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New Book by Professor James Q. Whitman ’88 Examines the Making of Modern Warfare

In the eighteenth century, a pitched battle was understood as a kind of legal proceeding in which both sides agreed to be bound by the result. To the victor went the spoils, even the fate of kingdoms. It was viewed as a kind of trial, a way of settling a legal dispute. But in the era of the American Civil War, the practice of battle warfare collapsed. Even seemingly decisive battles, like Gettysburg, could not settle their wars. Only a war of general devastation sufficed. Ideology rather than politics became war’s just cause. Because modern humanitarian law provided no means for declaring a victor at the end of battle, the violence of war dragged on.

In his new book, The Verdict of Battle: The Law of Victory and the Making of Modern War (Harvard University Press, October 31, 2012), Professor James Q. Whitman ’88 argues once war-making ceased to be a symbolic expression of settled sovereign legitimacy and became a means of contesting legitimacy, it spiraled out of control. It was the collapse of traditional political legitimacy, he says, that undermined the efficacy of pitched battle warfare. Wars can only hope to remain contained as long as they do not raise basic questions about the legitimacy of the regimes engaged in them, and wars could be restrained as long as it was clear who was the victor and what were the spoils.

Despite its horror and savagery, a pitched battle is what social scientists call a “conflict resolution mechanism.” If a conflict can be decided through one day of concentrated killing on the battlefield, then violence can be prevented from spilling over to the rest of society. To use the old law of victory sounds barbaric, but it, in fact, helped keep war in-check by laying down ground rules.

James Q. Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. He joined Yale Law School in 1994 and has taught as a visiting professor at Columbia and NYU law schools as well as universities in France and Italy. He teaches and writes in the areas of comparative law, criminal law, and comparative legal history. His other published books and articles include The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial; and Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe. Professor Whitman received his B.A. and a J.D. from Yale, an M.A. from Columbia, and a Ph.D. from the University of Chicago.