Primary Source: Selections from the Twelve Tables (ca. 450 BC) (Introduction to Western Civilization 4.4)

The earliest attempt by the Romans to create a code of law was the Laws of the Twelve Tables. A commission of ten men was appointed in about 455 BC to draw up a code of law binding on both patricians and plebeians. It would be the job of the consuls to enforce this law. The commission produced enough laws to fill ten bronze tablets. The plebeians were not satisfied, so a second commission of ten men was appointed in 450 B.C. and two additional tablets were added. Below are some selections from the Twelve Tables.

TABLE IV

1. Monstrous or deformed offspring may be put to death by the father.

2. The father shall, during his whole life, have absolute power over his children. He may imprison his son, or scourge him, or keep him working in the fields in fetters, or put him to death, even if the son held the highest offices of state.

TABLE V

2. The provisions of the will of a paterfamilias [head of the household] concerning his property and the support of his family, shall have the force of law.

TABLE VII

7. Holders of property along a road shall maintain the road to keep it passable; but if it be passable, anyone may drive his beast or cart across the land wherever hechooses.

TABLE VIII

1. Whoever publishes a libel shall be beaten to death with clubs.

12. A person committing burglary in the night may be lawfully killed.

13. A thief in the daytime may not be killed unless he carried a weapon.

23. Perjurers and false witnesses shall be hurled from the Tarpeian Rock.

26. Seditious gatherings in the city during the night are forbidden.

 

Review Questions

 1. What kind of power does a father have over his son?

2. What is the responsibility of someone who owns property along a road?

Primary Source: Selection from the Code of Hammurabi (1772 BC) (Introduction to Western Civilization 2.2)

21. If anyone breaks a hole into a house to steal from it, he shall be put to death before that hole and be buried.

22. If anyone is committing a robbery and is caught, then he shall be put to death.

195. If a son hits his father, his hands shall be cut off.

196. If a man puts out the eye of another man, his eye shall be put out.

197. If he breaks another man’s bone, his bone shall be broken.

198. If he puts out the eye of a freed man, or break the bone of a freed man, he shall pay one gold mina.

199. If he puts out the eye of a man’s slave, or break the bone of a man’s slave, he shall pay one-half of its value.

200. If a man knocks out the teeth of his equal, his teeth shall be knocked out.

201. If he knocks out the teeth of a freed man, he shall pay one-third of a gold mina.

202. If any one hits the body of a man higher in rank than he, he shall receive sixty blows with an ox-whip in public.

203. If a free-born man hits the body of another free-born man of equal rank, he shall pay one gold mina.

204. If a freed man hits the body of another freed man, he shall pay ten shekels in money.

205. If the slave of a freed man hits the body of a freed man, his ear shall be cut off.

206. If during a quarrel one man hits another and wounds him, then he shall swear, “I did not injure him on purpose,” and pay the physicians.

207. If the man dies of his wound, he shall swear similarly, and if he was a free-born man, he shall pay half a mina in money.

208. If he was a freed man, he shall pay one-third of a mina.

209. If a man hits a free-born woman so that she loses her unborn child, he shall pay ten shekels for her loss.

210. If the woman dies, his daughter shall be put to death.

211. If a woman of the free class loses her child by being hit, he shall pay five shekels in money.

212. If this woman dies, he shall pay half a mina.

213. If he hits the maid-servant of a man, and she loses her child, he shall pay two shekels in money.

214. If this maid-servant dies, he shall pay one-third of a mina.

229 If a builder build a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death.

230. If it kills the son of the owner the son of that builder shall be put to death.

231. If it kills a slave of the owner, then he shall pay slave for slave to the owner of the house.

232. If it ruins the things inside, he shall make compensation for all that has been ruined, and inasmuch as he did not construct properly this house which he built and it fell, he shall rebuild the house from his own means.

 

Review Questions

1. What is the punishment if a man knocks out another man’s eye?

2. What is the punishment for a builder who builds a house that falls down and kills the owner?

3. Do you think the laws of the Code of Hammurabi are fair or unfair? Answer in a paragraph.

Dred Scott, Abraham Lincoln, and John Brown

Although many events led up to the final outbreak of the Civil War in 1860, three of the most important, which occurred in successive years before 1860, are the Dred Scott Decision of 1857, the Lincoln-Douglas debates of 1858, and John Brown’s raid on Harper’s Ferry in 1859. These three events combined, and each coming upon the heels of the other, led to an exacerbation of the tension between the North and the South, heightening feelings on both sides. Although the Civil War had become a near-inevitability by the time that these events occurred and due to the ideological rift between North and South, these three events are important link in the chain of events that led to the outbreak of conflict.

The Dred Scott Decision in 1857 decided the case of Dred Scott, a slave who tried to claim his freedom on the basis that he had been taken and lived with his owner in a state in which slavery was illegal. The Supreme Court’s decision was that Dred Scott was not only not made free by virtue of having been taken into a non-slave state but in fact did not have the legal standing as a person according to the Constitution to even have brought his case to court. This decision was a shock to many Northerners and a major blow to the abolitionist cause.1 Abraham Lincoln was particularly incensed at the decision and reinvigorating in his zeal of stopping the expansion of slavery throughout the United States.

The Lincoln-Douglas debates of 1858 occurred the following year. In the debates, Lincoln, a member of the Republican Party, represented the free labor ideology of the Republican Party, and Douglas, a Northern Democrat, reflected a belief in the primacy of States’ Rights. These debates were widely attended at each location at which they occurred and the full texts of the debates were published in newspapers across the country and read with great interest. It was largely on the basis of his performance in these debates that Lincoln was nominated for and elected to the presidency the following year. Many of his words in these debates were also used against him by his Southern opponents in their attempts to paint him as a radical abolitionist.

The straw that broke the camel’s back in the lead up to the Civil War is probably John Brown’s raid on Harper’s Ferry in 1859. John Brown led a group of both blacks and whites in a raid on a federal arsenal in an attempt to encourage a general slave insurrection throughout the South. Although John Brown’s raid failed to accomplish its intended effect and John Brown himself was hung for leading the raid, Brown can be seen as ultimately victorious in his goals. His raid increased the tension between North and South and led many in both regions to believe the ideological differences between the regions could only be decided through armed conflict. His raid, then, can be seen as one of the important causes of the Civil War.

Although the ideologies of North and South had created an ever-growing rift between the two regions, and conflict was nearly inevitable by the late 1850s, the Dred Scott Decision, the Lincoln-Douglas debates, and John Brown’s raid on Harper’s Ferry are three events which exacerbated the tensions between North and South. These three events, which occurred in successive years leading up to 1860 and the outbreak of the Civil War, can be seen as steps that led to the process of secession. In this sense, they can be seen as three important causes of the Civil War.

1 Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (Oxford and New York: Oxford University Press, 1995), 292-3.

Reconstruction Under Lincoln

The greatest mark of the Reconstruction Era is perhaps its failure to effectively unite and rebuild the United States after the Civil War. If President Abraham Lincoln had lived to serve out his second term as president, the Reconstruction Era would have been smoother in its goal of reintegrating the South back into the Union but would have been the same as that under Andrew Johnson in its failure to fully account for, reckon with, and make amends for the evils of the past. In this failure, it would have created a similar situation to that which did occur in which oppression and disenfranchisement followed slavery and in which the real work of achieving equality and justice for all was slowed and delayed until a much later date.

As historian Eric Foner points out, “Lincoln did not … believe that Reconstruction entailed social and political changes beyond the abolition of slavery.”1 In this belief, Lincoln failed miserably to understand human nature and societies or ignored reality in favor of his own hopes and ideals. Whatever the reason for his belief, such a course of action would have been a recipe for disaster. To simply end the war and to end slavery without simultaneously working to eliminate the root and underlying causes behind why a clearly unjust institution like slavery was able to flourish in the American South in the first place, to attempt to balance the injustice by providing some form of monetary compensation and/or education as well as full citizenship rights to those who had suffered such an injustice, and to institute the proper laws and organizations for preventing future injustice is a remarkably great oversight on the part of someone remembered for their wisdom and thoughtfulness.

Lincoln had begun his first term as president expressing a desire to maintain the Union in peace at nearly any coast. His approach throughout the Civil War had indicated “a desire to achieve peace as expeditiously as possible.”2 Similarly, his approach to Reconstruction was largely one without any “fixed plan” aside from reattaching the South to the United States as quickly and easily as possible. For the most part, this did not mean fighting to procure social justice for former slaves nor, for that matter, any significant change in Southern culture, in which a deeply-entrenched and violently hateful racism inhered.

This unwillingness by Lincoln to “rock the boat” is reflected in Lincoln’s views concerning black voting rights. In modern liberal democracies and republicans like the United States full citizenship is reflected in one’s right to participate in one’s government by voting and having the right to run for political office. If one cannot participate in government, one is not a full citizen, in any meaningful sense, of a democracy. Lincoln’s rejection, then, of full political enfranchisement for freed slaves was a rejection of their full citizenship and, by implication, of their full personhood.3

Although Lincoln is often hailed as hero for having ended slavery in the United States and this heroic image and reputation leads many to believe the post-war years would have seen greater achievements and improvements, the truth seems rather to be that Reconstruction would not have taken place much differently under Lincoln than under Johnson. Lincoln’s policies before and during the Civil War reflect first and foremost a desire to restore the Union. No doubt his post-war policies would have reflected the same desire. Reconstruction under Lincoln, then, might have seen a smoother transition of the South into the Union than occurred under Johnson but would have seen a similar, if not grater, intentional ignorance of justice for former slaves.

1 Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: HarperCollins, 2002), 36.

2 Ibid., 73-4.

3 Ibid., 74.

Was the American Civil War a Just War?

Introduction 

The American Civil War was a defining moment not only in the history of the United States but in the history of the world. As Walt Whitman, an eyewitness of the Civil War, poignantly wrote in his book of poetry Leaves of Grass, it was on the United States that the “Earth’s résumé entire floats” and “the antecedent nations sink or swim with thee.”1 In other words, the United States acted, and arguably still acts, as the heir and representative of the entirety of the tradition of Western civilization. In the insistence of the founders of the United States that the underlying, central, and governing principles of the new nation were to be that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights,” and that governments “deriv[e] their just powers from the consent of the governed,” the formation of the United States became a culminating moment in the history of Western thought.2 Principles that were primary in and essentially unique to Western culture, such as the equality of all men before God and the law, the belief that all human beings are entitled to certain rights by virtue of being members of the human race, and that a government must have the consent of the governed, were identified as the principles upon which the United States would stand. The Civil War, then, represents a summarizing event in Western civilization; it stands in line with the Peloponnesian War, the triumph of Christianity in Late Antiquity, the split between Eastern and Western Christendom in 1054, and the Protestant Reformation as one of the greatest schisms in Western civilization. Both sides of the Civil War, the federal government and the incipient Confederate States of America, represent this common heritage in all its contradiction and complexity. Part of this common heritage is the Just War theory developed by Greco-Roman thinkers like Aristotle and Cicero, which culminated in the thought of medieval and early modern Christian thinkers such as St. Augustine of Hippo, St. Thomas Aquinas, and Hugo Grotius. Ironically, although both belligerents represent this common heritage and were fighting for two different aspects of Western civilization, and although both saw themselves as fighting for a just cause, neither participant in the American Civil War can be said to have fought a just war as both failed to meet the criteria of Just War theory.

Jus Ad Bellum

When considering whether a war effectively met the criteria of Just War theory, the first consideration that must be made is whether the reasons for war in the first place were just. In Latin, this stage of consideration is referred to as “Jus Ad Bellum,” meaning “just to war.” Traditionally, four criteria have been identified by Just War theorists as creating a situation in which a power is “just to war,” namely, (1) just authority, (2) just cause, (3) just intention, and (4) last resort.3

1. Just Authority

The first criterion, just authority, requires that the powers initiating and engaging in hostilities possess the legitimate authority to do so. Thomas Aquinas summarizes this point in his Summa Theologica in his claim that “in order for a war to be just” there must be a “sovereign” with valid authority “by whose command the war is to be waged” because “it is not the business of a private person to declare war” nor “the business of a private person to summon together the people, which has to be done in wartime.”4 While it is apparent that the federal government of the United States meets this criterion, the government of the Confederacy does not appear to do so.5 Theoretically, it could be argued that the central government of the Confederacy derived its authority from the states which chose to enter into it and which were undoubtedly legitimate governing authorities, which in turn lends legitimacy to the government of the Confederacy as a kind of conglomerate government of these states. The Constitution of the United States of America, however, of which all of the constituent states of the Confederacy were signers, specifically grants the right “to raise and support Armies” only to the federal government.6 Furthermore, the Constitution also did not provide for the means nor even seem to envision the possibility of any state or group of states to decide to leave the Union, a fact which Abraham Lincoln himself pointed out in his First Inaugural Address, delivered on 4 March 1861:

It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.7

In addition, as Charles Guthrie and Michael Quinlan point out in their treatment of Just War theory in the modern world, “historically,” the criterion of just or competent authority “has usually meant the ruler or government of a sovereign state, as opposed to an internal warlord or faction.”8 In other words, traditional Just War theory does not seem to countenance a civil war, no matter for how ostensibly just a cause. The Confederacy, then, fails to meet the criterion of just authority.

2. Just Cause

A just cause for war is perhaps the most central and important of the criteria of Jus Ad Bellum. Even those who are entirely unversed in the niceties of Just War theory and international law generally demand that there be a just cause for the initiation of military action by one nation upon another. To determine if either or both sides of the Civil War possessed a just cause for war, the reasons for the conflict as viewed and enunciated by each side must be examined; although there are a variety of causes which led to the Civil War, there are two overarching reasons behind all of the causes: (1) a dispute over the role of the federal government in relation to the rights of the states to govern themselves and (2) slavery, arguably the deepest of all underlying issues and causes of the war.

From a Southern perspective, the ultimate cause of the Civil War was the infringement on the rights of the states by the federal government. As the website of the Civil War Trust, a non-profit organization dedicated to the preservation of historical sites related to the Civil War, succinctly states it, “Southerners were sure that the North meant to take away their right to govern themselves, abolish slavery, and destroy the Southern economy.”9 From this perspective, it is possible to see the Civil War as a struggle by the Confederacy against the tyranny of the United States government, which would seem to indicate a just cause. If the implications of and reasons for the cry of “states’ rights” on the part of Southerners is examined deeper, however, the uncovered roots overturn such a conclusion.

Ultimately, for Southerners, the right of the states that was being demanded was the right to determine the legality of slavery. According to Alexander Hamilton Stephens, the vice-president of the Confederacy,

our new government is founded upon exactly the opposite idea [from abolition]; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man, that slavery — subordination to the superior race — is his natural and normal condition.10

While Union leaders, on the other hand, identified the war primarily as “a struggle to preserve the Union” early in the conflict, they quickly realized that the only way to preserve the Union was to agree with the Confederate leadership that the war was primarily about slavery and to adopt the equal and opposite position of those like Stephens, seeking instead to “reconstruct the Union into the nation it should have been without slavery.”11 In its very essence, then, at its deepest roots, the Civil War was a war about slavery.

Although slavery has been practiced throughout most of the history of the world, including those segments of the world and its history that make up Western civilization, slavery has also received an unequivocal condemnation by this tradition. As historian Thomas Cahill notes, “in the prescriptions of Jewish law we cannot but note a presumption that all people, even slaves, are human and that all human lives are sacred.”12 From these ancient Jewish roots, Christianity derived its “claim that all were equal before God and all equally precious to him,” a claim which “ran through class-conscious, minority-despising, weakness-ridiculing Greco-Roman society like a charged current” and overturned the previous ideological foundations upon which Western society had based its belief in the legitimacy of the practice of slavery.13 14 As a result of this claim, early Christian thinkers and leaders like late fourth century bishop St. Gregory of Nyssa became among the first writers in the world to adopt a truly abolitionist position towards slavery and to oppose the practice on principle.15 As Cahill has pointed out, it is only within the context of this strain of thought that a claim like that of the American Declaration of Independence that it is “self-evident that all men are created equal” can make any sense at all or, for that matter, “could ever have been” made in the first place.16 If such a claim is accepted as true, whether self-evidently or not, slavery must, by implication, be viewed as immoral per se.

If the ultimate and underlying cause of the Civil War for both sides thereof is indeed slavery, it is this issue which must determine which side, if either, had a just cause for the initiation of hostilities. According to St. Augustine of Hippo, as quoted by Thomas Aquinas in his discussion of Just War, “a just war is … one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly.”17 Given that slavery is a “wrong” in need of “punishment” and that the Confederacy had “unjustly” seceded from the Union for this cause, the federal government here again seems to meet the criteria of Jus Ad Bellum whereas the Confederacy fails to do so.

3. Just Intention

The third criterion of Jus Ad Bellum, just intention, requires that the belligerents involved in a war have the correct intentions in commencing hostilities. In the succinct phrasing of Aquinas, the criterion of just intention is the criterion that belligerent powers “intend the advancement of good, or the avoidance of evil.”18 They cannot intend to inflict hateful or undue punishments upon their opponents but only to redress the wrongs for which they are going to war. In this regard, again, the Union seems to have the advantage over the Confederacy in meeting the criteria of Just War theory.

Although, as will be discussed in the section on Jus in Bello, the Union often failed to live up to its intentions, it is clear from both his words and his actions that President Abraham Lincoln, as the leader of the Union, desired “to achieve peace as expeditiously as possible.”19 His goal from the beginning of the war and throughout its duration was to end the conflict and reintegrate the South back into the Union as quickly and easily as possible. To this end, he opposed those members of his own political party who called for more radical measures in punishing the South’s political and military leadership as well as its economic aristocracy at the end of the war. Although he insisted upon the emancipation of blacks and the abolition of slavery throughout the United States, he was, not to his credit, even willing to compromise on the enfranchisement of former slaves and other blacks as full citizens with voting rights in order to satisfy the prejudices and alleviate the fears of Southern whites, stating in his final speech before his assassination that he desired that, among blacks, only “the very intelligent” and Union veterans of the Civil War be granted the right to vote.20

In contrast to these rather amicable intentions on the part of the highest leadership in the federal government stands the rancor that dominated the intentions of the highest leadership in the Confederate government. In his Normans and Saxons, an intellectual history of the idea of race in its relation to the Civil War, Ritchie Devon Watson, Jr., demonstrates that the rhetoric of white Southerners against blacks, Northern whites, and other target groups exceeded mere polemic and entered the realm of vitriolic demonization.21 One example of the existence and nature of such hatred even among the highest ranks in the Confederacy may be found in the apparent approval of Jefferson Davis, the president of the Confederacy, for the assassination of Lincoln.22 In this point of Just War theory as in those previously considered, the Union once again meets this criterion whereas the Confederacy fails to measure up.

4. Last Resort

The final essential ingredient of Jus Ad Bellum, according to classical formulations of Just War theory, is that the resort to armed conflict be a last resort. Even if just authority, just cause, and just intention all exist, warfare must itself be the final and even unavoidable course of action in order for engagement in warfare to be deemed just. Augustine goes as far as saying that in order for a war to be just the nation which engages in its and its leader must be compelled by force of necessity to enter into warfare, claiming that “it is the wrongdoing of the opposing party which compels the wise man to wage just wars.”23 If either side in the Civil War can be said to have been compelled to enter the war by force of necessity, it must be the Union.

While there are many events which contributed to the eventual outbreak of open conflict between North and South, the 1860 election of Abraham Lincoln to the presidency is undoubtedly the match that sparked the flame. The crisis created by the Kansas-Nebraska Bill of 1854, in which antislavery and proslavery factions vied to populate the territories with their own members and, by extension, to depopulate the territories of members of the other faction, in order to ensure that the new territories entered the Union as non-slave or slave states, respectively, the 1859 attack of John Brown and his men upon the federal arsenal at Harpers Ferry, Virginia, by which he hoped to spark a war over slavery, and other similar events created a tension which hung thick in the air in 1860. The election of Lincoln, who had been elected as a senator from Illinois only two years earlier on “a strong anti-slavery ticket,” as it has been described, was the final straw as far as Southerners were concerned.24

Although he did not receive the majority of the vote, Lincoln did receive a strong plurality among the four candidates for the presidency. Whereas his Democratic opponent, Stephen Douglas, carried 29.5% of the vote, Lincoln took 39.9%, more than enough to represent a decisive victory.25 In the words of historian William E. Gienap, “the northern majority possessed the power to which it was entitled. Yet southerners refused to accept the popular verdict.”26 According to historian William C. Harris, who, in turn, relies upon the account of historian John William Draper, Jefferson Davis himself once plainly informed two Northerners who inquired of him the reasons for secession during the Civil War, “we seceded to rid ourselves of the rule of the majority.”27 In short, in the words of Harris, “Southern failure to abide by majority rule was at the center of the secession crisis.”28 29

Lincoln, on the other hand, tried to prevent Southern secession and the outbreak of war. Although he was portrayed by those who wanted to stoke Southern fears as a “black Republican” and an “abolitionist” and although he had voiced opposition to slavery in the past, Lincoln continually reassured those who would listen to him that he was no radical and did not plan to drastically overturn the state of things in the United States.30 His priorities, as he himself said, were to maintain the Union, to enforce its laws as they stood, and to seek peaceful resolutions to the conflicts and complexities that plagued it. The South, however, hardly gave him the opportunity to even begin taking action. Only “one month after Lincoln was elected president, the state of South Carolina announced its secession from the Union” and “within a few weeks, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas followed suit.”31 The Confederates were also the first to engage in violence against the other side, firing the opening shots of the Civil War at Fort Sumter, South Carolina, on 12 April 1861. Even in his Second Inaugural Address, delivered on 4 March 1865, as the war was drawing to a close, Lincoln expressed a belief, perhaps solidified throughout the course of a war he had first fought to prevent and then tried desperately to abbreviate and lessen the harshness of but had failed in both goals, that the United States had been inexorably drawn into the war by divine mandate:

We shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came.32

In its rush to and insistence upon secession, the Confederacy yet again failed to meet the standard set by Just War theory. The Union, on the other hand, especially in its leader’s willingness to continue to attempt to negotiate through the differences of ideology and practice that separated the two major regions of the nation and in his stated commitment to place the peace and preservation of the Union foremost in his desires, successfully satisfied the criterion of last resort. There can be little doubt that in meeting the requirement of Augustine that a just war be a war in which a national power is compelled to participate by force of necessity the Confederacy fell far short and the Union succeeded.

5. Conclusion

In final consideration of the four criteria of Jus ad Bellum, the Union is shown to have had the “right to war” in the Civil War whereas the Confederacy did not. Whereas the federal government was a legitimate and sovereign governing authority, the Confederacy failed, as a rebellious group rising against its legitimate government, to meet the criterion of just authority. The federal government also satisfied the criterion of just cause in its desire to simultaneously preserve its sovereign territories to itself and to end the gravely unjust practice of slavery within its borders, whereas the Confederacy’s quest to uphold the institution of slavery, given that it is unjust per se, is clearly an unjust cause for war. The Union’s just intention of repatriating the Southern states to itself quickly and peacefully also satisfied the criterion of just intention, whereas the vitriolic hatred exhibited by all ranks of Confederate leadership for blacks, Northern whites, and anyone else opposed to its cause runs obviously contrary to the criterion of just intention. Finally, the South’s overeager rush for war presents a stark contrast with the nearly desperate pleas of the leadership in the federal government for a peaceful resolution to the internal dissensions of the United States, demonstrating that only the federal government meets the criterion of last resort. In short, the Union adequately satisfied the criterion for Jus Ad Bellum, whereas the Confederacy did not.

Jus In Bello

The next series of points which must be considered in a discussion of whether a specific war can be considered a just war in accordance with traditional formulations of Just War theory is that set of criteria which fall under the category “Jus In Bello,” a Latin phrase meaning “just in war.”33 As the name of this set of criteria indicates, Jus In Bello involves the consideration of whether the actual conduct of a particular belligerent in a war was just. The three criteria of Jus In Bello are (1) proportionality, (2) discrimination, and (3) responsibility. Whereas the federal government adequately satisfied all of the criteria for Jus Ad Bellum, both the Confederacy and the Union failed to satisfy any of the three criteria of Jus In Bello. The actions of the Union army which entered into and crossed through Georgia under General William Tecumseh Sherman, perhaps best demonstrate the failures of both sides in the Civil War to conduct a just war. Sherman’s infamous March to Sea, which has been remembered by subsequent generations largely for its brutality, particularly serves as an outstanding case study in the failure of both powers in the Civil War to practice just conduct within warfare.

1. Proportionality

The first criterion of Jus In Bello is proportionality; proportionality requires that the methods and amount of force used during warfare be proportionate to their desired effect. In other words, given that a belligerent power has just cause and just intention, said belligerent power may only use the minimum amount of force necessary to achieve its intention and satisfy its cause. The actions of the Union army under General Sherman, in flagrant defiance of this criterion, exemplify disproportionality in wartime conduct.

Even before their March to the Sea, more properly referred to as the Savannah Campaign, the Union troops led by Sherman proved their preference for cruelty and their penchant for disproportionality. The burning of Atlanta, Georgia, is one example. On 14 November 1864, just over two months after his army had captured the city, Sherman ordered the entire destruction of the city of Atlanta. According to historian Russell S. Bonds, approximately 4000 homes and businesses were burned to the ground; of the entire city only 400 buildings, just about a tenth of the city, remained standing.34 In a description reminiscent of the common, even if probably false, depiction of the burning of Rome, during which the Emperor Nero, ostensibly the perpetrator of the crime, arrayed himself in a stage costume and sang a song, Union officer Captain Daniel Oakey reported that, while Atlanta burned, the Second Massachusetts’s “post band and that of the Thirty-third Massachusetts played martial airs and operatic selections.”35 36

Whatever the accuracy or lack thereof in this grotesque picture, there can be little doubt that the burning of Atlanta was an act of gross disproportionality in the conduct of warfare. The burning of Atlanta, however, was only the beginning. The March to the Sea that commenced with the burning of Atlanta continued for more than a month, with the federal troops under Sherman “creating a charred avenue over 40 miles wide through the unprotected State [of Georgia], destroying the railroads, seizing all provisions, pillaging, plundering and burning.”37 Sherman’s actions were drastically disproportionate to the cause and intentions of the federal government; the Union and its leaders, then, especially Sherman, failed to succeed in meeting the criterion of proportionality.

2. Discrimination

The second criterion of Jus In Bello is discrimination, which refers to the responsibility of the belligerent power to discriminate between military and civilian targets and to only strike the former while avoiding as much as possibly any damage to the latter. Sherman’s burning of Atlanta and the entirety of his Savannah Campaign once again demonstrate the failure of the federal forces engaged in the Civil War to conduct themselves justly on this point. Not only did Sherman fail to distinguish between military and civilian targets, he actively ordered and encouraged his troops to raid and attack civilian targets.

While his troops were in the Carolinas, for instance, before entering into Georgia, Sherman sent out foraging parties which became known as “Sherman’s bummers” who became a well-known and much-despised presence among the civilian population for their behavior.38 These “bummers” became known among the civilian populations of the Carolinas for their lewd and disrespectful demeanor and for “pillaging and burning” food and other necessary supplies that were often extremely scarce in the South during the war.39

When his “bummers” began to be found murdered wearing signs indicating “death to all foragers,” Sherman offered pale and unacceptable excuses for their behavior. He wrote to one of the generals under him, for instance, that “I contend if the enemy fails to defend his country we may rightfully appropriate what we want.”40 41 He added the further justification that he believed his troops had the right to “destroy cotton and tobacco,” in spite of the fact that these crops were grown by civilians on privately-owned property and often represented the livelihood of those who grew them, “because these things are assumed by the rebel Government to belong to it, and are used as a valuable source of revenue.”42 For Sherman, nearly every Southerner was in some sense an enemy, complicit in the Confederate rebellion against the federal government and liable to punishment for his or her complicity. Every target, then, was, in some sense, a civilian target.

Using a similar line of reasoning, Sherman justified his burning of Atlanta by claiming that the city had been and could again be, after the departure of his troops to continue their march, be put to military use.43 This is hardly a valid reason, however, to destroy nearly an entire city, including thousands of private homes and businesses. Years after the Civil War, Sherman would, perhaps in an attempt, whether conscious or not, to justify his actions during the war, tell a crowd of listeners, “there is many a boy here today who looks on war as all glory. But boys it is all hell.”44 45 In the end, it is abundantly clear that Sherman and the Union forces of which he was a leader refused to distinguish between combatants and noncombatants; as a result, they failed to meet the criterion of discrimination.

3. Responsibility

According to Jon Dorbolo, the third and final criterion of Jus In Bello, responsibility, itself divides into three parts.46 According to this criterion, a belligerent power is not responsible for the negative consequences of the war and therefore not itself unjust in spite of the injustice which inevitably accompanies armed conflict if (a) the particular course of action which caused the negative consequences was intended for good, (b) the particular course of action which caused the negative consequences was not intended for bad, and (c) the overall good outweighs the bad.

It could be argued that even Sherman’s March to the Sea, in spite of all its apparent brutality, does in fact fit the criterion of responsibility and therefore qualifies as Jus In Bello. It was, after all, so it could be argued, only what was necessary to end the war as quickly as possible. By demoralizing Southerners and destroying their means of subsistence in addition to their military supplies, Sherman stripped them of their will to war and so brought about the end of the war. If this is true, it can be seen that Sherman’s actions were intended for good, were not intended for bad, and, given that he accomplished his goal of bringing about the end of the war, this good outweighs all of the bad he did in order to achieve it. Even Sherman himself, after all, once said, only a few months after his brutal Atlanta and Savannah campaigns, that “the legitimate object of war is a more perfect peace.”47

Such a line of reasoning, however, does not stand up to the light of scrutiny and thorough, thoughtful consideration. In the end, this line of reasoning amounts to little more than a Machiavellian assertion that the ends justify the means. If Sherman’s March to the Sea is allowed as somehow “just” simply because it contributed to the eventual Confederate surrender and Union victory in the Civil War, nearly any conduct within warfare can be twisted to fit the definition of Jus In Bello. While it can be admitted that Sherman’s actions contributed substantially to the fall of the Confederacy and the triumph of the Union, this admission can in no way be used to justify the actions as having been just per se.

4. Conclusion

The only sound conclusion that can be reached in regards to Jus In Bello and the Civil War is that neither belligerent power met any of the criteria. Both sides in the Civil War failed to practice proportionality and discrimination. As a result, both sides bear the full burden of responsibility for the negative consequences of their actions.

Jus Post Bellum

Although not included in the classical treatments of Just War theory, the concept of Jus Post Bellum, or “justice after war,” has been become a standard aspect of formulations of Just War theory in the modern world and seems a fitting conclusion to any discussion of Just War theory.48 Brian Orend, one of the first of the modern Just War theorists to discuss the concept of Jus Post Bellum, outlined two criteria in particular for Jus Post Bellum: (1) compensation and (2) rehabilitation. Drawing upon earlier and generally accepted formulations of Just War theory, Orend posits that, in short, the victor in a war must not exact undue punishment from the losing power but should instead assist in its attempts to rebuild and rehabilitate.

While the era of Reconstruction which followed the Civil War had both its accomplishments and its failures, a fair assessment would conclude that Reconstruction largely met the criteria of Jus Post Bellum as outlined by Orend. The Union succeeded in reintegrating the South back into the United States in a relatively expeditious manner. Efforts were made to rebuild the South and what few punishments were exacted upon the former Confederacy and its leaders, such as the disenfranchisement of many Southerners from the vote and the imprisonment of leaders like Jefferson Davis, were generally, for better or worse, short-lived. The failure that lingers over Reconstruction is, ultimately, its inability to simultaneously integrate the newly freed slaves and other blacks throughout the United States as well as reintegrate the whites of the South into the fabric of American life and politics. These two goals appear to have been mutually exclusive in practice. As a result, the unequivocal recognition of full citizenship for black Americans was delayed for nearly 100 years and a long era of segregation, lynching, second-class citizenship, distrust, and hatred set in Southern life and in American life as a whole. In consideration of this, it could be said that the United States also failed to accomplish Jus Post Bellum in that it did not fully satisfy the criterion of rehabilitation, or at least took an inordinately long time to do so.

Conclusion

The American Civil War, as the outbreak of armed conflict due to a rift that had existed in the fabric of Western civilization nearly since the infancy of that civilization, embodied a certain tension in Western thought and finally determined the course that Western civilization would take on the questions of slavery, liberty, equality, and democracy. Although the Civil War, on both sides, was truly representative of the heritage of the Western tradition, neither belligerent satisfied all of the criteria for Just War theory, a central aspect of Western thought on warfare and international relations.

While the Union met the criteria of Jus Ad Bellum, qualifying as having just reason and ability to engage in warfare, the Union failed to maintain justice throughout the war and so satisfy the criteria of Jus In Bello. In addition, although it could be argued that the efforts of the federal government to reintegrate white Southerners back into the mainstream of the United States indicates that the Union satisfied the criteria for Jus Post Bellum, it should also be pointed out that in allowing the reentrance of Southern whites into American life a very large number of human beings, namely freed slaves and other blacks, were excluded from meaningful participation in American life and denied justice. In addition, injustice was allowed to continue in the South, in spite of the end of slavery, in the form of segregation and oppression targeting blacks and other ethnic and religious minorities. The other belligerent power in the war, the Confederacy, failed to satisfy any of the criteria of Just War theory. On final analysis, then, although the Civil War accomplished the good of finally ending slavery in the United States, a power representative of and at the helm of Western civilization, it must be concluded that the American Civil War was not a just war.

Notes1 Walt Whitman, “Thou Mother With Thy Equal Brood,” 4, Leaves of Grass (New York: The Modern Library, 2001), 564.

2 Declaration of Independence, http://www.ushistory.org/declaration/document/index.htm (accessed 23 December 2012).

3 Jon Dorbolo, “Just War Theory,” Oregon State University (2010) http://oregonstate.edu/instruct/phl201/modules/just_war_theory/criteria_intro.html (accessed 23 December 2012).

4 Saint Thomas Aquinas, Summa Theologica, Part II, Section II, Q. 40. Art. 2., ed. Robert Maynard Hutchins, Great Books of the Western World, Vol. 20 (Chicago: William Benton, 1952), 578.

5 Although it could be and has been argued that the incipient American government failed to meet this criterion in the Revolutionary War, the consequences of such a determination for the Civil War are ambiguous. There is the potential for using the assumption of the inherent righteousness of the American cause in the Revolution coupled with the lack of support for any revolution at all in Just War theory as an argumentum ad absurdum against Just War theory. Free of the assumption of the justness of the American cause against the British monarchy, however, the case could also be made that the American Revolution was in fact unjust. One example of a paper which argues that the American Revolutionary War was an unjust war is John Keown, “America’s War for Independence: Just or Unjust?,” Kennedy Institute of Ethics, Georgetown University, http://kennedyinstitute.georgetown.edu/files/KeownAmericasWar.pdf (accessed 23 December 2012).

6 The United States Constitution, Article I, Section 8, item 12, http://constitutionus.com/ (accessed 23 December 2012).

7 Abraham Lincoln, “First Inaugural Address,” http://www.bartleby.com/124/pres31.html (accessed 23 December 2012).

8 Charles Guthrie and Michael Quinlan, Just War: The Just War Tradition: Ethics in Modern Warfare (New York: Walker & Company, 2007), 13.

9 “States’ Rights: The Rallying Cry of Secession,” Civil War Trust (2011) http://www.civilwar.org/education/history/civil-war-overview/statesrights.html (accessed 23 December 2012).

10 Alexander Hamilton Stephens, in David J. Eicher, The Longest Night: A Military History of the Civil War (New York: Simon & Schuster, 2002), 49.

11 Ibid., 364-5.

12 Thomas Cahill, The Gifts of the Jews: How a Tribe of Desert Nomads Changed the Way Everyone Thinks and Feels (New York: Anchor Books, 1998), 154.

13 Thomas Cahill, Mysteries of the Middle Ages: The Rise of Feminism, Science, and Art from the Cults of Catholic Europe (New York: Doubleday, 2008), 44.

14 Aristotle, for example, argues in his Politics, Book I, Chapters 3-6, as elsewhere, that there are those who are “intended by nature to be a slave” and those, on the other hand, who are naturally masters. The Confederate racial ideology as elucidated by Stephens, though never fully developed, seems to have been a revival of this way of reasoning, which further exhibits the nature of the American Civil War as a civil war in Western civilization as a whole, perhaps between the Hebraic and Greco-Roman strands thereof. (Aristotle, Politics, in, Aristotle II, ed. Robert Maynard Hutchins, Great Books of the Western World, Vol. 9 (Chicago: William Benton, 1952), 446-9.)

15 Although the sentiment is common to many early Christian writers, Gregory of Nyssa is singled out for having issued one of the clearest calls for abolition in the ancient world in his fourth homily on Ecclesiastes; see Eric Denby, “The First Abolitionist? Gregory of Nyssa on Ancient Roman Slavery,” 9 May 2011, http://www.academia.edu/1485109/The_First_Abolitionist_Gregory_of_Nyssa_on_Ancient_Roman_Slavery (accessed 23 December 2012).

16 Cahill, Gifts of the Jews, 249.

17 Augustine of Hippo, in Aquinas, Summa Theologica.

18 Aquinas, Summa Theologica.

19 Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: HarperCollins Publishers, Inc., 2002), 73-4.

20 Abraham Lincoln, in Foner, Reconstruction, 74.

21 Ritchie Devon Watson, Jr., Normans and Saxons: Southern Race Mythology and the Intellectual History of the American Civil War (Baton Rouge: Louisiana State University Press, 2008).

22 “Jefferson Davis and the Assassination,” University of Missouri – Kansas City School of Law, http://law2.umkc.edu/faculty/projects/ftrials/lincolnconspiracy/davistestimony.html (accessed 23 December 2012).

23 St. Augustine, The City of God, Book 4, Chapter 14, tr. Marcus Dods, in Robert Maynard Hutchins, Augustine (Chicago: William Benton, 1952), 196.

24 Thomas H. Flaherty, ed., The Colonial Overlords (TimeFrame AD 1850-1900) (Alexandria: Time-Life Books, 1990), 140.

25 “Election of 1860,” The American Presidency Project, http://www.presidency.ucsb.edu/showelection.php?year=1860 (accessed 23 December 2012).

26 William E. Gienap, “The Republican Party and the Slave Power,” in Robert H. Abzug and Stephen E. Maizlish, editors, New Perspectives on Slavery and Race in America: Essays in Honor of Kenneth M. Stampp (Lexington: University Press of Kentucky, 1986), 64-65.

27 John William Draper, in William C. Harris, “Abraham Lincoln and Secession,” The Lincoln Institute Presents: Abraham Lincoln’s Classroom, http://www.abrahamlincolnsclassroom.org/library/newsletter.asp?ID=140&CRLI=197 (accessed 23 December 2012).

28 Harris, “Abraham Lincoln.”

29 This conflict between the democratic principle of majority rule, enshrined in the Constitution, and the interests of the wealthy and powerful Southern aristocracy exhibits another way in which the American Civil War represents the summarizing of a conflict that had long troubled Western civilization as a whole, namely the conflict between the oligarchic and democratic forms of government. This rift in Western thought makes perhaps its first appearance in a written document with Herodotus, The History, Book III, pars. 80-3, in which passage the respective merits and demerits of monarchy, democracy, and oligarchy are discussed and debated. The history of Athens, arguably the world’s first democracy, also exhibits this tension. (Herodotus, The History, in Herodotus and Thucydides, ed. Robert Maynard Hutchins, Great Books of the Western World, Vol. 6 (Chicago: William Benton, 1952), 107-8.)

30 Harris, “Abraham Lincoln.”

31 Flaherty, Colonial Overlords, 140.

32 Abraham Lincoln, “Second Inaugural Address,” http://www.bartleby.com/124/pres32.html (accessed 23 December 2012).

33 Dorbolo, “Just War Theory.”

34 Russell S. Bonds, War Like the Thunderbolt: The Battle and Burning of Atlanta (Yardley: Westholme Publishing, 2009), 363.

35 For a classical presentation of the common depiction of the burning of Rome, see Suetonius, “The Life of Nero,” 38, in The Lives of the Caesars, http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Suetonius/12Caesars/Nero*.html (accessed 23 December 2012).

36 Daniel Oakey, in “Sherman in Georgia!,” Home of the American Civil War (10 February 2002) http://www.civilwarhome.com/shermangeorgia.htm (accessed 23 December 2012).

37 “Sherman in Georgia!”

38 “The Carolinas Campaign: Death To All Foragers,” Wade Hampton Camp, http://www.wadehamptoncamp.org/hist-hvs.html (accessed 23 December 2012).

39 John G. Barrett, Sherman’s March Through the Carolinas (Chapel Hill: University of North Carolina Press, 1956), 96.

40 William T. Sherman, in “The Carolinas Campaign.”

41 Sherman’s statement sounds very similar to the claim of Aristotle in his Politics, Book I, Chapter 8, in which he asserts that “the art of war is a natural art of acquisition, an art which we ought to practise … against men who, though they be intended by nature to be governed, will not submit; for war of such a kind is naturally just.” In short, Aristotle, in a foreshadowing of Sherman, claims that it is right to take what one’s enemy cannot prevent one from taking and that the ability to acquire indicates that it is naturally just to do so. A similar sentiment is expressed in the famous Melian dialogue recorded in Thucydides’s account of The History of the Peloponnesian War, Book V, par. 89, in which the Athenians nonchalantly inform the Melians that “the strong do what they can and the weak suffer what they must.” This ethic of “might makes right” perhaps indicates the similarity of Sherman’s ideas of warfare to those developed before the advent of a full-fledged Just War theory following the triumph of Christianity in the Roman Empire. (Thucydides, The History of the Peloponnesian War, in Herodotus and Thucydides, ed. Robert Maynard Hutchins, Great Books of the Western World, Vol. 6 (Chicago: William Benton, 1952), 505.)

42 Ibid.

43 “Sherman’s March to the Sea,” Home of the American Civil War (16 February 2002) http://www.civilwarhome.com/marchtothesea.htm (accessed 23 December 2012).

44 Sherman, in Eicher, Longest Night, 847.

45 This statement presents an interesting contrast with the claim of the Presocratic Greek philosopher Democritus, as recorded by Plutarch, that men “ought to be instructed in the art of war … which is a source of great and glorious things for men,” in Plutarch, Against Colotes, 1126A. It demonstrates that even in the case of someone like Sherman, whose approach to warfare was far more in line with combat before the full flowing of Just War theory in the Christian era, perspectives had been altered and shaped by the introduction of new ideas on warfare. (Jonathan Barnes, Early Greek Philosophy (New York: Penguin Books, 2001), 229.)

46 Dorbolo, “Just War Theory.”

47 Sherman, in Eicher, Longest Night, 847.

48 Brian Orend, “Justice after War,” Carnegie Council for Ethics in International Affairs, http://www.carnegiecouncil.org/publications/journal/16_1/articles/277.html/_res/id=sa_File1/277_orend.pdf (accessed 23 December 2012).

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Just War Theory of St. Augustine of Hippo

Thinkers in the Western world have examined the ethical questions that are naturally raised by warfare since a very early period in Western history. Arguably, the greatest classical formulation of a theory of just war, including just causes for war and just conduct within war, is found in the work of Cicero, a Roman author of the first century BCE. As the Roman Empire gradually became both officially and majority Christian in Late Antiquity, Christian thinkers began to take up the same questions. While earlier generations of Christians had largely, but not unanimously, been pacifist in orientation, Christian thinkers of the fourth and fifth century, the first to live within the context of a Roman Empire in which the emperors and other government administrators as well as a majority of the population were Christians, found it necessary to reexamine the Christian stance on warfare in the light of the place of Christians in government and the need to defend the interests of the Empire from hostile forces. At the vanguard of this new generation of thinkers was St. Augustine of Hippo, a prominent bishop and a major figure in the history of Latin Christianity. The Just War Theory of Augustine is in many ways a Christian update to the earlier Roman ideas concerning just war, such as those found in the writings of Cicero, but also one that has added important new dynamics to the question of just war, including especially an emphasis on the protection of the weaker members of the societies in conflict, and stands as a landmark and a major influence in the subsequent development of Western approaches to and understandings of warfare.

Early reflections by Greek writers on warfare more often demonstrate, and sometimes applaud, the brutality of war than the possibility of just conduct within it. Homer’s Iliad, composed probably in the eighth century BCE, for example, contains almost no discussion of whether the war about which it was written, the Trojan War, was justified or of whether the participants in the war were just in their conduct. Instead, the author seems to assume warfare as the natural prerogative of upper-class Greek men and that warfare will be governed by very few rules but a great deal of brutality. In Book VI, for instance, the author records the slaying of Adrestus by Menelaus, even after the former had “caught him by his knees” and began “begging for his life.”1 Menelaus hesitated for a moment, considering the possibility of taking Adrestus prisoner in order to exchange him for a ransom later. Agamemnon, Menelaus’s brother, however, persuades him to kill Adrestus, exhorting him not to “spare a single one of them – not even the child unborn and in its mother’s womb; let not a man of them be left alive, but let all in Ilius perish, unheeded and forgotten.”2 There is no mention of any ethical concern in the slaying of Adrestus.

Even those passages of the Iliad which record a resort to mercy and justice within war focus on a sense of personal obligation from one upper-class Greek male to another rather than laws governing one’s conduct within warfare or any overarching ethical concerns. In Book XXIV, for instance, Achilles does not return the body of Hector, the son of Priam, the king of Troy, to his father because such is the ethical course, but because of his respect for the king himself, whom he praises for his “iron courage.”3 Even so, the seeds of the later ideas of Greco-Roman writers are evident. Achilles, for instance, weeps when Priam embraces him because the old man makes him think of his own father and, only a few verses later, he expresses a concern that the gods will punish him if he does not treat Priam well and hand over the body of his son.

These expressions of empathy and the belief that the gods will punish unjust behavior later became the foundation for theories of just war in Roman thought. Later Greek thought, however, did little to develop these concepts. The surviving fragments of the writings of the Presocratic Greek philosophers contain many moral aphorisms and bits of practical wisdom, but no reflection on warfare in relation to their ethical maxims, aside, perhaps, from a few scattered references, such as the saying of Democritus (460-370 BCE), recorded by Plutarch, that men “ought to be instructed in the art of war … which is a source of great and glorious things for men.”4 Other Greek literature, such as plays and histories, similarly contain little development of the idea of justice in relation to war. They do, however, often exhibit the same basic ideas exhibited by Homer and sometimes develop them further. In his play Lysistrata, for instance, Aristophanes tells a story in which the women of Greece decide to withhold sex from their husbands if their husbands do not put an end to war.5

The first relatively full reflection in Greek thought on what makes a war just or unjust is in the writings of Aristotle. In his Politics, Aristotle declares that “the art of war is a natural art of acquisition, an art which we ought to practise … against men who, though they be intended by nature to be governed, will not submit; for war of such a kind is naturally just.”6 This statement, however consonant it may be with the rest of Aristotle’s philosophy as well as with ancient Greek thought in general, does little to provide a practical basis for action or for judging the actions of others. Aristotle’s idea seems to amount to little more than saying that the conqueror was just because he was the stronger and the conquered was unjust because he was the weaker.

It was not until the first century BCE, with the Roman orator Cicero, that Greco-Roman thought had its first advocate of a fully developed theory of just war. His De Officiis contains a lengthy discussion of what constitutes a just reason for war as well as just conduct within war. Although Cicero’s reasoning and examples derive entirely from Roman history, the passage bears a striking resemblance to the fullest biblical explication of just war, the 20th chapter of Deuteronomy. The two passages present an important comparison, both in their similarities and their differences. Perhaps the most outstanding difference is the difference in date of composition. While Cicero, writing in the first century BCE, reflects a long line of development of thinking on war in the Greek and Roman worlds, the Book of Deuteronomy was, according to most historians, written in about the seventh century BCE, only a century after The Iliad and approximately six centuries before Cicero’s life. It is remarkable that the Jews developed a very full theory of just war so much earlier than their Greek and Roman counterparts; this large gap in time may be traceable to the emphasis on ethical conduct from a very early point in biblical thought.7

In spite of the wide differences in time and culture, the two passages are remarkably similar in message. According to Cicero, “we must resort to force only in case we may not avail ourselves of discussion.”8 Similarly, the passage in Deuteronomy orders that “when you approach a city to fight against it, you shall offer it terms of peace,” and only “if it does not make peace with you, but makes war against you, then you shall besiege it.”9 Cicero also advises that “we should spare those who have not been blood-thirsty and barbarous in their warfare.”10 He then gives examples of past Roman conquests and shows that certain cities, because of their rebellious nature, were entirely destroyed while others were spared and sometimes their inhabitants were even made Roman citizens. Deuteronomy, similarly, commands that those who make peace should be spared while among those who fight “you shall strike all the men in it with the edge of the sword” while sparing “the women and the children and the animals and all that is in the city,” taking them as one’s own.11 It is only in those cities from whom the Hebrews fear some particular insidious influence because of “all their detestable things which they have done for their gods” that the Hebrews are told to practice the kind of total war reflected in The Iliad.12 Even in those cases, however, they are warned against scorched earth tactics and destruction of the local environment; the passage rhetorically asks, “is the tree of the field a man, that it should be besieged by you?”13 Cicero offers similar warnings. Both Cicero and the author of Deuteronomy also place an emphasis on ensuring that a war has the support of the religious authorities and is consonant with religious laws, in order to avoid incurring the wrath of the divine.

Although Christianity grew out of both the Greco-Roman and the Jewish cultural traditions, early Christian thinkers largely rejected the ideas of both concerning warfare. Instead, early Christian thought exhibits a markedly pacifist orientation. A passage from the writings of Hippolytus of Rome, an early third century bishop, states clearly a line of thought that runs throughout Christian writings of this period; in discussing the occupations of those who wish to become Christians, he says:

A military man in authority must not execute men. If he is ordered, he must not carry it out. Nor must he take military oath. If he refuses, he shall be rejected. If someone is a military governor, or the ruler of a city who wears the purple, he shall cease or he shall be rejected. The catechumen or faithful who wants to become a soldier is to be rejected, for he has despised God.14

Included alongside soldiers on Hippolytus’s list of those who cannot receive baptism unless they leave their former occupations are pimps, prostitutes, and pagan priests. According to Peter J. Leithart, the “most vigorous and extensive arguments” by early Christian authors against participation in the military “concerned idolatry.”15 “Religion was central to the military life” and Roman paganism pervaded nearly every aspect of it.16 Participation in the Roman military, then, constituted participation in a pagan cult, and therefore apostasy from Christianity and its uncompromising monotheistic stance. The second primary reason for opposition to military service by early Christian authors was the belief in the inherent evil of killing another human being, no matter for how ostensibly noble a cause.

In spite of such strong words by early Christian leaders, there can be little doubt that there were Christians in the military from the beginning of the Christian movement in the first century CE and that their size continued to increase rapidly, just as did the proportion of Christians in the general Roman population. One tantalizing piece of evidence for a growing Christian presence in the military and government is in the beginning of the final and worst persecution of Christians in the Roman Empire, which began under the Emperor Diocletian in about 300; according to the Christian historian Eusebius of Caesarea and other contemporaries of the events, the persecution began with a purge of Christians from the army.17

With the rise of Constantine the Great as the first Christian Roman emperor in the early fourth century, Christianity, which was also quickly becoming the majority religion of the Empire, assumed a new prominence. By the end of the fourth century, under the Emperor Theodosius, Christianity was declared the official religion of the Roman Empire. These drastically changed circumstances brought about a reevaluation of much earlier Christian thought, including thought on warfare.

The Roman Empire was increasingly a Christian empire, and every empire and nation has a need to defend itself. The question Christian thinkers of the fourth century and later had to confront was how this need for defense against invasion by foreign powers and internal insurrection could be reconciled with the ethical demands of the Christian faith. The central reason for opposition to military service by Christians, the avoidance of participation in pagan religion, was removed as an obstacle as paganism was increasingly abandoned or suppressed throughout Roman life, including in the military. The second major reason, the belief that killing another person was inherently immoral no matter the circumstances, remained an obstacle to full participation by Christians in the military, however.

This recognition of a the need for a military and even of the honorableness of military service alongside concerns about taking the lives of other people created a point of tension in Christian thought. This tension is demonstrated in the writings of St. Basil the Great, an influential fourth century Christian bishop from Asia Minor. Basil, in a letter written to a soldier, tells the soldier that “even in a soldier’s life it is possible to preserve the perfection of love to God” and urges him to “play the man” and “be strong.”18 Basil also advised, however, in a different writing, that soldiers who have killed others while at war do not receive the Eucharist for a period of three years “since their hands are not clean.”19

Out of this tension and search for answers in Christian thought, emerged the Just War Theory of St. Augustine of Hippo. The ideas of Augustine, a late fourth/early fifth century Christian bishop in North Africa, have, arguably, had a greater impact on subsequent Christian thought than nearly any other Christian thinker in all of history, aside, perhaps, from the apostle Paul. This is undoubtedly true in regards to his ideas concerning warfare. Augustine drew together the biblical, Greco-Roman, and early Christian strains of thought into a cohesive whole that allowed Christians to define a context for ethical entrance into as well as just conduct within warfare.

Augustine continued in the Christian tradition of believing all war to be intrinsically evil. He offered unequivocal condemnations of those who desired, sought, or enjoyed war, and made it clear that to engage in war justly is to engage in war by force of necessity. In Book 4, chapter 14 of his magnum opus, The City of God, he says “to carry on war and extend a kingdom over wholly subdued nations seems to bad men to be felicity, to good men necessity.”20 Later, in Book 9, chapter 7 of the same work, he states the same even more clearly:

But, say they, the wise man will wage just wars. As if he would not all the rather lament the necessity of just wars, if he remembers that he is a man; for if they were not just he would not wage them, and would therefore be delivered from all wars. For it is the wrongdoing of the opposing party which compels the wise man to wage just wars.21

In all of this, Augustine is not far from and is, in fact, probably drawing upon the ideas of Cicero and the author of Deuteronomy. He goes further than either of them, however, in his condemnation of war itself and in his refusal to allow that the aggressor may be just. For Augustine, war is never a good but only a lesser of evils, and the one who causes the war is always unjust.

Augustine also exceeds both of these earlier ideas of just war in his concern for justice within war. He spends the first seven chapters of Book 1 of The City of God, for instance, maligning the earlier commonly accepted practices of destroying and looting conquered cities, killing, robbing, kidnapping, and raping the inhabitants.22 While, as he admits, this had previously been considered the norm and the prerogative of the victor, he condemns the practice and contrasts it with the mercy and temperance exhibited by Christians in war. In this, Augustine both builds upon and significantly departs from his predecessors in both the Greco-Roman and biblical traditions, both of which allowed for circumstances, however limited, in which it was considered appropriate for the victor to destroy the conquered people entirely. Augustine, in line with earlier Christian tradition, is not willing to make this compromise.

In this blending of the Greco-Roman with the biblical through the lens of the Christian worldview, Augustine forged a new understanding of warfare and of how it can be conducted with justice and especially with an emphasis on mercy. Augustine’s views, influential in this as in all else, came to dominate the Christian understandings of and approaches to warfare. Charlemagne, for instance, the eighth century founder of the Carolingian Empire and one of the most important rulers in European history, “took great pleasure in the books of Saint Augustine and especially in those which are called The City of God,” according to his biographer Einhard.23 In the 13th century, Augustine’s Just War Theory was taken up by the Scholastic philosopher Thomas Aquinas and further elucidated upon by him. Through the work of Aquinas, Just War Theory became part of the official doctrine of the largest Christian organization in the world, the Roman Catholic Church. Augustine’s views were also a major influence on the ideas of the 17th century Dutch Protestant writer Hugo Grotius, whose writings on just war and international relations have influenced nearly every subsequent thinker on the subject and have contributed substantially to the development of modern international law. The modern laws of war, including, for example, the Geneva Conventions, are largely the end-product of the work of Augustine. Through his ability to effectively weave together the various contributing strands of Western Civilization and argue convincingly for his position, the work of St. Augustine of Hippo stands as a monumental achievement and defining moment in understanding war and its relation to ethics. Through his Just War Theory, Augustine’s impact on subsequent thought and conduct in international relations has been tremendous.

Notes

1 Homer, The Iliad, tr. Samuel Butler (Chicago: William Benton, 1952), 40.

2 Ibid.

3 Ibid., 176.

4 Plutarch, Against Colotes, 1126A, in Jonathan Barnes, Early Greek Philosophy (New York: Penguin Books, 2001), 229.

5 Aristophanes, The Lysistrata, tr. Benjamin Bickley Rogers, in Robert Maynard Hutchins, ed., Aeschylus, Sophocles, Euripides, Aristophanes (Chicago: William Benton, 1952), 583-99.

6 Aristotle, Politics, Book I, Chapter 8, tr. Benjamin Jowett, in Robert Maynard Hutchins, ed., The Works of Aristotle, Volume II (Chicago: William Benton, 1952), 450.

7 Huston Smith, The World’s Religions: Our Great Wisdom Traditions (New York: HarperCollins, 1991), 275.

8 Cicero, De Officiis, Book 1, XI, tr. Walter Miller (New York: G.P. Putnam’s Sons, 1928), 37.

9 Deuteronomy 20:10, 12 (New American Standard Bible).

10 Cicero, De Officiis, Book 1, XI.

11 Deut. 20:14 (NASB).

12 Deut. 20:18 (NASB).

13 Deut. 20:19 (NASB).

14 Hippolytus of Rome, “The Apostolic Tradition,” 16:9-11, tr. Kevin P. Edgecomb, accessed 24 October 2012, http://www.bombaxo.com/hippolytus.html.

15 Peter J. Leithart, Defending Constantine: The Twilight of an Empire and the Dawn of Christendom (Downers Grove: InterVarsity Press: 2010), 269.

16 Ibid.

l7 Eusebius, The Church History, Book VIII, Chapter IV, 2-3, tr. Philip Schaff, Nicene and Post-Nicene Fathers, Second Serious: Eusebius: Church History, Life of Constantine the Great, Oration in Praise of Constantine, (Peabody: Hendrickson Publishers, Inc., 1994), 326.

18 Basil the Great, in Alexander F.C. Webster and Darrell Cole, The Virtue of War: Reclaiming the Classic Christian Traditions East and West (Salisbury: Regina Orthodox Press, 2004), 70.

19 Ibid., 76.

20 St. Augustine, The City of God, Book 4, Chapter 14, tr. Marcus Dods, in Robert Maynard Hutchins, Augustine (Chicago: William Benton, 1952), 196.

21 Ibid., Book 9, Chapter 7, 515.

22 Ibid., Book 1, Chapters 1-7, 129-133.

23 Einhard, “The Life of Charlemagne,” Book III, tr. Lewis Thorpe, Two Lives of Charlemagne (New York: Penugin Books, 1988), 78

The Great Reforms of the 19th Century

In the second half of the nineteenth century, Russia came to a crossroads in its history. Under the influence of ideas largely emanating from Western Europe, Russians began to question certain aspects of their traditional way of life and government. Of especial concern was the status of the serfs, a group of people who made up the vast majority of the population of the Russian Empire but possessed a status little above that of slaves. Throughout his reign in the years 1855 to 1881, Czar Alexander II implemented a number of reforms in government which drastically altered Russian society in order to bring it in line with the new views of what a just society should look like.

The first and by far the most drastic of the great reforms implemented by Alexander II was the emancipation of the serfs. In the years leading up to and beginning Alexander’s reign, an insurrectionist spirit had begun to foment among the lower classes in Russia. Discontented with their situation, serfs had launched a large and increasing number of small rebellions since the the turn of the nineteenth century. Early in his reign, Alexander II announced his intentions to emancipate the serfs to his advisers, confiding in them that it was “better to abolish serfdom from above than to wait till it begins to abolish itself from below.”1

After a prolonged deliberation on the proper means by which to go about this emancipation, Alexander II finally issued the the decree abolishing the institution of serfdom in Russia on 19 February 1861. As a result of his decree, which at least one historian has referred to as “the greatest legislative act in history,” “some 52 million peasants, over 20 million of them serfs of private land owners,” were freed.2 Along with their freedom, however, came a great deal of debt and further disappointment. In an attempt to pacify the landlords, Alexander II had limited the amount of land the serfs took with them and had legislated the necessity of repaying the landlords for this land. As a result, “overpopulation and underemployment” were rampant “among former serfs, who, at least after a period of transition, were no longer obliged to work for the landlord and at the same time had less land to cultivate for themselves.”3

As Nicholas V. Riasanovsky and Mark D. Steinberg point out, “the emancipation of the serfs made other fundamental changes much more feasible.”4 Such sweeping legislation, no matter how haphazard and incomplete it might have been, could not help but act as a gateway to further reform in Russian society. Other reforms, particularly in Russian government, followed swiftly.

Perhaps the most important of these reforms in government in Russia was the implementation of the zemstvo system in local government. Local government in Russia had been ineffective and overly bureaucratic for centuries. Since the reign of Catherine the Great in 1762 to 1796, local government in Russia had been conducted with the participation of aristocratic landowners in the governed areas. With the establishment of his new system of local government, Alexander II sought to both update the system, making it an overall better functioning government, and also to allow for a measure of democracy by incorporating the participation of the newly-emancipated serfs.

To this end, the zemstvo system included representation from the peasant and urban classes in addition to the old landowning class. The range of government programs and services governed at the local level also increased under the zemstvo to include things such as “education, medicine, veterinary service, insurance, roads, the establishment of food reserves for emergency, and many others.”5

Although the zemstvo system had a number of drawbacks, it was largely a positive development for Russians and functioned very effectively until it was abolished following the rise of the Bolsheviks in 1917. For example, “in effect, Russia obtained a kind of socialized medicine through the zemstvo long before other countries, with medical and surgical treatment available free of charge.”6 Such free universal access to quality healthcare is an accomplishment that would not be achieved in most of Western Europe until the twentieth century and has still not been achieved in some places in the Western world.7

In addition to the reform of local government, “at the end of 1864, the year that saw the beginning of the zemstvo administration, another major change was enacted into law: the reform of the legal system.”8 In order to put an end to the corrupt and antiquated practices and approaches rampant in the Russian legal system, Alexander II decreed a number of reforms. Perhaps the most significant of these reforms was the separation of the courts from the system of administration; Alexander II made the law courts a separate branch of government from the rest of the bureaucracy.

Two other particulars of Alexander II’s reform of the judiciary also stand out as of special importance among the many reforms thereof. The first is his simplifying of the system. Whereas there had formerly been a culture of secrecy and twenty-one different ways of conducting various kinds of court cases, Alexander II ordered that proceedings be done openly and that there be only two ways of conducting court. The other especially significant reform of the judiciary was the introduction of the right to trial by jury “for serious criminal offenses, while justices of the peace were established to deal with minor civil and criminal cases.”9 Finally, and by far most importantly, “all Russians were to be equal before the law and receive the same treatment.”10

The last of the great reforms of Alexander II was “a reorganization of the military service in 1874.”11 In the spirit of democratization that ran throughout the other reforms, the military was also remodeled in the interests of equality for all people. For example, “the obligation to serve was extended from the lower classes alone to all Russians.”12 In addition to widening the pool of conscripts, the minimum length of required service was also drastically reduced from 25 years, essentially a life sentence, to a mere six. A number of benefits also accrued to those were drafted, such as the guarantee of a basic education.

Czar Alexander II’s reforms of Russian society and government were sweeping and changed the face of Russia permanently throughout the course of his reign. Largely implemented in the hopes of quelling rebellion and appeasing the new and ever-growing groups of radicals and revolutionaries in Russia, Alexander II’s reforms went a great measure toward making Russia a more modern and certainly more democratic nation. As time would soon tell, however, his reforms were not implemented nearly soon enough nor were they, at least for a significant segment of the population and especially of the intelligentsia, nearly far-reaching enough. The opening of the twentieth century, and particularly the year 1917, would spell the end of Alexander II’s reforms and of the entirety of the old way of life, and would see the implementation of much broader and much deeper changes.

Notes
1 Czar Alexander II (1855). Quoted in Bernard Pares, A History of Russia (New York: Dorset Press, 1953), 361.

2 Nicholas V. Riasanovsky and Mark D. Steinberg, A History of Russia (New York: Oxford University Press, 2011), 368.

3 Ibid., 369.

4 Ibid., 370.

5 Ibid.

6 Ibid., 371.


8 Riasanovsky and Steinberg, 371.

9 Ibid.

10 Ibid., 372.

11 Ibid.

12 Ibid. 

References
 
Pares, Bernard. A History of Russia. New York: Dorset Press, 1953.
Riasanovsky, Nicholas V. and Mark D. Steinberg. A History of Russia. New York: Oxford University Press, 2011.