Tuesday, March 17, 2015

Hibbitts on Lawyering and War-Waging in American History

Former Guest LHB Blogger Bernard J. Hibbitts, University of Pittsburgh School of Law, has just published Martial Lawyers: Lawyering and War-Waging in American History, one of the boldest and most original articles I can remember.  It appears online in the Seattle Journal for Social Justice 13 (2015).  Hibbitts takes aim at what he calls
the “JAG myth”—the prevailing notion that the exclusive military role of lawyers in American history has been the relatively benign one of administering military justice while standing by to advise battlefield personnel of their legal rights and responsibilities, as needed.  The image is neat, tidy, bloodless, and notably self-satisfying in its displacement of responsibility for violence onto others.
Captain John Marshall (credit)
Hibbitts argues, to the contrary, that
[f]rom the very beginning of colonization, lawyers in America have been primary wagers of war.  Leaving aside for the moment professional soldiers who only began proliferating in significant numbers in the late nineteenth century, lawyers as an occupational group have been uniquely prominent in American history as invaders, battlefield commanders and soldiers, militia leaders, armed revolutionaries, filibusters, rebels, paramilitary intelligence agents, proponents of militarism, and civilian war managers. American lawyers have enthusiastically organized war, led war, and fought war.
In short, “war has shaped American lawyers both professionally and personally, and . . . lawyers have in turn played a major role in shaping the American way of war.”

Hat tip: LHB Founder Mary L. Dudziak, whose contribution to the same symposium, War and Peace in Time and Space, isn't exactly chopped liver, either.

Update: Here is the SSRN post of the article.