Inter Arma Enim Non Silent Leges
Bobbitt, Philip C., Suffolk University Law Review
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--from which I take my title, was not a novel insight when uttered in 52 B.C. and in any case was not said in the context of war, but of a prosecution for murder in the aftermath of the Roman riots of that era between the partisans of the populares and optimates. Clausewitz, however, said much the same thing when he decried moderation in warfare, and expressed contempt for legal rules:
War is ... an act of force to compel an enemy to do our will.... [A]ttached to force are certain, self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it. Force--that is, physical force, for moral force has no existence save as expressed in the state and its law--is thus the means of war. (3)
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. (4) 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 instead on evaluating the practices of war themselves. 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 from oversight altogether the acts of state once belligerency was begun.
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. (5)
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." (6) Once war commences, the law ceases to have effect.
But at the time of this 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, that would eventually 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 of this relationship.
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.
Francis Leiber 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. …