice required is the willingness to accept abstraction, to trust models and workflows and training data rather than direct moral intuition, to locate the ethical in the process rather than in the person. The redemption on offer is optimization: harm is not eliminated, but it is rendered defensible, subjected to review, embedded in a chain of documentation that allows each decision to be audited.
The cost is the distance that abstraction introduces between the person who makes the decision and the person who dies as a result of it. The body disappears into a profile. The neighborhood disappears into a pattern of life. The decision to strike becomes a step in a workflow rather than a moral act that anyone fully owns. The hero of precision can look at the process and say, correctly, that it is more careful than what came before. He cannot easily look at the outcome and say that the person who died mattered as a person rather than as a data point that fell on the wrong side of a threshold. The framework makes the operator feel responsible for the process. It makes it harder to feel responsible for the result.
The dominant elite hero system — organized around international humanitarian law, universal civilian protection, and human rights accountability — is now under pressure that it did not face a generation ago. The pressure does not come primarily from within the framework, from lawyers arguing about proportionality thresholds or activists debating the scope of direct participation. It comes from outside, from political movements that reject the framework’s basic terms and offer a rival story of redemption that a significant portion of the world’s population finds more compelling.
The national protector hero, elevated by populist nationalism across multiple continents, offers a fundamentally different account of what courage and virtue look like in the presence of violence. In this system, suffering is caused by external enemies and by the weakness or betrayal of leaders who prioritize international approval over the safety of their own people. The innocent is the community — defined by nation, culture, religion, or some combination of these — that the leader is charged with defending. The sacrifice required is the willingness to reject external constraints, to defy ICC warrants, to ignore UN resolutions, to accept international condemnation as the price of effective protection. The hero earns his standing by refusing to let outsiders define the terms on which his community defends itself.
This is not an absence of moral content. That is the crucial point that the humanitarian framework tends to miss when it encounters this rival system. The national protector operates within a genuine moral order, one organized around loyalty, survival, and the particular obligations that arise from shared history and identity. Dignity, in this order, lies not in limiting violence universally but in protecting one’s own effectively. The person who subordinates his community’s security to abstract universal norms is not a hero in this system. He is a betrayer, someone who has allowed the deaths of his own people in the name of principles that his enemies do not observe. The framework offers a form of immortality through the survival and honor of the community. Your dead are martyrs, not data points requiring external validation. Your sacrifices are remembered within the story of a people, not processed by an international institution that may not survive the century.
The clash between the humanitarian hero and the national protector hero is not primarily a debate about the content of legal rules, though it produces legal arguments in abundance. It is a clash between incompatible redemption stories, between different accounts of what makes a life well spent in the presence of violence and what form of significance a person’s actions can achieve. The humanitarian framework says you are good if you subordinate your community’s interests to universal rules and hold those rules even when the cost is high. The nationalist framework says you are good if you refuse to let outsiders judge how you defend your own and accept whatever cost that refusal requires. Neither can absorb the other without losing its identity. Neither can demonstrate its superiority to the other on grounds that both accept, because they disagree about the grounds.
There is also a pressure that neither system adequately addresses, and it may be the most significant one for the future of the laws of war. The people who live inside conflict zones and who organize, sustain, and support armed resistance without the backing of a recognized sovereign state fit neither available hero role. They are not the passive innocent that the humanitarian framework needs. They are not the citizen soldier of the national protector framework. They are something the law has consistently failed to accommodate: the politically active person under occupation or siege, the community member who sustains a resistance movement, the organizer whose work supports armed defense without personally pulling a trigger. The laws of war have managed this problem for more than a century by defining these people out of the category of the innocent at the moment of their greatest agency. The framework protects them when they are passive and threatens them when they act.
If a genuinely new legal framework emerges, it may come from the pressure this exclusion creates. It would need a different kind of hero: not the neutral guardian who brackets the justice of the cause, not the sovereign enforcer who protects the particular community, but someone whose heroism consists in recognizing the legitimacy of political agency under conditions of extreme oppression, whose sorting authority affirms rather than eliminates the active defender. That would be a real break from the history of the field. It would require detaching innocence from passivity and attaching it instead to the justness of the position. It would mean the law could no longer maintain its neutrality between aggressors and defenders, occupiers and occupied, the powerful and the stateless. That neutrality has always been the condition of the guardian hero’s standing. Abandoning it would require a different story about what makes the legal actor admirable.
None of the existing hero systems can offer that story without ceasing to be what they are. The humanitarian guardian needs neutrality. The prosecutor needs a clear crime. The investigator needs prosecutable categories. The system designer needs a defensible process. The national protector needs a sovereign community to protect. None of these roles has room for the legitimate self-defense of the stateless, the justifiable violence of the occupied, the moral authority of the person who acts without permission from any recognized legal order.
What the current turbulence reveals is not that the need for a hero system has disappeared. It is that the existing elite system no longer satisfies that need for growing numbers of people, and the rival system that has emerged to challenge it cannot accommodate the people the elite system has always excluded. The search for a new story — about what it means to act well in the presence of violence, about what kind of person that action makes you, about how your choices connect to something that outlasts you — is already underway. The next framework in the laws of war will be written by whoever can answer that search convincingly. What they will need is not better doctrine. It is a more honest account of who the hero is and what we are asking him to give up.

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The Sorting Machine: Innocence as Political Demand in the Laws of War

Posted on March 19, 2026 by Luke Ford

The law does not merely protect the innocent. It produces them. To receive protection under the laws of war, a person must first satisfy a set of conditions that have nothing to do with their moral worth and everything to do with their political behavior. They must remain still. They must remain disengaged. They must remain legible as harmless to whoever holds the authority to sort. This demand has been present in the laws of war since at least 1900. What has changed across more than a century of humanitarian progress is not the demand itself but the sophistication of the machinery used to enforce it and the range of actors authorized to operate that machinery. The history of international humanitarian law, read through the category of innocence rather than through the institutions that claim to protect it, is a history of refining the conditions under which protection attaches — and of explaining away, at each successive stage, the suffering of those who failed to satisfy them.
Before the Hague Conventions codified anything, the classical law of war was at least honest about what it was doing. The civilian population was bound to the fate of its sovereign. Citizens were passive enemies. They warranted some protection, but only conditionally, only insofar as they genuinely did nothing. The franc-tireur — the farmer who took up a rifle without a uniform or a chain of command — forfeited everything. This was not squeamishness about civilian suffering. It was a considered theory: that the relevant distinction was between those who submitted to the state’s monopoly on violence and those who challenged it. Protection followed submission. The irregular fighter who blurred the line between soldier and civilian was the primary threat the law feared, not because he was more dangerous than a regular soldier but because he made sorting impossible. Innocence, from the beginning, was a status conferred on those who did not complicate the picture.
The Hague Conventions of 1899 and 1907 formalized this understanding. The civilian keeps protection by staying in place. Sorting authority rests with the commander in the field, who looks at a body and decides whether what he sees is a lawful combatant or an unlawful participant. The law rewards stillness and penalizes the defender who acts outside approved structures. The franc-tireur debates of the 1870 Franco-Prussian War sat just beneath every negotiating session. Germany, which had fought through irregular resistance in France, was the most insistent that combatants must carry arms openly, follow a responsible command, wear a fixed distinctive sign. The requirement was presented as a humanitarian advance — soldiers also have rights and deserve to know who they are fighting. The effect was to define any deviation from state-sanctioned military organization as a forfeiture of protection. Innocence was conditional on visible compliance with the very institution that was doing the killing.
The First World War did not change the rule. It changed the image used to enforce it. Allied propaganda, responding to the German invasion of Belgium, produced the modern template of innocence: the violated woman, the orphaned child, the elderly civilian shot in the street. These images were not simply false, though some were. They were selective. They fixed in the international imagination a figure of innocence that was feminized, passive, and entirely without agency. The propagandists understood, correctly, that the most compelling innocent is the one who cannot possibly threaten anyone. The raped woman and the bayoneted baby are innocent precisely because they could not have done anything to deserve what happened to them. They had no politics, no organizational capacity, no weapons. They were acted upon absolutely.
This imagery fed back into law by stabilizing a template. The protected person is the one who does not act, does not organize, does not resist. The more passive the figure, the more legible the innocence. Sorting authority began to migrate outward from the battlefield commander toward the political elites and public narratives that fixed these images in the international imagination, deciding whose suffering would be recognized as wrongful and whose would be explained away. The person who fought back, even against an invading army, became harder to place in the category the law was building. Defense looked like participation. Participation looked like forfeiture.
The Nuremberg Tribunal hardened the template while appearing to transcend it. The paradigmatic innocent was now the Jew in Nazi Europe — someone subjected to state violence of unimaginable scale without having chosen the conflict, without having done anything to invite it, without any capacity to alter the machinery directed against them. The moral power of this figure is genuine and the historical justification for it is complete. But it locked in a structure whose implications extended beyond its immediate context. Innocence, at Nuremberg, meant radical passivity in the face of organized power. Responsibility was concentrated entirely at the top, on the leaders who planned and launched the violence. The civilian remained a tragic backdrop — someone acted upon rather than acting. Political agency on the part of the victim was not just irrelevant to the legal analysis; it was invisible. The law built its new architecture around the figure of the wholly defenseless, and that figure became the standard against which future claims to protection would be measured.
The 1949 Geneva Conventions expanded the circle of protected persons and introduced real, enforceable rules about the treatment of prisoners, the wounded, and civilians under occupation. These were genuine humanitarian advances. But they came with a condition that has done more work than any other clause in the history of the laws of war. Protection attaches to the civilian who refrains from taking a direct part in hostilities. The moment that threshold is crossed, protection is suspended — for such time as the direct participation continues. The clause polices the boundary of innocence through activity. Feed a fighter, carry a message, scout a road for an armed group, and your status becomes contestable. The law had always demanded passivity. Now it stated the demand explicitly, as a formal legal condition, and handed sorting authority to military lawyers and targeting processes who would operationalize it in real time.
The requirement sounds neutral. In practice it is not. The people most likely to feed fighters, carry messages, and provide shelter and intelligence are the people who live in conflict zones, whose communities are occupied, whose families are threatened, and who respond to those conditions by doing what people in their position have always done: organizing their own survival and resistance. These are ordinary responses to extraordinary danger. Legally, they are also the moments when protection can thin or vanish. The law does not protect the person who defends themselves in ways it has not pre-authorized. It protects the person who endures.
The 1977 Additional Protocols responded to the era of decolonization and appeared to mark a significant departure. Wars of national liberation were recognized as international armed conflicts. Guerrilla fighters who did not wear uniforms could qualify for combatant status under certain conditions. The law seemed, for a moment, to be acknowledging that resistance to colonial occupation was politically and legally legitimate. What it actually did was absorb that acknowledgment into its existing framework without changing the framework’s fundamental demand. The civilian still had to remain not directly participating. The more a population organized its own defense under occupation, the more it risked sliding out of protection at the moment of action. The law refined the language of distinction and proportionality, placed new burdens on military planners, and expanded the class of professional legal advisers authorized to define the limits of permissible participation. The underlying demand — remain passive, remain disengaged, or accept the consequences — survived every revision intact.
What changed in the 1990s was not the demand but the visibility of the victim it centered. The ad hoc tribunals for the former Yugoslavia and Rwanda, and later the International Criminal Court, built their jurisprudence around identity-based persecution. The civilian population became the primary object of protection against genocide and crimes against humanity. Innocence attached to membership in a targeted group. This made certain harms newly legible that previous frameworks had missed or minimized. The specific suffering of specific communities — their systematic destruction as groups — became the organizing concern of international criminal law. But the core intuition persisted. Innocence was strongest, most legally compelling, when the victim appeared entirely defenseless and non-participating at the moment of attack. Judges and investigators reconstructed patterns of victimization after the fact, and the cases that landed most cleanly were the ones where the victims had done nothing. The tribunal system could accommodate the organized massacre of a passive population far more easily than it could accommodate the ambiguous violence of a war where victims were also sometimes fighters.
It was after 2001 that the passivity requirement showed its sharpest edge. Counterterrorism created conditions in which armed groups lived among civilian populations, and states argued that this embedding made sorting nearly impossible without expanding the definition of who counted as a participant. The concept of continuous combat function entered the legal vocabulary. A fighter who put down a weapon and picked up a phone to organize the next operation did not, under this analysis, return to civilian status between operations. Participation was defined not by the act of pulling a trigger but by the ongoing role a person played within an armed group’s organizational structure.
The Israeli Supreme Court’s ruling in the targeted killings case of 2006 crystallized what this expansion meant in practice. The court rejected what it called the revolving door of protection — the idea that a fighter could shed and resume civilian status by setting down arms. It recognized a category of persons who perform a continuous function within an armed group, including organizers, recruiters, and logisticians who may never personally commit an act of violence. Under this framework, the political organizer in a conflict zone who coordinates community resistance, manages logistics, or recruits participants in an armed movement becomes a legitimate target. Not because of anything they have done with their hands. Because of their role, their associations, their history of engagement.
The court presented this as a natural extension of the duty to distinguish combatants from civilians. In a sense it was. The logic follows directly from the demand that has governed the field since 1900: innocence requires non-participation, and participation now includes influence, organization, and political agency exercised in the service of armed resistance. What the court made explicit was something the framework had always implied. The only fully innocent civilian is the one who does nothing. The one who organizes a community, coordinates a defense, sustains a resistance movement — this person has complicated the picture. And to complicate the picture is, in the law’s terms, to accept a degree of risk that the fully passive civilian does not face.
The cost of this logic is not hard to identify. When direct participation is defined broadly enough to include organizers and recruiters, the space of legitimate political resistance under occupation effectively disappears. Anyone who takes a role in sustaining the organized life of a community resisting occupation — and almost everyone in such a community takes some such role — becomes potentially targetable. The law does not protect the political actor. It protects the person who has withdrawn from politics entirely. Under occupation, withdrawal from politics is not a neutral act. It is a form of submission. The law, by protecting only those who submit, is not neutral between occupier and occupied. It is the occupier’s instrument, dressed in the language of universal protection.
The latest developments have not reversed this logic. They have automated it. Data-driven targeting turns the person into a pattern of signals. Innocence becomes a function of whether a phone travels with known fighters, whether a location matches a target profile, whether a pattern of life deviates from what an algorithm defines as civilian behavior. The demand for passivity survives in the data stream. The system rewards those who remain within expected behavioral thresholds and flags those who move in ways associated with participation. Humans sign the warrants, but the shape of the decision is set upstream by training data and system design. The sorting authority has migrated into workflows and code, but the underlying question is the same one the Hague commanders were asking in 1900: does this person look like a civilian or a participant?
Alongside state targeting systems, NGOs and humanitarian organizations have become powerful rival sorters. They document harm, classify the dead, and publish counts of civilian casualties. A person may be recorded as a legitimate target in a military file and as an innocent civilian victim in an Amnesty International report. The category has become a site of institutional competition. The state sorts for action and justification. The NGO sorts for recognition and accountability. Neither system asks whether the underlying demand — remain passive or accept the risk — is itself legitimate. Both compete to control the answer to the same question: who counts as innocent.
Followed across more than a century, the category of the innocent reveals a consistent political demand beneath its shifting forms. In 1900, innocence required visible submission to the state’s monopoly on violence. In 1914, it required the appearance of helplessness. In 1945, it required radical passivity before organized power. In 1949, it required formal abstinence from direct participation in hostilities. In 1977, it required the same abstinence even under occupation and colonial domination. After 2001, it required not just behavioral abstinence but biographical distance from any organizational role in armed resistance. Today it requires passivity legible to an algorithm.
Each refinement was presented as a humanitarian advance. Each made some victims more visible. Each simultaneously moved the line so that a different set of people, those who responded to danger by organizing rather than enduring, fell outside the category at the moment of their greatest need. The law does not protect people who challenge organized force from within the civilian population. It protects people who accept what is done to them. It tells the occupied, the besieged, the persecuted: you may survive, or you may resist, but if you resist in ways we have not pre-authorized, you do so without our protection.
This is the demand the field has never openly stated and cannot state, because stating it would expose the humanitarian framework’s deepest tension. A law that protects only the passive is not a law for people in danger. It is a law for people who have already given up. The sorting machine has grown more sophisticated, more precise, more distributed across institutions and systems and code. The act at its center has not changed. It is the continuous classification of human beings into those whose suffering the world is permitted to mourn and those whose suffering the law explains away by their failure to remain still.

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Diagnoses of Suffering: Competing Causal Theories in the Laws of War

Posted on March 19, 2026 by Luke Ford

Every legal system embeds a theory of harm. To prohibit something you must first decide what causes it, and to assign responsibility you must first decide who or what drives the causal chain. Criminal law answers these questions for individual violence. International humanitarian law answers them for the violence of states and armies. The difference is that criminal law argues about its causal theories openly, in courts, with adversaries on both sides. International humanitarian law tends to present its theories as obvious descriptions of reality, as the natural acknowledgment of what any serious regulation of war requires. The theories are therefore harder to see, and harder to challenge, than the rules they generate.
What follows is a diagnosis of the diagnoses. From the late nineteenth century to the present, the laws of war have cycled through a series of distinct causal frameworks, each identifying a primary source of unjust suffering in armed conflict and a primary party responsible for it. Each framework has presented itself as the correction of what came before. None has admitted that it made a choice about what to see and what to leave invisible. The history of international humanitarian law is not a story of accumulating protections. It is a succession of replacements, each carrying its own theory of violence, each concealing something the previous theory had managed to name.
The place to start is not 1900 but slightly before it, with the understanding of war that the Hague Conferences inherited and codified. The classical law of war treated the civilian population not as a protected category but as a belligerent mass bound to the fate of its sovereign. Citizens were passive enemies. They warranted some protection, but only conditionally, only insofar as they remained genuinely passive, and always subject to the overriding logic of military necessity. If placing pressure on the general population could bring the war to a speedier conclusion, that pressure was permitted. If besieged civilians starved, that was the fortune of war. The causal theory underlying this framework was not indifference to suffering. It was a particular understanding of what suffering in war is: an unavoidable consequence of the citizen’s bond to the state. Responsibility lay diffusely across the entire belligerent population, which shared the fate of its government and could not claim exemption from it.
This framework was honest in a way that later ones were not. It did not pretend that civilians could be cleanly separated from the wars their states prosecuted. It acknowledged that modern, organized societies fight as societies. The cost of that honesty was that it offered almost no affirmative protection. The citizen was exposed because the citizen was implicated. That equation, brutal as it is, has never been fully refuted. Every subsequent framework has tried to escape it, and none has entirely succeeded.
The Hague Conventions of 1899 and 1907 introduced the first modern modification. The diagnosis shifted from the nature of war to the conduct of war. Suffering, in this framework, is caused by technical excess: the use of weapons or tactics that inflict more harm than is necessary to defeat an enemy. The 1868 St. Petersburg Declaration had already banned certain explosive bullets on the grounds that they uselessly aggravate wounds. The Hague rules extended this logic to poisoned weapons, expanding bullets, and the bombardment of undefended towns. Responsibility rested on the field commander and the state that authorized prohibited means. The moral architecture was chivalric and professional. War between symmetric armies of disciplined soldiers could be civilized if officers exercised restraint. The suffering that remained after that restraint was applied was not unjust. It was the residue of legitimate violence.
This framework left the structural causes of war entirely outside its gaze. Why wars started, who benefited from them, what economic or imperial interests they served — none of this was the law’s concern. The law regulated the conduct of war, not its existence. That limitation was not an oversight. It reflected a genuine theory: that the primary cause of unjust suffering in war is the failure of individual commanders to observe the rules of their profession. Fix the conduct, and the suffering becomes tolerable. The diagnosis was narrow by design.
The First World War destroyed the plausibility of that diagnosis. The slaughter on the Western Front could not be attributed to the technical failures of field commanders. The means and methods were more or less legal. The suffering was produced by the war itself, by the decision of political leaders to mobilize entire nations against each other in pursuit of territorial and economic advantage. A new causal theory began to form in the aftermath, one that located the source of unjust suffering not in how wars are fought but in the fact of their being fought at all.
The Kellogg-Briand Pact of 1928 was the first formal expression of this theory. War as an instrument of national policy was renounced. The diagnosis was now political: suffering flows from the decision of states to use armed force to pursue their interests. Responsibility shifted upward from the battlefield to the cabinet room. The individual soldier remained bound by the rules of conduct, but the new framework insisted that the soldier’s suffering, and the civilian’s, originated in a political choice that could itself be judged and condemned.
Nuremberg crystallized this shift and gave it juridical force. The International Military Tribunal declared aggression the supreme international crime, the one that contained within it the accumulated evil of what followed. This was not merely a legal ruling. It was a causal claim. Every atrocity committed during the war, every prisoner abused, every civilian starved or shot, was traceable to the original crime of launching the war. Responsibility was concentrated at the top: on the leaders and planners who made the decision to go to war for territorial conquest and economic exploitation. The tribunal juridified, in the language of law, an anti-imperial critique that had been building since at least Lenin’s analysis of the First World War as the product of capitalist states competing for colonies and markets. Du Bois had argued it. Leonard Woolf had argued it. The Soviet jurist Trainin had developed it into a formal theory of criminal responsibility. At Nuremberg it became positive law.
This framework named the system. It understood mass atrocity not as the product of individual cruelty or battlefield excess but as the output of a particular economic and political logic: the logic of imperial expansion, of states that treat other peoples’ territories and labor as resources to be seized. The prosecution described Nazi colonialism in explicit terms. Plans to depopulate the East for German settlement, to administer occupied territories through ruthless exploitation, to starve millions in order to extract food and raw materials — these were presented not as aberrations but as the consistent expression of an imperial project. The causal theory was structural and systemic.
What the Nuremberg framework could not do, and did not try to do, was speak to the experience of the individual victim once the war machine was in motion. Crimes against humanity were real at Nuremberg, but they were secondary — legally subordinated to crimes against peace, understood as consequences of aggression rather than as wrongs in their own right. The voices of survivors were largely absent. The suffering of specific people in specific places was evidence of the system’s operation, not the primary object of legal attention. The framework named the engine of destruction. It had less to say about the people the engine destroyed.
The 1949 Geneva Conventions made exactly the opposite choice. They retreated from the question of why wars start and concentrated entirely on how persons are treated once war exists. The diagnosis changed completely. Suffering is now attributed not to imperial ambition or the decision to launch aggressive war but to the power imbalance between those who exercise control and those who are subject to it. The prisoner in the camp, the wounded soldier on the field, the civilian under occupation: these became the central figures of the legal imagination. Responsibility lay with whoever held power over a protected person. The causal story was intimate and relational. Harm flows from the captor’s failure to respect the captive’s humanity.
This is the humanitarian paradigm at its most focused. It offered real protections that Nuremberg’s structural framework could not: specific rules about the treatment of prisoners, the conduct of occupation, the care of the wounded. But it achieved that focus by bracketing everything the Nuremberg framework had insisted on naming. The politics of the war, the economic interests it served, the imperial structures that produced it — all of this disappeared from view. The law was neutral as between aggressors and defenders. A prisoner of an aggressive state had the same rights as a prisoner of a defensive one. The cause of the war was irrelevant. What mattered was the immediate relationship between the person with power and the person subject to it.
The 1977 Additional Protocols attempted to hold both frameworks at once and produced the tensions that still run through the field. On one side, the Protocols deepened the civilian protection framework, introducing formal principles of distinction and proportionality that required attacking commanders to calculate the expected civilian harm of any strike and refrain from attacks where that harm was excessive relative to the anticipated military advantage. Suffering was now linked to the failure of that calculation. Responsibility lay with the planner of the attack who did not take adequate precautions. On the other side, the Protocols recognized wars of national liberation as international armed conflicts and acknowledged colonial domination as a source of suffering with moral and legal significance. For a moment, the anti-imperial narrative of Nuremberg and the victim-centered narrative of Geneva seemed to be operating together.
The marriage did not hold. The proportionality framework, which became the dominant legacy of the Protocols, is a technology of individual accountability applied to specific attacks. It asks whether this commander, planning this strike, made a reasonable assessment of this target. It does not ask why the war exists, who benefits from it, or what structural conditions produced the population that is now being bombed. The anti-imperial element was formally present but practically marginal. The causal emphasis remained on the individual decision-maker’s failure of calculation rather than on the system that put him in a position to make that calculation.
What happened in the 1990s was not a further development of the existing framework. It was a consolidation of the victim-centered approach and a decisive marginalization of the structural one. The collapse of the Soviet Union removed the political conditions that had made the anti-imperial critique viable in international law. The ad hoc tribunals for the former Yugoslavia and Rwanda, and later the International Criminal Court, developed a new causal theory: suffering as the product of organized, identity-based persecution. Ethnic cleansing, genocide, crimes against humanity — these categories made the specific victim visible in unprecedented ways. The law trained its attention on the persecuted group and on the network of perpetrators that targeted it. Doctrines like joint criminal enterprise and command responsibility allowed accountability to reach up through chains of command to the leaders who planned and authorized the campaigns.
This was, in its way, a genuine achievement. The IMT had mostly ignored victims. The new tribunals put them at the center. But the framework came with its own invisibilities. Identity-based persecution is a real phenomenon, but it does not explain why certain groups are targeted in certain places at certain times, what economic or political pressures fuel the campaigns, or who benefits from the displacement and destruction. The structural analysis that animated Nuremberg was not inherited by the criminal tribunals. It was discarded as irrelevant to the question of individual criminal responsibility. The law could now punish the mastermind of a genocide. It could not name the system that made the genocide possible.
The period after 2001 broke the diagnostic consensus further. Counterterrorism produced two competing causal theories that have never been reconciled. States argued that unjust suffering in armed conflict is now primarily caused by non-state actors who embed themselves among civilians, use human shields, and exploit the law’s protections to conduct attacks while hiding behind the civilian population. Under this theory, responsibility for civilian casualties lies substantially with the armed groups that create the conditions for them. Critics argued, with equal conviction, that the primary cause of unjust suffering is state overreach: expansive interpretations of military necessity, the targeting of dual-use infrastructure, the use of weapons systems whose effects are inherently indiscriminate in urban environments, and the detention and treatment of those designated as enemy combatants outside the protections of either the laws of war or domestic criminal law. Under this theory, responsibility lies with the states that construct legal frameworks to authorize conduct they could not otherwise justify.
These two theories are not refinements of each other. They rest on incompatible diagnoses of what armed conflict in the twenty-first century actually is. The first treats the non-state actor as the primary threat to civilian life and the state as the primary instrument of protection, constrained but ultimately legitimate. The second treats the state as the primary threat and the law as a set of safeguards that states systematically undermine. Both theories have adherents among serious lawyers. Both have been embedded in legal arguments before courts and tribunals. The field has not resolved the dispute. It has accumulated the competing frameworks on top of each other, producing a body of law that can be cited in support of almost any position.
More recent developments have added further layers without resolving the underlying tension. The doctrine of Responsibility to Protect introduced a theory of institutional failure: suffering is caused by states that are unwilling or unable to protect their own populations, and responsibility shifts to the international community when that failure occurs. The growth of urban warfare as a distinct legal and tactical problem has produced a diagnosis based on environmental complexity: civilian harm is the statistically probable result of using explosive weapons in densely populated areas, and responsibility lies with the parties that create or exploit that environment. The development of autonomous weapons systems has introduced what might be called a diffusion theory: suffering may be caused by algorithmic decisions that no individual authorized in any meaningful sense, and responsibility becomes hard to pin on any specific person or institution. Sanctions and economic measures have reopened the question, long dormant since the Nuremberg era, of whether economic coercion that produces mass civilian suffering can itself be a violation of the laws of war, and if so whose responsibility it is.
Each of these additions presents itself as filling a gap left by previous frameworks. None acknowledges that the gap it is filling was created by a prior choice about what to see. The Nuremberg framework left a gap in individual victim protection because it was focused on the system. The Geneva framework left a gap in structural accountability because it was focused on the victim. The criminal tribunals left a gap in understanding the conditions that produce atrocity because they were focused on prosecuting individuals. The counterterrorism frameworks left a gap in state accountability because they were focused on non-state threats. The gaps are not accidents. They are the shadows cast by each framework’s primary light source.
The question that this history raises, and that no framework has answered, is whether it is possible to hold both levels in view simultaneously: the structural causes of armed conflict and the individual experience of its victims. Every attempt to do so has eventually resolved in favor of one or the other. The Nuremberg framework chose the system and lost the victim. The Geneva framework chose the victim and lost the system. The Additional Protocols tried to hold both and produced a body of law whose structural commitments have been quietly eroded while its individual accountability mechanisms have flourished. The criminal tribunals chose the individual perpetrator and lost the structural driver.
This may not be a failure of legal imagination. It may be a feature of law itself. Law requires a manageable subject. To prohibit something, you need to be able to describe it, assign it to an agent, and apply a consequence. Structural forces are not agents in the legal sense. Imperial capitalism does not stand trial. The economic logic that drives states to compete for territory and resources cannot be sentenced. The law can name these forces in its preambles and its historical findings. It cannot reach them with its sanctions. The individual commander who ordered the strike, the camp official who authorized the abuse, the political leader who planned the aggression: these are the legal system’s preferred subjects because they are the ones the system can actually process.
The cost of that preference is visible in the history. Every framework that has tried to name the system has eventually been absorbed by the one that focuses on the individual. Nuremberg’s anti-imperial critique became the civilian protection paradigm of the Geneva system. The Geneva system’s structural neutrality between aggressors and defenders became the criminal tribunal’s individualized accountability. The criminal tribunal’s focus on identity-based persecution has been overlaid by the counterterrorism framework’s focus on the non-state actor’s tactics. Each absorption is presented as progress. Each represents a choice about which half of the truth the law will see.
The laws of war are not accumulating toward a final, correct diagnosis of unjust suffering in armed conflict. They are cycling through a series of partial diagnoses, each capturing something real, each concealing something real, each presenting its concealment as the natural horizon of what law can do. The debates that feel most intractable in contemporary armed conflict, about drone strikes and autonomous weapons, about sanctions and siege warfare, about the status of fighters who belong to no state and answer to no government, are intractable in part because the parties to them are operating with different inherited theories of causation that the law has never reconciled and never will. Until we acknowledge that every framework makes a choice about what causes suffering and who bears responsibility for it, the next humanitarian advance will simply replace the current one, leaving the same question unanswered underneath a different set of rules.
What causes unjust suffering in war. Who is responsible for it. The laws of war have been answering these questions for more than a century. They have never given the same answer twice.

Posted in International Law | Comments Off on Diagnoses of Suffering: Competing Causal Theories in the Laws of War

The Plumber Standard: Stephen Turner, Habermas, and the Limits of Expert Authority

Posted on March 19, 2026 by Luke Ford

Stephen Turner’s critique of Jürgen Habermas cuts to the heart of how we understand knowledge, expertise, and democratic life. Habermas argues that expert cultures make genuine democratic discussion impossible. He sees experts as hidden policymakers who operate behind a wall of bureaucracy, manipulating social conditions to produce what he calls the colonization of the lifeworld, a process that manufactures unthinking satisfaction in the public. Turner notes that this picture treats the public as a pitiful and ineffective victim, passive before forces it cannot comprehend.
Turner rejects this model at its foundations. Expert authority is neither absolute nor hidden, he argues. Many claims to expertise simply fail to gain acceptance. The public decides whether to honor expert conclusions as neutral fact, and that decision, however imperfect, is genuinely theirs. Experts must earn their legitimation through performance and testimony. Turner’s comparison to a plumber is deliberately mundane: judging whether a plumber fixed the pipe is within the capacity of ordinary people, and judging whether an expert’s claims hold up works the same way. The Habermasian picture of a helpless public steered by invisible technocrats dissolves once you see that expert authority is a contested status, not a guaranteed one.
But Turner’s critique runs deeper than a disagreement about expert power. The deeper problem is that the entire model of knowledge underlying Habermas’s theory is mistaken. Habermas still works within a rationalist inheritance. He assumes that communication can, in principle, be purified, that there is a standpoint, even if only ideal, from which distortion can be identified and removed. Turner’s work in cognitive science and social theory rejects this at a more fundamental level. There is no stable layer of shared premises that can be made explicit and justified in the strong sense Habermas requires. What we have instead are practices, habits, and learned capacities that resist reduction to rules or fully articulated frameworks.
Turner’s engagement with cognitive science makes this concrete. Social theory, he argues with David Eck, has relied on inherited mentalistic concepts that no longer match what we know about the brain and cognition. The standard computational model of the mind treats thinking as rule-following and cognition as the manipulation of representations stored in something like boxes, a picture that Turner calls “boxology.” Much of what actually guides judgment cannot be made explicit in this way. It is not hidden knowledge waiting to be expressed. It is knowledge that exists only in practice, in the embodied, embedded, and enactive capacities that people develop through participation in a world of affordances and scaffolding. The ideal speech situation assumes that participants can bring their reasons into a form that is publicly assessable and that disagreement can be resolved through discursive testing. Turner’s point is that this assumes far too much about what human beings can articulate.
This is where Turner’s work on tradition becomes essential. Drawing on Michael Oakeshottturning to Wittgenstein. Habermas argues that a language game rests on a background consensus about truth and norms, a consensus that must be open to discursive justification if it is to count as genuine. Wittgenstein, as Turner reads him through Rush Rhees, sees no such foundation outside the game itself. Consensus exists in the common use of rules, not in something beneath or behind them. You can explain arithmetic or the standards of French cooking, you can show someone how it works until they catch on, but you cannot justify these things in the strong sense Habermas demands, and demanding that justification is, Turner argues, of doubtful coherence.
What follows from this is a broader skepticism about expert consensus that Habermas does not share. Expert opinion, Turner notes, often obeys the laws of fashion rather than the laws of progress. Professional communities are routinely wrong, sometimes for long periods, and the authority they command does not protect them from error. Expert claims are often made deliberately difficult to assess, and that difficulty is part of their authority. But past experts also tried to prove their objectivity and neutrality, which is precisely what made them open to external judgment. This creates a persistent tension. Experts attempt to maintain authority by increasing complexity and insulation, yet they remain vulnerable to breakdowns in trust when their claims fail in visible ways. Dr. Anthony Fauci could be held to account not despite the difficulty of assessing his claims but because the older norm of objectivity still exposed him to scrutiny.
This tension is central to Turner’s critique of what he calls the liberal theory of science. That theory assumed science earns authority through transparent methods and reproducible results. Turner argues that this description no longer fits reality. Scientific authority today depends heavily on institutional trust, specialization, and cognitive asymmetries that make direct assessment difficult. The gap between the ideal and the actual creates both the appearance of technocratic dominance and the conditions for populist backlash. Habermas sees this gap as evidence of colonization. Turner sees it as the ordinary condition of fallible authority in a complex society.
What replaces Habermas in Turner’s account is not a new ideal but a different picture of social life. Knowledge is local, partial, and embedded in practices that cannot be fully articulated. Authority is earned but also contested. Consensus is provisional and often unreliable. There is no standpoint outside the game from which distortion can be definitively identified.
Democracy, on this view, is not the approximation of an ideal speech situation. It is the management of ongoing disagreement under conditions of uncertainty, where judgments about expertise are themselves part of the political process. The standard is not undistorted communication. It is whether people, using the limited tools available to them, can navigate a world where those who claim to know are sometimes right, sometimes wrong, and never fully transparent. That is a much lower standard than Habermas offers. It is also one that fits how people live.

Posted in Elites, Expertise, Stephen Turner | Comments Off on The Plumber Standard: Stephen Turner, Habermas, and the Limits of Expert Authority

Obituary For Iconoclastic Alexander Technique Teacher David Arthur Gorman

Posted on March 19, 2026 by Luke Ford

Obituary:
David Arthur Gorman was born on February 3, 1950, in Kitchener, Ontario. He was an artist, a scientist, a writer, and above all, a lifelong explorer. He was driven by a profound curiosity about understanding how things work, in the human body and in the mind. That curiosity shaped the course of his life.

David’s brilliant mind led him to make innovative discoveries about human functioning and how the way we think impacts our being.

Trained as a teacher of the Alexander Technique, he remained deeply committed to learning, questioning, and refining his understanding throughout his life. He continually re-examined his experience and research, allowing his work to evolve over decades. From this dedication emerged his own approach, which he named LearningMethods.

For more than forty years, David devoted himself to teaching individuals and groups around the world. He was a path opener, helping others recognize new possibilities within themselves and within their professions. Students of all ages and from many countries found that David’s work transformed their lives.

A natural leader, David played a central role in founding and shaping professional organizations in the United States and Europe. He trained teachers in the United Kingdom through his Alexander Technique training course and offered workshops internationally in his own approach. His influence continues through the many students and professionals he mentored over the decades.

In 1980, David also gave the world a beautiful 650-page anatomy book, entirely hand-drawn and handwritten in its first edition. It stands as a testament to both his scientific knowledge and artistic talent. Now in its sixth edition, the book continues to support students and professionals around the world.

He possessed an extraordinary capacity for work, matched by his deep generosity and empathy. He gave freely of his time and attention to friends, colleagues, and students, always willing to listen, support, and encourage. Countless students describe David as a life changer, a guide whose insight and presence altered the course of their lives in lasting and meaningful ways.

In his final years, David faced a neurological illness with quiet courage and clarity. Even in his last days, his mind remained steady and perceptive. He understood that his time was limited, accepted it with grace, sharing precious moments with his sons, Walker and Elliot, and with his wife, Eillen. He left this world very peacefully, with his wife and two sons by his side on February 7th, 2026.

David’s life bridged science and art in a way that felt seamless. The background image above is one of his remarkably lifelike drawings. In the mid-1970s, he spent time dissecting and drawing in the human anatomy lab at the University of Guelph in Guelph, Ontario. In a profound full circle, he chose to donate his body to the same anatomy lab at the University of Guelph, continuing his dedication to learning and teaching even beyond his lifetime.

Many of his articles are available on the LearningMethods website, recently updated by his son Elliot.

As with other high-commitment groups, Alexander Technique teachers are loathe to criticize each other publicly while privately they sanction their peers who leave the reservation. Gorman left the Alexander Technique clique to create his own technique, inspired by F.M. Alexander’s work, that he called Learning Methods. I thought it was brilliant.

DirectionJournal.com hosts an excellent interview with David Gorman. Robert Rickover recorded this interview.

I spoke to David for almost two hours on Feb. 16, 2012 via Skype.

Here are some highlights:

David: “F.M. Alexander had problems. When he was a kid, he had problems with breathing. Then he had problems with his voice. He tended to have a framework on solving problems. A.R. Alexander didn’t have particular problems. He seemed happy and healthy and OK with his use and functioning. His emphasis with the work was on your thinking and the way you meet the moment, as witnessed by the work of Marjorie Barstow, Frank Pierce Jones, and the people who worked more with A.R. than F.M.”

“It’s unlikely that Alexander [Technique] will ever turn into a drop-in class of 20 people where you go through a set of postures.”

“People don’t realize that there’s no such thing as a stressful job. There’s an attitude they have towards their job that is stressing them. Often people are in a job where there are other people around them who aren’t stressed at all. And they don’t put two-and-two together and go, ‘This can’t be a stressful job if this other person isn’t stressed.’ They don’t think to ask the other person how they see the job to see what they’re not getting stressed by it.

“They’re not used to looking at their own thinking and going, what am I up to and how do I see it? Instead they just go, I’m all stressed and tense. How do I get rid of it? They will often go to any number of different body works but they won’t have changed a thing about how they meet the job. They’ve just gotten good at getting rid of the tension. They haven’t changed. They’ve got a coping mechanism.”

David has a good ebook on fitness: “Obviously if someone is not working on changing their habits, all they end up achieving by exercising their habit is to reinforce the vicious circle whereby they get stronger at their habit. In other words, if they’re pulling down and tightening in ordinary activities, they’ll just pull down and tighten that much more when they exercise. And even if they do achieve a higher level of cardio-vascular fitness and they’ve gotten stronger at contracting, bracing and tightening with weights or fitness machines—the type of activity that makes somebody hard and firm – then they will actually need that cardio-vascular stamina in order for the heart to be able to push the blood through those tightened and braced muscles. In fact, it’s very revealing that often when someone like that manages to achieve the sort of global release in a lesson that takes a lot of pressure off both the contents of the torso and the musculature, their blood pressure can drop so radically that they’ll see black spots in front of their eyes, feel light-headed and maybe even pass out. They’re no longer so hard and tight and hence the blood can flow through rather than being forced through the veins and arteries that had previously been squeezed in the muscles.”

Posted in Alexander Technique | Comments Off on Obituary For Iconoclastic Alexander Technique Teacher David Arthur Gorman

My Profiles & Essays & Archives

Posted on March 19, 2026 by Luke Ford

Huma Abedin
Pearl Abraham
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Posted in Blogging | Comments Off on My Profiles & Essays & Archives

Libertarian Author Brian Doherty Is Dead At Age 57

Posted on March 19, 2026 by Luke Ford

I often bring out the worst in people, but with author Brian Doherty, I only got his best.

He was kinder to me than I was to myself.

This is Burning Man

Reason magazine associate editor Brian Doherty drives up at 12:30PM June 22, 2004, in a white Subaru. It looks like a pigsty inside. Books, magazines, newspapers, wrappers, dental floss, pillows…

Brian jumps out. He's short, grey-haired, and bookish.

We sit down for lunch and discuss his first published book.

"Why did you write it?"

"I began going to the event in 1995. There were 4,000 people there.

"We're building a temporary city in the Black Rock Desert, in the lake bed, every year, Black Rock City, in the middle of the desert, 70 miles outside of Reno. I found the people interesting. How fun and funny and lively and dangerous they were to be around. It struck me from the beginning as a writer's dream. It had an underground feel to it. It felt like it would be a betrayal of that community to talk about it to outsiders.

"Last year, there were 30,000 people there. Somewhere in the middle, I realized it was not meant to be an underground secret. That was an affectation that I picked up from other people.

"I wrote a political piece about it for the February 2000 issue of Reason, a political magazine. How is it that this danger and illegality-filled event come to a reapproachment with the federal government, who owns the land (Bureau of Land Management) on which the event is held.

"I've been working at Reason since the summer of 1994.

"My first draft of the story was 12,000 words, more than twice as long as the version that ran. I realized I was sitting on top of a book's worth of material.

"Getting a book deal took three years. It took two agents and dozens of rejections. For nine months, it was my fulltime task finishing the book."

"How does being at Burning Man make you feel, as opposed to your ordinary life?"

"I didn't make myself the star of the book. But I sit at a desk all day. I'm a writer. I'm a reader. I rarely do anything that interacts with the physical world. Burning Man makes me confront the physical world in a vivid way.

"There is no life in the Black Rock Desert. It's hot. If you don't go with an RV, it's just you and the blank world and the temperature. It wipes away everything that is habitual about my life for two weeks. Then I go back to my normal life, where I read eight to ten hours a day. Most of my work involves reading. Most of my leisure involves reading. I'm constantly listening to music. When I'm at home, there's a record playing in my house. When I'm out there, I don't get to listen to any music of my choice and I don't read anything. I never drink caffeine out there. Here, I never go half a day without caffeine.

"It's an interesting lesson in your own malleability. People are very big at adopting fake identities out there. I don't do that explicitly. I don't dress funny.

"Most important, every time I'm out there, I apprentice myself to some large art project. I get to be a part of a team, something which has always been important to me. I like groups more than one-on-one relationships. I like to be part of gangs pursuing goals of interest to me. Out there I get to weld, drill, dig. I learn skills and to interact with the physical world. That's an opportunity I never get to pursue anywhere else but there.

"The event lasts a week. I usually go a week early and leave a week late. It's exhilirating, life-affirming, fascinating for me to do these things and be surrounded by thousands of interesting people. The default assumption is that you are all buddies out there."

"What do your parents think about Burning Man?"

"I don't know. They haven't read my book. I wouldn't be surprised if my dad started reading the book. I wouldn't be surprised if my mother didn't. If they do read it, I would imagine that at the end of it they would not think that Burning Man was something that they would enjoy going to and probably not something that they would approve of.

"My wife has been to Burning Man three times. She doesn't like it. She thought she might like it. After three years, she's indulged me enough. She doesn't like the kind of person you find there. That hippy dippiness aggravates her. She has more of a punk harsh face to the world. She hates the physical environment. She's not into consuming lots of food and water.

"I ended up making the book more character driven than idea driven. When I went in, I thought it would be 50/50. It ended up 95% character driven."

Brian got into punk rock in 1984 while in 11th grade in Jacksonville, Florida. A year later, he embraced the punk club scene and started playing bass guitar in various bands from 1986-95 (Misfits Trend, Target Practice, Touch N' Go Bullethead, The Jeffersons, Turbo Satan, The Sawdust Seizures, Satellite). I ran a record label from 1993-99, The Cherry Smashers.

"I never adopted the look."

"What do you think of the Australian punk band Air Supply?"

"I've enjoyed some performances of the Australian punk band Air Supply. I have a big tent vision of punk. It became in the '90s as a way of life. Short, aggressive, fast-paced songs with lyrics barked out by angry bald guys."

"What's your favorite Air Supply song?"

"The One That You Love. I once did karaoke to Making Love Out of Nothing At All."

"What's your favorite Barry Manilow song?"

"His version of Ships. 'We're two ships that pass in the night.'"

"What's your favorite John Denver song?"

"The first record I ever bought with my own money was John Denver's Greatest Hits. I still like Rocky Mountain High.

"One of the principles I try to live by is staying true to my life. I'm big on continuity but I must confess I have not maintained an enthusiasm for John Denver."

"Why don't you bring a Sony Walkman to Burning Man so you can listen to music?"

"I tend to be lazy in my preparations. For three weeks, I eat nothing but room-temperature prepared food of the canned vegetables, beef jerky variety. The same with music. I've gotten used to that it is a break from my habitual obsession to listening to music at all times. I know that I am listening to more music and enjoying it less. I am an obsessive record collector. I have about 5,000 records and 2,000 CDs. I began collecting in the mid '80s. I will buy any given thing depending on how I find it cheapest.

"Are you really a fan of Australian pop?"

"My favorite group is Air Supply. It takes me back to when I was 13 and my emotions were most honest and vivid."

"Go to Burning Man. Vivid is the word we use to describe what it is like."

"I hear there is video of you participating in a public orgy at Burning Man."

"I do not believe so. Public orgies, no? We are getting into territory here, Luke, where I will have to, due to the sensitivities of my wife who will probably read this, decline from speaking."

"Burning Man does not sound like a nice place for sex."

"It is not a comfortable place for sex. Once we break the surface of the Black Rock Playa, it becomes this fine omnipresent black rock power that has a grit to it. Most people there will be dirty and dusty and probably smelly. You are not showering as much as normal. But Burning Man does have a sensual atmosphere. I have never witnessed an orgy. I have witnessed one-on-one sex acts."

"What's the ratio of men to women?"

"I guess about 60/40 men to women. Medium age? I'd guess 25-40. Most people under 25 are not going to be able to afford it. It also happens the first week before Labor Day, the first week of my college's semesters.

"They sell tickets on a sliding scale from $145-250. They stop selling tickets at the door on Thursday night. Certain people in the community thought that the wrong element was coming out on the weekend. The man burns Saturday night. Half the city tends to leave on Sunday, and half on Monday. We're all leaving down one dirt road which leads to one two-lane highway which is 70 miles back to Reno.

"People find themselves behaving in a different way at Burning Man. They're nice. It's a communal feeling."

"What's the racial make-up?"

"Almost entirely Caucasian."

"Do you think that that accounts for the general feeling of niceness?"

Brian chuckles. "Well, that's a very interesting question.

"I believe that the self-selecting nature of Burning Man would and could cut through racial divides. That said, we haven't tested it yet. In an average year there, I probably see about ten black people.

"One year, one of the people on my work team was black. For a couple of days, he and I and some other people were digging a giant hole. Just for amusement, we began chaining ourselves together. I don't think we were thinking about the racialness of it."

"How do white people keep the word of it away from black people?"

"Word of it is spread through a nexis of a certain kind of community. Channels that are not intentionally white-only but are white-only. Hipsters who are in touch with these underground currents of culture. Hippies, punks and gearheads."

"Do you take any illegal drugs at Burning Man?"

"Yes."

"How many people at Burning Man do you think are active in an organized religion?"

"Very few. The religious vibe out there is gooey modern syncretistic pagan. There are Christian ministers, some who shout fire and brimstone. Some are ecumenical happy loving Christians. There are a lot of people doing energy stuff. I've never knowingly met an Orthodox Jew there."

"Do you believe in God?"

"No."

"I think of Burning Man as a secular reach for community and the transcendent."

"I think that is exactly correct. Community is one of the buzz words of the Burning Man world. I tend to be a shy and insular person. I don't interact with strangers."

Brian burps in the middle of the last word.

"Strippers?" I ask.

"I interact a lot with strippers out there. Not so much with strangers. People form small camps out there. I don't feel comfortable with more than 150 people."

"Do you find it aesthetically pleasing for one man to place his penis in the buttocks of another man?"

"No.

"I've read a lot of your interviews. Do you make it a habit to ask uncomfortable questions of race and homosexuality at every interview?"

"Yes."

"I have little memory of the writing process of this book. I was on ephedra. I was sleeping three hours a night for seven weeks. I was listening to an oldies station constantly. It all became a blur.

"I've never desired a huge amount of give-and-take with readers. Reason.com's comment section is very disturbing to me. I don't want to read them but I find myself reading them. That level of laying yourself out there, I'm not completely comfortable with.

"I tend to go out of town every weekend.

"I don't vote. I'm not registered with any political party."

Joe Herman writes: "I'm an Orthodox Jew that attended burning man last year (and am returning there this year). I camped with a Jewish Theme Camp (look for the Black Rock JCC on the playa this year) – and helped facilitate Friday Night services and a communal Shabbat meal at Burning Man. We had over 100 people there, many of whom never experienced the Sabbath before. It was an amazing experience, and plans are underway to repeat the event this year."

On Aug. 15, 2004, I post:

My First IM With Cathy Seipp
IM is an ancient Aborigine bonding ritual. It’s the first time I’ve had it with Cathy. Now we’ve done everything a man and woman can do together. It makes us feel very close.

Luzdedos1: Hi Cathy
Luzdedos1: It’s Luke
Miss Seipp: Eew! IMing!
Luzdedos1: We’ve never done this before.
Miss Seipp: I know it is Luke!
Luzdedos1: I’ve never done this with any girl before.
Miss Seipp: Yeah…kind of weird….
Luzdedos1: Be gentle with me.
Miss Seipp: Oh right you only do it with Weisblott right?
Luzdedos1: True
Miss Seipp: Shaddap. You’re even awfuller on IM.
Luzdedos1: How did you suddenly show up on IM?
Luzdedos1: I’m composing my heartfelt inscriptions for your books.
Miss Seipp: I figured out how to enable it, as an experiment, but it might not be a good idea. Are you going to Brian Doherty’s book reading?
Luzdedos1: No. Where is it?
Miss Seipp: It is Wed Aug 18 at Book Soup.
Luzdedos1: Will Heather be there?
Miss Seipp: You could ask Heather.
Luzdedos1: nah
Luzdedos1: What have you been doing, delight of my eyes and love of my life?
Miss Seipp: I been working…
Luzdedos1: the mean streets of Silver Lake

On Sep. 18, 2004, I post:

Luke Ford’s Book Club
For those who want the communal experience of going to shul, but go out of their mind reciting the prayers:

God in All Moments: B
Jews & Gentiles: A Historical Sociology of Their Relations: F
The Divine Symphony: The Bible’s Many Voice, by Israel Knohl: B+
Rape: A Love Story, by Joyce Carol Oates: B+
Textual Reasonings: Jewish Philosophy and Text Study at the End of the Twentieth Century: F
An Introduction to Jewish Ethics by Louis E. Newman: B+
Heschel, Hasidism and Halakha by Samuel H. Dresner: A
This is Burning Man by Brian Doherty: B
The Anti-Chomsky Reader: B+
Sam Spiegel: D
Manic Power by Jeffrey Meyers: A

On May 11, 2006, I blog:

‘I’m Off My Meds!’

I charge into the LA Press Club at 6:30 p.m. Thursday, and find Matt Welch in a natty suit and tie studying silently. I jam my tape recorder into his face and bellow into his ear, “I’m off my meds!”

He turns to me and smiles. “Hi Luke.”

“What contribution to the civic discourse that makes democracy possible has Hustler magazine made?”

Matt claims he’s seen only two issues. “At the front of the magazine,” says Matt, “they have these terrible graphic jokes.”

Luke: “A lot of them are racial. Just plain racist.”

Matt: “I haven’t seen that. It’s harder core than I’m able to enjoy in my pornography. But as those jokes intersected with politics, I found them amusing and useful by juxtaposing and occasionally disgusting sexual acts with political issues and personalities of the day, it treated politics with the seriousness and perhaps accuracy that it deserves.”

I email journalists I know, beginning with Reason magazine’s Editor Nick Gillespie, because he’s the most indulgent of my antics:

Dear Dr. Gillespie,

As one great magazine editor, do you have any thoughts on the job Allan MacDonell did with Hustler and how he informed the national conversation about our society’s pressing issues?

PS. If you purely had a physiological reaction to Hustler, it would be groovy to hear that too.

Nick replies: “Luke, interesting interview (as always). I’m afraid I haven’t read Hustler in something like 15 or 20 or more years, so I can’t comment on the job Allan MacDonell did with it. He sounded pretty sharp, though I disagree with his admiration for Lewis Lapham.”

The other indulgent Editor I know is Rob Eshman of the Jewish Journal. He responds to the same question: “Huh?”

A certain female journalist at a certain ethnic/religious weekly claims she’s never read Hustler.

I don’t know if I can trust her journalism now.

Jack Shafer of Slate.com Press Box replies: “Nope.”

My reflections: As long as Larry Flynt is publishing Hustler we can be assured that nearly all possible editorial options are being considered in America.

Why this Chinese wall of silence?

Why can’t we have an adult discussion of Hustler magazine in this greedy uptight society?

Why do we live in a country where an author of four books who was once Hustler’s Asshole of the Month can land on the cover of LA Weekly and not find comfort in the arms of a loving woman?

Welch says he has special glasses to adjust to his oddly-shaped face.

I tell Matt that he looks like Billie Jean King who grew up a block away from Matt in middle-class Long Beach.

Adam Parfrey (Feral House) wonders if Matt and Billie were extracted from the womb by the same tongs.

I’d like to get Matt fired from the Times so I won’t feel inferior to him anymore.

I use Emmanuelle Richard’s phone to call Cathy Seipp but she’s taking a bath and won’t deign to speak with me.

I’ll show her. I lean over and tell a man that Adam was Cathy Seipp’s first boyfriend. The man gives me a disgusted look and says that’s too much information.

Ben Sullivan notices and appreciates that I’ve lost 20 pounds (from not taking my lithium).

I tell a leftie that John and Ken at KFI radio have an impact on the electorate because they articulate and give direction to to what were previously unformed emotions. I often listen to the radio or read an article and say, “Yes, that’s it!” Someone has crystalized my thinking and given me impetus to do something.

Four people sit on the panel: “Censorship, Cowardice, or Good Taste? The L.A. Press Club is pleased to host a lively panel discussion debating the ongoing fallout of the infamous Danish cartoons mocking the prophet Muhammad. Were newspapers prudent or cowardly for refusing to reprint the images? Do smaller publications and websites who reproduced them deserve praise or scorn? Are Muslims truly offended at all depictions of all religious figures? Is it censorship when private entities like Borders Bookstores refuse to carry issues of the Free Inquiry that include the cartoons?”

Panelists include:

Eddie Tabash — Chair of Center For Inquiry-West, constitutional lawyer, and chair of the national legal committee of Americans United for Separation of Church and State. www.tabash.com.

Edina Lekovic — Communications director of the Muslim Public Affairs Council (www.mpac.org).

Brian Doherty — Senior editor, Reason magazine (www.reason.com), and author of the forthcoming Radicals for Capitalism: A History of the Modern American Libertarian Movement.

Moderated by Matt Welch (www.mattwelch.com), assistant editorial pages editor of the Los Angeles Times.

“This set-up is so like Insider the Actor’s Studio,” says Edina who charms most of the audience.

The conversation is carried on at a high level that makes me feel comparatively dirty. How can I think impure thoughts about girls when Muslims are dying in the streets protesting blasphemous cartoons?

Luke Y. Thompson wears a t-shirt that pictures a man fornicating with a dog. I tell him I can’t set him up on dates because of his proclivity for tattoos, piercings, colored hair and obscene t-shirts.

“I didn’t realize that the crowd you hang out with had such lofty standards,” says Thompson. He notes I also color my hair.

Yeah, but I’m more subtle. My hair looks natural, thick and alive, pulsating with my manliness.

Nathan Nance writes me: “Luke Y. Thompson is my personal hero and fave movie critic. I’m glad to see he garnered a mention from the L.A. Press Club event.”

Brian Doherty exceeds my expectations. He takes the least time and makes the best points. Why doesn’t Europe get rid of its blasphemy laws, hate laws, etc?

Eddie Tarbash, the whore’s best friend, says his mother survived Auschwitz yet he wants to rescue Holocaust-denier David Irving from an Austrian jail where he’s incarcerated for the crime of denying that six million European Jews were murdered during WWII.

Tarbash looks like the quintessential Jewish nerd — he’s short with bad eyesight and a paunch. His eyes blink rapidly and his face twitches constantly while on stage. He’s hyper-intellectual and hyper-verbal.

Sartorial Splendor award goes to Eddie. Matt gets an honorable mention. Edina’s OK. Brian’s as rumpled and ratty as you’d expect from someone at that pot-smoking dog-f—ing filthy rag Reason.

A man who runs an organization to turn Iranians secular gives a long disjointed speech at the end (I clap and yell my approval at its conclusion), “which is a marvellous note to end on,” says Matt Welch.

“Let such people blog!” I scream when asked my opinion of that last speaker. “When people are that socially inept, that inconsiderate of their audience, that unable to get to the point, let them blog!”

“But would you read their blog?”

“Never!”

I tell Diana of the LA Press Club that they can auction me off for dinner (but not to a cannibal or a homosexual predator).

I badger the COO of the Center For Inquiry-West about his lack of a sex life. What kind of star power does his COO title carry at bars? He says he doesn’t go to bars but we suspect we know the answer to my question.

So what’s the point of doing something if you don’t get Heaven or chicks?

I demand to know why he’s not screwing around on his wife (she lives in Illinois). He’s an atheist, he has the whole building to himself, he can offer to show girls a bust of Steve Allen, enlargements of his publication’s covers, or his etchings of David Hume, yet he’s as chaste as a monk.

Back To The Role of Hustler Magazine in our Civic Discourse:

I email:

Dear Mr. [Tim] Rutten,

Do you have any thoughts on the job Allan MacDonell did with Hustler and how he informed the national conversation about our society’s pressing issues?

PS If you purely had a physiological reaction to Hustler, it would be groovy to hear that too.

Tim Rutten (from The Los Angeles Times) replies:

I’ve never been a Hustler reader, so I’m afraid I don’t have any thoughts on Allan MacDonell or his contribution. However, I always have admired the willingness of Huster, Playboy and similar publications to pay serious writers serious money to do serious journalism and to defend the First Amendment freedoms on which we all rely. I’m aware, of course, that they have economic and status reasons for doing so. . .but, at the end of the day, who cares? The fact remains that they did these things when others wouldn’t. As far as my “physiological reaction to Hustler” goes, suffice to say that my response is about the same as that of most men when presented with pictures of attractive women unclothed.

I email Reason magazine senior editor Brian Doherty: “What is its cultural significance and does it play a significant role in your history of libertarian thought in America?”

He replies:

In the current draft, no role at all, though I am aware that writings of a libertarian nature have appeared in HUSTLER’s pages. The researching of such magazines, saved and archived in few libraries, is difficult, and time is a scarce resource for any book one actually wants to finish. I focused in my forthcoming RADICALS FOR CAPITALISM: A FREEWHEELING HISTORY OF THE MODERN AMERICAN LIBERTARIAN MOVEMENT not so much on every eruption of libertarian thought or action in our culture, of which Hustler has certainly represented some (its very existence and certain legal actions and suits it has been involved in represented a valued expansion of freedom of the press, which I do firmly believe should and ought to apply to the impossibly offensive, and Flynt had a least a brief flirtation with support for the LP, if I recall correctly–was this before or after his brief turn to born-again Christianity?), as on those thinkers, institutions, and publications that a self-conscious movement libertarian recognizes as “part of our story.”

In truth, I’m sure I don’t know as much about HUSTLER as I ought. Nothing like writing a book to give you that nagging feeling about all sorts of things. I do intend to read that new book about it Adam P is publishing. I might have avoiding learning about it ever since finding a copy of it in the woods as a 9 year old with pictures of women smoking through their anus. (Perhaps that was in Penthouse? I’ll never know, I suppose.) I did hope to interview Playboy’s Hugh Hefner for my book regarding certain libertarian-important figures who worked for him (such as Robert Anton Wilson) and libertarian-important articles he ran (such as Karl Hess’s “The Death of Politics”) and whether he saw any explicitly libertarian implications in his “Playboy philosophy” and how he can make that philosophy jibe with any of the standard political party and ideological choices in our culture, but got no response from his p.r. flaks and had no direct means to contact him.

Brian Doherty's Latest – Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement

I interview Brian by phone Friday, Jan. 19, 2007.

Brian: "I've been a libertarian since I was 16. What turned me libertarian was reading the science fiction novel THE ILLUMINATUS! by Robert Anton Wilson and Robert Shea. At the University of Florida, I discovered there was a political party and intellectual movement pushing these ideas. As I wanted to learn more, I looked for a book like the one I've written and there just wasn't one.

"My first conscious reading and note-taking for this book began in the Spring of 1994.

"The intent of the book is not to turn people into libertarians. It's a book of history and journalism.

"As a libertarian activist, I believe that this book is important in helping people take libertarian ideas seriously.

"There are dozens of books on communism in the United States… To the extent that libertarianism has been dealt with in intellectual histories of the United States, it has been considered this little pimple on conservatism's left shoulder. That's why I wanted 'Radicals' in the title of the book. I wanted people to understand that libertarianism is not a right-wing philosophy.

"The only book that tries to do what this book does is Bringing the Market Back In: The Political Revitalization of Market Liberalism: The Political Revitalization of Market Liberalism by political science professor John E. Kelley. It tries to tell in one hundred pages what this book tells in 700 pages."

Luke: "Is Stephen Levitt, author of Freakonomics, a libertarian?"

Brian: "I don't know, but there's so much economics at the heart of libertarianism. Four of the five main characters in my book were professionally economists (Milton Friedman, Ludvig von Mises, F.A. Hayek, and Murray Rothbard). Economics is the central science in helping you understand that so much of what the state does is unhelpful. It's the intellectual discipline in which libertarianism is most respectable. Anyone who understands economics is going to have a strong libertarian streak. Government can't do anything without taking things. It's not a wealth-creating institution.

"Milton Friedman's son David is an anarchist. He explains how things like courts, police and national defense could be met in a free market."

Luke: "I didn't realize that libertarianism was like a religion for some people. That there's so much heretic-hunting, just as much as in Orthodox Judaism."

Brian: "Any intellectual movement that works in the shadows… Until the 1980s, most libertarians were thought of as freaks. This schisming provides much of the drama and comedy in the book. If you were going to be a libertarian up until the 1980s, you had to be a cussed and individualistic character… Freud talks about the narcissism of small differences. The heretic drives you crazy because they are so much like you, but they are missing that one thing. Ayn Rand was the queen of this. She ended up kicking out of her life pretty much everybody."

Luke: "It was nuts for libertarianism, as small as it was, to be so eager to kick people out."

"One of the first things people think about libertarianism is sexual freedom. Libertarians believe that prostitution should be legal. Yet you do not discuss this in your book."

Brian: "Because I tried to make it a character-centered story… There hasn't been a big name libertarian who has made that sexual freedom stuff their main focus. We've won most of the battles on the sex thing."

"You're not offending the average person's mores by arguing for getting out of the U.N. or cutting taxes or decreasing business regulation… Sexual stuff is psychologically fraught with danger. Sexual morality affects people on a deeper level than questions of regulatory policy. A lot of libertarian thinkers might think that there's no point in shoving people's face in this aspect…"

Luke: "How is pornography John Stagliano regarded in Cato circles? I know they take his money, but…"

Brian: "I don't know anyone who has a problem with how he makes his living. I know John. He's a generous funder of libertarian causes. At Reason magazine, he's a valued contributor. It's an honor to have his support and to have him around."

"Many libertarians are libertine but many are not. I do approve of the existence of pornography."

"For various sociological reasons, if you are going to be an active libertarian, you have to share the standard [commitment to decriminalizing prostitution and the like]… I don't meet many people who have old fashioned problems with other people's sexual behavior."

Luke: Who are the most famous libertarian apostates?

Brian: I don't know of any. "Libertarianism propagates well to the next generation."

"There's no market for a book by a libertarian turncoat. If you change your mind about libertarianism, nobody cares."

Luke: "Who were you the most excited to meet in the course of your research?"

Brian: "Barbara Branden. She was Ayn Rand's right-hand woman. She was a lot more warm and welcoming a figure than her ex-husband Nathaniel. Rand is such a goddess on the hill to libertarians. To get close to people who were close to her was exciting…"

"Most of my friends are libertarian… I long ago stopped enjoying arguing about politics."

"The kind of stuff that somebody is going to come up with verbally in a social situation is going to be stupid, and that includes me. I am not at my best verbally. When we hang up, I'm going to think of a million ways I could've better expressed things."

Luke: Have there been flourishing libertarian communities?

Brian: "There have been various attempts… Most libertarians want to be fully engaged in the larger market, so segregating yourself based on ideology is going to impoverish you. On a libertarian standard, L.A. is nightmarish with its taxes and regulations, but it's Los Angeles. It's worth it."

Luke: A lot of critics would say that libertarianism does not work because it has never been shown to work for a community. I remember Marxists arguing that marxism had never been tried.

Brian: "It is true that libertarianism has never been tried."

Luke: "A problem with libertarianism is the difficulty of assessing the externalities to a transaction. The costs to a wife and kids of a husband using prostitutes. The damage to the family structure from legalized prostitution."

Brian: "On the whole, the world will be a better place if people are free. The externalities created by government are far worse than the occasional externality produced by the free market."

Luke: "Is there a compelling psychological portrait of the libertarian?"

Brian: "A pre-existing work of literature or art that in my mind provides a full and true account of the libertarian mindset? In some ways, I hope my book provides one, without me trying to judge—I hope the stories of the lives, actions, and ideas I tell about the major libertarian figures of the 20th century–and I hope I show more than tell–provides such a portrait. In literature, I cannot recommend ILLUMINATUS! by Robert anton Wilson and Robert Shea highly enough—it presents compelling libertarian characters, libertarian ideas, and is inherently libertarian in its wild style and refusal to lock the reader into one interpretation of events or ideas imposed by the author."

Luke: "Does your book break new ground?"

Brian: "Most of the material in the book is from original research."

Luke: "What things in your book will surprise an educated libertarian?"

Brian: "My favorite story in the book that almost no libertarians know about is the connection between early libertarian financiers and early psychadelic drug culture."

Luke: "Is there a libertarian view of human nature? Do libs view us as basically good or basically bad? Does one's view of human nature affect one's commitment to libertarianism? For instance, if one views humans as tending towards moral entropy, does that necessarily mean one wants less human freedom (at least in some things)?"

Brian: "The libertarian mistrust of government—which is mistrust of what people will do when given unrestricted power over people–is rooted in understanding of a side of human nature that inclines people to benefit themselves at other's expense. Most significantly, libertarians understand that people react to incentives (that's one of the reasons why economics is such a key part of the libt intellectual tradition–economics is the soical science most mindful of incentives) and that free markets do the best job in funneling people's desire to benefit themselves into ways that benefit others, whereas the state gives people a weapon to benefit themselves at others expense. See discussion in the book on diff between "economic" and "political" means to survival…"

On Jan. 20, 2007, I posted: “I Want A Book Party For Brian Doherty‘s Latest – Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement. This is an important book and it deserves a soiree with lots of hot women. I’m thinking the L.A. Press Club. Or Stephen S. Wise.”

Feb. 13, 2007, I email Brian Doherty: “Do you ever think about Taiwan? Without US support, it would fall to the commies… Israel would not exist either…” He replies: “Sometimes I think about Taiwan, Luke, and I cry. It is not the mission of the U.S. government to save the world, nor can it succeed in doing so.”

On Mar. 22, 2007, Brian Doherty wrote for Reason magazine:

Los Angeles-based journalist Cathy Seipp—best known in the blogosphere for her excellent Cathy’s World blog and her National Review Online columns–died yesterday of cancer.

She was an occasional Reason contributer and a full-time Friend of Reason–she helped organize a wonderful L.A. Press Club event for Nick Gillespie’s Choice: The Best of Reason anthology and my own This is Burning Man .

Most importantly, especially for those of us in L.A. lucky enough to know her, she was every bit as funny, lively, and unpredictable in person as she was in her writing. Her wit and enormous capacity for friendship drew around her the most interesting swirling nexus of L.A. writers, politicos, and characters one could ever hope to meet.

I was only ever a peripheral member of her circle, but I enjoyed every moment, and the opportunity to be part of a world, strange and vast and bound together pretty much only by Cathy, including porn industry reporter and Jewish world chronicler the inexplicable Luke Ford ; the fiery defender of common decency and courtesy, advice columnist Amy Alkon; superpolitical journalist Mickey Kaus; leading lawblogger Eugene Volokh; French journalist (and wife of our old colleague Matt Welch) Emmanuelle Richard; and almost everyone who was interesting and fun and smart in the many worlds of L.A. journalism, most of which would not have intersected but for her.

I’ll always treasure particularly the memory of an afternoon learning gun safety, loading and aiming techniques with her and Professor Volokh and a pack of her wonderful friends. Los Angeles, and the world of journalism, will be duller and sadder without her. For people wishing to honor her memory, she has requested donations to the Humane Society in her name.

In 2008, a friend emailed me: “I hadn’t realized you’d interviewed Brian Doherty re. Radicals for Capitalism. I’m just irredeemably to Brian’s left about some issues, but, as a funny kind of leftie, I’m sympathetic with principled movement libertarians on a number of matters–civil liberties and war (three cheers on this to Brian’s wife), of course, but also monopolies, licenses, subsidies–and the state.”

On Aug. 23, 2010, Brian posted on my FB wall during my chat with photographer Lane Hartwell: “This is one of the more curious “two people I know knowing each other and I can’t image whys” of the Facebook era. Hello to both of you, while I’m interrupting….”

Lane shot photos for Brian’s story on Burning Man.

On Dec. 12, 2014, I post about how I want my own media company just like I was promised when I converted to Judaism. It does not have to be a magazine, it could be a vertically integrated digital-media company. What’s important is that I get what’s coming to me as a Jew.

Chaim Amalek: “IF this stands, what next – Indians running Goldman Sachs? Big beefy gentiles making goy-friendly movies in Hollywood? Hashem send us Moshiach already so that we can regain control over the New Republic!”

Brian Doherty:

Well, Luke, I hope you get it, but be warned that apparently if upon getting this publication you dare fire an editor (after having fired ANOTHER editor to hire that editor, but apparently the first firing was OK) you will be vilified as a force of cultural destruction and one of the worst (somethings) in America by an echo chamber of privileged professionals living in the past.

This story is about staff departures at The New Republic is presented as the death of journalism, like anybody cared about TNR anymore anyway (maybe five times a year I’d hear somebody talk about something in there, about as often as I heard someone remark on a new essay in Hustler).

Brian Doherty:

Luke—I suggested that before posting about this controversy, you should have to answer 5 multiple choice Qs first about articles the Hughes TNR ran, then about 5 articles run in the decade before Hughes took over. You note that NO ONE asserts that anything about the Hughes TNR has been disgraceful or destroyed TNR’s vaunted traditions—-basically, this is all about firing ONE editor (who edited it before, then didn’t, then did again–the mag survived) then everyone else allegedly dedicated to its traditions quitting. If anyone “killed TNR” it is all of them. (Oh, wait, he hired someone who talked tech jargon and acted like something more than trad print journalism was necc. in the 21st century.)

And everyone writes about it as if Hughes is to blame, as if HE purged the mag. They purged themselves.

Over the course of my life, I’ve blurted out many things that I later regretted so intensely that I shuddered and flinched upon remembering them (in 2023, I was diagnosed with ADHD and getting on medication diminished the emotional instability that drove me to frequently say and do things I quickly regretted). Around 2005, I told Brian, who had a beautiful wife (their marriage didn’t last long) at NPR, that his Mrs. was so fine that he didn’t deserve her and she should be with me instead as he’s a pervy libertarian while I’m a respectable conservative whose behavior is governed by God’s immutable law.

I felt so embarrassed by that jokey remark whenever I thought about it that I apologized to Brian about five years later (many things I say and do seem fine to me until I get depressed and frightened about my prospects and then my old provocative ways appall me in ways they don’t do when I feel strong) via Facebook on July 7, 2010 after he accepted my friend request. He responded: “Luke—You are forgiven. In reality, I took it to be an interesting/amusing aspect of the way you chose to communicate, and was never offended by it. Good to hear from you again. Since Cathy’s death I’ve had no entree into those old social circles in which we were likely to run into each other. I hope you are well.”

On March 23, 2026, the New York Times said:

Brian Doherty, a writer who colorfully chronicled the libertarian movement in articles and books, most notably a sweeping history that covered eminent founding figures like the novelist Ayn Rand and the economist Milton Friedman as well as obscure oddballs with an anarchist streak, has died in Sausalito, Calif. He was 57.

Mr. Doherty was found dead on March 13 in Golden Gate National Recreation Area. His brother, Jim, said he fell the night before from a steep overlook of San Francisco Bay during a walk with friends who were scouting a site for an art performance. He had a leg injury and walked with a cane.

Mr. Doherty produced an eclectic body of work that had as a common thread his fascination with how bands of outsiders on the cultural and intellectual fringes infiltrate the mainstream. He was especially interested in movements with no central authority.

Besides libertarianism, he wrote books about 1960s underground comics and the Burning Man hippie-art-tech festival in the Nevada desert. For magazines, he covered seasteading, the notion of dwelling on the high seas beyond any national jurisdiction, and the Free State Project, which seeks to entice libertarians to move to New Hampshire and influence the state’s politics….

Mr. Doherty and a partner, Angela Keaton, called themselves husband and wife but, consistent with his disdain for government authority, never legally wed. The relationship ended in a separation around 2012.

He and another partner, Meghan Ralston, bought a home together in Cathedral City, Calif., near Palm Springs, but they also went their separate ways, in 2018, while remaining friends.

Mr. Doherty was living in Cathedral City at the time of his death. Besides his brother, he is survived by his mother.

“He was just passionate about oddballs, mystics, creative types, loners,” Ms. Ralston said in an interview. “People with real exuberances.”

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The Jurisdictional Wars: Alliance Theory and the Battle for Power in the History and Practice of International Humanitarian Law

Posted on March 18, 2026 by Luke Ford

Nobody in international humanitarian law says they want power over the definition of legitimate violence. They say they protect the vulnerable, humanize war, or fill gaps in the law. That is the move. Interpretive authority is a status claim wrapped in humanitarian language, and Amanda Alexander’s scholarship strips that claim down to its structural components. Read together, her essays on the civilian, the laws of war, and the Nuremberg trials describe a system in which each expansion of humanitarian protection also expands the jurisdiction of those who claim to interpret it, and each new framework discards something from the one it replaces without acknowledging the discarding as a choice. The question that runs beneath all of it — the one her work raises but does not answer directly — is what was lost when crimes against humanity were severed from crimes against peace, and whether the humanitarian paradigm that replaced the anti-imperial one at Nuremberg has diminished civilian suffering or merely changed who controls the answer.
Alexander’s core argument runs against the standard progressive narrative. The expansion of international humanitarian law from the Hague Conventions through the 1977 Additional Protocols is usually told as a story of moral progress: more people protected, more violence constrained, the state’s monopoly on force slowly checked by the growing reach of humanitarian norms. Alexander argues the opposite. Each expansion of the law absorbed what had previously existed outside it, replacing alternative codes of legitimacy, heroism, and revolutionary justice with formal legal criteria. The free-fighter became a regulated subject. The just cause became a belligerent nexus. The heroic partisan became a combatant assessed against neutral, external standards. What looks like humanitarian progress is, underneath, the steady victory of state-centered legal expertise over every rival form of authority.
The Hague Conferences of 1899 and 1907 make this visible. Delegates from Switzerland and Belgium spoke with genuine admiration for patriots who fought outside formal structures, for the old men and women who took up arms against invaders. The German and Dutch delegations held firm: soldiers also have rights, and combatants must distinguish themselves, follow responsible command, carry arms openly. The Martens clause resolved the dispute by declaring that heroic acts simply exist outside the law. A heroic nation, Martens said, is like heroes, above codes, rules, and facts. This sounds like a concession to moral autonomy. In practice it meant that irregular fighters had no legal protection and could be executed. Admiration without legal recognition is not a compromise. It is exclusion dressed in praise.
The 1949 Geneva Conventions repeated the same move. When Denmark, the Soviet Union, and Israel argued that civilians defending themselves against illegal, genocidal aggression should receive prisoner of war status, the British delegation replied that the distinction between combatants and non-combatants had to be maintained even in the face of clear injustice. Formal, neutral law had to remain synonymous with the state. Individual or unorganized acts by civilians could not be countenanced. The law could expand to include partisans, but only partisans who resembled regular forces, organized under responsible command, attached to a recognized government, distinguishable from the surrounding population.
David Pinsof’s Alliance Theory illuminates what is happening beneath the surface of these debates. Every coalition presents its preferred definition of legitimate law as the obvious description of what humanitarian regulation requires. The state-centric formalists claim that without discipline and distinction, law dissolves into chaos. The humanitarian expansionists claim that without reaching irregulars and civilians, law abandons its moral purpose. The revolutionary movements claim that formal law serves imperial states and that justice requires recognition of people’s war. Each claim recruits allies, expands the defining coalition’s jurisdiction, and presents that expansion as the natural acknowledgment of how serious regulation works. None acknowledges that institutional interests shape the definitions. All present them as moral necessities.
The 1977 Additional Protocols represent the apparent triumph of the humanitarian expansionist coalition. National liberation conflicts were recognized as international armed conflicts. Combatant status was extended to guerrillas who did not distinguish themselves at all times, only from the point of deployment. The PLO was admitted to the Diplomatic Conference. Revolutionary movements that had operated outside the law were brought inside it. This looked like a victory for Third World states and anti-colonial movements. Alexander’s analysis shows it was something more complicated. The extension of the law did not change the character of the law. Article 44 on combatant status was written in legalistic language, ostensibly objective, deliberately obfuscatory. The word deployment was chosen precisely because its ambiguity made it acceptable to more delegations. What the revolutionary movements got was not recognition of their moral legitimacy but absorption into a framework of formal legal criteria that would govern them on the same terms that governed everyone else. The heroic outsider became a regulated insider. The just cause became a set of compliance conditions.
Stephen Turner would identify this as juridification, the spread of formal legal reasoning into domains that previously had their own systems of meaning. Turner argues that what looks like expanded protection is often expanded expert jurisdiction. Every gap identified in the law creates an opportunity for legal elites to declare themselves competent to fill it. The category of the civilian, which Alexander traces to World War One propaganda that simultaneously framed non-combatants as helpless victims and legitimate strategic targets, is not a timeless principle. It is a historically contingent construction that gave international lawyers a new domain of authority. The distinction between civilian and combatant is not a description of a pre-existing moral reality. It is a legal artifact that organizes elite attention around a particular way of seeing people, and that framing expands the jurisdiction of those who claim to interpret it.
The Israeli Supreme Court’s Targeted Killings Case demonstrates where this logic leads. President Barak declared that there are no black holes in international law: every person and every conflict falls within its reach. Terrorists who do not qualify as lawful combatants must be civilians. As civilians who take a direct part in hostilities, they lose protection for such time as they do so. The determination of what counts as direct participation, what direct causation means, what proportionality requires, all of this opens into a field of indeterminate legal argumentation that can be extended indefinitely. The state’s fight against terrorism, Barak concluded, is also law’s fight against those who rise up against it. The expansion of the law to cover everyone does not constrain the state. It enmeshes the state’s enemies in a juridical web from which there is no exit that is not itself defined by the law.
What makes this system so durable is the sincerity of its participants. Humanitarian lawyers believe they are protecting civilians. ICRC delegates believe they are filling genuine gaps that leave people exposed to violence. Academics who critique proportionality rules believe they are making the law more humane. Turner would note that this sincerity is precisely what allows the status game to run beneath the surface of the moral commitment, invisible to the players. The expansion of expert jurisdiction feels like humanitarian progress because the experts genuinely care about the outcomes they claim to pursue. The incentives of the game operate in the dark, sheltered by the conviction that the work is good.
The uncomfortable truth Alexander surfaces is that the humanitarian paradigm enables and conceals particular forms of violence even as it claims to constrain them. Civilians who cannot be depicted as innocent and passive lose their protection. Political actors, people who support armed resistance or feed intelligence to enemy forces, fall outside the category that the law protects. The law’s insistence on depoliticized innocence as the condition of protection means that those who exercise political agency in situations of extreme oppression become, by legal definition, legitimate targets. The expansion of law to cover everyone has produced a world where the determination of who counts as protected is controlled by legal elites whose formal criteria absorb every rival claim to legitimacy without ever acknowledging the absorption as a choice.
Understanding how that control was secured requires going back to the category itself.
Before 1914, the relevant legal subject was the citizen, not the civilian, and the citizen was understood as a political being bound to the fate of the state. Private individuals warranted some protection, but only conditionally, only insofar as they remained genuinely passive, and always subject to the overriding needs of military necessity. The citizen could become an enemy at any moment. The Hague Conventions reflected this. Article 25 prohibited bombardment of undefended towns not because the people inside them had inherent rights but because no military purpose required attacking them. Protection followed from military logic, not from the status of the person.
What the First World War did was sever that connection. Allied propaganda, responding to the German invasion of Belgium, needed to establish German guilt, and it did so by insisting that the Belgian population was innocent, passive, feminized, and helpless. The image of women and children shot down like rabbits, of babies bayoneted, of nuns raising their hands to heaven while towns burned, was not simply a description of events. It was a legal argument dressed in the language of outrage. If the population was genuinely passive and genuinely helpless, then the German reprisals were not the suppression of a franc-tireur resistance but atrocities against people who could not possibly have deserved them. The propaganda worked in part because the legal framework was flexible enough to absorb it. A population that was passive and innocent looked different from the citizen that the Hague negotiators had imagined, and the difference created space for a new legal category.
Aerial warfare completed the transformation. The bomber could not distinguish a fortified from an unfortified town. The old categories broke down when applied to an aircraft at altitude. The commission of jurists that produced the 1923 Hague Draft Rules needed a new organizing principle, and they found it in the military-civilian distinction that propaganda had made available. The civilian entered international law not as a discovery of pre-existing moral reality but as a legal solution to a technical problem, shaped by the particular image of the non-combatant that the war had produced.
That image was paradoxical from the start, and the paradox has never been resolved. The civilian was at once a primary military target, since the entire population served the industrialized war machine, and a protected innocent, since protection required the fiction of passivity. The civilian is defined not by any positive attribute of the person but by negation: whoever is not a combatant. That definition is indeterminate at its edges, and the edges are exactly where the hard cases live. The munitions worker. The family that feeds intelligence to resistance fighters. The farmer who stores weapons. The 1923 Rules already acknowledged that munitions workers were military targets. The encoding of both sides of the paradox was there from the beginning, and it has never been undone.
This matters for understanding what NGOs took authority over in the 1990s. When Human Rights Watch and Amnesty International declared themselves competent to assess civilian casualties and apply the principle of proportionality, they were not entering a settled legal field with clear categories. They were entering a field built on a category that has always required someone to decide who counts as innocent and who has forfeited that status through political agency or proximity to military activity. The sorting authority is what the field has always been about.
The displacement of states as the primary authors of international humanitarian law did not happen through treaty revision or formal institutional reform. It happened through a shift in who got to speak authoritatively about what the law already said. That distinction matters. States negotiate, sign, ratify, and sometimes refuse to ratify. NGOs do none of those things. What HRW and Amnesty did instead was something more subtle and, in the long run, more consequential: they declared the law settled at a moment when lawyers who had spent careers arguing about it knew perfectly well that it was not.
Alexander’s account of the Kosovo commentary makes this visible with unusual clarity. The legal literature on the Gulf War had been dominated by military lawyers who treated proportionality as a permissive principle, vague by design, weighted toward the operational needs of states. That was not a fringe position. It reflected decades of negotiating history, the explicit reservations of major powers at the Diplomatic Conference, and the considered judgment of commentators who had read the drafting record carefully. When HRW published its report on NATO’s air campaign, it cited none of that history. It stated that Additional Protocol I represented customary law binding on all states, offered no authority for the claim, and then applied the Protocol’s proportionality standard in a form stricter than the text required. Amnesty International did the same. And academic lawyers, writing about Kosovo, followed their footnotes.
What made this possible was a generational and cultural shift in who populated the field. The skeptical military lawyers of the early 1990s gave way to a cohort drawn to international humanitarian law by humanitarian concern rather than operational expertise. They came from human rights backgrounds. They trusted human rights organizations. They shared a sensibility that made HRW’s conclusions feel not just correct but obvious, and they treated the Office of the Prosecutor’s more cautious proportionality analysis as evidence of bias rather than professional judgment. The paradigm, as Alexander puts it in Kuhnian terms, had shifted. Working outside it no longer counted as doing law.
Turner’s analysis of expert jurisdiction helps explain the mechanism. Expertise is not just knowledge. It is a social relationship in which some speakers get treated as authoritative and others do not, regardless of the underlying quality of their arguments. What changed between the Gulf War and Kosovo was not the text of Additional Protocol I, which had not been amended, and not the state practice, which remained deeply inconsistent. What changed was the community of people whose pronouncements on the law were taken seriously, and that community had reorganized itself around humanitarian values in a way that made NGO reports legible as legal authority while making military legal analysis look like special pleading.
The circuit closed. NGOs cited the law; academics cited the NGOs; the NGOs cited the academic commentary in subsequent reports; and the whole structure presented itself as the settled consensus of the field. What this displaced was not just the military lawyer’s version of the law but the state’s formal role as the engine of legal development. States make law through the slow, contested, politically exposed process of negotiation and ratification. That process leaves a record. Reservations get filed. Delegations explain their votes. Disagreements stay visible in the drafting history. The NGO path to norm-setting leaves almost none of that. A report gets published, lawyers repeat its conclusions, the conclusions harden into orthodoxy, and the moment of choice disappears. By the end of the 1990s, the contested, nearly two-decade struggle over Additional Protocol I’s authority had been rewritten as a long tradition of humanitarian principle that any serious lawyer simply acknowledged.
The uncomfortable implication is that this mode of norm-setting is structurally less accountable than the one it replaced. A state that refuses to ratify a treaty takes a visible, attributable position. The NGO that declares customary law without citation, and the academic who repeats the declaration without scrutiny, leave no comparable record of choice. The law appears to develop by recognition rather than decision, by the gradual acknowledgment of what was always already true rather than by the exercise of power. That appearance is the point. It is what allows interpretive authority to function as humanitarian service rather than as the jurisdictional claim it is.
The NGO reports resolved the indeterminacy of the civilian category not by eliminating it but by transferring custody. They narrowed the category of legitimate targets and widened the category of protected persons. But they did not and could not eliminate the need for someone to sort the passive from the active, the uninvolved from the complicit. By insisting that any attack causing civilian casualties must satisfy a demanding proportionality standard, they transferred the question of who counts as protected from the definition of civilian to the assessment of anticipated harm. Someone still has to decide what counts as excessive. The NGO reports changed who gets to sort. They did not change the fact of sorting.
What persists, underneath both the military and the humanitarian readings, is the original contradiction: the civilian is defined as passive and innocent, but modern war has always known that populations are neither. The post-1923 law offers full protection on the ground of innocence. But the definition of innocence is not self-executing. Those who exercise political agency in situations of extreme oppression, who support resistance movements, who feed and shelter fighters, who work in industries that serve the war effort, fall outside the protection on the same logic that always governed the field. The humanitarian paradigm made the protection of civilians a legal imperative. It did not change who counts as a civilian.
It also, in a way that requires a longer historical lens to see clearly, narrowed the question it was willing to ask.
The interwar period shows how the civilian category can be run in reverse, made to justify targeting rather than protection, when the surrounding culture supplies the right moral logic. The trench poets did not write in favor of bombing civilians. Their work expressed horror at war, grief for the dead, contempt for the old men who sent the young to die. But the moral structure of that literature, the identification of the home front as complicit, the civilian population as guilty bystanders who owed something to the soldiers they had sacrificed, quietly prepared the ground for a different conclusion than the poets intended. If the people behind the lines bore responsibility for the war, then bringing the war to them was not cruelty. It was fairness. Fuller said it plainly. Douhet said it with strategic precision. Liddell Hart, the liberal among them, said it with reluctance but said it nonetheless.
International lawyers of the interwar period absorbed this narrative without much resistance. They did not need to be told that bombing civilians was permissible. They had already accepted the underlying premise: that in a modern, industrialized, total war, the distinction between combatant and civilian was dissolving, that munitions workers were legitimate targets, that anyone who contributed to the war effort had forfeited the protection of non-combatant status. This was not a fringe position among militarists. It was the mainstream view of liberal internationalists writing textbooks and drafting codifications. Garner said the category of non-combatant would be greatly reduced in future wars. Oppenheim, whose name anchored the field, said the combatant-civilian distinction was seriously threatened and offered no strong argument that it should survive.
Their disciplinary pessimism reinforced the cultural narrative. Conventions that lacked ratification did not bind states. Custom reflected actual practice, and practice was brutal. The 1923 Hague Draft Rules on Aerial Warfare were described as abortive almost immediately. Law, in this account, was not a check on violence. It was a description of what states were willing to do, lagging slightly behind events and carrying no independent moral weight. This professional self-understanding matters because it forecloses the kind of move that NGOs would make in the 1990s. When HRW declared Additional Protocol I customary law binding on all states, it made a claim about what the law required independent of state practice. That argument was not available in the 1930s. The theoretical options of the interwar period required law to track either state consent or actual custom, and neither produced anything useful for the protection of civilians under aerial bombardment. The NGO ascendancy was possible only because that conception had been replaced by one in which law could run ahead of practice, in which the aspirational statement could become the authoritative statement.
The humanitarian paradigm that produced that possibility was not, however, a simple continuation of what Nuremberg had started. It was a replacement built on a different moral foundation. And that is where the most consequential displacement in Alexander’s account occurs.
The standard complaints about the International Military Tribunal are familiar. The trials were victors’ justice. Crimes against humanity were oddly subordinated to crimes against peace. The Holocaust was distorted into a preparation for aggressive war rather than treated as the central atrocity it was. Victims’ voices were marginalized. These failures are usually attributed to political constraints on the prosecutors or to the retrospective quality of the law, as if the IMT had the right moral compass but could not quite reach what it was pointing toward.
Alexander argues instead that the IMT was not failing to do what it intended. It was succeeding at something different from what later observers assumed it intended. The trials told a story about aggressive, imperialist war as an economic institution, and they told that story with considerable coherence. The connection between crimes against humanity and crimes against peace that bewilders later commentators was, for the delegates at the London Conference, not a puzzle at all. It was obvious. War was the product of imperialism. Imperialism was the organized extraction of resources and labor from subject peoples through colonial domination. The persecution of the Jews, in the prosecution’s account, was part of the preparation for that kind of war, a clearing of the home front for the colonial campaign ahead. Jackson said it directly: you cannot take neighboring lands from their tenants without committing crimes against humanity. Shawcross said it from the other direction: these things occur when men embark on total war for aggressive ends.
The source of this narrative ran from Lenin through Trainin to Jackson by way of a shared anti-imperial sensibility that crossed the boundary between Soviet doctrine and Western liberal thought. Lenin’s analysis of imperialism as monopoly capitalism seeking colonies, markets, and raw materials was not merely a Marxist proposition. Du Bois made the same argument about Africa in 1915, a year before Lenin published. Leonard Woolf made it about economic imperialism more broadly. Quincy Wright and Lauterpacht, both of whom advised Jackson, described colonialism in terms that tracked the economic critique. Chanler, the obscure American lawyer who helped convince Roosevelt to support the aggression prosecution, wrote that the age of imperial expansion had destroyed the distinction between just and unjust wars and that restoring that distinction meant leaving the imperial era behind. The language was different in each case, but the underlying framework was the same: war comes from imperialism, imperialism is economic, and any legal order that tolerated imperial war was ethically bankrupt from its foundation.
The IMT successfully translated this framework into law. What the trials told was a history of aggressive colonial war motivated by economic logic — the seizure of territory, raw materials, and labor — and the crimes they described were shown as the direct expressions of that logic. Slave labor was a colonial and economic project. The planned starvation of Soviet populations was the consequence of a war for grain and raw materials. The persecution of the Jews was, in the prosecution’s account, preparation for the kind of national consolidation that colonial war required. These were not individual acts of cruelty. They were the outputs of a system.
The post-Cold War humanitarian paradigm that displaced this framework is built on different ground. It centers on the civilian as a protected category and understands civilian deaths as the primary legal harm, regardless of whether the war itself is aggressive or defensive, just or unjust. The shift from the IMT’s framework to this one was not a simple evolution. It required discarding, or at least marginalizing, the anti-imperial narrative that had made crimes against peace thinkable in the first place.
The cost of that discarding is real. When crimes against humanity were detached from their connection to crimes against peace and became freestanding violations, they gained juridical purity. They no longer depended on proving aggressive war. But they also lost the structural analysis that had animated them. The IMT’s account, for all its distortions, named colonialism as a crime. It understood the mass murder of civilian populations as the direct expression of an economic logic, not merely as an excess of individual cruelty. The civilian protection framework that replaced it treats civilian deaths as the problem to be minimized and asks whether the attacker took precautions and whether the harm was proportionate. It does not ask whether the war itself served the economic interests of the attacker at the expense of the attacked. That question, which Lenin and Trainin and Chanler all considered the central one, has no place in the framework HRW and Amnesty built when they declared Additional Protocol I customary law and rewrote the proportionality standard for Kosovo.
Turner’s analysis of expert jurisdiction and Pinsof’s Alliance TheoryNuremberg argument adds something they do not quite capture: the way a legal framework can succeed in translating a particular narrative into law, and then be replaced by a different framework that treats its predecessor’s achievements as incomplete rather than as choices. The IMT successfully juridified the anti-imperial critique of aggressive war. The post-Cold War humanitarian paradigm successfully juridified the protection of the passive civilian. Each displaced what came before it without acknowledging the displacement as a choice. Each presented itself as the natural continuation of humanitarian progress. Each carried, underneath that presentation, a particular theory of what causes suffering and who bears responsibility for it.
The anti-imperial framework blamed structural economic forces and the states that prosecuted colonial wars. The civilian protection framework blames individual commanders who fail to take precautions. One names the system. The other regulates its conduct. That difference is not a technical refinement. It is the question the field has stopped asking.

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