Terror and Consent, by Philip Bobbitt

Why laws must trump wars

This book on "the wars for the 21st century" has taken five years to write. Philip Bobbitt has been in an out of US Federal government since the time of Lyndon Johnson, though to judge from the jacket photo it must have been a precocious juvenile that was helping that wily old Texan. The vast range of friends and experts acknowledged as having read a bit here, proposed a change there, or thrown in their own point of view, suggest an author as abundant in his social intercourse as with his words and ideas. If the cover is to be believed, both Henry Kissinger and Tony Blair have actually read this book in proof form. No fewer than 10 of "a series of remarkable research assistants" are signalled out for special praise.

This is industrial scholarship on a vast scale, the author not some lonely scholar but a celebrity conductor of an orchestra of talents, the greatest of them, it has to be said, his own. While Wagnerian in its ambitions, requiring the reader to re-enter a Bobbitt-world created in an earlier blockbuster, The Shield of Achilles, and taking so long to read you could fit in the Ring Cycle and still have time to skim the concluding chapters, the book is worth the effort. It is always well-written, consistently provocative and intelligent on a grand scale. If "thought-provoking" were not a cliché it would be a usable summary. Just because Bobbitt has such grand friends does not mean he has nothing to say.

For Bobbitt, we live in a time of market states, when we are leaving behind the constitutional order of the nation state in favour of an era of opportunity, entrepreneurship and globalisation. But the same forces shaping this agreeable destiny "are also empowering the forces of terror, rendering societies more vulnerable and threatening to destroy the consent of the individual as the essential source of state legitimacy". The book is "not so much about al Qaeda as about the larger phenomenon of 21st-century terrorism of which al Qaeda is only a herald": namely, the groups for whom terror is a "permanent state of affairs", whose genius is to "copy the decentralised, devolved... and privatised market state of the 21st century". With both "states of consent and states of terror... evolving into market states", the central question is which version will succeed. So historians "may one day see the Wars against Terror as an epochal war, an historical and constitutional characterization that can only be made retrospectively".

Bobbitt's project is to ensure the success of the version of the market rooted in freedom and empowerment rather than individual enslavement and terror. We must "preserve our open society by careful appreciation of the threat that terror poses to it and not by trying to minimise that reality or to appease the sensibilities of people who would wish it away".

Equally, we must stick by the rules and operate consensually with similar states. Writing with the US in mind, Bobbitt argues that unless we do this, "we will bring our alliances to ruin as we appear to rampage around the world, declaring our enemies to be terrorists and ourselves to be above the law in retaliating against them".

So while he is no old-fashioned liberal, Bobbitt is no Bush either. He remains the muscular humanitarian that his earlier books have revealed, a keen advocate of "states of consent", one who would support states on this basis rather than cynically on account of their usefulness, and also not afraid to get his hands dirty in pursuit of a noble goal. For Bobbitt, even Iraq may yet prove to have been the right thing to have done.

For all its beguiling cosmopolitanism, the roots of the book in a particularly American discourse show. The linkage between the US and the promotion of human rights is rightly present, but many will baulk at the assertion that the "reason why the United States is not itself a terrorist state even though its warfare brings suffering and destruction to many innocent persons, including civilians, is that it acts within the law". But Bobbitt is too honest a writer to ignore entirely the disconnection between this grandest of states of consent and facts on the ground – particularly Palestine. Here, Bobbitt's book could be read without too much difficulty as a subtle call for disciplined revolt against oppression. For him, a place which "denies human rights on a crippling scale, attempts to annex its neighbours, refuses to govern by consent, rejects the rule of law" and so on is somewhere in which people "may prosecute armed struggle... they are not terrorists unless they attack civilians with no connection to the state depredations they are resisting".

More serious, because so central, is the book's ratcheting-up of the language around the threat posed by al- Qa'ida. The Hitler comparator makes its usual appearance as do (inevitably but dispiritingly) graphic descriptions of the mass killings just around the corner. On Bobbitt's account (extreme even in this genre of atrocity-lit) the attacks of 11 September trump Pearl Harbour, being "a more menacing setback", in that they are "the harbinger of wars that offer little promise of peace even in a decade".

It is this sort of stuff that leads to the embracing of the war model, since it is then inevitably declared that the ordinary criminal law cannot be expected to cope with such horror. And once you talk of war it is hard to control the illiberalism unleashed. But is it really wise to do all al-Qa'ida's propaganda work in this way? They have not exactly taken Singapore yet and in Iraq their foothold is fast becoming a toehold. The criminal law is usually a far more flexible instrument than Bobbitt appreciates, even in the US, which would it is true certainly do better without an over-rigid constitution.

If we "states of consent" keep our nerve, dump the inflated talk of war which merely fulfils its own worst fears, and stick to the criminal law, stressing all the time the universality of our values – if, in short, we show more of what the sociologist Frank Furedi has aptly identified as "resilience" – then might not this be the best way of ensuring that such an obviously out-of-date and regressive crowd of violent losers as al-Qa'ida (harbingers of nothing) eventually run out of steam?

Conor Gearty is professor of human-rights law at LSE and a founder member of Matrix Chambers