In the fifth and final installment of this multi-part post, contributing editor Joshua Ward Jeffery continues an examination and discussion of the historiography of morality and ethics in the American Civil War. You can find Part I here, Part II here, Part III here, and Part IV here.
More problematic, however, is the fact that the Lieber Code, as drafted, was intended to limit the conduct of Union, and later, American soldiers in time of war. However, one of the major innovations of the Lieber Code is that it enshrined the principal of “military necessity” as “a general standard for legitimate military action.” As Leiber defined it, Military necessity “consists in the necessity of those measures which are indispensible for securing the ends of the war, and which are lawful according to the modern law and usages of war.” According to Carnahan, however:
It should be noted that, both during the Civil War and in later nineteenth and twentieth-century conflicts, the terms “necessity,” indispensible,” and “unavoidable” were not taken literally by military commanders or their governments. In practice, so long as there was a rational connection, under circumstances as understood at the time, between an act of war and the defeat of the enemy’s armed forces, the principle of military necessity was regarded as having been satisfied.
Instead of having a limiting effect on soldiers, however, the principle of military necessity emboldened military commanders, soldiers, and politicians to claim that almost any action was justified by military necessity. Much of the balance of Carnahan’s book is dedicated to demonstrating that the escalation to total war was fully justified by the doctrine of military necessity, leading Carnahan to argue that the actions of Lincoln, Grant, and Sherman were more or less moral. Carnahan also examined Lincoln’s actions as Commander in Chief using other standards of the Laws of War at the time of the conflict, and found that “Under the standards of his time, President Lincoln did not authorize or condone any violations of the laws of war against enemy civilians.” Furthermore, Carnahan argued that scholarly statements decrying Lincoln and his commanders for war crimes committed by their troops suffered from “presentism,” because the doctrine of “command responsibility,” did not become incorporated into the Laws of War until after World War II. I found this argument very unsatisfying, however. According to the doctrines of Just War Theory, which provided the backbone for international law, commanders, and ultimately, the sovereign that sends them into the field, have the ultimate moral responsibility for the conduct of a war under Jus in Bello. In fact, the just war doctrine of the moral equality of soldiers recognizes the fact that the morality of all actions occurring in war fall at the feet of those giving the orders, not those executing them. To argue that the idea was not formally enshrined within the Laws of War appears to me to be a legal argument based upon technicality, and not upon understood principles in fact.
Carnahan’s Lincoln on Trial was received well by scholars, with only minor criticisms for failing to compare the complexities of the Laws of War during the Civil War with other like conflicts, such as the American Revolution or the Civil War in Post-Soviet Yugoslavia. Sailaja Paidipaty argued that such a comparison might have made the analysis more complex and might have served to create more questions about the application of the Laws of War to conflicts considered civil wars.
The result of these works has been to create a historiographical space for the assessment of the American Civil War through the lens of morality and ethics. The majority of those works, unsurprisingly, have tended to exonerate Lincoln and his generals as acting morally, but all of these works have applied differing moral standards. Miller’s work examined Lincoln through the eyes of Weberan ethics, Stout applied Christianity’s Just War Theory to weigh the actions of Lincoln and others, and Carnahan applied the dictates of International Law—which is based upon Just War Theory, but not bound by it—to weigh Lincoln and his commanders. Such varied approaches have of course crossed widely varied results, creating a historiographical problem that beckons additional attention to the subject. However, the authors of the extant works in this new subfield of Civil War Studies largely ignored the fact that they were creating or contributing to a unique historiographical approach to the war. Work that takes this new historiographical approach into account, and attempts to weave these differing approaches into a coherent whole will make a strong contribution to the field. While much ground has been covered in the few works that have so far appeared on this topic, much fertile soil remains for scholars who wish to till these grounds.
 Ibid, 31.
 Ibid, 32.
 Ibid, 119.
 Ibid, 98-99.
 Sailaja Paidipaty, review of Lincoln On Trial: Southern Civilians and the Law of War, by Burris Carnahan, New York University Journal of International Law and Politics 43, no. 211 (2010): 225.