In this sesquicentennial year of the American Civil War, Sept 22, two days ago, marked the 150th anniversary of the Lincoln Administration’s Emancipation Proclamation, the document which promised freedom to all slaves in rebellious states as of 1 January, 1863. In a short essay on this event, John Fabian Witt, a professor at Yale Law School, makes the interesting argument that the Proclamation made possible our thinking today on the laws of armed conflict.
In this essay, Witt tells the story of how the Union turned to a legal scholar, Columbia University’s Francis Leiber, to produce a document (Code For The Government Of Armies In The Field or the Leiber Code), describing the legal framework that would govern the prosecution of the war once the Emancipation Proclamation went into effect. Leiber’s document did not limit the degree to which a war could be aggresively fought (until then, strong European powers like Prussia were suspicious of legal limits on warfare for this reason) but it did say that even a total war had to respect certain human rules. Leiber’s document, Witt argues, opened a path to subsequent agreements such as the Geneva Conventions.
The rules of armed conflict today arise directly out of Lincoln’s example. They restrain brutality. But by placing a stamp of approval on “acceptable” ways to make war, they legitimate terrible violence. The law does not relieve war of all its terrors; it does not even purport to. But it stands as a living reminder, a century and a half later, of how thoroughly the United States’ most significant moment still shapes our moral universe.
Interesting. I thought I knew a little about the Civil War but I had never heard of Leiber or his document. Witt has a book out, “Lincoln’s Code: The Laws of War in American History”, and it is going on my reading list.
History Geek footnote: Francis Leiber (so says wikipedia) was born in modern day Germany, served in the Prussian Army during the Napoleonic Wars, and was wounded at Waterloo. How cool is that?