Five Legal-Rational Myths of Punitive War and the Carceral State

Abstract

This Article is concerned with the symbolic narratives that have historically been used to justify punitive war, defined as the use of force to punish the violation of international norms, justified on behalf of the international community. Ostensibly, punishment as a legitimate cause for war has been proscribed in the modern international legal order, yet punitive violence has not been excised from international politics. This Article builds on the authors’ recent works on domestic legal-rational myths of the carceral state and international legal myths concerning the foundations of international law to argue that just war, and its corollary, punitive war, remains a feature of global politics. What has changed are the discourses that justify the use of force; reasons that have developed in dialog with domestic discourses of punishment because they share similar origins: the medieval natural law doctrines of desert and debt. Over the centuries, developments in state institutions of the carceral state, and the myths that provide them a “taken for granted” legitimacy, have been expressed in the structures of international law and global governance through a mutually constitutive dialectic – sometimes the domestic informs the international, sometimes the obverse, and sometimes innovation occurs in tandem. These mutually-informed myths take different institutional expressions in domestic and international spheres, but they bear strong resemblances to the canonical purposes of punishment in the Western tradition: retribution, deterrence, reform, and incapacitation. This Article identifies five legal-rational myths that justify war as punishment, and relates them to their domestic-law counterparts, emphasizing both their common bases in the vocabularies and theories of punishment, and their diverse institutional expressions. These myths emerged in specific historical conditions, but have become a lasting and malleable suite of tools available to states to justify armed intervention. Their durability is demonstrated through an examination of the recent war in Gaza, wherein claims of desert saturate all sides of the conflict.