Conversations with History: John Fabian Witt

Conversations with History: John Fabian Witt


– [Announcer] This program is presented by University of California Television. Like what you learn? Visit our website or follow
us on Facebook and Twitter to keep up with the latest UCTV programs. (mid-tempo reserved music) – Welcome to a Conversation with History. I’m Harry Kreisler of the Institute of International Studies. Our guest today is John Fabian Witt who is the Allan H. Duffy Class of 1960 Professor of Law at Yale Law School. His most recent book is Lincoln’s Code: The Laws
of War in American History which was awarded the 2013 Bancroft Prize, was a finalist for the Pulitzer Prize, and was selected for the
American Bar Association’s Silver Gavel Award, and was a New York Times
Notable Book of 2012. His other publications include
Patriots and Cosmopolitans: Hidden Histories of American Law, and the prize-winning book, the Accidental Republic:
Crippled Working Men, Destitute Widows, and the
Remaking of American Law. Professor Witt, welcome to Berkeley. – Thank you, it’s so nice to be here. – [Harry] Where were you born and raised? – Philadelphia, Pennsylvania. – And looking back how did your parents shape
your thinking about the world? – Well, that’s pretty powerfully, I mean I might have tried
to avoid it, but inevitably, my father was a history graduate student before he got drafted in the Vietnam War. He became a lawyer after serving as a conscientious objector. And so in some ways, I’m
a lawyer, I’m a historian, I’m kind of following in his footsteps. My mother’s influence is so pervasive, I can’t even identify. – Mm hmm, but I tell
us something, I mean– – So my mother is a, my
mother is a community maker. She makes community in and
around the neighborhood called Germantown in Philadelphia which is a fabulously
interesting neighborhood. And was a great place to grow up, the greatest place I could’ve grown up. – And was there much discussion of the law and history around the dinner table? – Oh yeah, to grow up in Philadelphia is to be surrounded by history. So I think there was a photograph of me in the Philadelphia Bulletin, a newspaper before, now-closed, which on July 4th’s 1976, on the Bicentennial was a big deal. And there’s a picture of me, I think on my father’s shoulders wearing a red, white, and blue hat. And being part of the
celebration of the Bicentennial, and to be surrounded by the Liberty Bell, and Independence Hall, and
Betsy Ross, and the flag was an inspiration to do
history from the beginning. – Where were you educated? – Quaker school, Germantown Friends School here in Philadelphia right in
the neighborhood Germantown. And then I went to Yale College, and ended up at Yale for a while. I got a graduate degree, PhD in history and a law degree there as well. – When you went to Yale
as an undergraduate, were you already committed
to the law and history? Was it something that you
knew you wanted to do? – You know, not when I not when I arrived, not when I arrived. I spent a lot of time thinking
I would be an economist. But then maybe the gravitational pull of the influence of parents, for whatever reason I ended
up majoring in history. And then at the end of
college, tried to choose between history graduate
school, and law school. And then decided I couldn’t
choose between them, so I did both, I just did both. – And which did you do
first or both at the same? – [John] I kind of did
them at the same time. – I see. – Yeah, I alternated. Yale’s a very flexible place. The law school’s small, the
history department’s small, and so I was able to work out moving back and forth across the street. – And any particular
mentors that stand out as an undergraduate,
graduate student, or end law? – I was really lucky to have
really extraordinary historians and lawyers to work with and learn from. David Brion Davis in
the history department as an undergraduate and then
and then a graduate student was an intellectual inspiration, an incredibly nice man as well which I’m sure was a large part of it. But David Brion Davis has written books that you know will last and
will survive the test of time. And then in the law school, a man named Bob Gordon, Robert Gordon who’s now at Stanford. And any number of other other figures, Akhil Amar, any number of other people I worked with pretty closely. – And what was your dissertation on? – The dissertation was
on industrial accidents. A century ago, a lot of
people don’t know this, but a century ago there was a
crisis in industrial accidents in the United States unlike anything the world had ever seen. And it transformed American law, it helped give rise to
to much of what we now know of as the modern
state in the United States. It was the response to
industrial accidents. It was a great project,
turned out to be fabulous. – And this actually
became your first book. – That’s right, so this
is The Accidental Republic is the name of this book. – And what you’re tracing is
a movement from free labor which was the center of the conversation and about how to treat labor, and were moved to accidents,
insurance, security which is a kind of a major transformation of the economy then reflected in the law. – Right, so if emancipation
was about free labor, if the very definition of
freedom after the Civil War became the freedom of
the worker to work freely and choose, make his own way. And it was him, it was very gendered which is interesting too. Once the workers are
being maimed and killed in extraordinary numbers, there’s a crisis for
that whole way of life, that whole system of thought that freedom had given birth to. And so what the book does, it traces out the experiments
of an entire generation around the turn of the 20th
century to try to figure out how to restore some version of free labor, or how to alter free labor, or how to remake free labor
for the world of risk, and the world of the of the 20th century which is the world that
we’re familiar with with now. – A theme emerges in that
book which is a theme that you’re very interesting,
comes up begin again, which is there’re critical
periods in our history and there’re alternative
paths that the law can take, and this was your first example of that. – Yeah, no that’s true, so
contingency is one of the things that I’m most interested
in finding as a historian. I think it’s one of the
distinctive contributions that historians can make is to reveal the existence
of alternative possibilities, that the world we live
in now isn’t inevitable, that it could have come
out quite differently. And of course what that means
is that we can make things happen differently into
the future as well. – And what led you to this interest, this early interest in tort law? Where did that come from? – Yeah, well, so one of
my teachers at law school at Yale Law School was Guido Calabresi, who’s this judge on the Second Circuit, United States Court of Appeals
for the Second Circuit, still teaching torts at Yale now. You know, has has taught
torts at Yale for decades. And in Guido’s torts class,
Calabresi goes by Guido, in Guido’s torts class, you spend the first several
weeks on a single case involving an injured
railroad worker in 1911. It ends up in the New
York Court of Appeals, the high court for the state of New York, and that 1911 case, or to get my mind wrapped around that, I needed a lot more time
than my classmates did. So I spent a couple years on that case, writing a dissertation
about it essentially. Whereas most of my
classmates got done with it just after a couple weeks. – And this by the way is
another theme that emerges, you’re very interested in storytelling and narratives of people, ’cause people are very important as actors in your analysis. – Yes, I was– – Not to say the only thing
that’s important to you, yeah. – Right, so stories are another thing that historians can bring to the table. And I think of them as
incredibly supple and subtle ways to tell, to draw an account
of the human experience. So, you know when I was
flirting with being an economist as an undergrad, one of
the great thrills of it was the ability to draw up
models for human behavior and focus on a few perspicuous dimensions that could allow you to
get some access and insight into how human beings behave. And I admire that and enjoy
doing it still sometimes as a teacher in law school classes. But you lose so much of the texture and the fine-grained account
of how human beings behave, and so the story allows you to tell things in their full complexity. I just find that hugely appealing, and I also just like stories. I also just like stories,
I just own up to that. – And so I’m curious
about the origins of that. I should mention here that
your books are extremely lucid and well written for an outsider who’s not a lawyer or a historian. And so the question is where did you learn to write so well? And what got you interested in stories? Was it law case studies? – Well, yeah, law school works, and the law works around
cases and particular stories, that’s for sure, that’s for sure. And I think that may be part of it. I think it’s just maybe
an effort to understand how human beings tick. What makes them tick? Where do their motivations come from? Where do their projects come from? And stories are one of
the ways you get at that. I’m a novel reader and a film watcher, and all those things organize
themselves around stories. I’m just not creative enough
to generate stories of my own. (both laugh) And so history helps me with that by giving me things
that actually happened. – I like to ask my guests what are the skills and
temperament required for the work that they do? And you wear two hats, a
historian and a lawyer, so talk a little about that. In other words, are the skills and temperament very
different for the two? Or are they not that different? – Well, they’re different
and they’re the same in a number of ways. But I think lawyers are
principally interested in trying to figure out
how to take the past, to take the accumulated body of legal materials that we have, whether it’s statutes
or cases from the past, and make the best that we can make for the future out of those materials. Historians are dealing with the past too, but they don’t have an
obligation to make the best we can make of those materials. They have an obligation to try to tell it the way it really was,
the way it really was. And so, there are some similarities there, but also some really
important differences. And to me the excitement is to be in both of those disciplines at the intersection of those two things. I just find that you know super, super interesting and exciting. – And in terms of temperament, I mean, you, you really, your, especially your historical studies, you’re really in the archives. It really is a question of
patience, perseverance– – Yeah, well, I learned about
this one in my accident book. You know, I commuted to Brooklyn, New York from New Haven for a good
while writing that book. And I bought a frame backpack and carried the collected annual reports of the New York state
insurance commissioner in the 19th century back and forth along
the Metro-North train. And now those are boring
books, they’re just boring. And so the the project was
to try to tell a good story out of these other
seemingly boring materials. And I think there were
good stories to tell. There were the, you know
lives and misfortunes of thousands and thousands of people in those insurance reports. That’s what the insurance is about, is protecting against misfortune. And so that’s what I do
when I’m in the archives, is I look for stories that I can tell that people don’t know about,
people don’t know about. And I think you know lawyers
do something that are the same, that as lawyers have to read
very carefully to draw out the salient facts, and so
there’re some parallels there. – And what about writing, did you get that those skills at Yale? – That’s interesting. I think I get those skills the way I imagine most writers get them which is from reading, just reading voraciously and
then wanting to produce things as beautiful as the things
that I’ve been able to read. – As a historian of the law you are drawing on tasks that lawyers do. So lawyers as you just
said, lawyers do history. They, you know, it’s a
different kind of history, it’s the history of precedence, of what happened before
what other courts have. Whereas as a historian,
there’s a difference. What exactly is that difference, if I could draw that out of you, between a historian of the law and lawyers who are by the
nature of their work historians? – Well, there’s a saying for this that it’s the lawyer does what’s called law office
history, law office history. And that, that’s sometimes said
pejoratively by historians, but I don’t think of it
as in a pejorative sense. What they’re doing is that the lawyer who does law office history is
doing history for a project, for a purpose, trying to
accomplish a particular end, help a client decide a
case in the here and now, something along those lines. The historian by temperament maybe, but by professional obligation is supposed to look at the past and
take it on its own terms. Now the historian chooses
which topic to look at. That is often driven
by presentist concerns, things in the here and now, but once the historian
gets to those materials, the project is to think about
them for their own sake, and to try to make sense
of them on their own terms. – I’m interested in what
are some common themes that emerged in your
work that would tell us what being a historian
of the law is about. And I found a very revealing
quote in the Lincoln book, the Lincoln’s Code which
we’ll talk about a minute, you say, “Law of any kind
does not develop independent “of its context or untethered
from the needs and interests “of the most concerned parties.” So it’s about a larger context,
talk a little about that. – Well, absolutely, so I think sometimes there are people who imagine that law must come down from the heavens, or be in the heavens, that
has some magical property that makes it live in the world of reason rather than the world of experience. There’s a famous line from
Oliver Wendell Holmes Junior, “The life of the law has not been logic, it’s been experience.” And Holmes was obviously right about that. The life of the law comes from what human beings bring to it, the projects, the goals, the
aspirations, the interests, sometimes base interests,
sometimes glorious ideals. And it’s that mix of all those things that comes to make what the law is. And the effort to to treat it as a domain of pure
reason and principle is to miss what really makes it tick, and really why we’d want to
have it in the first place. – And so your skills
as a historian provide that sense of texture
that enriches the context and makes one aware of
all the different things that are going on because in your books there is a sense of
interest group behavior, of the importance of ideas, the importance of individuals, and the importance of institutions and the history of those institutions. – Well, that’s right and all
those parameters seem to me to be critically important in developing the sufficient accounts
of the way the past works. And now if you get too
granular in these stories, well, it’s just one
damn thing after another and you haven’t revealed
any internal logic, or any structure, any recurring patterns. So, the balance is to find ways to take advantage of
the capacity of stories, to tell things as they really were, while also pulling out
some generalized patterns and some lessons at least for
understanding the material, maybe even sometimes lessons about how we ought to behave today. – I wanna go over a point that
we talked about a minute ago because another thing that emerges is these critical turning points where alternative paths present themselves and a decision is made one way or another. So, this rich understanding of the context really helps you see the paths
that we may no longer see because those paths were
the roads not taken. – Yeah, right and the job of the historian as I understand it in these moments, is to draw out the paths and
describe them as plausible. That it’s easy to say, oh, look, somebody thought of something which didn’t come to pass, but that doesn’t mean you’ve
been able to describe it as something that could
actually have come about. And so especially in the accident book, what I did there was I tried to lay out, you know, almost a half dozen
alternative ways of organizing a system of accident law and insurance. Each one of which could have been models for the social insurance
state of the 20th century. But I didn’t wanna just identify them, I wanted to build them out and describe the ways in
which they were being built, being made, being developed on the ground, so that the reader gets a sense, this is actually a plausible path that might have been taken. Sometimes there’re paths
that are taken elsewhere. I mean history is a little bit like, the past is a little bit
like a foreign country, and so it’s a kind of, it’s
a form of comparativism. That is the experience of other countries can sometimes show us
how things might work in a different way and soak
in the experience of the past. – Your two recent books the Lincoln’s Code which we’ll talk about in a minute, and the Patriots and Cosmopolitans: The Hidden Histories of American Law, can be seen as responses to
the events of events of 9/11, not in the sense that those events over-determined what you did, but in the sense that
they shaped your sense of what the problems were
that you wanted to look at. Talk a little about that. – Well, 9/11 had a big impact
on my thinking about the law. I lived about a 1/2 mile
north of the Trade Towers on Greenwich Street in New York on 9/11. I was actually in a voting booth when the first plane hit right on the West Side Highway there, and that day and the days that followed left a big impression on me. We were very fortunate that we were safe our close, our loved ones were safe. A lot of people weren’t
as fortunate as we were, but I wanted to think more
about international law, the kinds of controversies
that quickly followed as the United States began to respond in the months and years thereafter. So a lot of it was motivated
by thinking about the way in which the United
States was in the world, and thinking about the
international influences on American law. It’s also true that in the
field of legal history, I think one of the next
big questions for us is the history of international law. And it’s a field that’s booming right now independent of developments on the ground. Although, of course,
always engaged with them, but because the field is
set up now to want to know about the history of international law, we’ve got a lot of literature on the history of domestic law. And international law is a
kind of unwritten frontier. And in pursuing these
interests on your part there is a focus inevitably
on national identity, nationalism, what that means
as American law responds to external influences
say in international law or international examples and how they impact us and
lead to a reassertion really of American nationalism
and national identity. – Yeah, well so the, my second book, the one just before this most
recent one, Lincoln’s Code is entitled as you said
Patriots and Cosmopolitans. And what I wanted to take
up was these twin impulses that run through American history, an impulse to a kind of
nationalism or patriotism, and I certainly felt that
in the days after 9/11. I think almost everybody, maybe everybody in New York City did. And then on the other hand,
a kind of cosmopolitanism. That is the United States
has sometimes aspired to be bigger than just itself, has aspired to stand for
ideals and principles that are global, that are
the right thing to think independent of where you
happen to be in the world. We’re a beacon on the hill, as it were, for the for the entire world. And so those twin impulses, I wanted to explore them
in the history of the law. I definitely felt them
inside myself, still do. Nation states do wonderful things, and there’re also obstacles
to the accomplishment of lots of other good things. And so I wanted to pursue that through the history of American law. – And you went about doing that and in tell the lives
of several individuals throughout American history in different periods of American history. And I wanted to focus on
the last two chapters. And in telling the story of individuals, and in the earlier chapter
you focus on a woman attorney, and I have her name here. And I’m gonna find that name, remind me– – Crystal Eastman yeah, yeah. – Yeah, yeah, sorry, Crystal Eastman That’s terrible that I lost that name. And in telling about her life, it’s a fascinating account. And tell us a little about her and the themes that she was
interested in as a lawyer. – Well the reason I picked
up her story, first of all, she gets started in
industrial accident reform. I met her in my first book, and then noticed that she made a turn right around 1908, 1909, and became much more interested
in questions of world peace, and internationalism was the word that she used to describe it. And Crystal Eastman is
a lawyer trained at NYU in the first decade of the 20th century at a time when there weren’t many lawyers. She couldn’t find a job practicing law, not even liberal law firms would hire her because she was a woman. And so she found, what she
did was she found ways, she found ways to be in the
law and to work in the law that didn’t require her to go through the old boys’ networks. – And they were very few lawyers, women lawyers at that yeah– – Oh, absolutely, absolutely. And the thing that she saw that I admired, and admire still to this day, and it’s the reason why she’s
the center of that chapter is that she saw that nation-states aren’t themselves inevitable. There’re a particular way
of carving up the planet, creating governance structures allowing us to engage in
democratic self-government, and do lots of good things. But she thought, and a whole bunch of
people in her generation thought so along with her, that the rivalries among nation-states were terribly dangerous. That they produced
things like World War I. And that the nation-state form itself was was really problematic
and needed to be transcended. And this is an idea that lots of people in the 20th century had. We used to have the League of Nations, we have the Charter of the United Nations, all of which are trying to find supranational,
transnational structures. And she’s part of the early
cusp of that 20th century idea that the nation-state is the problem. And so exploring her story was a way of thinking about these funny
containers of human life called called nation-states. – And interestingly enough, and I demonstrated that by
not remembering her name, she’s not well-known. – No, not at all. Her brother Max Eastman is
a little bit better known. He was an editor of
something called The Masses which is an important World
War I radical magazine. He becomes an important literary figure in the middle of the 20th century. She gets sick in the 1920s and dies tragically, tragically young. – It’s interesting because
the evolution of her career is really indicative of these
cosmopolitan influences. So she was in industrial accidents, and she studied at Columbia or NYU. – Yeah, yeah. – And learned about looking
at large scale problems which ultimately,
sociological analysis leads to a European way of studying problems. And she moved from that back
to emphasizing the individual when the war brings to America concerned with national security
and the Espionage Acts. – Right, she’s a fabulously
interesting intellectual person. She has an intellectual journey through a bunch of different ideas in the early part of the 20th century. She’s a progressive for a little while, she becomes a radical, she moves through different places along with the intellectual
currents of the day. And her own experience
really helps her see things and add to those ideas. So as a woman she marries
a British national. And she marries a British national at a time when doing so strips her of her American citizenship, just automatically by a
statute enacted by Congress. And so she sees up front and personal the consequences of the way
nation-states are organized in her personal life through this moment. And it’s part of what motivates her. – And interestingly enough
because of the Espionage Acts, civil liberties became more important. But someone like Crystal
saw civil liberties as a means to the end of
these cosmopolitan ideas about world government and so on. But in the end she loses out
to a man who is well-known, Roger Baldwin who ultimately creates the American
Civil Liberties Union, but is really focused on domestic issues. His background was in domestic law, and so cosmopolitanism
becomes civil liberties because of this assertion of national identity and
nationalism in a way. Is that an oversimplification? – No, that’s a great
way to tell the story. I mean Crystal Easton was a dreamer. She has an aspiration, and she sees an ideal
far off in the distance. And a lot of people who are
more successful in the world really in the end, you compromise with it. And Roger Baldwin is
someone who compromised with the world in order to
accomplish really amazing things. But he makes big compromises in order to accomplish those things. He’s an organizer who
insists on practical reform. And abolishing nation-states
is not a practical reform. It wasn’t gonna happen then,
it’s not gonna happen now. We see that in Eastern Europe right now with the refugee and migrant crisis with the nation-state reasserting itself. So Crystal Easton was a dreamer and it’s useful sometimes
to think about dreamers to focus on them ’cause
they highlight things that we don’t see otherwise. – And I guess the virtue of
this history as I read it, you understand the origins
of what we see these days. People who believe that the UN could solve all of our problems
when in reality it doesn’t. – Right and there is no
UN for her to claim on to try to appeal to at that moment. And so what she does is she invents this idea of civil liberties. She invents civil liberties as a way to hold off the nation-state, to create some space for
voluntary organizations, to develop ideas of internationalism, and to create an internationalist spirit in the first two decades
of the of the 20th century. – The next chapter in that
book pairs Roscoe Pound, a famous Harvard dean who was favorable to administrative law in
the beginning of his career, but then became a spokesman for the Association of Trial Lawyers. And you pair him with Melvin Belli, both men, both well-known. And it’s a fascinating account of how the trial lawyers became a way through interest group
politics to essentially reassert national identity in America, sense of its own institutions, and to use those institutions
to essentially benefit the self-interest of lawyers, and presumably their clients. – Well, one of the interesting questions in the history of American law is why is it that certain
features, certain experiments, certain structures get
seen as un-American? How does that come to be? It’s a little bit of a mystery. And so one of the things I wanted to tell in this story was the self-conscious use of the lobbying power
of the legal profession in the middle of the 20th century to hold off the growth
of the New Deal state, to hold off the growth of bureaucracy, administration, and end the New Deal. And to do it in order to
protect the common law courts and the jury trial, in part, it’s appealing about the common law courts and the jury trial. We know there’re pathologies in the welfare state, absolutely. What was interesting to
me was the way in which the lawyers who started
to tell these stories about the un-American
nature of the New Deal, we’re doing something on behalf of the self-interested project of keeping the contingency fees flowing. And so that was a story that
I had a great time telling. And the relationship between Pound, who had himself once been one of these bureaucratic reformers. The story of the relationship
between him, an aging Pound, and Melvin Bell was just was
just too good to pass up. – And the politics of both
Baldwin, and Pound, and Belli, although very different
in terms of the you know, on the liberal conservative spectrum, in the end it’s about falling
back on American institutions, American identity to assert the importance and the dominance of a
particular sector of the law. So it’s American and it’s
embedded in our sentiments, you call it, and our institutions to take this path to the law. – Right, this has been
one of the ways in which the nation-state asserts
itself in our history, and comes to to play such a
powerful role in our history is by creating institutions that
people like Crystal Eastman can’t actually get around. They can alter them, they can introduce something
like civil liberties, a really important tradition, but those institutions have
such gravitational force. And so one of the things
that the Belli/Pound chapter was designed to bring out, their story, is the way in which those
institutions and those traditions bring people back to the
nation-state time and time again. There’s power to be had by making, by calling on the
traditions and institutions that the nations of the
world have have created. – An interesting theme that I discovered which reminds me now that you having said you were considering economics because the people who
lose out in these stories, essentially, have a sociological approach to the problems that are being addressed. That they want to look at
what the data tells them about the large scale
project and which way to go. And that was true of
the administrative law that Pound supported in the
beginning of his career. And it’s true in the case of
the woman we just talked about. – No, that’s true, yeah. So one of the things
that I hope to bring out in the Pound/Belli chapter is that it’s not clear to me that one version, the sociological was better
or worse than the common law. In some ways, the common law, and this is was the genius of Belli, not so much Pound’s work,
but the genius of Belli, was to recreate in the common law, private administration as a substitute for public administration. So it turns out that in the
tort system we have now, the trial is a rare event. What really happens in the tort system is settlement in boardrooms,
between insurance companies, and sophisticated plaintiff’s lawyers, who create the same kinds
of grids for settling cases that the bureaucrats and the
public side have as well. And so, I was interested there
in showing the way in which particular kinds of
ideas about Americanists have these unintended consequences of keeping with administrative bureaucracy which after all just
saves us too much money. I mean it’s too efficient to not have it, and yet we have it in the private side rather than the public
side in the United States. – And this is not just true in tort law, it extends to other
areas of the law, yeah. – Oh, yes, yeah, yeah, yeah. You think for example of Obamacare which runs through private
insurance companies. The use of private mechanisms
for delivering public goods is a central theme for American
political scientists who study the the provision
of the American welfare state, and also is a theme that
comes out in American law. – And so, in that, that’s
an argument for history if I ever heard one. So that it gives you a, if you wanted a single-payer, your history, not to say you’re
taking a position on this, but by understanding the
complexity of the past and where we are today, you can understand the difficulty of
implementing a single-payer. – Yeah, you’d want to know this
history to make a strategy. No matter what you wanted, you’d want to take this into account. Yeah, that’s for sure. – Your most recent book for which you won the Bancroft Prize is Lincoln’s Code. What was Lincoln’s code
and how did it come about? – So Lincoln’s code is a text that the Union Army
issues in April of 1863. And it’s the modern
world’s first restatement of the customary rules of
international armed conflict. It has 157 articles. It’s got rules about
torture, prisoners of war, legitimate targets and
illegitimate targets, the whole array of things that we think of as being the laws of armed conflict which since 9/11 have been
really salient for us. They’re all they’re in this text that the Union Army issued in ’63. – And as your history tells us, America had paid lip
service to the rules of law even though we had individual leaders who might have done
particular things in wars, one thinks here of President Jackson and his fight with the Indians, or George Washington in the
early part of his career, that they may have done
things that did not abide by the rules of law. But overall, we embraced
the the rules of law with one important exception, and it is that insight on your part that really is eye opening. What was the problem that the US had with the rules of war, one
particular element of it, before the Civil War? – Well, I think the thing that causes the Lincoln administration to
need to issue this pamphlet is that since 1775 the
American position had been that the laws of war don’t
allow civilized states to free enemy slaves in wartime. This is something that
the last royal governor of Virginia did, Lord
Dunmore, on his way out. You see, announced that he’d
free the slaves of rebels who made it to British lines. And from that moment on
the American planter class, and then the American government
is committed to the idea that you can’t free slaves in wartime. And that commitment which
John Quincy Adams carries on in the War of 1812, and then later as secretary
of state and president, that that project to
protect slavery from wartime which is hugely important
for the strategic interests of the United States, to keep war if a European
power had invaded, to keep it away from
the slave plantations, which might be like a tinderbox. That was the worry. – And the worry, let’s emphasize this, the worry was that if you freed the slaves there would be mass insurrection, and all sorts of terrible events with examples from history
like the Haiti rebellion. – Right, exactly, the
Haiti, the specter of Haiti looms over much of the early
part of the 19th century. It comes to stand for, it was misunderstood in
large ways by the planters, but nonetheless, in
there misunderstanding, it comes to stand for the
risk of freeing slaves in a moment of armed conflict, and the kinds of race wars and atrocities that might arise out of it. So that fear is something
that really helps to shape the military
strategy of the United States during the entire Antebellum period. – So this is a perfect
example of what you’re saying, so before the Civil War here is an international body of law that essentially we embrace in
all respects except for one. And in this particular case, namely the rules about
freeing slaves in war, there is absolute total resistance by all of our founding fathers
and the elites that we have through our history up until Lincoln. – Yeah, I mean the Americans
push really hard to establish a rule about slavery in wartime. And you know when John Quincy Adams goes to his British counterpart to
negotiate the Treaty of Ghent in 1814 to end the War of 1812, his British counterpart says, you know John that that’s not the rule. So it’s the United States
that really gets out at the forefront of trying
to make private property and private property,
and slaves in particular, immune from wartime,
from the violence of war. And that then comes back to
haunt the Lincoln administration come the fall of 1862. You know, once Lincoln
decides on emancipation, his administration then
needs to figure out what to do with this
long-standing tradition of insisting that this
rule is a cardinal rule in international law. – And if we get into the details
of the conduct of the war, not freeing the slaves
becomes a real problem. So whatever humanitarian ideas Lincoln had about that the slaves should be freed as a matter of principle, it’s really the particulars of the war that are giving him that final push. Well, give me some examples
of those particulars. Why did the slavery
become such a conundrum? – Well, it becomes such
a conundrum in large part because the slaves make it a conundrum. So you know right from
the beginning of the war in the spring of 1861, slaves roll across to
Fortress Monroe in Virginia leaving Confederate lines
and coming to Union lines. And Union commanders, right
there it’s General Butler, have to decide what to do
with these slaves who arrive. And the the initial solution, or the initials are patched
together a framework, is to call the slaves that make it to Union lines contraband. Now contraband is a term
from international law. It’s just not a term
that had anything to do with the situation to
which it was being applied. It’s a term that has to do
with the property that’s useful in war found on a neutral
vessel on the high seas. And what Butler does, is he appropriates that term from the international
law of the sea context, and applies it in this new
place to try to begin to grapple with what to do with
the slaves in wartime. And from there, it just gets
harder as the months go by. – You make a distinction
in American history and American ideas
between notions of justice and notions of humanitarianism. Explain that distinction,
and then how that in a way helps us understand
Lincoln’s decision process. – Well, you know, one of the
things that legal history does is it helps us highlight
the moral structure of the legal institutions,
legal rules we have today. And here’s a really good example. So the the the moral
structure of the laws of war in the middle of the
19th century and today is a structure that tries
to set justice aside. The question when we deal with the international
laws of armed conflict is not which side is
right, which side is wrong, which side is just, which side is unjust. The questions are, assuming both sides are right for the purposes of regulating, how do we regulate this armed conflict? And so you don’t ask who’s in the right and who’s in the wrong. And that was true in the
middle of the 19th century too. It was the 19th and 18th
centuries’ great advance on the early modern law
which actually had asked who’s in the right and who’s in the wrong. So it was a law that was
focused on humanitarianism at the expense of justice. And what the American Civil War does is put justice back on the table ’cause emancipation is
a project for justice. Lincoln says that, he says when he issues the
Emancipation Proclamation, he says this is an act
of military necessity, and an act of justice. So he’s put justice back on the table in a way that potentially
could have unbalanced the humanitarian rules of the laws of war. That’s the tension that runs through between justice and
humanity in the laws of war. – And interestingly enough, to go back to the themes
that you’re pursuing in this particular case, the international principle
of freeing slaves is embraced by America when the necessity of war pushes Lincoln to make that choice. And philosophically, as you’ve just said, he decides that well, we don’t
know whether the Confederates are right or are we right, well, we have to believe
that we are in the right. – There’s this great
moment in the fall of ’62, as Lincoln’s trying to
come to a conclusion about whether or not to do emancipation, he takes some notes, you
know he takes some notes. And what he does is he recapitulates the intellectual history of
the international laws of war. And he does this, it’s not like
he’d been to graduate school in in just war theory, what he’s done is he’s read some law books
by William Blackstone, and he’s read Shakespeare,
he’s read Henry V. And with those things and
with his natural genius, he’s able to recapitulate the history. He says, I know that that we
Union folk are praying to God, and we think we’re in the right. I know that the Confederate
soldiers pray to God as well. And so I know that we’re
supposed to do in the laws of war is assume that we don’t
know who’s in the right. But how can I have that
posture, if I’ve committed hundreds of thousands
of men to harm’s way? And as the Lincoln sees that tension, and sees that tension
better than anyone else who thinks about the laws of war in the middle of the 19th century. – And his administration commissions a Columbia law professor
named Lieber to draft these. Lieber’s had become known because his lectures at
Columbia had been printed in The New York Times. And Lieber’s background
is very interesting because he’s a German of origin, he’s a European, he knows Clausewitz, he’s actually witnessed war, as I recall. So he is, in a way, a draftsman that is bringing the European
sense of the rules of war, but also the necessity of what you must do in war to the table. – Yeah, well, Lieber is just, is one of the great forgotten characters of the of the American Civil War. And what he helps us see
is that the laws of war don’t get adopted in order to constrain the people who adopt
it or in order to hide, in order to tie behind the back the hands of powerful states. The laws of war get
adopted by powerful states, the multilateral treaties beginning in The Hague Conventions of 1899, moving through to the Geneva
Conventions of our own time are conventions/treaties that get
adopted by powerful states. And Lieber sees that, he’s a Prussian. He comes of age in the
era in which the Prussians are trying to overthrow Napoleon, kick him back out of Berlin. He’s shot on the way back to Paris chasing Napoleon back to Paris. But it doesn’t make him a pacifist, instead he sees war as the kind of thing, which though tragic, is
occasionally necessary. And it’s necessary to sustain the moral virtue of free people. So his code is not the code of what he would have called
a mawkish humanitarian. He has disdain for the
mawkish humanitarian, who he thinks is secretly a pacifist. And instead he has a code that’s fierce, it’s a code designed to allow
the Union Army to win a war. – And in this code in addition to saying, making it the code compatible with Lincoln’s intention
to free the slaves, there is a rule against torture. There is insights about well,
who is an enemy combatant and some what? – The central organizing
principle of the code, and this is why I think
it’s Lincoln’s code properly rather than Lieber’s,
although international lawyers have always called it Lieber’s. But the central organizing principle is the military necessity idea
that Lincoln had a vote in September of 1862 when he announced the Emancipation Proclamation,
the preliminary Proclamation. And that organizing idea
runs through the entire code. And so when Lieber brings up a question like prisoners of war, or legitimate targets,
civilians, and soldiers, he’s always got in the back of his mind, a carveout for situations of necessity. And so the code says you may not kill, we may not execute prisoners of war, but then it says unless
you really have to. And he too may have been
thinking about Henry V right there, Shakespeare’s Henry V in which a famous order is given, not clear whether it’s carried out, but is given in a moment
of extremists in the battle to kill prisoners behind the front lines. So there are always these
carveouts for military necessity. Except one, except in the case of torture. And torture, Lieber says,
is simply not permitted. There’s no carveout. It’s not something that
civilized states can do and remain true to themselves. He’s not worried, I don’t think, about the moral status
of the enemy soldier, nearly so much as he is
about the moral status of his guys, of the people who’d have to perform the torture in question. – Now in the other, so in the end, we embrace a humanitarianism,
but at the same time there’s an understanding of the conflict with this principle of justice. Namely, that we have to
believe our cause is right, you know, or we’re not
gonna win this thing. And we see the the effect
on humanitarianism, in the whole prisoners of
war and exchange business, where because the South,
once slaves were freed, would not allow captured
black soldiers to be freed. Then we, all negotiations
about the exchange of soldiers broke down,
making the the Union soldiers who were not black really suffer. – Yeah, this is one of the places where you can really see the justice/ humanitarianism tension. So, the reason Lincoln
needs to issue this code is not just to reverse
the 85-year tradition starting in 1775 of insisting
that the laws of war don’t allow you to free enemy slaves, it’s also to deal with the
consequences in the management of the conflict, of
moving to emancipation, and of arming black soldiers. So Jefferson Davis and James Seddon, the Secretary of War of the Confederacy, and Davis, of course, the
President the Confederacy, have announced, in no uncertain terms, that black soldiers in Union uniform will not be treated as soldiers, they’ll be treated as criminals. They’re either black free
abolitionists from the North, who are stirring up a slave insurrection, which is unlawful in the law
under the law of Georgia, South Carolina, Mississippi, and so on. Or they’re black slaves who
have escaped from a plantation and are themselves a
criminal for having done so, and then stirring up an
insurrection as well. So the idea is that southern state courts are gonna hold trials and
punish, often by execution, black soldiers enlisted in the Union army. And what the code does is it
insists that the laws of war don’t allow for discrimination
on the basis of race. That they require that states recognize the privileges of soldiers for everybody in the in the enemy uniform. And so that problem helps
propel the code forward, and what it does is it causes a breakdown in prisoner exchanges. Once the Union insists on following the international law
rules set out in the code, the prisoner exchanges break down ’cause the Confederacy’s not
willing to trade black soldiers as part of part of prisoner exchanges. And what we get is things
like Andersonville. So Andersonville is the result, the terrible prison in Georgia where your tens of thousands die, that’s the result of the
end of prisoner exchanges. And what the Lincoln
administration is doing there is insisting on what’s right, insisting on what’s right
at the expense of humanity. And you see that tension there again. – How does your study help us evaluate the response to 9/11, to think more clearly about it? – Well, one of the things
I wanted to understand when I jumped into this was where did the response to 9/11 and the controversial pieces of it, they enhanced interrogation
and the torture, in particular, or also now drone strike and things like that. Where did those things fit in the long tradition of American history? And there was a sense that we
were in uncharted territory, that we were in unprecedented territory. And I think that what Lincoln’s
code is essentially designed to do is to show that
that’s just not right. Every generation of American
soldiers and statesmen has had its own crisis in the
laws of war, it’s pervasive. And what’s pervasive is moral challenge, and the law is trying to keep up with the basic moral
structure of armed conflict. So what we see actually in
our struggles now with Isis, and the like, is the reproduction
of a series of problems about how to deal with the laws of war that we’ve had since
the founding and before, since the Seven Years’ War, 20 years before the Republic get started. – And in my sense in reading your book is both the cosmopolitan book
and the Lincoln book is that you then see what’s going on today kind of in a different light. It doesn’t necessarily mean
that you change your position, but you wind up saying, oh,
that’s where this comes from, and, oh, this was handled in a somewhat different way in the past. – Yeah, I mean the effort
to bring al-Qaeda members to justice at Guantanamo is part of the long struggle over
whether or not justice should be a part of armed conflict. And it reproduces some of the
same debates that were had in the second half of the 19th century in Indian wars on the frontier. It reproduces some of the debates had about military commissions
during the American Civil War. And each one of those instances has been an instance in which the
effort has been made, the impulse has been felt to bring justice back into the equation, since after all, who
can leave justice out? Right and wrong ought
to be front and center, and if you violate the rules, if you act in a wrongful way, often times with terrible,
terrible consequences as on 9/11, then surely justice should
be front and center. And punishment should be
the language that we use, and the the project that we’re engaged in. But the laws of armed conflict have tried to get people to pull back from justice out of fear that fighting
for justice will just produce a downward spiral, and just
make things worse, not better. So we can see for example that tension just running
through our history, and reproduced now again, today. – When I think about your writings, and how they help us
understand the context of critical moments, I’m struck by the relevance
of the kind of work you do to the kind of problem we face today with the sharing economy, for example. And so, I’m not asking you to come up with a solution to that problem. What I wanna ask you is what are the sorts of things
that a historian would wanna look at in understanding the future of technologies like Uber in the context of long established rules about
municipal rights of taxis, of labor rights of employment, and so on. So I’m not asking for a
solution to the problem, but in other words, think
out loud about a historian of the law would think about this. – Yeah, I think it’s a good example. I mean it’s seems to me that
we’re in a hinge moment. I’m thinking out loud here with you, but I think it’s a hinge moment. And it’s a hinge moment
because as I understand it, outfits like Uber, Airbnb, are challenging the existing legal regulatory structure. They’re essentially saying, we think that that
crowdsourcing and ratings, customer ratings are a better
way to do safety in taxis, better way to rate the experience
and regulate the safety of the experience in
hotels and quasi hotels. And is a challenge to the old model of an inspector with a license. And that’s the model that we have now. And so we’re seeing a battle
between those two forms and it’ll be really interesting to see how that how that plays out. I’m sure that the sharing economy
institutions have shown us new ways to do some things
that we haven’t known how to do nearly as well before. And I’m also sure that
they’re in some other ways skirting some rules that
we’re gonna have to try to figure out how to reimpose. – And then in the end it’s really gonna be about interest group behavior, who’s gonna get mobilized to either be for or against this. It’s also about the lawyers
who can help us understand how this fits into what
you call the institutions and the sentiments that
define American nationalism. – Yeah, and it’s a good thing. I mean, I think you know,
one of the things that might, we might see here is
that the hotel industry and the taxicab industry, there’re gonna be interests
pushing back the other way. And they’re gonna be pointing to things like the fact that I
think many Uber drivers, I don’t really know what I’m
talking about here, right? (Harry laughs) So I’m gonna say to be irresponsible. But many Uber drivers, I
imagine, aren’t properly insured. I think this must be pervasive, right? And as that kind of thing comes out, as accidents happen, and people aren’t able
to recover on policies, as insurance companies
keep getting surprised to learn that their
insureds are Uber drivers, we’re gonna see the law
have to come to terms with that kind of thing. – Well, with their set of
problems like that before us, and having walked you
through some of the problems that you dealt with, my last question will be this, How would you advise students
to prepare for the future, especially, if they wanna go into law? And should they become historians too? – Well, they absolutely
should become historians. One of the great virtues
are being a historian, well, two virtues, you know, one is you haven’t ruled
out any methodology. You can do economic history, you can do the history of sociology, you can do the history of
English literature, right. So history is a way of not
ruling out a methodology, it’s in some ways it’s kind of
a cheat as a result of that, but the real reason to study history is that otherwise you’re like an amnesiac walking through time and space. And so having some sense of the kinds of features
of the human experience allows you to make sense of the meaning of the kinds of things we do
today, and hopefully tomorrow. – Well, on that note I wanna thank you very much for being here. Let me show the two
books that we discussed ’cause I think they’re really great reads, and our audience will want
to go out and get them. Professor Witt, thank you very much for this really engaging conversation, and being with us here today, thank you. – Thank you, my pleasure,
my pleasure, thanks. – Thank you very much, and thank you for joining us for this
Conversation with History. (mid-tempo reserved music)

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