Artfully mixing law, history and sharp analysis, a Yale law professor examines the persistent struggle to reconcile justice and humanitarianism in America’s conduct of war.
Issued to the Union Army in 1863, Lincoln’s codes of war went out under the president’s name, but the 157 articles were drafted principally by Francis Lieber, a Columbia College political scientist and historian. Lieber’s codification of the laws and usages of war formally enshrined a number of humanitarian limits to war’s barbarity. However, by authorizing various uses of force “indispensable for securing the ends of war,” the rules unleashed a new ferocity, replacing Enlightenment-style, “gentlemanly” armed conflict with new imperatives that recognized the legitimacy of the war’s aims. Witt (Patriots and Cosmopolitans: Hidden Histories of American Law, 2007, etc.) attributes this new, “tough humanitarianism” to Lincoln’s determination to abandon the “rose-water tactics” of the early war in favor of new measures that would vindicate the promise of the Emancipation Proclamation. Though he focuses primarily on the Civil War and its aftermath, Witt provides a rich historical context, judiciously selecting diplomatic and wartime episodes, from the French and Indian War to the Philippine Insurrection, to explain this lasting transformation of the old rules into something military historians now recognize as the “American way of war.” Topics range from the concept of neutrality to the oftentimes difficult distinctions between soldiers and civilians, to the indiscriminate use of military commissions, all resonant with today’s headlines. The author vivifies commentary from philosophers and jurists, decisions from judges and maneuvering by statesmen with sharp vignettes of battlefield commanders, who were obliged to grapple with the constraints law imposes on war.
Truly remarkable, composed with all the precision and insight you expect from a law professor, marked by all the elegance and sparkling readability you don’t.