James Q. Whitman,
Ford Foundation Professor of Comparative and Foreign Law at Yale Law
School, came to Chicago this past Thursday to deliver the annual Fulton
Lecture in Legal History. His topic was not necessarily the first one
you'd associate with law, however: Pitched battles. Not metaphorically,
or as an allusion to courtroom dramas -- actual pitched battles, such
as Waterloo or Hastings. Yet, Professor Whitman persuasively documented
how difficult it is to make sense of pitched battles without viewing
them within a fundamentally legal context.
Pitched battles intersect with law in several important ways. Most obviously, like legal proceedings they are a form of conflict resolution: pitched battles were historically used to resolve important political claims, such as which prince had the right to claim a particular throne. And compared to other military proceedings, the pitched battle has a lot to speak for it: it is generally well contained, takes only one day, is restricted solely to combatants, and lends itself to a decisive resolution. Yet the classic pitched battle has gone into decline since Waterloo was fought in 1815. It is no longer possible to resolve wars through a single day of contained conflict. Whitman argues that a legal analysis is essential to explaining the history and decline of pitched battle.