Lincoln’s Code: The Laws Of War In American History, by John Fabian Witt

There are tens of thousands of books about Abraham Lincoln, and while this book is not entirely unique in its interest in the Lieber Code that was authorized by Lincoln in the midst of the Civil War that served as a groundbreaking and deeply complex effort on the part of Americans to provide rules and principles for how wars should be fought, the level of detail it goes into is impressive and makes this book essential reading if one wants to understand the American approach to war. The idea of laws relating to military conduct are by no means unusual–one finds them in the Bible, for example, in several passages in Deuteronomy–this book focuses on the Enlightenment theory that undergirded Western fighting in the period after Westphalia when the religious certainty of medieval just war theory lost a lot of its appeal. In retrospect, it does not seem surprising that a nation like the United States, a peripheral Western nation desiring approval in the club of Western nations while also being far enough away not to be involved in the European rivalry over self-serving international principles, would be of such major importance in providing a realistic approach to war that encouraged as much brutality as it sought to discourage, in creating an environment where wars were meant to be sharp and that nearly all rules could be broken in the case of military necessity–though no military necessity was viewed as being a justification for either assassination or torture.

This book is 400 pages or so of material divided into eleven sizable chapters. The book begins with a prologue and a discussion of the context in which Lincoln’s code developed (I). This context includes early American thinking about the rights of humanity (1), the rules of civilized warfare springing from America’s neutral position in early national history as well as its support of slavery (2), the harshness that formed a part of America’s militia tradition as well as America’s warfare against native antagonists (3), and rules of wrong formed in foreign crises, especially relating to Canada and Mexico (4). The second part of the book examines the rules of war in the context of the Civil War when Lincoln’s code (mostly composed by such men as Francis Lieber and Gen. Hallack and their associates), which includes chapters about the lack of American practice in the law of nations claimed by some generals (5), the role of guerilla violence in shaping rules about warfare (6), the role of idealism and realism in encouraging high-minded principles of warfare (7), the importance Lincoln and his associates had in defending the rights of black soldiers (8), the role of Sherman in demonstrating the hard hand allowed by American military principles (9), and the contentious relationship between soldiers and gentlemen (10). The last chapter of the book looks at the way in which post-Civil War American experience in the later wars against native peoples and in the Philippines shaped America’s rules of warfare (11). The book ends with an epilogue, an appendix which includes the rules of warfare found in Lincoln’s code [1], acknowledgements, abbreviations, notes, illustration credits, and an index.

It would be easy to view America’s approach to developing rules of war as being entirely self-serving, seeing as some of the people involved in the process (including one key Judge Advocate General who led efforts to torture people in the Philippines and was court-martialed for it), but the author takes the difficult road of showing how it is that Americans developed rules of war and then sought to interact through these rules with the ways that wars were fought, shaping their conduct in complex and sometimes unexpected ways. Summary execution as an ordinary practice in the savage wars in the Americas was often replaced with military tribunals that struggled over the relationship between the desire on the part of ordinary people (and many military leaders) with revenge over acts of barbarity committed against American soldiers and civilians and the desire on the part of the nation itself to be seen as a lawful and orderly and civilized people. The desire to turn rules about war into ways by which to better fight such wars to victory and the way in which America has generally been reluctant to sign treaties which limited its abilities to win wars is also on display here, demonstrating how even the elaboration of rules of war are often part of the rhetorical effort by which a society like the United States motivates its people to show a willingness to fight for the nation while maintaining a positive self-image about it, despite the efforts of pacifists to delegitimize war as an option in general.

[1] Included among the more than 100 principles in the landmark American code of warfare are the following:

20. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and war.

21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.

35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.

41. All municipal law of the ground on which the armies stand, or of the countries to which they belong, is silent and of no effect between armies in the field.

93. All armies in the field stand in need of guides, and impress them if they cannot obtain them otherwise.

94. No person having been forced by the enemy to serve as guide is punishable for having done so.

149. Insurrection is the rising of people in arms against their government, or a portion of it, or against one or more of its laws, or against an officer or officers of the government. It may be confined to mere armed resistance, or it may have greater ends in view.