Thursday, November 19, 2009

Tani and Stein on ASLH Panel: Civilizing and Un-Civilizing War in the Nineteenth Century

This post on last week's American Society for Legal History meeting comes from Josh Stein, Bernard and Irene Schwartz Postdoctoral Fellow at the New School for Social Research and the New York Historical Society and Karen Tani, Sharswood Fellow in Law and History, University of Pennsylvania.

Another highlight of the 2010 ASLH annual meeting was a panel titled “Civilizing and Un-Civilizing War in the Nineteenth Century, ” chaired by Richard Ross (University of Illinois). The panel explored the notion of war as an atavistic but arguably effective form of dispute resolution.

Stephen Neff, University of Edinburgh opened the panel with a paper on “Partisans, Prowlers and Guerillas: Historical Roots of International Law on Unlawful Belligerency.” The paper keyed in on one major innovation of nineteenth century warfare: guerilla-style combat by self-appointed persons. This was a departure from the “civilized” traditions of pitched battle, professional armed forces, and commissioned fighters. As evidence, Neff cited the work of German-American jurist and political scientist Francis Lieber. In Lieber’s influential treatise on the laws of war, Lieber took pains to differentiate partisans – individuals authorized to fight but separate from the armed forces – from various categories of non-authorized combatants (brigands, prowlers, civilian saboteurs, etc.). The former were entitled to prisoner-of-war protection; the latter (with the exception of “spontaneous self-defenders”) were not. To Neff, this represented a very “eighteenth-century view” of warfare, and indeed by 1874, governments departed from this aspect of the Lieber Code. They agreed that self-appointed groups would receive protection if they were organized and open. Thus “civil” conduct in war began to replace official commissions as the key indicator of legitimacy. Neff closed his presentation with an intriguing question about warfare in the twenty-first century: in our concern about combatants who lack national sponsorship, might we discern another shift in our understanding of the legal bounds of war?

James Whitman (Yale University), like Stephen Neff, did not shy away from making far-reaching arguments about the laws of war. His paper, “The Breakdown of Battle Culture, from Waterloo to Sedan,” traced a movement from the eighteenth century’s “admirably civilized” style of warfare (characterized by pitched battles) to a regime of tactics aimed at annihilation. Napoleonic warfare, he noted, was the beginning of the end of this “golden age,” because of Napoleon’s locust-like armies and destructive campaigns. Why did this transformation occur? By way of answer, Whitman discussed how opposing forces adopted a more “civilized” style of battle in the first place. Whitman suggested that during the eighteenth century, pitched battle was an accepted form of dispute resolution; it seemed to have particular legitimacy when disputes involved dynastic succession or territorial claims. At some point, however, the participants began thinking of themselves in millenarian terms: they were fighting to “make history.” Whitman proposed that this changed understanding of lawful warfare was hastened by the disappearance of pre-modern legal culture.

The third paper, by John Witt (Yale University), nicely complemented the others. Titled “Rules of Wrong: The Crisis of the laws of War in the Age of Democratic Ideals,” Witt’s paper focused on how U.S. politicians invoked international law, and the law of war in particular, during the first half century of nationhood. Witt challenged what he called the “weak state, new state” theory – the notion that fragile, fledgling states would invoke the law of nations because of their vulnerability. Witt argued that, while valuable, the prevailing understanding of weak states has difficulty accounting for leaders like Andrew Jackson. Witt detailed how Jackson, as the elected general of the Tennessee militia, encouraged his men to engage in ferocious, terroristic conduct. By all accounts, Jackson had nothing but contempt for the laws of war. Yet at certain moments Jackson invoked these standards of conduct for political advantage. In his campaign in Florida, for example, he invoked the law of war to justify his escalation of violence against those who challenged American sovereignty. Witt concluded by drawing a connection to the rejection of the Lieber Code by pacifists in the antebellum era. While laws of war were arguably a means of peace-keeping, they had learned from the Jacksons of the world that such a framework was ultimately a license for bloodshed. In their eyes, the treatises of American jurists like James Kent, who aimed to outline the “Law of Nations,” only served to provide legal rationalization for unabashed warmongers.

Adam Kosto, Columbia University, provided an excellent comment. As an historian of medieval Europe, he was able to offer a “long view” of the questions involved. For example, he noted that the effort to draw lines between combatants and non-combatants, the focus of Neff’s paper, has an antecedent in the medieval tradition of not attacking those who were, in the eyes of war-makers, economic resources. (Kosto also noted that after the eleventh century, chivalric customs protected nobles and knights, a perversion of contemporary understandings of who ought to be shielded most during times of war.) Kosto also found medieval referents for some of the questions that Whitman and Witt raised. Regarding pitched battles as a recognized form of dispute resolution, he noted that in the middle ages war was understood as a branch of contract law.

Questions from the audience were diverse and thoughtful. Ross pressed the panelists to consider the colonial context and how the fighting of indigenous people may have contributed to the transformations they identified. The panel was also asked about their “landlubbers bias” (on account of their lack of attention to sea-based warfare and piracy), their insights into twentieth century wars, and the use of the terms “civilized” and “uncivilized” in an age of empire. They also faced a more existential question: given the shifting but persistent mismatch between the law of war and the practice of war, do legal rules have any meaning at all in this context?

Finally, it bears noting that this panel was all male, while an earlier panel on “Gender, Soldiering, and Citizenship” consisted entirely of women. We hesitate to speculate too much about these gender imbalances, but it does give us pause. What might this suggest about the historical study of war?

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