Francis Lieber, His Code, and the Birth of a New Constitutional Order

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An early version of the Lieber Code

Editor’s Note:  The following remarks were given at the 2013 Lieber Conference—“From Gettysburg to Guantanamo:  150 Years of the Lieber Code and the Law of Armed Conflict.”  The Lieber Conference was hosted on November 21, 2013 at Columbia Law School by the Columbia Journal of Transnational Law, the Columbia Law School Human Rights Institute, the Roger Hertog Program on Law and National Security, and the Lieber Society of the American Society of International Law to mark the 150th anniversary of the Lieber Code.

The Lieber Code, which regulated the conduct of U.S. soldiers during the Civil War, was drafted by Columbia Professor Francis Lieber and signed by President Lincoln in 1863 as General Order No. 100.  While the Code was limited in application to Union forces, the rules were based on customary law, and strongly influenced subsequent international codification of the law of armed conflict.  The Lieber Conference celebrated the 150th anniversary of the Lieber Code by exploring the origins and import of the Lieber Code in its Civil War context, its impact on the development of international humanitarian law, and its continued significance to modern challenges in armed conflict.

Remarks made at the Lieber Conference and essays reflecting on the issues discussed are featured in the Lieber Series, published by the Columbia Journal of Transnational Law, Vol. 53.  Professor Philip Bobbitt[1] opened the Lieber Conference with the following remarks:


 

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Phillip C. Bobbitt, Herbert Wechsler Professor of Federal Jurisprudence, Columbia Law

There is good reason to think that law and war have nothing to do with one another, and this has certainly been so for most of the lifetime of mankind.  Cicero’s famous observation—silent enim leges inter arma[2]—was not a novel insight when uttered in 52 B.C.  This view of law and war as mutually exclusive has prevailed through most of the various periods in the life of the modern state.  The princely states that dominated Europe during the sixteenth century took the view that the practices of war were governed by necessity, and that a war was just if it was fought on just grounds.  By contrast, the territorial states that reigned in the eighteenth century recognized that each side usually thought its cause was just.  It was an age of cynicism—or realism, if you prefer—and therefore focused entirely on evaluating the practices of war themselves, whatever the justifications.  Imperial state-nations, whose hegemony lasted roughly from the American Revolution until the end of the First World War, took yet a different view.  Their intense nationalism—let’s call it an early form of “exceptionalism”—tended to justify both means and ends, and in so doing, removed the acts of state from oversight altogether once belligerency was begun.[3]

It was from this paradigm that Philip Marshall Brown wrote in 1918 in the pages of the American Journal of International Law:

War is the abandonment of litigation and argument.  It is the negation of law.  . . .  On the field of battle there is no compelling voice of authority to prevent or to punish violations of the usages and rules of war.  If the victor has been guilty of infractions, he suffers no penalty.  If the vanquished has been guilty, his offenses are expiated incidentally in the larger penalty of defeat itself.[4]

This is the voice of the imperial state-nation, and it holds—as did its champion Clausewitz—that where the law of peace fails to provide an adequate remedy for international wrongs, it concedes the right of nations to resort to measures of “self-help.”  “The true function of international law is not to regulate war, but to regulate the peaceful relations of states.”[5]  Once war commences, the law ceases to have effect.

But at the time of Brown’s observation, during the First World War (a war that would destroy the constitutional order of imperial state-nations), there was already in being another voice, another constitutional order.  This would Bobbitt 2_Quote 1eventually impose its ideas of law and war on the society of states.  In Germany and in the United States, a new constitutional order—the industrial nation-state—was emerging, and it had radically different ideas about the relationship between law and war.

It might appear paradoxical to state  that the first statutory code regulating military behavior was consistent with an increasing ferocity of warfare, but that was, in fact, the contribution of this new form of the state.  Its author was an extraordinary man for whose life the birth of this new constitutional world of the nation-state was an animating spirit—perhaps the animating spirit.

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Professor Francis Lieber

Francis Lieber was born in Berlin and joined the Prussian army at age fifteen.  He was wounded shortly thereafter at Waterloo.  By the time he sought admission to university he was already well-enough known for his anti-monarchical views to be rejected by the University of Berlin.  Hastily moving to the University of Jena, he completed his dissertation in mathematics in only four months, just before the authorities caught up with him and he was forced to flee to Dresden.  He only briefly resumed his studies there because he soon volunteered to serve in the Greek Revolution of 1821.  By 1825 he had gone to London, by 1827 he was in Boston, and by the time of the American Civil War he was ensconced as a professor in the Columbia Law School—just in time for the birth of the constitutional order of the industrial nation-state.  It was there at Columbia that, at President Lincoln’s request, he produced the Lieber Code.[6]

His is a Code widely admired as the foundation of the law of armed conflict, and it has been copied by many states.  It was the basis of the Hague Conventions of 1899 and 1907, of which the Geneva Conventions of our own time are descendants.  Yet rarely commented on is the nature of the warfare that the Code permitted. A notable exception to its charm and wit, that exception is large scale attacks on civilian populations and the leadership of the state.  In fact, Lieber himself was in charge of the incriminating documents seized after the Civil War that established a Union plot to assassinate the Confederate president and his cabinet.[7]

Twentieth-century nation-states fought wars against nations, that is, against national peoples, and so it was not surprising that the national mobilizations of the First World War also brought about a new vulnerability for civilians.  The Germans, who seem to have been more aggressive with these tactics than their adversaries, were the innovators, if that is the right word, and it cost them dearly in public opinion.  But their model of warfare, and the model developed by Union generals in the American Civil War—not the one that had dominated the Napoleonic Wars—was the model that states copied.  Writing in the midst of the First World War, T.J. Lawrence lamented:

[M]odern developments have put in great jeopardy the time-honored distinction between combatants and non-combatants . . . .  This is due to many causes, most of which are connected with the modern growth in the power and authority of the State . . . .  [War] is not merely a war of governments, but of peoples.  . . . Every ounce of strength each side possesses is thrown into the fight; and the world is beginning to realise for the first time what a war of nations, rather than of armies, means.  . . . Not only can the modern State, with its practical omnipotence, put the bulk of its able-bodied males into the field, but it can organise the rest for supply services . . . .  Its vast armies require artillery and munitions to an extent that was undreamed of even three years ago.  To give them what is essential for their operations other armies of engineers, mechanics, and craftsmen of all kinds have to be organised at home.  . . .  Is the fighting-man a warrior, and the man or woman who supplies him with the means of fighting a peaceful member of society?  . . .  Yet side by side with [this development] other agencies have been at work, with the direct object of making civilians suffer.  . . .  Murder, rape, and plunder are no new things in warfare.  What is new among civilized Powers is the deliberate planning and encouragement of them as a means of striking terror into the general population, and inducing them to clamour for peace.[8]

Well, we know what happened next.  On average, 16,000 persons died every day of the Second World War, and only a small percentage of these were soldiers.  Lawrence had identified precisely the change and its cause:  it was a change in the nature of warfare that was changing the nature of the state, and once the state was changed it would wage war in the new way.  How had this happened to law and war in a century—and in an international constitutional order—that was more saturated with law and legal process than any that had gone before?  The answer is that strategy was driving the development of law, and what strategy demanded was that law become de-coupled from Bobbitt 2_Quote 2warfare.  This was true both of constitutional law and international law, where the problems of extended nuclear deterrence defied preexisting legal rules.

Now we are about to see a shift in the opposite direction, as the emerging change in the constitutional order from industrial nation-states to informational market-states brings about a revolution in tactics and strategy, which will seek to reunite law and war.  In the upcoming months and years we will have to decide what rules to enforce in dealing with the following tactics:

  1. Increased surveillance, both optical and digital, scanning e-mails and other internet traffic, a tactic often referred to as data mining;
  2. The detention of persons who can be neither released into the public nor tried successfully by conventional criminal methods;
  3. Targeted killings, including killing by remotely controlled unmanned vehicles (UMVs);
  4. Extraordinary rendition;
  5. The limits of coercive interrogation, or torture;
  6. Freezing access to money accounts;
  7. Action to prevent the proliferation of WMD for the purpose of compellance rather than deterrence;
  8. Interventions to prevent genocide and ethnic cleansing, or other attempts at mass killing;
  9. Responding to cyber-attacks as acts of war;
  10. Medical reporting, quarantine, and forced inoculations to mitigate the consequences of epidemics.

In this world, which we are just beginning to glimpse, law and strategy will be united as never before, and the protection of civilians will be at the center.


 

[1]Philip C. Bobbitt is the Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School and Distinguished Senior Lecturer at the University of Texas Law School.  The content of this speech was drawn in large part from Philip C. Bobbitt, Inter Arma Enim Non Silent Leges, 45 Suffolk U. L. Rev. 253 (2012).

[2]Cicero, Pro Milone.  The phrase is commonly translated as “In times of war, the laws fall silent.”

[3]See generally Philip C. Bobbitt, The Shield of Achilles:  War, Peace, and the Course of History (2002).

[4]Philip Marshall Brown, War and Law, 12 Am. J. Int’l L. 162, 163 (1918).

[5]Id.

[6]See Francis Lieber and the Culture of the Mind 1–7 (Charles R. Mack & Henry H. Lesesne eds., 2005); see also Lieber’s Code and the Law of War 5–6 (Richard Shelly Hartigan, ed. 1983) and Frank Freidel, Francis Lieber:  Nineteenth-Century Liberal (1947).

[7]See Francis Lieber and the Culture of the Mind, supra note 7, at 42–46 & Part Three; Lieber’s Code and the Law of War, supra note 7, at 15–23; and Frank Freidel, supra note 7, at 317–41.

[8]T.J. Lawrence, The Effect of the War on International Law, in The Grotius Society, Problems of the War 105, 106–10 (Vol. 2 1916).