Jeremy K Kessler, Columbia University Law School, has posted
A War for Liberty: On the Law of Conscientious Objection, forthcoming in
The Cambridge History of World War II (Michael Geyer & Adam Tooze eds. 2015), 3:447-474.
One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – ‘liberty’ meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient ‘liberty of the subject’? This question could be and was asked with regard to many areas of law. The traditional order of property rights, for instance, was already in disarray thanks to the shocks of monopoly capitalism, labour militancy, the First World War, and the profound crisis of the Great Depression. Yet few rights would more directly test a wartime government's conception of the rule of law than the right of conscientious objection. The refusal of alleged pacifists to participate in the often lawless violence of the Second World War posed fundamental practical and normative challenges for all combatants – but especially for those who understood themselves to be fighting for individual liberty.
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