The Verdict of Battle: The Law of Victory and the Making of Modern Warby James Q. Whitman
Slaughter in battle was once seen as a legitimate way to settle disputes. When pitched battles ceased to exist, the law of victory gave way to the rule of unbridled force. Whitman explains why ritualized violence was more effective in ending carnage, and why humanitarian laws that view war as evil have led to longer, more barbaric conflicts.
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From Chapter Five: Were There Really Rules?
Malplaquet was the battle that saved early eighteenth-century France. It may seem bizarre, then, that contemporaries universally declared it to be a victory for the Allies—indeed, a “complete victory.” “The good lord has given us a complete victory,” exulted Marlborough in a letter to the Holy Roman Emperor on the evening after the battle. This despite the fact that the battle had taken such a toll that the Allied war effort was crippled. The Dutch commander Frans Nicolaas Fagel used the same phrase the next day: The battle had been a “complete victory”—though Fagel added that “the corpses lay on the ground in their ranks and files.” “Our troops could not have acquired more glory,” boasted another allied commander, the Count of Albemarle, that day, “but I admit that it has cost us dearly: Our poor Dutch infantry has been cut to pieces.” The Dutch had suffered such calamitous losses, in fact, that they would find it difficult to muster new forces for the remainder of the war. Yet the battle was a “complete victory” for their side, the Allies rejoiced, and the French agreed: The French sources would continue to describe Malplaquet as a “complete victory” for the enemy down into the nineteenth century.
Why was Malplaquet, a battle that took the lives of a quarter of the allied troops, a battle that by any strategic measure should have counted as perhaps the most critical French victory of a momentous war, the battle that saved France, understood to be a French defeat? If eighteenth-century observers were not judging it by the modern standard of military strategy, what standard were they applying?
The answer belongs to the standard pre-modern law of victory, and it is an answer that suggests powerfully that there were rules in eighteenth-century warfare and that those rules mattered. Under the pre-modern law of victory, the French counted as the “losers” at Malplaquet because they were the ones who retreated. The rule according to which Malplaquet was a “complete victory” for the Allies was thus the same rule that would make Chotusitz a “complete victory” for Frederick the Great thirty-three years later: It was what I shall call “the retreat rule.” Malplaquet was a “complete victory” for the Allies because they managed to gain control of the field of battle—despite the fact that they only did so at the cost of devastating and hugely disproportionate losses. As an eighteenth-century report explained, “The massacre was great . . . one saw the battalions of the Allies. . .lying dead in ranks . . . But [the French] yielded the field of battle.” To be sure, the French, like the Austrians at Chotusitz, retreated “in good order,” “with flags waving, drums beating, and drawing off sixty-five of their cannon with them.” A retreat could be as ceremonious and colorful an event as any other in the age of eighteenth-century Kriegsmanier. Nevertheless, a retreat was a retreat: The side that yielded the field of the battle, no matter how great its strategic gains, no matter how awful the cost it imposed on the enemy, was the loser.
Meet the Author
James Q. Whitman is Ford Foundation Professor of Comparative and Foreign Law at Yale Law School.
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