States sometimes choose to break the law. International lawyers should seek to understand instances of illegality, particularly when they involve the unlawful use of force. But should we also shift our understanding of legality itself in an attempt to bring state conduct within the fold? In particular, what should we make of uses of force that seem to enjoy some degree of international political support while straying from the law governing the resort to force, or the jus ad bellum? Monica Hakimi asks this timely, and indeed timeless, question in her thought-provoking article arguing for a reconceptualization of “The Jus ad Bellum’s Regulatory Form.” Hakimi argues that we must carefully examine state engagement with the UN Security Council, including when it is not authorizing force, to fully understand state behavior. This claim is uncontroversial. However, she also argues that Council activity short of authorizing force can nevertheless establish legality and the Council's “institutional processes can deprive the general standards [that constitute the jus ad bellum] of their legal effect.” The empirical validity and normative desirability of this more provocative claim deserve close interrogation.
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