Finkelman: Francis Lieber and the Modern Law of War

Paul Finkelman (Albany Law School) has posted Francis Lieber and the Modern Law of War (University of Chicago Law Review, forthcoming). Here's the abstract:

This essay offers a critical analysis of John Witt's book on the law of war, Lincoln's Code. The essay applauds much of Witt's book, but criticizes his work for 1) failing to understand the way the US supported slavery in the Constitution from 1787 to 1861; 2) over emphasizing slavery as the reason for the promulgation of the Lieber Code during the Civil War; 3) failing to understand or discuss the nature of Confederate violations of accepted rules of warfare (including demanding tribute from captured towns and enslaving or murdering captured prisoners of war); and 4) incorrectly blaming the Lieber code for the post-Civil War behavior of the U.S. army towards Indians and during the war in the Philippines. This essay offers a detailed history of many of these issues in the light of the Lieber Code and the evolution of the law of war.