James Q. Whitman,
Ford Foundation Professor of Comparative and Foreign Law at Yale Law
School, came to Chicago this past Thursday to deliver the annual Fulton
Lecture in Legal History. His topic was not necessarily the first one
you'd associate with law, however: Pitched battles. Not metaphorically,
or as an allusion to courtroom dramas -- actual pitched battles, such
as Waterloo or Hastings. Yet, Professor Whitman persuasively documented
how difficult it is to make sense of pitched battles without viewing
them within a fundamentally legal context.
Pitched battles intersect with law in several important ways. Most obviously, like legal proceedings they are a form of conflict resolution: pitched battles were historically used to resolve important political claims, such as which prince had the right to claim a particular throne. And compared to other military proceedings, the pitched battle has a lot to speak for it: it is generally well contained, takes only one day, is restricted solely to combatants, and lends itself to a decisive resolution. Yet the classic pitched battle has gone into decline since Waterloo was fought in 1815. It is no longer possible to resolve wars through a single day of contained conflict. Whitman argues that a legal analysis is essential to explaining the history and decline of pitched battle.
Whitman's lecture focused on several problems in the history of battle.
First, he described two standard accounts of why pitched battles ever
worked as conflict resolution devices: first, that battles are a kind
of game, and second that they a kind of duel. After raising objections
to both of these theories, he turned to the law of battle in the
eighteenth and nineteenth centuries, focusing on two critical legal
questions : How do you know who won?, and what do you win by winning?
By addressing these legal questions, he set out to explain one of the
great transitions in the history of warfare: the shift from the
so-called linear warfare of the eighteenth century to the "battle on
annihilation" in the nineteenth. According to early modern legal
doctrine, a pitched battle was won by driving the opposing side from
the field. Grotius specifically adopted this view of victory in
contrast to other, potentially more intuitive alternatives (such as
total casualties or overall tactical advantage). This stands in
distinction to the nineteenth-century military goal of annihilating
one's opponent: military commanders in the pre-modern era such as
Frederick the Great often allowed opponents to withdraw to camps a mere
few miles away once they had fled the field of battle. Why didn't
generals descend to polish off defeated foes? Whitman responds that, as
a matter of legal doctrine, the battle was already won once the line
broke and the defeated side retreated.
This pushes to the second legal question: What do you win by winning? From the standpoint of the individual soldier, the answer is clear: booty. There were highly developed legal codes governing booty, including most especially the fundamental rule that soldiers had no legal right to seize booty until the opposing side had fled the field of battle. But soldiers were not the only ones who could profit from a "victory" defined by the fact of retreat. From the perspective of the political leadership, winning a pitched battle provided a major diplomatic bargaining chip. In general, Whitman argued in the Q&A period, pre-modern war was understood as a way of resolving conflicts that could not be mediated by human means. In the Middle Ages in particular, the pitched battle was seen as a judgment of God. This was taken quite seriously by pre-modern contemporaries -- victory in the pitched battle was seen as granting the victor such rights as the right to possess the throne (as opposed to merely proving his physical ability to do so, which would be better served through a siege or annihilation). This also explains why the pitched battle was restricted to rare cases in the middle ages. Knights would prefer to simply raid and terrorize the countryside (which was far less risky than engaging in a pitched battle). But while raids could enrich warriors or provide tactical advantages, they could only go so far in disputes over sovereignty or succession, because they could not establish legally cognizable claims that would be recognized by broader society.
Because the point of the eighteenth century pitched battle was not to annihilate the opponent but rather to establish claims of right, we can't understand why generals and commanders behaved the way they did without an eye to the legal context. This suggests that standard accounts of the decline of pitched battle are deficient. Those accounts start from the assumption that pitched battle was a form of duel, associated with aristocratic culture, or a form of gaming behavior. However, the decline of linear warfare in the nineteenth century is better understood as the result of a broader decline in fidelity to traditional juristic norms. The theories of Clausewitz, the advocate of the battle of annihilation, were in that sense close in spirit to the theories of his contemporary, John Austin.