Witt on Two Humanitarianisms in Ambrose Bierce's "An Occurrence at Owl Creek Bridge" @JohnFabianWitt

John Fabian Witt, Yale University Law School, has published Two Humanitarianisms in Ambrose Bierce's 'An Occurrence at Owl Creek Bridge'. Here is the abstract.

The oft-anthologized short story “An Occurrence at Owl Creek Bridge” by Union Army veteran Ambrose Bierce — long a staple of high school curricula and the subject of music videos, television, and film — is not typically thought of as a study in the dilemmas of humanitarian law. But it is. It depicts an execution for violation of the laws of war. Even better, the text embodies a central tension in the laws of war, one that emerged in Bierce’s time and persists today. On the one hand stands a sentimental humanitarianism that aims to minimize the human suffering of war; Henri Dunant’s book, A Memory of Solferino popularized this stance and helped establish the International Committee of the Red Cross in 1863. On the other hand, a righteous humanitarianism chafes at the constraints that sentimental humanitarianism places on the pursuit of justice. Romantic nationalists like the Prussian-American political thinker Francis Lieber, whose code of rules for the Union Army was published a year after Dunant’s book, embrace the righteous justice of particular causes. Bierce’s “Owl Creek” straddles the two planks of the modern laws of war, conveying the power of both views.

Download the article from SSRN at the link.

Labuda on the Lieber Code, Retaliation, and the Origins of International Criminal Law

Patryk I. Labuda, University of Geneva, Geneva Academy of International Humanitarian law and Human Rights, has published The Lieber Code, Retaliation and the Origins of International Criminal Law in 3 Historical Origins of International Criminal Law 299-341 (M. Bergamo et al., TOAEP, 2015).

This chapter assesses when and how war crimes trials emerged as the primary method of sanctioning law of war violations. It argues that the rise of individual criminal accountability in the late 19th century should be viewed as a counterpoint to a separate and overlooked process of delegitimizing belligerent reprisals. Taken together, these two phenomena are part of the history of individualizing and humanizing international law in the late 19th and early 20th century.

Download the essay from SSRN at the link.

Ralf Poscher on the Hermeneutical Character of Legal Construction

Ralf Poscher, Albert-Ludwigs-Universitaet, Freiburg, is publishing The Hermeneutical Character of Legal Construction in Law's Hermeneutics: Other Investigations (Simone Glanert and Fabien Girard, eds., London: Routledge, 2016). Here is the abstract.

Ever since Carl Friedrich von Savigny and Francis Lieber introduced the distinction, lawyers and legal theorists distinguish between legal interpretation and legal construction. The article wants to defend and reconstruct the distinction on the basis of an intentionalist account of hermeneutics. Interpretation in the most general sense is a specific form of explanation. It is an explanation at the level of intentional phenomena like believes, desires, intentions, actions and their products. The interpretation of texts is a specific case of this more general kind of explanation. It explains the meaning of utterances on the basis of the intentions of their authors. In legal interpretation the author is the legislator. Legal construction sets in when legislative intentions have run out. Legal construction amends the law. But how could legal construction still be considered a hermeneutical activity if it cannot explain meaning by relying on prior intentions of an author, if it does not interpret existing law, but creates new law? Aren’t many legal theorists – be they legal realists or normativists like Hans Kelsen – right to insist that legal construction is more akin to legislation even if at a different level of abstraction? The article defends the hermeneutic character of legal construction by showing that it distinguishes itself from legislation through its relation to a text. It is the intentionalist structure of justification, which gives legal construction its hermeneutic character and set it apart from legislation even though it creates new law. That the justification cannot relate to an actual legislative intent but has to take refuge to a fictive one distinguishes legal construction from legal interpretation. Once in place the intentionalist account of legal construction can clarify some of its features like its relation to rule of law standards, its generality, consistency and rationality requirements, as well as its truth aptness.

Download the essay from SSRN at the link.