Abstract
Is a declaration of war necessary? There has been a vociferous debate for the past half-century over this tenet of international law as it was formulated in the early modern era. The questions of whether a declaration of war is necessary and what is the proper way to issue one certainly are not new to recent time. For hundreds of years, European scholars have debated these matters, while kings, emperors, and presidents have often ignored the conclusions they have reached. The consensus reached in the eighteenth century required a declaration of war for an offensive war, defined as one undertaken by attacking the lands and forces of another state, but only for the purpose of repairing a manifest injury, while a clearly defensive war did not need a declaration.
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Notes
Arthur Schlesinger, The Imperial Presidency (Boston: Houghton Mifflin Company, 1973). In 1950 Schlesinger had supported Truman’s authority to take the actions he did in Korea.
Henry Monaghan, “Presidential War-Making,” Boston University Law Review, 50 (1970), pp. 19–33; accessed at, March 23, 2009.
Robert Turner, Repealing the War Powers Resolution: Restoring the Rule of Law in U.S. Foreign Policy (New York: Brassey’s, 1991).
Bennett Rushkoff, “A Defense of the War Powers Resolution,” Yale Law Journal (June 1984), 1330–1354.
John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Chicago: University of Chicago Press, 2005).
Schlesinger, War and the American Presidency (New York: W. W. Norton, 2004).
Siakrishna Prakash, “Unleashing the Dogs of War: What the Constitution Means by ‘Declare War,’” Cornell Law Review, 93 (October 2007), pp. 1–2; accessed at on March 18, 2009.
Michael Ramsey, The Constitution’s Text in Foreign Affairs (Cambridge, MA: Harvard University Press, 2007), p. 255.
Ramsey, “Textualism and War Powers,” Chicago Law Review, 69 (2002), 1543–1638.
Yoo, Powers of War and Peace, p. 151. See also Yoo’s rebuttal to Ramsey, “Textualism and War Powers,” and Ramsey’s response, both in Chicago Law Review 69 (2002). Interestingly, Yoo, while serving in the President’s Office of Legal Counsel, apparently supported the use of some of those enhanced powers during the Second Iraq War, despite the absence ofa declaration ofwar.
Frederick Maurice, Hostilities Without Declaration of War (London: Her Majesty’s Stationery Office, 1883).
Maurice drew heavily from E. Cust, Annals of the Wars of the Eighteenth Century, 4 vols. (London: John Abermarle, 1862), which contains summaries of that century’s wars and is often in error when not dealing with Britain.
Brian Hallet, The Lost Art of Declaring War (Urbana, IL: University of Illinois Press, 1998), p. 34n.
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© 2011 Frederic J. Baumgartner
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Baumgartner, F.J. (2011). Introduction. In: Declaring War in Early Modern Europe. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230118898_1
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DOI: https://doi.org/10.1057/9780230118898_1
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