Magendanz on the Structure of Religious Violence: Hugo Grotius on Property and Pious War @DougMagendanz

Doug Magendanz, University of Queensland, has published The Structure of Religious Violence: Hugo Grotius on Property and Pious War. Here is the abstract.

Hugo Grotius (1583-1645) is well-known for his defence of just war in The Rights of War and Peace (1625). He is less well-known for his defence of pious war and religious violence. God wants Christians to wage just war against the wicked, he argued, this being part of ‘the whole duty of a Christian solider’. Grotius held that religion presents no barrier to military alliances and commercial trade with heretics, infidels, and pagans. On the contrary, religion is an ideological tool to be used to achieve national prosperity and international justice (Immanuel Kant famously called him a ‘sorry comforter’ of military aggression). Grotius replaced the traditional defence of religious violence (the liberty of the Church) with a new libertarian defence of property rights. Religious war is justified on non-religious grounds, namely the protection of property and the recovery of just compensation for injury and sin. This paper examines Grotius’s defence of pious war, paying special attention to the creditor-debtor relationship as foundational structure of religious violence.

Download the article from SSRN at the link.

Gillespie's The Causes of War, Volume II, Available From Hart Publishing @hartpublishing

ICYMI: Alexander Gillespie, The Causes of War (Hart Publishing). Volume I: 3000 BCE to 1000 CE (2013). Here is a description of the book's contents.

This is the first volume of a projected four-volume series charting the causes of war from 3000 BCE to the present day, written by a leading international lawyer, and using as its principal materials the documentary history of international law largely in the form of treaties and the negotiations which led up to them. These volumes seek to show why millions of people, over thousands of years, slayed each other. In departing from the various theories put forward by historians, anthropologists and psychologists, Gillespie offers a different taxonomy of the causes of war, focusing on the broader settings of politics, religion, migrations and empire-building. These four contexts were dominant and often overlapping justifications for the first four thousand years of human civilisation, for which written records exist.

Volume II: 1000 CE to 1400 CE will be published on January 12.

Kastenberg on War Time Hysteria, 1917: Senator Miles Poindexter, "American-Ness," and the Strange Case of Colonel Carl Reichmann

Joshua E. Kastenberg, University of New Mexico School of Law, has published War Time Hysteria, 1917: Senator Miles Poindexter, 'American-Ness,' and the Strange Case of Colonel Carl Reichmann. Here is the abstract.

One hundred years ago, after the United States entered into World War I, Congress passed the Espionage Act and other significant limitations on basic freedoms. Several state governments likewise vigorously prosecuted alleged "subversives" under anti-syndicalism acts. The diminution of basic rights and the treatment of ethnic German minorities has been the subject of scholarship since. However, the treatment of German minorities in the armed forces has not been thoroughly studied, even though such a study could add to the broader field of civil-military relations. Nor has the wartime behavior of legislators in regard to the armed forces as well as their contribution to the popular prejudices of the day, and its effect on the national polity been the subject of analysis. This article, which presents a singular event, is a microcosm of civil-military relations and wartime hysteria during the period in which the United States participated in World War I. It is not my intent to focus on the accomplishments of Colonel Reichmann or argue that he was wrongly denied a promotion. Rather, it is my intent to examine how a singular senator who did not serve on a relevant committee was able to master a popular prejudice to manipulate legislative and executive processes to achieve political – albeit short lived – prominence.

Download the article from SSRN at the link.

Lederman on The Law (?) of the Lincoln Assassination

Martin Lederman, Georgetown University Law Center, has published The Law (?) of the Lincoln Assassination in Scholarship @ GEORGETOWN LAW, 2016. Here is the abstract.

Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a military tribunal? This Article III question has been debated in several of the nation’s major wars, yet remains unresolved, particularly with respect to the trial of domestic-law offenses. Moreover, that question is especially significant in the United States’ current armed conflicts against nonstate terrorist organizations, such as al Qaeda, both because members of such enemy forces, who lack international law “combatant immunity,” often violate U.S. criminal laws, and because Congress has recently authorized military commissions to try such enemy forces for certain domestic-law, war-related offenses. In attempting to justify the constitutionality of such military trials, the government has, perhaps surprisingly, turned to the Lincoln assassination commission as a leading precedent, one that arguably helps to establish a longstanding political branch practice that should inform constitutional understandings. Such reliance on the Lincoln trial as legal authority is understandable, because that proceeding was, in Judge Kavanaugh’s words, “the highest-profile and most important U.S. military commission precedent in American history,” and thus it would be striking — indeed, a significant constitutional embarrassment — to conclude that the trial and convictions of the Lincoln conspirators were unlawful. As I demonstrate in this article, however, such respect for the Lincoln assassination trial as a canonical constitutional precedent would itself be historically anomalous. For almost 150 years it was virtually unthinkable for anyone to rely upon that proceeding as venerated legal authority: as one knowledgeable observer wrote, the Lincoln trial was a case of military jurisdiction that “no self-respecting military lawyer [would] look straight in the eye.” This article offers the first comprehensive account of the ways in which the Article III question was contested during and immediately after the Civil War, with particular attention to the Lincoln assassination trial. The article also carefully examines the place of the Lincoln trial in the national constitutional discourse after 1868 — the ways in which that proceeding, and other Civil War military trials, have been accorded authority, or dismissed as nonauthoritative, by later generations. This broader historical narrative thus can help inform current academic and judicial debates about whether and under what circumstances political branch practice, especially high-profile precedents, ought to inform, or “liquidate,” the meaning or proper application of the Constitution.

Download the article from SSRN at the link.

Weinrib on Freedom of Conscience In Wartime

Laura M. Weinrib, University of Chicago Law School, is publishing Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken in volume 65 of the Emory Law Journal. Here is the abstract.

This Article examines the relationship between expressive freedom and freedom of conscience in the formative years of the modern First Amendment. It focuses on efforts by the American Union Against Militarism and National Civil Liberties Bureau — the organizational precursors to the ACLU — to secure exemptions from military service for conscientious objectors whose opposition to American involvement in the First World War stemmed from socialist or radical labor convictions rather than religious scruples. Although such men asserted secular, ethical objections to war, advocates strained to expand the First Amendment’s free exercise clause to encompass them. Concurrently, they sought to import a generalized theory of freedom of conscience into constitutional constructions of freedom of speech and press, within and outside the courts. The conception of liberty of conscience that they advanced, which they linked to an “Anglo- Saxon tradition” of individual rights, clashed with Progressive understandings of democratic citizenship and failed to gain broad-based traction. Civil liberties advocates consequently reframed their defense of political objectors in terms that emphasized democratic dissent rather than individual autonomy. Sympathetic academics and a few judges embraced this Progressive theory of free speech, which celebrated discursive openness as a prerequisite for democratic legitimacy and justified, rather than cabined, the exercise of state power. Even in the interwar period, however, the proponents of this vision remained deeply ambivalent about the courts and generally hostile to individual rights. Although some accepted a limited role for judicial enforcement of the First Amendment’s speech clause, most declined to endorse a court-centered and constitutional right to exemption from generally applicable laws.

Download the article from SSRN at the link.

Cultural Heritage and Human Rights In War

Ana Filipa Vrdoljak, University of Technology Sydney, Faculty of Law, is publishing Cultural Heritage, Human Rights and the Privatisation of War in Heritage, Culture and Rights: Challenging Legal Discourses (A. Durbach and L. Lixinski, Oxford: Hart Publishing, 2016). Here is the abstract.

This chapter focuses on the legal issues raised by the impact of the privatisation of war on cultural rights and cultural heritage during military engagements. It is divided into four parts. First, there is an examination of the current debate amongst heritage practitioners, particularly archaeologists and anthropologists, about their professional engagement with PMSCs in recent conflicts and belligerent occupation. Second, there is an overview of existing international humanitarian law and human rights provisions covering cultural rights and cultural heritage during armed conflict and occupation. Third, the response of professional bodies and associations of heritage practitioners through their codes of ethics and public pronouncements to these emerging challenges is detailed. Finally, there is a brief explanation of international initiatives to regulate the activities of PMSCs. It is clear that the rapidly changing face of war has not only revealed the limitations of existing international law; but the efforts of professional bodies and industry to ‘regulate’ these activities through codes of ethics and good practice guidelines cannot fully address the shortcomings.

The War On the Big Screen

Suzanne Broderick has published Real War vs. Reel War: Veterans, Hollywood, and WWII (Rowman & Littlefield, 2015). The hardcover is $30, the ebook is $29.99. Here's a description of the contents from the publisher's website.

World War II has been the subject of hundreds, if not thousands, of films produced in the United States alone. From training camp scenes in See Here, Private Hargrove to images of brutal combat in Saving Private Ryan, filmmakers have been tasked with replicating pivotal moments in the war. But sometimes story lines and dramatic manipulations of audiences have led to less-than-faithful re-creations of what men and women have endured during times of conflict. 

In Real War vs. Reel War: Veterans, Hollywood, and World WarII, Suzanne Broderick looks at how on-screen portrayals hold up against wartime experiences of actual combatants—soldiers, sailors, pilots, code talkers, and prisoners of war. In addition, two women—real-life “Rosie the Riveters”—compare depictions of the homefront with their experiences during the war. These members of the Greatest Generation share personal memories and offer commentary on the films that have sought to capture what it was really like. Among the films discussed in this book are such classics as Battleground, Twelve O’Clock High, The Best Years of Our Lives, Since You Went Away, The Sands of Iwo Jima, and The Great Escape, as well as more contemporary films such as Swing Shift and Windtalkers.

By providing a “human” look at the military, the war effort, and how such people and events were depicted on screen, Real War vs. Reel War makes a unique contribution to the conversation about Hollywood’s role in shaping history. This book will appeal to historians, cultural critics, and anyone interested in war cinema.

Other titles of interest from the publisher in the same category include Ralph Donald and Karen MacDonald, Women in War Films: From Helpless Heroine to G.I. Jane (2014) and Bryn Upton, Hollywood and the End of the Cold War: Signs of Cinematic Change (2014).

A Study of Radovan Karadzic and the Charges Against Him

New from Cambridge University Press:

Robert J. Donia, Radovan Karadžič: Architect of the Bosnian Genocide

Radovan Karadžić, leader of the Bosnian Serb nationalists during the Bosnian War (1992–1995), stands accused of genocide and other crimes of war before the International Criminal Tribunal for the former Yugoslavia in The Hague. This book traces the origins of the extreme violence of the war to the utopian national aspirations of the Serb Democratic Party and Karadžić's personal transformation from an unremarkable family man to the powerful leader of the Bosnian Serb nationalists. Based on previously unused documents from the tribunal's archives and many hours of Karadžić's cross-examination at his trial, the author shows why and how the Bosnian Serb leader planned and directed the worst atrocities in Europe since the Second World War. This book provocatively argues that postcommunist democracy was a primary enabler of mass atrocities because it provided the means to mobilize large numbers of Bosnian Serbs for the campaign to eliminate non-Serbs from conquered land.

Published September 2014; $33 paperback.  Also available in hardcover; $90. Robert J. Donia is Visiting Professor at the University of Michigan, Ann Arbor.

A Symposium on the Abolition of War

From Richard Weisberg, President of the Law and Humanities Institute, comes this announcement of a two day symposium on the topic:

WHY HAS WAR NEVER BECOME A TABOO?  This topic and others connected to the experience of war will be explored at a 2-day symposium called "The Abolition of War". Speakers on the first day include Elaine Scarry, Mark Kurlansky, Richard Weisberg, and Stanley Fish. The event will take place at the Cardozo Law School, Moot Court Room, beginning at 9:30 and ending at around 3. It will include lunch to all in attendance as well as an extensive Q & A on the subject involving the audience inter-actively. The remaining panels, which will take place on Feb 21 at the Rutgers Law School in Newark (easily available by Path train from NYC), include "War and Art: Do They Need Each Other?", "Promoting the Alternative to War (or peace-making for Fun and Profit", and a Musical Interlude with talks and performances relating to the theme of Abolition and Pacifism. Speakers include Sarah Cole, Brian Soucek, Paul K. Saint Amour, and Ekow Yankah; Maria Stephan, Krzysztof Wodiczko, and Michael Braff. Performers include Eleanor Cory and Idith Korman, with Cheryl Weisberg singing some folk songs from the French and American traditions. RSVP for further details to ellii.cho@law.cardozo.yu.edu.

The event is organized by the Law & Humanities Institute, the Rutgers Law School, and the Jacob Burns Foundation and the Institute of Holocaust and Human Rights Studies of the Cardozo Law School.