Francis Lieber on Public War
Goettingen Journal of International Law, 4(2), pp. 447-477 (2012)
31 Pages Posted: 15 Nov 2012
Date Written: November 9, 2012
This paper examines Francis Lieber’s concept of modern war as “public war” — in the Code he drafted for the 1863 Union Armies and in his earlier writings. Though Lieber was not the first to engage the distinction between private and public war, his treatment of modern war as exclusively public nevertheless deserves special attention. It became, in time, a foundational concept of the 19th Century effort to modernize and humanize the laws of war. Today, it remains embedded, albeit implicit, in contemporary international humanitarian law and its paradigmatic interstate war outlook.
Yet Lieber’s public war definition was driven by the ideological sensibilities of his youth in Vormärz Germany: romantic nationalism, ardent republicanism, and profound faith in modernity and progress. It took normative form but was, essentially, an ideological assertion. Lieber’s public war definition sought to offer ideological justification for the modern nation State, its formation and existence. It also sought to construct and justify, again in ideological terms, the formation, existence, and preservation of an international order comprised of nation States; such order, alone, could meet the challenges of modern conditions. For Lieber, limiting war to nations and States alone was an ideological imperative of progressive civilization in the modern age.
Reflection on Lieber’s public war definition suggest lines of inquiry that may produce a richer understanding of the intellectual foundations and ideological motivation of modern international law. At the same time, such inquiries compel historical, normative, and policy reconsideration of interstate paradigm of war and its costs. They also promise to enrich contemporary normative and policy debates about the regulation of privatized warfare and non-state actors.
Keywords: laws of war, international humanitarian law, private war, public war, Francis Lieber, Lieber Code, legal history
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