September 24, 2012 13:40 Age: 2 yrs

A Time for War?

Mary L. Dudziak

(read the Insights article)

Asa Griggs Candler Professor (designate)
Director, Project on War and Security in Law, Culture and Society

AB, University of California, Berkeley, 1978
JD, Yale Law School, 1984
MA, MPhil, Yale University, 1986
PhD, Yale University, 1992

Scholarly interests: Law and war in America, U.S. constitutional history, civil rights history, comparative constitutional law, constitutional law, foreign relations law

As a scholar, one of Mary L. Dudziak’s key goals is to bring new work on war in political science, history, anthropology, cultural studies, and other fields to bear more directly on the study of law and war — one of her primary areas of study.

In the academic literature broadly, a paradigm shift is underway in the way we think about war, Dudziak says. The traditional view among American legal scholars and policymakers is that war is an exceptional experience. War comes and goes. Its impact on the nation is episodic. From this perspective, a wartime balance is struck between liberty and security, which is then recalibrated in peacetime. Much legal scholarship continues to operate within this paradigm. But current experience is that war isn’t confined in time and space, as scholars in a number of different fields have recognized. New, critical work thus argues that war is an ever-present feature, even if most Americans are isolated from its direct effects.

Dudziak’s new book, War ·Time: An Idea, Its History, Its Consequences, contributes to this reexamination, questioning the traditional paradigm by unpacking assumptions about time (“wartime”) that underpin our current thinking about war. Yet the book came about as she embarked on writing a different one. While working on a new account of the impact of war on American law and politics, at the renowned Institute for Advanced Study, in Princeton, N.J., Dudziak became puzzled by the way contemporary scholarship on war’s impact used the concept of “wartime.” The concept of war as bounded in time seemed ill-suited to the experience of recent years — a war on terror framed in a way that suggests no endpoint.

To get to the bottom of this puzzle, she wrote an essay, “Law, War, and the History of Time,” which explored “wartime” using literature on the history and anthropology of time. As she gave workshops and lectures on the essay, ultimately published in the California Law Review (2010), colleagues encouraged her to expand it into a short book, arguing that the ideas ought to be disseminated to a broader audience.

War ·Time, published by Oxford University Press this year, analyzes contemporary thought about the concept of wartime and the role it plays in law and politics. In essence, the idea of wartime assumes that war is succeeded by peace, making it an inherently temporary phenomenon. Legal scholars thus assume that wartime is exceptional, and peacetime the norm — and that the impact of war on American law is consequently episodic and isolated to distinct wartimes. Dudziak challenges this way of thinking by integrating the many small wars as well and by illustrating how even an iconic war such as World War II was not bound by fixed start and end dates, as the Roosevelt Administration engaged in war-related efforts long before Pearl Harbor. More significantly, she says, the Cold War, on its own terms, does not fit the wartime/peacetime model, but is used as if it were a separate and exceptional wartime by civil liberties scholars concerned about Cold War red-baiting. Meanwhile, constitutional scholars pay inadequate attention to the Cold War’s most enduring impact on our constitutional structure — not its episodic impact of war on rights, but the continuous expansion of the national security state. The phenomenon of -ongoing war may be especially important in our own era, though, given a war against terrorism that appears to have no boundaries in space or time.

Dudziak’s next book will be the larger work from which War ·Time distracted her. It is an account of the impact of war on American law and politics that explores war and militarization across time, rather than within the discrete wartimes that structure most American histories. Under contract with Oxford University Press, the working title is How War Made America: A Twentieth Century History. She is working also on the intersection between legal and diplomatic history and has been invited to contribute a chapter on that relationship to the third edition of Explaining the History of American Foreign Relations, edited by Michael J. Hogan, Thomas G. Paterson, and Frank Costigliola.

As creator and director of Emory’s newly-formed and innovative Project on War and Security in Law, Culture and Society, she seeks to bring new work from numerous disciplines to bear on the study of law and war. “If we are in the midst of a paradigm shift, Emory can be a great place where fields converge to illuminate the way a new understanding of war and conflict affects law and policy,” says Dudziak. “There are strengths across the campus in the study of war, conflict, and human rights while the law school is home to the Center for International and Comparative Law, and the International Humanitarian Law Clinic.”

Though many U.S. law schools have developed programs focused on legal issues related to war and national security, Dudziak emphasizes that serious study of the nature of war and security is also underway in many other disciplines. Although inter-disciplinarity is a central feature of American legal scholarship, most programs on law and national security focus intently on law and policy, and do not see interdisciplinary inquiry among their central objectives. This deprives legal study of war and security of broader critical inquiry that is essential to a full understanding of this area.

The Project on War and Security in Law, Culture and Society, says Dudziak, will give the study of law and war a broader canvas on which to paint, through a deeply interdisciplinary workshop series and related courses, and scholarly programs that will get underway this fall.

Excerpt from War·Time: An Idea, Its History, Its Consequences

Just as Americans changed their clocks during World War II [adopting year-long daylight saving time as an energy-saving measure], we adjust ourselves to a different order of time during war. Wartime is not merely a regulation of the clock; it is the calibration of an era. Once we enter it we expect the rules to change. Some burdens are more tolerable because we think of war as important and exceptional, and also because, by definition, wartime comes to an end.

World War II Daylight Saving Time did not succeed completely in bringing uniformity to the nation’s mix of time practices, but one moment brought the country together. December 7, 1941, the day the Japanese attacked Pearl Harbor, was seen almost immediately as dividing time into different eras. It created a before and an after, just as the Civil War divided nineteenth-century American history, and the twentieth century is thought to be segmented into periods of wartime and peacetime, with World War I and World War II as the essential time markers. ... Yet the onset of war is not seen as a discreet event, but as the beginning of a particular era that has temporal boundaries on both sides, so that entering a “wartime” is necessarily entering a temporary condition. Built into the concept of wartime is the assumption of an inevitable endpoint.

The opposite of wartime is of course peacetime, and history is thought to consist in the movement from one kind of time to another. Much depends on what time it is: the relationship between citizen and state, the scope of rights, the extent of government power. A central metaphor is the pendulum—swinging from strong protection of rights and weaker government power during peacetime to weaker protection of rights and stronger government power during wartime. Moving from one kind of time to the next is thought to swing the pendulum in a new direction.

Dividing time into wartime and peacetime offers a convenient way to periodize history, but more is at stake in our constructions of wartime. Law is thought to vary depending on what time one is in. Despite Cicero’s inter arma silent leges, law is not completely silent during wartime, but it is generally assumed to be different, with courts affording less protection to civil liberties and giving more deference to executive power. The controversy tends to focus on the questions of whether the balance between rights and security in a particular war context was the right one, and whether departures from peacetime rules are useful or regrettable.

Wartime is assumed to be temporary, but now we find ourselves in an era when American political leaders announce an end to hostilities—“mission accomplished”—but war continues. War’s tendency to defy time boundaries has a longer history, as we will see in later chapters. But how is it that time boundaries have become a feature of the way we think about war? The ideas that wartime and peacetime are distinct eras seem as natural and inevitable as did Standard Time to World War II–era American farmers. How might American history look if we understood wartime and peacetime as cultural features, as self-made categories, as constructs?

“Time feels like an essential and defining feature of human life,” the historian Lynn Hunt explains, but we rarely stop to think about it. “Like everyone else,” she writes, “historians assume that time exists, yet despite its obvious importance to historical writing—what is history but the account of how things change over time?—writers of history do not often inquire into the meaning of time itself.”...

Ideas about time are rooted in culture, but as the sociologist Emile Durkheim suggested in The Elementary Forms of Religious Life (1912), we have trouble examining this. “We cannot conceive of time,” he wrote, “except on condition of distinguishing its different moments.” If we “try to represent what the notion of time would be without the processes by which we divide it, measure it or express it with objective signs, a time which is not a succession of years, months, weeks, days and hours! This is something nearly unthinkable.” But Durkheim was curious about how these categories came into existence. “What is the origin of the differentiation?” he asked. Where do we get the categories that time is divided into? Durkheim helps us to see that minutes and hours are not features of the natural world. They come from social life, he argues, from the ideas we share that help make our world understandable. ...

Ideas about time are sometimes tied to the experience of modernity. Building on the work of the influential British historian E. P. Thompson, historians have examined the way that clock time brought time-discipline to labor, aiding development of the factory system. Developments in science, technology, business, and global affairs have affected the role of time. ...

Once time was viewed as uniform and governed by the clock, it helped create what the historian Benedict Anderson called an “imagined community,” as clock time helped knit together a common sense of national identity. ...The nation is conceived as “a solid community moving steadily down (or up) history.” ...

Just as clock time is based on a set of ideas produced not by clocks, but by the people who use them, wartime is also a set of ideas derived from social life, not from anything inevitable about war itself.

The Idea of Wartime

Wartime is important to American law and politics, but, as with other ways of categorizing time, we don’t tend to inquire about it. We treat it as if it were a distinct feature of our world, as if warfare brought with it a particular temporality. The impact of this way of categorizing time on our thinking tends to go unexamined.

War structures time, as does the clock. Stephen Kern argues that World War I displaced a multiplicity of “private times,” and imposed “homogenous time,” through an “imposing

coordination of all activity according to a single public time.” In the context of war’s public time, individual differences remained. .., [but] very different personal experiences with time played out under a common umbrella: the trajectory of war from beginning to end.

When the outbreak of war is a dramatic attack, the way Pearl Harbor was experienced, it brings the nation together, so that a widely dispersed population feels that they have experienced the same thing at the same time, bringing about Anderson’s consciousness of simultaneity. Because the attack is on the nation, and it is the nation that mounts a response, this moment of simultaneity also helps bind the people to the state, the source of their defense. ...

Once war has begun, time is thought to proceed on a different plane. There are two important consequences of this shift: first, we have entered a time that calls for extraordinary action, and second, we share a belief that this moment will end decisively, so that this shift is temporary. Because of this, built into the idea of wartime is a conception of the future. ... In wartime thinking, the future is a place beyond war, a time when exceptional measures can be put to rest, and regular life resumed. The future is, in essence, the return to a time that war had suspended.

An era is sometimes presented as simply a compendium of time. ... An era of wartime, in contrast, is more than a passive time marker. It can determine history. During the French Revolution, for example, ... Bertrand Barere, a leading member of the Committee of Public Safety, and viewed as a driving force behind the Reign of Terror, “excused his actions as the product of his time.” According to Hunt, Barere claimed that he did not shape his revolutionary epoch. Instead he “only did what I had to do, obey it.” Barere’s time, he argued, “sovereignly commanded so many peoples and kings, so many geniuses, so many talents, wills and even events that this submission to the era and this obedience to the spirit of the century cannot be imputed to crime or fault.” In American wartime thinking, there is also a powerful sense of determinism. Actions that would normally transgress a rule of law are seen as compelled by the era, as if commanded by time. And, as did Barere, individuals defend themselves by arguing that their actions were compelled or justified by the times.

... Wartime is ... a central category in domestic American law and politics. Scholars as well as policymakers tend to see wartime as a historical actor, having force in history, enhancing the power of the government and sometimes compromising rights. ...

But war is only exceptional during the twentieth century if we ignore the numerous American “small wars” carried on in Haiti, the Philippines, and elsewhere. ... The idea of discrete wartimes continues to do important work for civil liberties scholars well into a century during which the dividing lines between war and peace became so much more difficult to see.

--from War·Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)

Selected Publications


War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)

Cold War Civil Rights: Race and the Image of American Democracy (Princeton University Press, 2nd ed. 2011)

Exporting American Dreams: Thurgood Marshall’s African Journey (Princeton University Press, paperback revised ed., 2011) (Oxford University Press, 1st ed. 2008)

Book Chapters

A Sword and a Shield: The Uses of Law in the Bush Administration, in The Presidency of George W. Bush: A First Historical Assessment (Princeton University Press, 2010) (Julian Zelizer ed.)

The Case of ‘Death for a Dollar-Ninety-Five’: Miscarriages of Justice and Constructions of American Identity,” in Making Sense of Miscarriages of Justice (New York University Press, 2009) (Charles Ogletree and Austin Sarat eds.)


Law, Power, and ‘Rumors of War’: Robert Jackson Confronts Law and Security After Nuremberg, 60 Buffalo Law Review 367 (2012) (special issue on Robert Jackson)

Forward: How 9/11 Made ‘History’, in “September 11: Ten Years After,” Magazine of History, (Vol. 25, no 3, July 2011, 5)

Law, War, and the History of Time, 98 California Law Review 1669 (Oct. 2010)


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