Fighting Words

By JOHN FABIAN WITT

Review of Civil Wars: A History in Ideas, by David Armitage

New York: Knopf, 2017

In 88 B.C.E., the Roman general Sulla led six legions back into the city of Rome and crushed the arrayed forces of Sulpicius and Marius.  As the Roman historian Appian later put it, what began as an episode of “civil dissension” had escalated into “full-scale war,” complete with “trumpets and military standards.”  Sulla won decisively, marched into the Forum, and promptly declared Sulpicius and Marius “public enemies.”  The vanquished were executed and sent into exile.  And in that moment, the now-venerable and oft-abused concept of “civil war” was born.

Or so says the Harvard historian David Armitage in his brilliant new book, Civil Wars: A History in Ideas.  Armitage follows what he calls the “essentially contested concept” of civil war from antiquity to the fierce contests going on today in places like Syria and Iraq.  He is the perfect tour guide, alternately genial and erudite and serious.  He leads the reader skilfully around the landmarks of civil war in the era of European statemaking.  We see the concept nearly extinguished in the age of revolution, only to be formalized in the nineteenth century before metastasizing in the twentieth- and twenty-first.  There is no historian working today who is better equipped to lead such an adventure.  None is more learned than Armitage; his range of references is an astounding performance -- a sheer joy to read and absorb.  To sit down with Civil Wars is to know that one is in the presence of a master.     

But to learn at the feet of a figure like Armitage poses its own special danger.  It is all too easy to be carried away by the tour guide’s confident prose.  It is worth asking whether Armitage is right.  Is the concept of civil war both contingent and essentially contested?  What does it reveal to study such a concept over time?

The ancient Greeks had no concept of civil war.  Thomas Hobbes’s translation of Thucydides’ History of the Peloponnesian War never once uses the term, and Armitage insists it is for good reason.  The loose network of city states of the Peloponnesus was not the kind of political unit that could sustain the sort of conflict that would later come to be known as civil war.  There was conflict, to be sure.  But without a “central organ” commanding “a common obedience,” as Armitage quotes the nineteenth-century English essayist Thomas De Quincy, internal Peloponnesian conflicts could not be civil wars (44).  Instead, the Greeks used the term stasis to describe the kinds of factional infighting that politics was meant to replace.  Stasis was not the same as civil war, however, for it was neither civil nor war.  It did not imply a form of political authority.  Nor did it require a kind of armed conflict rising to the level of warfare.  Stasis could be “a state of mind,” Armitage says (38), and it could take place among families or private groups just as in cities. 

The ancient Greek case illustrates Armitage’s claim that civil war is contingent on a particular configuration of political authority.  Civil war, it seems, requires the kind of territorial political unit stitched together with enough central authority as to sustain an idea of collective political identity. 

It is no wonder, then, that the men who theorized the modern state form took up the question of civil war.  Hobbes saw civil war as the collapse back into the state of nature – the worst thing that could befall a form of government, Hobbes insisted, were the “miseries, and horrible calamities, that accompany a Civill Warre” (111).  Locke, by contrast, assimilated the idea of civil war to the rebellions that extinguished one regime on the way to establishing a new one.

A century later, the age of revolution nearly swallowed the concept of civil war.  The use of force, it seemed, might aim not merely for control of the levers of the state, but for a transformation of the state in the process – a revolution, in short.  In the 1770s, British observers called the growing unpleasantness across the Atlantic the “American civil war” (140).  Within a few short years the radical republican ideas in the Declaration of Independence and the early state constitutions had turned a civil war into the American Revolution. 

One of Armitage’s central threads is the expansion over time of the regulatory significance of the term “civil war.”  The key early figure here is Emer de Vattel, the eighteenth-century Swiss publicist.  Vattel’s great accomplishment as a jurist was to formalize the emerging Enlightenment regime of the law of nations, and in particular the laws of war, which formed the core of the classical law of nations.  Vattel took strands from seventeenth-century figures like the Dutch diplomat Hugo Grotius and the Spanish jurist Vitoria and wove them into a powerfully appealing model for the law of nations that rested on a suspension of the idea of justice.  The state of war, as Vattel constructed it, suspended the dueling claims to justice of the contending sides in order to allow for the regulation of the conflict.  All sides would be accounted as just so as to guarantee the immunity of each side’s combatants from prosecution and execution after surrender. 

Once the threat of punishment was removed, armies on the field could engage as if in a ritual, in which the stakes had been effectively lowered.  In Vattel’s hands, war seemed to step back from the ledge.  Opponents were enemies in a particular sense of the word, one that took on a highly particular ritualized significance and incorporated limits on the kinds of force that could permissibly be used. 

Vattel aimed to accomplish for civil war what his regime of morally agnostic accounting had achieved for interstate conflicts.  Here the project was more daunting, for the very essence of the civil war problem is the claim by each side to a monopoly over the adjudication of right and wrong.  The British saw George Washington as a traitor who would soon hang.  (Ethan Allen and others of the founding generation spent time in British prisons.)  Nonetheless, the conceptual success of Vattel’s notion of the state of war led him to try to extend his ideas about the regulation of conflicts between and among states to those conflicts arising within a state.  And so Vattel proposed a functional standard for evaluating internal conflicts.  When a domestic political conflict rose to a level equivalent to a public war between states, Vattel reasoned, “sovereigns should treat them according to the law of war” (132-33).     

A century after Vattel, the second American Civil War put his ideas to the test. As Armitage observes, the Lincoln administration concluded within the conflict’s first few weeks to account for it, at least in part, as an interstate war.  The Union declared a blockade, which invoked an entire apparatus from the laws of war at sea and implicitly treated the Conferacy as an independent state.  By the summer of the war’s first year, the Union was treating captured Confederates on the field as soldiers to be provided prisoner of war treatment, rather than as traitors to be punished.  And late in the war’s second year, the administration commissioned the Columbia professor Francis Lieber to draft a restatement of the international laws of armed conflict.  As a Prussian-born political theorist, Lieber professed disdain for much of Vattel’s work.  But he built on Vattel’s central innovation for the laws of civil wars.  For Lieber treated the customary international laws of war as applicable in internal conflicts as well as international ones, so long as the fighting rose to a level that approximated the kinds of conflicts that arose among states.   

Armitage misses a valuable point in the Lieber story, one that leads him to mistake by four months the timing of the Lieber restatement of the laws of war.  It might seem trivial given the two millennia over which the book ranges.  The error, however, is closely connected to a larger difficulty.  Armitage mistakenly places the Lincoln administration’s decision to draft a code for the laws of war in August 1862.  But this is premature.  In August, the Lincoln administration asked Lieber for advice on a particular problem arising out of guerrilla warfare in places like Missouri.  Lieber obliged with an important treatment of the subject, one that anticipated the Geneva Conventions functional standards for who counts as a privileged combatant and who does not.  Yet it was not until December of 1862 that General in Chief Henry Halleck asked Lieber to take on the laws of war more generally. 

The point matters because, as I have argued elsewhere, the Union’s law of war restatement was part of the emancipation project that went into force on January 1, 1863.  Emancipation, as Lincoln wrote, was warranted not only as a war measure, though it was that, but also as “an act of justice,” and as such emancipation threatened to undo Vattel’s artfully balanced moral accounting of the laws of war.  Emancipation reintroduced controversy over right and wrong and threatened to put the conflict back into the category of an internal dispute in which one side claimed the authority to punish the other at the conflict’s end.  The last article of Lieber’s restatement, which Lincoln published as General Orders No. 100 in the spring of 1863, made this all too clear.  “Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops,” read Lincoln’s order, “is levying war against the United States, and is therefore treason.”  The laws of war, it seemed, might be pulled out from under the conflict altogether. 

The last article notwithstanding, the Union statement of the laws of war was a high point in the effort to apply the international laws of armed conflict to internal civil wars – not its beginning.  Armitage sees it otherwise.  He contends that the law of civil wars has become denser and more populated with rules over time.  In this telling, Lieber stands at the commencement of a nineteenth- and twentieth-century story of ever more humanitarian regulation of civil war.  As far as the laws of armed conflict go, however, something closer to the opposite is true.  At the beginning of the modern era, the customary international laws of war attached to international and internal conflicts alike, so long as the latter rose to a level at which they functionally equivalent to the former.  Vattel set the template with his functional standard.  Lieber filled in the details. 

In the century and a half since, the diplomats who have constructed the treaty law of modern international humanitarian law have not been nearly so sedulous of intrastate conflict.  There has been a veritable orgy of multilateral treatymaking for the modern laws of war, beginning in Paris in 1856 and at Geneva in 1864, continuing at The Hague in 1899, and culminating in Geneva in 1949.  But where the customary law of the eighteenth and early-nineteenth centuries accommodated intrastate conflicts, the treaty regime essentially leaves intrastate conflicts out of the panoply of treaty rules that now govern modern interstate conflicts.  Virtually all of Lieber’s code applied to intrastate and interstate conflicts alike.  Of the treaty law today, only the threadbare provisions of Common Article 3 of the Geneva Conventions and the terms of the Second Additional Protocol formally govern non-international armed conflict.  The latter instrument has been ratified by 168 states, but not by the United States, and in any event its terms are considerably more limited than the extensive provisions of the Geneva Conventions of 1949.  It is not too much to say that in many respects we have less law for intrastate conflicts today than we did a hundred and fifty years ago. 

Non-international armed conflicts present a legal crisis in our time precisely because the absence of legal materials accompanies a sharp increase in the relative frequency of non-international as opposed to international conflicts.  Formal international wars have greatly diminished in the seven decades since the Second World War.  The number of non-international armed conflicts has increased dramatically.  The U.N. Charter surely plays a role here, for the document purports essentially to end interstate war altogether.  Save for a carve-out permitting self-defense by states, the terms of the Charter contemplate the use of force only when authorized by the Security Council.  Indeed, on a maximalist reading of the Charter, any conflict among states is now akin to internal conflict before the U.N. regime, because all conflict among states now has a legitimate third-party adjudicator.  Key insiders at the United Nations saw it precisely this way, especially in the heady days after the Charter’s adoption.  “All wars,” said one U.N. official in 1949, “are civil wars” (196). 

Armitage’s basic point is that invoking the idea of civil war has long been a high stakes move in political life.  Over the past two thousand years, the concept has had legal, political, moral, and linguistic consequences.  And as a result, the idea of civil war has been fiercely contested for nearly as long as it has been in use.  For every dissenter who claims the moral stature of a civil warrior, there is a sovereign who insists that the controversy is nothing but a criminal conspiracy or a gang of terrorists or an act of treason. 

The stakes in such bitter disagreements are what lead Armitage to argue that the idea of civil war is an essentially contested concept.  He draws here on the framework set out by W. B.  Gallie in 1956, who posited a category of “essentially contested concepts.”  Gallie described the idea somewhat cryptically, but he basically meant to describe a category of normatively positive concepts whose use was characterized at their core by complexity and intense disagreement. 

Invoking the “essentially contested concept” category is a bold move these days, for as Jeremy Waldron complained a decade and a half ago, Gallie’s idea has been badly abused and debased.  Waldron lists several dozen ideas in the law alone that have been characterized as fitting Gallie’s notion:

alienation, autonomy, author, bankruptcy, boycott, citizenship, civil rights, coherence, community, competition, the Constitution, corruption, culture, discrimination, diversity, equality, equal protection, freedom, harm, justification, liberalism, merit, motherhood, the national interest, nature, popular sovereignty, pornography, power, privacy, property, proportionality, prosperity, prostitution, public interest, punishment, reasonable expectations, religion, republicanism, rights, sovereignty, speech, sustainable development, and textuality.[1]

“Feeble-minded theorists,” Waldron observes bitterly, use the notion as a “cop out” to hide from the criticisms of their own accounts of key concepts.  They confuse ambiguity and vagueness at the margins of a concept with Gallie’s notion of indeterminacy at the core of an idea. 

So, what is it?  Should we add civil war to Waldron’s list of dubious candidates and toss Armitage onto his pile of feeble-minded thinkers?  The answer, I think, is no -- decisively so.  Civil war is more like democracy or the rule of law, concepts that seem better fits with Gallie’s definition than “boycott” and “sustainable development.”  But the answer favors Armitage in a complicated and interesting way.  For Armitage’s case study reveals something important about how essentially contested concepts work in history. 

It is a potential problem for Armitage that the term “civil war” is contingent on a particular form of political unit.  For the connection between civil war and particular kinds of polities suggests a rough commonality at the core of the idea.  Recall that the ancient Greeks, in Armitage’s account, not only did not have civil war, but could not have civil war.  The concept wasn’t available given their political institutions.  We can also readily imagine a world in which there is no longer any such thing as civil war.  Military technology, for example, might render the prospect of a war between a people and its government essentially impossible.  Has there ever been a civil war in a nuclear power?  There have been regime changes, to be sure.  Think of the demise of the Soviet Union.  But a civil war?

The absence of civil war, according to one account, is the rule, not the exception.  Bartle Bull and Sir John Keegan contend that there have only been five civil wars in world history: in England in the 1640s, in the United States in the 1860s, in Russia from 1918 to 1921, in Spain in the 1930s, and in Lebanon from 1975 to 1990.  Others come to a higher count.  The massive Correlates of War project at the University of Michigan, which assembles data on armed conflict, adopts a much wider definition that purports to identify 334 intrastate wars between 1816 and 2007.  

Yet despite the varying definitions and counts, there is a basic congruence in observers’ identification of the kinds of conflicts that count as civil wars.  Definitions of civil war almost always describe a struggle for legitimate sovereign control of a particular territory.  That struggle must be characterized by a substantial level of collective violence.  And that violence must be conducted principally by people who are residents of the territory in question.  To be sure, there is argument at the boundaries of whether a particular conflict counts as a civil war.  But it is merely that: argument at the boundaries.  How many deaths count as a substantial level of violence?  How much outside intervention has to occur before a conflict becomes an interstate affair rather than an internal one?  Does a particular struggle have the right kind of political motivation to make it a civil war?

In describing the idea of essentially contested concepts, Gallie wrote that it is not enough to say merely that “different persons or parties adhere to different views of the correct use of some concept.”  Those other views of the concept, after all, might be incorrect.  What is critical is that “each party recognizes the fact that its own use of it is contested by those of other parties.”  The essentially contested concept is constituted at its core by the fact of persistent and ineradicable contestation.  As Waldron puts it, “they are present to us only in the form of contestation about what the ideal really is.”

Armitage’s insight is that the concept of the civil war has become one that is best understood, or perhaps only understandable, by reference to the struggles that inevitably accompany its invocation.  One person’s freedom fighter is another’s terrorist, as the saying goes.  So too one person’s civil war is another’s criminal conspiracy or treason plot or coup d’etat.  The language matters because entire worlds of meaning – moral, political, and legal – follow from the choice of words.  And so people embrace or reject the label because of the train of consequences that will follow from its successful invocation.

In the American Civil War, for example, calling the conflict over slavery a civil war had a whole host of implications.  It legitimated Confederate privateers and essentially blocked a stillborn Union effort to prosecute Confederate privateers as pirates.  It made the criminal punishment of the Confederate soldiers all but impossible, and added significantly to the costs of a treason prosecution of Jefferson Davis.  (Davis was indicted more than once, but never brought to trial, and eventually pardoned by President Andrew Johnson.)  The civil war label augmented the risk of foreign intervention by British and French interests anxious to maintain the supply of cotton to their textile industries.  It supplied a set of benchmarks for the behavior of the contending sides, in everything from truce flags to prisoner exchanges to targeting decisions.  It called forth a restatement of the laws of war that offered a blueprint for a thousand military commission trials during and after the war.  That same law of war restatement, the Lieber Code, established a rule against torture that undergirded successful courts martial of American soldiers administering the water cure forty years later in the Philippines. 

The entailments of the concept continue to loom large today.  Armitage gives the example of the International Committee of the Red Cross deciding whether the conflict in Syria counted as a non-international armed conflict in 2012.  It took more than a year and some 17,000 deaths for the ICRC to conclude that the violence had risen to the level of armed conflict.  Many of the consequences follow from such use of the term are legal, and Armitage identifies these with deft expertise.  Many of the effects are political and moral, too.  Use of the term “civil war,” as Armitage notes, now brings with it a palimpsest 2,000 years of meanings. 

Focusing on what’s at stake gives the reader a front row seat on a compelling intellectual-historical dynamic.  For the success of the concept of civil war in creating meaning and in organizing the regulation of such conflicts is precisely what produces the imperative of contestation.  “Civil war” is a label worth fighting over not because of anything at its abstract conceptual core, but because of the regulatory and moral significance that people have attributed to it over time.  The essentially contested character of the idea is thus not essential in the sense of being inherently contested in some metaphysical sense.  The contestation over “civil war” is essential in a different way.  Contests over its meaning are a core feature of its significance in the world.  Partisans invoke it (or alternately reject it) to advance projects that are at odds with their opponents’ invocations (or rejections) of it.  Such battles over terminology are at the very heart of the concept of “civil war.” 

We make our fighting words.  But they also make us.  Few have seen this point more acutely than Armitage.  Even fewer have managed to cobble together the words to help their readers to do the same.

Posted on 6 March 2017

JOHN FABIAN WITT is the Allen H. Duffy Class of 1960 Professor of Law and Professor of History at Yale. His Lincoln’s Code: The Laws of War in American History, (Free Press, 2013) won the Bancroft Prize in 2013. He is writing a book on the story of the Garland Fund, the philanthropic foundation that financed the litigation campaign leading to Brown v. Board of Education.