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The Verdict of Battle: The Law of Victory and the Making of Modern War

The Verdict of Battle: The Law of Victory and the Making of Modern War

by James Q. Whitman

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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.


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.

Editorial Reviews

William Ewald
This is one of the most remarkable books about law to have emerged in a long time. The depth and precision of the questions Whitman asks, and the originality of the answers he proposes, take us from the origins of the modern state to the ways in which law has determined many of the fundamental features of the modern world. Sure to be a classic, this stimulating and insightful book will appeal to any reader curious about war, battles, or how the world we inhabit came to be the way it is.
Gabriella Blum
A truly wonderful work, written in a captivating style. The historical narrative is gripping, and impressive erudition springs from the pages. Whitman's bold argument is that by outlawing war, and any tangible winning, we have forced the entire exercise of war to exist outside of law, and therefore, outside any true limits. The Verdict of Battle is particularly challenging in its implications--what we can or cannot learn from this history--for conflict in the present day.
Samuel Moyn
The Verdict of Battle is an exceptionally important book from a master historian that places our current debates concerning the laws of war in a telling new light. Whitman is a provocative critic of the ways in which humanitarianism has come to modern law--and distorted our understanding of premodern warfare. The book will completely recast future discussion among historians and leave other readers pondering what can be done to legalize conflict to serve humanity for the better.
John A. Lynn
This book cannot be ignored. Impressively erudite and brilliantly audacious, it reinterprets centuries of writings on the law of war and offers fundamental revisions and refutations of modern authorities on the history of war itself. Readers will be challenged, and while they may dispute elements of Whitman's argument, they will gain immensely by coming to terms with his interpretations. The Verdict of Battle goes well beyond a "must-read"; it rises to the level of the essential.
Maclean’s - Brian Bethune
Whitman offers a provocative argument against the idea that modern Western laws and practices of war represent a vast improvement over earlier models...The history Whitman provides is eye-opening.
Literary Review - Jonathan Sumption
At a time of growing insularity among American lawyers, [Whitman's] breadth of outlook is refreshing. He has a universal curiosity. His historical knowledge is impressive. He writes with elegance and wit...[A] stimulating book.
Foreign Affairs - Lawrence D. Freedman
Challenging contemporary views of the law of war and the function of battle, Whitman asks readers to forget what they know about post-Napoleonic wars of annihilation and revisit a time when a battle was a momentous wager to resolve disputes by "chance of arms." During the eighteenth century and well into the nineteenth, the side that held the field after a pitched battle could claim victory and so set the terms of peace. Battles were often bloody and vicious, but at least they produced definitive conclusions without spilling over into the rest of the country. Whitman knows it is pointless to wax nostalgic for a past form of warfare that might have worked for absolute monarchs but would hardly be suited to the modern world. Still, comparing earlier wars with contemporary "fights to the finish" allows him to ruminate about the possibilities for restraint in war and to challenge international lawyers to develop a "law of victory" that would support agreement on who had won a war and what was gained as a result.
New Republic - David A. Bell
Unlike some military historians, Whitman does not romanticize his subject, or express any nostalgia for what Oliver Wendell Holmes famously called the 'incommunicable experience' that allowed soldiers to feel 'the passion of life to its top.'...[The Verdict of Battle] offers a disturbing challenge to some of today's most widely held assumptions about the history of international relations... [Whitman displays] massive erudition, stiletto-sharp logic, and the heated, repetitive eloquence of a master litigator addressing a jury... A book that devotes so much time to Central European battles of the 1740s, and to legal luminaries whose careers pre-dated the American Revolution, will probably attract few readers in the Department of State or the United Nations. Yet the denizens of those institutions could do worse than to read this book and ponder its conclusions... Whitman has written an often brilliant book... An intelligent book such as The Verdict of Battle, which reaches back into history to provide a genuinely different perspective on warfare, deserves a serious hearing.
Times Literary Supplement - Chase Madar
In the course of unearthing the jus victoriae tradition, Whitman offers a badly needed and faintly blasphemous revision of the laws of war. (In contrast to the monoglot bibliographies of most Anglo-American scholarship on the laws of war, Whitman engages with original texts in both ancient and modern languages.) To begin with, Whitman scrapes off several decades’ worth of received ideas from just war theory, now enjoying a revival…Most refreshingly, Whitman rejects the piety that the laws of armed conflict--currently euphemistically called ‘international humanitarian law'--are crafted in order to restrain lethal violence, rather than to facilitate and optimize its use. Whitman cautions against the widespread faith in the power of law to beat swords into humanitarian surgical instruments…The legal tradition rediscovered by James Whitman may eventually be useful in world politics, as in the multipolar future that is very slowly arising.

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Harvard University Press
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Read an Excerpt

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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