Paul Finkelman: Francis Lieber and the Law of War

Paul Finkelman is the President William McKinley distinguished professor of law and public policy at Albany Law School.The philosopher and legal scholar Francis Lieber was born in 1798 in Germany, and as a young man was wounded in the final skirmishes of the Napoleonic wars. He emigrated to the United States in 1827, after twice being imprisoned by Prussian authorities for his pro-reform political activities. A respected jurist in his home country, he eventually became a professor at Columbia, a few years before the outbreak of the Civil War.Lieber had an affinity for soldiering and war, and when conflict broke out in America, he would have happily enlisted, save that he was already 62 years old. Instead, he advised the Lincoln administration on all manner of legal issues, helping to sort out the complexities of how to treat prisoners, guerillas, confiscated property and civilians in a civil war, when none of the traditional rules of international law seemed to quite apply. In this capacity he made immeasurable contributions to the war effort – and the future of the laws of war.

Crafting the Rules for Hell

by Robin Lindley

Francis Lieber, circa 1865. Credit: Library of Congress.American military and political leaders since the Revolutionary War have grappled with the problem of whether conduct in the hellish horror and chaos of war can be regulated by law.Before the Civil War, American troops relied largely on Enlightenment customs of war that grew out of European conflicts, although rules were flexible or ignored depending on the particular commanders, whether military concerns outweighed the niceties of “civilized” war, and the character of the enemy -- whether an organized national military or a band of Indians or Mexican guerilla fighters.