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Paul Finkelman: Francis Lieber and the Law of War

Paul Finkelman is the President William McKinley distinguished professor of law and public policy at Albany Law School.

The philosopher and legal scholar Francis Lieber was born in 1798 in Germany, and as a young man was wounded in the final skirmishes of the Napoleonic wars. He emigrated to the United States in 1827, after twice being imprisoned by Prussian authorities for his pro-reform political activities. A respected jurist in his home country, he eventually became a professor at Columbia, a few years before the outbreak of the Civil War.

Lieber had an affinity for soldiering and war, and when conflict broke out in America, he would have happily enlisted, save that he was already 62 years old. Instead, he advised the Lincoln administration on all manner of legal issues, helping to sort out the complexities of how to treat prisoners, guerillas, confiscated property and civilians in a civil war, when none of the traditional rules of international law seemed to quite apply. In this capacity he made immeasurable contributions to the war effort – and the future of the laws of war.

As a child Lieber had watched French troops march into Berlin, and he grew up hating the oppression of Napoleon’s occupying troops. As a teenager he joined the Colberg militia and was left for dead on the field in the Waterloo campaign. He survived and returned to Germany, where he earned a doctorate in mathematics and joined various underground groups that opposed the authoritarian regime in his native Prussia. He was arrested twice and, in 1826, moved to England; the next year he immigrated to the United States. By this time his intellectual interests had shifted from mathematics to politics, history and law....

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