The Great War and its significance for law, legal thinking and jurisprudence

The Great War and its significance for law, legal thinking and jurisprudence

What were the effects of the Great War on the development of law, legal thinking and jurisprudence ? This blog explores the issues.

This year marks the centenary of the outbreak of the Great War, the First World War. The remembrance events, museum exhibitions, TV programmes and numerous publications rightly draw attention to the Great War. Obviously, in the past century much scholarly work has been dedicated to the Great War, its causes and consequences and its lasting impact on individuals, societies, economies and cultures. However, considerably less material is available on what effects – if any – the Great War had on the development of law, legal thinking and jurisprudence.

This summer, I had the honour of editing the most recent issue of Erasmus Law Review, which just came out. The issue is dedicated to that particular significance of the Great War. In this blog , which was derived from my introduction to the Erasmus Law Review WW1 issue, I will briefly introduce the topic.

As early as 1852, the great Rudolph von Jhering posited: „(...) war can exert a wholesome influence on legal development is less a paradox than it appears. A well-timed war can do more to encourage development in few years than centuries of peaceful existence”.

Did the Great War indeed have this ‘wholesome influence’ on legal developments or was the War a mere ripple or perhaps a prelude to bigger and worse things to come?

Arguably, the War had been a long time coming. The conditions set by 19th century imperialist expansionism and the concomitant arms race, together with the sparks in the powder keg caused by the least democratic nations in Europe (the German, Austrian-Hungarian and Russian monarchies) started the inferno of an unparalleled War that was to rage over Europe for four long bloody years. The War was of an unparalleled scale. It was global in the sense that it spread to colonies and dominions in Asia and Africa. It was total in the sense that combat involved land, sea and air. By the time the Armistice was agreed on November 11, 1918, some eight million people had lost their lives. Although the emphasis in the Western European narrative usually lies on the sickening waste of human life on Belgian and French soil, not many know that it was actually the Serbians who suffered the most casualties relative to the size of their population.

The day before the Armistice, in the early morning hours of November 10, the erratic and by then rather out-of-touch Kaiser Wilhelm II and his entourage had stopped their nine motor vehicles en route from Spa in the insignificant Dutch border village Eijsden to ask permission to obtain asylum in the Netherlands. The Dutch government grasped the opportunity to operationalise their coveted doctrine of neutrality and granted Wilhelm asylum. Attempts by French Prime Minister Clemenceau and British Prime Minister Lloyd George to bully the Dutch into handing over their political refugee led to nothing; the Dutch were not prepared to give in. Wilhelm got to spend the rest of his life in exile in a tiny Dutch castle, which was stuffed with the contents of the many railway carriages that followed him to the Netherlands. Ironically, when Wilhelm died in 1941 the world was at war again, only this time the Netherlands was firmly occupied by the Germans.

The Great War left Europe destroyed and uprooted by combat, migration and border corrections. Moreover, it left the belligerent countries – both victors and vanquished – cash-strapped and in debt for decades. The 440 articles of the 1919 Versailles Treaty in all their detail compelled the Central Powers to accept sole responsibility for starting the Great War, to endure border corrections, to disarm and to make debilitating large payments to the victors. Thus, the peace terms brought about a state of economic and political instability in Europe which, in hindsight, may well be considered to be the root cause of the Second World War. Arguably, one enduring political lesson that the Great War may hold is that conquest without a realistic perspective of rehabilitation of the vanquished not only hampers reconciliation of the peoples concerned but may also impede the economic growth of all economies concerned. As early as the 1920s, Konrad Adenauer, who was later to become the founding father of the West-German Republic, argued that an organic intertwining the French, Belgian and German economies would ensure lasting and sustainable peace in Europe. The future lay in a United States of Europe.

The Great War was different from previous wars – through its scale and intensity it reached and affected just about every corner of European society. The outbreak of the War caused the Western international trade and payment systems to come to a grinding halt. In the first weeks currencies faltered, coinage was hoarded, stocks plummeted and stock trade was quickly suspended. The legislative response to all this was swift but makeshift. Piecemeal moratoria were hastily introduced to create breathing space for debtors who, due to the collapse of international and national trade and banking found themselves in unexpected liquidity problems and were unable to pay their debts as a result. To counter the unbalancing effects of coinage hoarding and bank runs, either formal restrictions on cash withdrawals or informal dissuasion policies were applied. Later, the belligerent nations experienced inflation and dramatic exchange rate fluctuations, necessitating some countries to suspend the gold standard.

Apart from these emergency responses, the Great War also marked the beginning of the end of the long 19th century for European economies and societies. The Victorian laissez-faire approach to society and markets, in which freedom of trade and contract was deemed normatively superior to protection of labourers, tenants, the poor and weaker parties generally, was already eroding fast in the late 19th century and early 20th century. Universal suffrage was in the air; the labour rights movement was firmly established and the plight of the lower classes had more political relevance than a hundred years earlier. The Great War did not cause these developments but it did much to accelerate them.

The experience of a drawn-out war of this scale and intensity was new. It necessitated rethinking of the economic framework of state and society both in terms of the regulatory architecture of markets – ranging from foodstuffs to financial products, from fuel to transport services – and the budgetary choices and leeway of nation states. The Great War prompted the introduction of emergency interventionist legislation in most parts of socio-economic life. Thus, it introduced restrictions on freedom of contract in the areas of labour, rent and housing, food production, transport. Typical war provisions such as trading restrictions were introduced and increasingly tightened. Moreover, market interventions ranging from price capping to property requisitioning, forced purchase and compulsory (re)distribution of scarce resources were introduced on an unparalleled scale. All this marked a permanent change of the role of the state; when the guns were finally silenced, the state had become the regulator of economic life and the distributor of wealth. Its role would never change back to that which it had assumed during the long 19th century.

The Great War had a huge impact on state finances. Not merely the cost of combat itself but also the enduring expense of war pensions caused a lasting rise in government expenditure of the combatant nations. Moreover, the Great War necessitated governments to redesign their legislative frameworks for securing income streams. Initially, financing the war effort was a far bigger problem for those countries such as France which did not have direct taxation instruments easily adjustable to generate revenues to alleviate sovereign debt and Germany which did have an imperial army but lacked the power of direct federal (income) taxation. Therefore, in comparison to the UK, France and Germany had to rely more on other instruments of financing such as government bonds and money creation than on taxation. A war profits tax was levied on traders who profiteered from war conditions.

Naturally, the Great War also signalled a next stage in the development of international law and its theoretical underpinnings. As a direct outcome of the War, the Versailles Treaty created the League of Nations for the promotion of global peace and stability.

From the above, it is clear that the Great War and all it entailed had a lasting impact on societies, markets, the political landscape in Europe and on the trajectory of international law. As a consequence, the legal doctrines and conditions somehow changed as well. In the contributions to this issue of Erasmus Law Review, four different viewpoints of this change are presented: colonial constitutional law and governance; contract law; international relations and public international law; and finally international criminal law. Obviously, these four themes do not cover the breadth of the relevant subjects. They do, however, exemplify the influence of the Great War on law, legal thinking and jurisprudence. As such, the issue of Erasmus Law Review aims at commemorating one of the greatest atrocities suffered by mankind.

"The Great War and Law - The Lasting Effects of World War I on the Development of Law” 7 Erasmus Law Review 2 (2014)