Philip Bobbitt: The Shield of Achilles: War, Peace, and the Course of History. Book II: “States of Peace.” New York: Alfred A. Knopf, 2002.
Bobbitt now turns from consideration of modern states as their regimes have changed in the past seven centuries, a set of developments moving toward what he calls the “market state,” to the relations those states have had with one another and are likely to have in this century. Such relations, especially when formalized by treaties, form “international law,” “an amalgam of the common practices of other states in an international context that reflect the collectivity of state views.” He begins with Wilsonian international law, the prevalent form in the minds of many American policymakers at the time he published his book, a form characteristic of the “nation-state.” Nation-states asserted “the right of self-determination” to every nation, an assertion which raised serious difficulties for states that encompassed several nations. “When did a nation get its own state?” being one obvious question, especially for the great empires. Many states have been understandably reluctant to obey the rule of national self-determination or, in obeying it, have been tempted to purge alien nations from their midst.
Bobbitt begins with an excellent chapter on Woodrow Wilson and his principal adviser, Colonel Edward Mandell House, the adroit political fixer from Texas who helped to arrange Wilson’s nomination by the Democratic Party in 1912. Born in 1858, House attended Cornell for two years, inherited a fortune, then went to Austin in order to get into politics. He became a campaign manager for several Progressive Democrats and enjoyed cordial relations with the eminent Populist, William Jennings Bryan. After Bryan’s final defeat at the hands of Theodore Roosevelt, he judged that the next Democratic presidential candidate shouldn’t be a Southerner but “an Eastern governor who would attract the Western vote” by his progressivism. Governor Woodrow Wilson of New Jersey (in fact a Southerner but the longtime president of Princeton College, where his battles against the snobbish student ‘eating clubs’ “had given him a national reputation as an opponent of aristocratic privilege”) looked like the best bet, and so it was.
The two men became close friends almost at once, in that Wilsonian way of friendship, which required near-exact coincidence of opinion. Both were Progressive true believers. Internationally, that meant that they yearned for peace among the nations on terms familiar to Americans: federalism and national identity. As peace prospects in Europe on any terms deteriorated, Wilson sent House to Germany, where Kaiser Wilhelm II, well-versed in the ‘race-science’ of the day, explained that “Russians, as Slavs, and the French, as Latins, would never be suitable allies for the English,” and that therefore the Anglo-Saxon powers (in which he generously included the United States) “would withstand the challenges of the next century.” Constituted by Bismarck’s (and Wilhelm’s father’s) Prussia in the last century, Germany rested its “political strength…in being always prepared for war at a second’s notice.” The alarmed House reported this conversation to British Foreign Secretary Edward Grey. While desirous of peace, Grey also had an empire to maintain, an empire Americans continued to disapprove of. Grey’s concept of a “World League of Peace” comported with imperial statehood; committing the great powers to mutual arms reduction, eschewing military aggression, and submitting disputes to arbitration, such a league would overlook regime differences among the states. In the meantime, England should follow its longtime strategy of balancing one continental European state against another. In this, Grey understood politics in terms of what Bobbitt has called the “state-nation”—a state wielding sovereignty over a nation—rather than the American nation-state, with its republican regime. Indeed, “none of the European states conceived the goal of the war as achieving statehood for all national peoples, and some, like Russia and Austria, may have greatly feared this.” For House, as for Wilson, world peace could only come about if enforced by a League of Nations, each represented by governments acknowledging the sovereignty of the people. Not a balance of powers but (as in Kant’s Perpetual Peace) the exhaustion of all great powers in a final, cataclysmic war might well be the brutal precondition to such a League.
Accordingly, in entering the war in 1916, “mediation…was the American war aim,” while the Europeans were fighting for victory. When the Allies won, Wilson found himself at odds with his colleagues at the Versailles Conference. While “a world order based on a German victory” would not have been “one that was ultimately safe for the American democracy,” “an Allied victory that merely reinstated in Europe the state system that had collapsed in the first place” satisfied him not much more. And, true enough, “the Allies, like the Central Powers they opposed, shared a European conception of sovereignty that held the State’s authority to have come by descent from its predecessors, and not to arise directly from its people.” As a historicist, a thinker who had departed from the American Founders’ understanding of natural right adopting the notion of historical right and historical progress taught to him decades earlier by his professors at the Johns Hopkins University, Wilson sincerely believed that “it was necessary that the state system generate a spiritual change” in both regimes and in interactions among regimes. And as the son of a Presbyterian minister, Wilson somewhat confusedly mingled the Absolute Spirit of Hegel with the providential Holy Spirit of the Bible, “seem[ing] to have believed, with House, that truly democratic institutions that actually reflected the will of the people and made commensurate demands on their attention and contributions would yield just such a spiritual change in mankind.” Wilson and House also believed that the institutional means by which both regimes and international relations could be managed was the administrative state; as a professor, Wilson had written a seminal paper on that, while House had written a novel, Philip Dru, Administrator, its hero uncannily resembling its anonymous author. Although the coincidence of bureaucracy with spiritual awakening seems unlikely to those with more extensive experience with it, it should be recalled that American Progressives, although mostly Protestant, were not unmindful of the successes of the Roman Catholic Church, hoping to embrace what Catholics then doubted, that the methods of modern science, applied to governance, could be Christianized. Progressivism, Progressives believed, could succeed where the Church had failed, bringing peace on earth.
In Washington, late in the war, House brought together the president of the City College of New York (his brother-in-law, as it happened), the brilliant young journalist Walter Lippmann, and several dozen experts on geography, history, economics, physical science, and law in an initially secret project he called “The Inquiry.” “The group sought to determine what the map of Europe would look like based on American constitutional ideas of self-determination, and political objective like a nonpunitive peace and an evenhanded system of free trade.” Under this conception, nation-states would treat one another as citizens are supposed to do in a republic—as equals, regardless of physical size or strength. Lippman was moved to write, “We are fighting, not so much to beat an enemy as to make the world safe for democracy.” “Unless the distinctively American constitutional basis for this world constitution is appreciated, one cannot fully appreciate the intractable differences between the United States and her allies at the peace conference, and the difficulties faced by ratification of the Treaty that emerged from that conference once it went to the U.S. Senate,” to say nothing of the Soviet Communists or unrepentant German nationalists. It wasn’t that wily old European statesmen like Clemenceau and David Lloyd George outwitted Wilson or that the Senators overbore a president incapacitated by a stroke; the impasse centered on fundamentally different views on the sovereignty of states. The Europeans republicans held that sovereign peoples gave up their rights to their states, which were charged with the sole responsibility to secure those rights in the name of their nations; for their part, the Senators, who regarded governments as charged with securing rights Americans retained, by their nature as human beings, viewed any compromise of American sovereignty—as, for example, in committing the United States to war against international aggression by one foreign state against another without Senate approval—as a betrayal of American constitutionalism. Wilson’s campaign tour of 1918 in support of Democratic Congressional candidates scarcely improved the mood of Senate Republicans, who enjoyed a majority in that body.
As a seasoned political operative, House understood the real political constraints of Allied statesmen at the conference and the sentiments of Republicans at home. During Wilson’s absence from Versailles, he attempted to broker a compromise which retained the League of Nations while quietly jettisoning the Fourteen Points, which included such notions as “open covenants, openly arrived at,” which would have ruined the Europeans’ “secret agreements” for “a postwar division of the spoils.” With the League in place, such controversial items might be implemented gradually in the future; without the League, Wilson and House would get nothing. Initially enraged by House’s proposals when told of them, Wilson eventually bowed to reality, understanding that his European colleagues simply could not accede to his plans without wrecking their political standing before their own voters, who were in no mood for Christian charity towards Germany. But “the real issue was far more complex than a simple choice between a treaty with or without a League.” For Europeans, a League of Nations meant “a permanent, institutionalized conference of great powers to interlock the security assurances of its members, drawing the United States into a guarantee against aggression.” (A generation later, Winston Churchill would encapsulate his war strategy as “drag the Americans in.”) Wilson and House, however, “wanted a League that would, over time, move the imperial state-nations toward the model of the nation-state, move socialist and militarist nation-states toward parliamentary models, and move the State itself from a position of absolute sovereignty to an American model of limited sovereignty,” an ambition which, as Wilson put it, “depend[ed] primarily and chiefly upon one great force, ant that is the moral force of the public opinion of the world,” which he confidently supposed he understood better than his colleagues. Seeing that the Allies now wanted Americans to ally with them in any future major war, House recommended that Wilson tell Clemenceau and Lloyd George that they could have that, but only in exchange for a League conceived in the American way. In the event, Bobbit observes, “there would be no final peace until nation-states had completely supplanted the state-nations that dominated the conference,” but with the Senate’s refusal to ratify the treaty, the League left European conceptions of states’ sovereignty intact while losing the guarantee of American military intervention, a difficulty duly noted by Herr Hitler as he began to storm-troop his way into postwar German politics. Not knowing that his stricken president had effectively turned over control of the White House to his wife and his personal physician, House “received no reply to his frantic entreaties about ratification” and “was never again in close communication with the president.”
From the first attempt to reorganize international relations by the Wilson Administration, Bobbitt goes to the Balkan Wars of the 1990s, which he regards as the beginning of the end of the Wilsonian model or, as he puts it rather more dramatically, the “constitutional implosion” of Wilsonianism. After the demise of Tito, whose Communist regime had ruled Yugoslavia from 1945 until his death in 1980, Serbian Communist Party boss Slobodan Milosevic turned from neo-Marxism to a pseudo-nationalism as his source of legitimacy. Since the Slovenes and Croats regarded themselves as nations, too, they promptly seceded; eventually, four sovereign states emerged from the four resulting wars. Before NATO intervened, tens of thousands of people were killed, including several thousand children. “The constitutional metamorphoses that the Yugoslav state underwent are intimately connected to the slaughter and degradation of the Bosnian Muslims by the Serbs,” whose nationalism bled over into religious warfare, too. All of this discredited both “the Wilsonian system of international law” and the United Nations, the newer and supposedly stronger version of the League of Nations the Allies founded after World War II.
Although many commentators at the time claimed that the Balkans had seen internecine wars for centuries, Bobbitt denies it. The Versailles settlement provided for the Kingdom of Serbs, Croats, and Slovenes, a parliamentary-republican regime. Dominated by the Serbs, it experienced a regime change in 1928 after the murder of the Croat political leader, Stjepan Radich, as King Alexander dissolved parliament and installed himself as an absolute monarch. The German invasion of 1941 saw an alliance between Croat separatists and the Nazis., leading to the murder of some 400,000 Serbs, the internment of Jews, and forced conversion of many Orthodox Christian Serbs to Roman Catholicism. This was the first, not the latest, war between Croats and Serbs. This is not to say that the Balkan region was not a geopolitical bomb; the region is a good example of a place vulnerable to the “clash of civilizations” described by Samuel Huntington, the western section being Catholic, the eastern section being Orthodox, the southern section Islamic, thanks to the Turkish invasion of 1350. Ethnically, all of these groups consist of southern Slavs, with the same ancestors and the same language; Milosevic was fighting a religious war under the guise of nationalism. Indeed, “Serbia itself is only about 80 percent Serbian.” By 1987, a couple of years before the dissolution of the Soviet empire, Milosevic began his campaign against the Albanians in the autonomous province of Kosovo, Muslims who had been “harassing Serbs” there “and driving them out by various means.” By spring of 1990, Servia had sent troops into Kosovo and Vojvodina, “effectively ending their autonomous status and turning them into police states,” eventually establishing a network of prison camps holding “tens of thousands of Muslims and Croats.” The term “ethnic cleansing” entered the popular vocabulary.”
All of this challenged the nation-state model of international relations. Serbia wasn’t a real nation-state, ethnically, but its religious differences with its fellow Slavs enabled its ruler to claim that status, especially since the Muslims of Kosovo were also Albanian and the Catholics of Vojvodina were Hungarian. “The coincidence of rights-based claims”—that is, moral absolutes—and “ethnic identity”—a moral-political absolute to nationalists— is “a policy born of the basic elements of the nation state,” with the Balkan wars “represent[ing] the pathological endgame of the nation-state in which the constitution of a state is put into play whenever ethnic groups get on each other’s nerves.” The Western states dithered, but “in the end it was the sheer weight of horror, coupled with the unique and recent history of the European Holocaust, that persuaded states that action must be taken.” The dithering was understandable. “When does a nation get a state?” Bobbitt pounces: the slaughter of innocents during the Balkan Wars delegitimized Wilsonian, nation-state international law because “the great powers showed” that absent the polarization of the Cold War, “they were unable to organize timely resistance even against so minor a state as Serbia.” Globalization had become wider but much shallower; faced with a call to collective action, nations looked at each other, hoping that someone else would intervene. The United Nations Charter isn’t a real government, and the real governments stood by, for a long time. “We must free ourselves from the assumption that international law is universal and that it must be the law of a society of nation-states.”
Before attempting to describe what the international order consisting of “market-states” would look like, Bobbitt surveys the international orders established by the previous forms of the modern state, each of which was preceded by what he calls an “epochal war” that ruined the existing order. A “constitution for the society of states,” typically established at a peace conference following such a war, consists of “a structure for rule” that “allocates the jurisdiction, duties, and rights of the institutions it recognizes; determines a method for its own amendment and revision; specifies procedures for coping with disputes arising from its implementation; and above all, legitimates those acts appropriately taken under its authority.” Each such constitution will to some extent mirror, and to some degree influence, the regimes of the constituent states, the parties to the treaty. And each such constitution typically sees a set of interpreters, writers on international law, who explicate the settlement and provide means to interpret cases within its framework.
He begins with the Peace of Augsburg, which Holy Roman Emperor Charles V signed after defeating the Schmalkalden League, consisting of the Lutheran-ruled provinces of Hesse and Saxony. Pressed by far more dangerous rivals, France and the Ottoman Turks, Charles brought the rebels back under his control with the stipulation of cuius regio eius religio—he who rules, his is the religion. This principal extended beyond the imperial territories, since Charles’ hopes for a European Respublica Christiana had already been disappointed by major wars with those countries. The policy of princely states ordered ‘vertically’ under the Empire was replaced by a ‘horizontal’ “society of princely states,” each sovereign. The regime of the princely state has superseded the feudal order.
The international lawyer who anticipated this arrangement, Francisco de Vitoria, died more a generation before the 1555 treaty. Vitoria maintained that political communities are “perfected,” in the Thomistic-Aristotelian sense of fulfilling their true nature, their telos, “when they can act independently” of other communities, framing “their own laws” under their own regimes and states. True, “he makes the Church the arbiter of whether the conduct of a state is lawful, there being no society of states yet capable of making this judgment,” but that meant denying Charles V’s claim to worldwide supremacy, treating the Empire as one state among many, albeit a powerful one. As a good Thomist, Vitoria held the natural law to have been divinely established and moreover “associated the natural law with the ius gentium.” This in turn strengthened Thomas’s just war doctrine as a principle of interstate conduct.
Another Spanish writer, Francisco de Suarez, wrote more than a half a century after the Peace of Augsburg, commissioned by Pope Paul V to denounce “the Anglican sect” the Tudors had founded. Such heretics could justly be put to death by the pope, “in order to protect the Catholic faith,” on new grounds: “because political power arises from the sociability of man and therefore resides originally in the people, it must be delegated to the prince by ‘human law’; if the prince turns out to be a tyrant, the pope may assert the rights of the people.” This makes Suarez “the firs writer to show clearly the ambiguity in the term ius gentium,” a term that might mean that all peoples and nations must observe certain limits in their relations with one another or that states must also observe those limits within themselves. Further, the ius gentium amounts only to “a mere supplement to natural law.” Universal justice, established by God, sits in judgment over the nations and their customs, with the pope as its earthly arbiter. Meanwhile, another Spanish lawyer, Balthasar Ayala, associated treason against the princely states as a simulacrum to heresy; rebellion against the monarch “was not only unlawful, it was unjust,” its perpetrators to be treated “as pirates and criminals,” rightly “enslaved and their property taken.” Ayala thus established the princely state’s rule of conduct not of international but of civil war.
Alberico Gentili wrote the first treatise secularizing international law to appear in Christian Europe. In De Juri Belli, he “recognized the arrival of princely states that formed the basis of international law in the sixteenth century, “defin[ing] war as a conflict between armed forces of a state, thus discarding the private war of medieval princes.” Treaties now could extend beyond the lives of the princes who contracted them, obligations now to be understood as “binding on the successors of signatories, as well as upon the peoples of the parties to the treaty”—that is, binding upon states. If a prince, captured by an enemy, makes an agreement with his enemy under duress, his state is under no obligation to comply, “if it inflicts a severe injury” on that state. Crucially for secularization, Gentili also denied that the pope enjoyed any arbitral power over states. Treaties may be broken neither by princes acting against the good of the state, nor by a pope acting for the putative universal good, but only when substantially changed circumstances make it damaging to one or all of the contracting states. On this, the importance of circumstance in making political decisions is affirmed not only by Aristotle, which makes it an important feature of his Nicomachean Ethics, but also the philosophic founder of lo stato, the centralized modern state, Niccolò Machiavelli. “The State, only recently objectified, is now demanding recognition for itself and its counterparts,” “demanding recognition for an entire society of states.”
The Peace of Augsburg faltered in 1608, as Prince Maximilian of Bavaria annexed a Lutheran city and “re-Catholicized” it. The problem was that while the treaty had provided for the authority of princes to establish religion while permitting dissenters free emigration to another state, it “had simply made no provision for the seizure of a city.” This loophole touched off the ruinous Thirty Years’ War, “which might be thought of a civil war within the young society of states.” This brutal, pan-Continental war ended when Archduke Ferdinand III of Austria finally saw that his ambitions to extend imperial rule over the other states had failed—much to the displeasure of the pope, who denounced the ensuing Peace of Westphalia, which firmly established state consent, based on states’ “sovereign equality,” not Catholic or Protestant Christianity, as the distinctive feature of a new international order. “The idea of a juridical order without a higher political or ecclesiastical authority,” with neither emperor nor pope, “is so novel, and so far-reaching, that it has given immortality to the name with which it is mainly associated,” the Dutch lawyer Hugo Grotius, author of De Jure Belli ac Pacis, “one of the cardinal books of European history.” Earlier, the Dutch had revolted against Spanish rule, relying on foreign allies to resist the much more powerful state; marshalling an elaborate set of historical examples and precedents, ancient and modern, Grotius sought to shore up Dutch legitimacy under the ius gentium as framed by the natural law, but in opposition to the Catholic natural law writers. Grotius would establish international peace by proving “a duty on the part of the individual state to serve the interests of the society of states as a whole.” This moral sobriety distinguishes Grotius from Thomas Hobbes, who equally denied any imperial or religious authority over states but regarded that circumstance as a state of war, men being naturally rapacious, their states equally so. “The rationale for the Grotian view is that there exists a great society of all mankind and all human institutions are governed by the rules of that society,” rules consistent with that natural sociality of man.
From this “view,” Grotius derived six corollaries: natural law is one source of the ius gentium; being ruled by nature, international society is universal, neither specifically Christian nor European; not only states but individual and “nonstate actors” “can have a role in the application of the rules of international law”; the sociality of human nature “can give rise to cooperative requirements,” which can be “a source of justice”; “suprastate institutions are not necessary for the rule of law to be applied to states; and finally, “the individual person is a bearer of rights.” Whereas the Peace of Augsburg had floundered because the lawyers who adumbrated it had offered no well-accepted method by which to interpret it, Grotius’ elaborate invocation of historical examples, carefully arranged by himself, provided just such a means, one congenial to jurists steeped in research into precedent. Grotius’ precedent-centered natural law centers itself not on rational deduction from the order of the cosmos but on “the way things are done; not the substance of the law, not the things being done themselves, and not the divine law, but the ordinary, everyday methods of arguing and putting forward interpretations.” Grotian natural law is the reasonable application of time-tested human means of getting along with one another, as social animals. Grotius also took care to make his framework consistent with the “kingly states” which had replaced the “princely states” of the Augsburg period. The princely states had become Machiavellian, all-too-Machiavellian. Kingly states (obviously) remained monarchic, but on what Aristotle would have regarded as the good version of ‘the rule of the one.’
Those inveterately Machiavellian monarchists, the King Louis XIV and his foreign minister, Cardinal Richelieu, “directly challenged the Westphalian settlement” in the seventeenth century. Although professing kingliness, Louis in fact conceived himself as a super-prince. This bid for Continental empire was defeated by England’s Marlborough at the Battle of Blenheim in another “epochal war” leading to a new settlement, the Peace of Utrecht, consisting of eleven separate bilateral treaties among the combatants. The delegates furthered Gentili’s move toward centering sovereignty in the impersonal state instead of the person of the prince by deploying the language of the commonly-held interests of states, rather than rights, which are so readily associated with persons. States conceived under the Utrecht settlement were conceived not as princely or as kingly but as territorial, as objects or “powers” that might be balanced against one another by states’-men, in order to maintain international peace by means of mutual deterrence. Territories require boundaries, defensive barriers to aggression, and these became the subjects of negotiation among statesmen. Territorial aggrandizement by military action increasingly seemed illegitimate. The word ‘state’ now meant such a territory; ‘right’ became associated with territorial integrity. The new international order conduced not to war but to peaceful commerce, to the wealth of nations rather than their glory. Consistent with the Enlightenment’s philosophic doctrines of individual free will and economic liberty, territorial states fostered prosperity for ‘the many.’
The lawyer who elaborated territorial-state principles, Christian Wolff, followed his philosophic guide, Gottfried Wilhelm Leibniz, in maintaining that “it is in the nature of man not simply to preserve himself, but to seek to thrive and mature, to realize a potential to achieve harmony, a potential that is embedded in the possibilities of free will.” The international order ought to support the human quest. Wolff accordingly formulated “a legal fiction he termed the Civitas Maxima,” a “body of rules derived from the promotion of the common good.” Whereas “Grotius thought the contents of natural law could be found in the received traditions of Western practices, Wolff”—again following the philosopher Leibniz, not the law-of-nations jurists—found them in “the logical implications of free will.” Human free will required an international order consisting of “morally equal and free, self-determining states,” their laws based on consent. Internationally, this makes the sovereignty of states “a precondition for law based on cooperation.” Such cooperation was consistent with the emphasis on interests seen in the territorial states, since peaceful, voluntary cooperation conduces to the commercial prosperity the Enlighteners esteemed.
The Swiss writer on the law of nations, Emmerich de Vattel, concurred with Wolff on the centrality of consent while rejecting the Civitas Maxima as too far removed from reality. More, Vattel laid some of the groundwork for the move away from the territorial state to the “state-nation,” wherein “sovereignty lay not in the rule of one person but not in the impersonal state, either. For Vattel, sovereignty belonged to the people, the nation. Rulers may represent the sovereign people, but rulers are not themselves sovereign. “Sovereignty exists only when the nation governs itself,” as the doctrine of free will suggests. True, the sovereign nation delegates its sovereignty to the state, but that delegation may be withdrawn. Understandably, “Vattel received his warmest reception in America, where Publius cited him in The Federalist, Supreme Court justices cited him in such important early cases as McCulloch v. Maryland and Gibbons v. Ogden and, it should be added, where Jefferson placed some of his phrases in the Declaration of Independence itself.
“But what are the consequences for the society of states when the nation of a single state exercises its right of resistance and seizes the sovereignty it has delegated to a king? This Vattel did not say.” The American Revolution confined itself to breaking away from an empire but did not challenge the British regime itself. Empires had waxed and waned before. The French Revolution was another matter. And this time, the regime change was not from one kind of monarchy to another but to a democratic republic in which “the right of suffrage entailed the duty of military service” in the first mass armies of modernity. Napoleon’s despotic regime retained the mass army under a monarchic form of egalitarianism. When in 1807 Prussia copied the Napoleonic formula precisely in order to stand up to Napoleon, the “state-nation” was on the way to prevailing throughout Europe. At the Congress of Vienna, called to formulate a settlement of the epochal Napoleonic Wars, all parties understood that the French Revolution “had shattered the idea so dear to the territorial state that custom and natural law were the sole sources of binding legal rules.” Metternich made a last-stand attempt to vindicate the territorial state and its principles,” but most of the delegates now understood that “freedom could be expanded, or contracted, depending on the form of the regime,” and that this reality must be integrated into the international order. Newly sensitive to the role of public opinion in their domestic regimes, with its “requirement that government policy be justifiable on the basis of articulated principles that themselves were taken as legitimate,” statesmen now saw that the democratization of regimes would also require the justification of foreign policy on the same basis. Such principles as the general interest of all states and the balance of power “had to achieve a new consensus among the powers in order for the behavior of these states to seem principled.” Whereas wars of territorial states could be resolved by territorial swaps following limited wars, wars fought in democratized states by mass armies aroused popular and therefore nationalist passions not easily bridled by reason and the territorial state’s commercial moderation. The old diplomacy of aristocratic etiquette had been erased. “An outlet must be found for a new spirit in Europe that was at once constitutional, warlike, and national.” Romantics had replaced Enlighteners in European civil societies and diplomats needed to find a way to legitimate diplomatic “reliance on the few,” the aristocrats, who “could keep the peace and thereby protect the many” from their own impassioned demands, while resisting the now-impossible-to-realize aristocratic hope to ignore public opinion altogether.
The great formulator of the international order of state-nations wasn’t a jurist but a parliamentarian, Robert Stewart, Viscount Castlereagh. In a letter to the Russian czar, Castlereagh argued that “the peace of the world” based on the balance of power can only be maintained if the great powers accepted a moral responsibility not to embark on another “lawless scramble for power,” as Russia’s great enemy, Napoleon, had done, but to bear in mind “the general welfare of the society of states, taken as a whole.” Alexander was persuaded, telling his fellow Slavs, the Poles, that they must accept the partition of their nation because “the interest of Europe as a whole had to take precedence over their own.” Prussia’s attempt to annex Saxony was rejected on the same grounds. “Only a Europe composed of stable states, managed by a directorate of the most powerful of these states, with a mandate to act in the interest of the society of states as a whole, would prevent a new outbreak of such cataclysmic war as Europe had experienced for twenty years.” In the legal realm, the Congress of Vienna order found support in the legal theory of positivism propounded by the English lawyer, John Austin. For positivists, laws are neither rational nor necessarily consensual; they are simply facts. For Austin and for the Swiss lawyer Johann Bluntschli, international laws were simply the acts of the directorate, facts imposed by the major sovereign states. In addition, Bluntschli hoped for the formation of a European confederation that would prevent “a breakout by one great power,” which was beginning to look more and more like Prussian-united Germany. There, Georg Jellinek claimed that “a legal rule earns the status of law to the degree it is accepted,” that “a valid law is simply one that is accepted as valid.” The amorality of his conception was moderated in practice by the standards maintained by those who do they accepting, namely the nation, which follows its own way of life, limiting itself by the character that way of life fosters. “Jellinek’s views are a good summary” of volkish jurisprudence shared by both the Kaiser Reich and the Weimar Republic.
By the time this appearance became a reality, when Germany violated Europe’s state-nation international order by starting the First World War, many state-nations had further democratized, becoming “nation-states” or “welfare states.” In Europe, nation-states had come to provide substantial material benefits for their citizens and subjects, including public education, pensions (‘social security’), and “redistributive taxation” (all taxation redistributes money, but “redistributive taxation” takes from the rich and gives it to the poor and the middle classes). Some offered a degree of control over such matters by establishing voting rights for many or most. “The nation-state brought forth a shadow for every variation of its constitutional form,” however—its “ideology,” which “explains how the State is to better the welfare of the nation” and indeed defines what the welfare of the nation is. In the aftermath of the First World War, the nation-states attempted to make the international order fit the character of this new type of state.
It couldn’t work because nation-states featured three distinct and opposing regimes: communism, liberal democracy, and fascism. The Versailles Treaty did not include the Soviet Union, the United States, or Germany. “None of these ideological forms…gained in prestige or sentiment by identification with the society of states as a whole or with the state-nation heritage of Vienna,” and crucially, postwar Germany factionalized along all three lines. The country central to the Great War had not resolved its regime controversy, and the international order hadn’t, either, thus making a second world war possible. Once Germany resolves that controversy in favor of fascism, the liberal democracies dared not to crush it, rightly fearing the Soviet Union, but an intact Germany also threatened them, and more immediately. This latter threat, which the French felt more acutely than England or the United States, gave weight to Clemenceau’s demand, at the Versailles conference, to break up Germany and remove the geographic basis for its military revival. The Allies did attempt to change the regime in Russia, but the Communists beat them back. Be all of that as it may have been, the “epochal war” that began in 1914 would be renewed.
“What was wanted was a way to hedge against the strategic assets that might end up in the hands of a hostile fascist or communist state, and at the same time to shore up the fragile parliamentary regimes who would be accused by their domestic opponents of selling out the nation’s strategic interests.” Fortifying liberal democracy proved impossible in Germany and in Italy, whose prime minister refused to sign the treaty but whose failure to obtain benefits for his country left him, and Italian parliamentarism, vulnerable to Mussolini. A decade later, Hitler arranged his elevation to power in much the same way. Nor were England, the United States, and France exempt from partisan turmoil in those years. “What was missing—and what would remain missing until after World War II, whose victors did not even attempt a general peace treaty—was the political, constitutional basis within each of the great powers that would make a general constitution for their [international] society possible.”
With three regimes in conflict with one another, three schools of international law stood up to articulate their claims to legitimacy. Among the internationalists, Hans Kelsen argued for putting regimes and the international order on a conventionalist foundation. Jellinek was wrong: law isn’t law because it is accepted by the nation but because it sets a standard for the nation. It is, in his words, “a rule not of but for human behavior.” So, if most Frenchmen never quite get around to reporting all their earned income does not mean that French income tax law says that they should do so. This means that human laws, unlike physical laws, are not necessarily obeyed; “indeed, there must be the possibility of disobedience or the rule would not embody a norm.” But “the norms of law are not those of justice”; morality provides no standard for law. “A valid law is one that follows that logical form that is unique to the discipline of law,” that is, it sanctions coercive acts by the state under certain specified conditions. “If X occurs”—something the law bans—then “Y ought to follow”—arrest and punishment. No “natural law” transcends positive law, nor does the will of the people, the sovereign, or even Austinian “command.” Kelsen does not even “provide for the legitimacy of the State itself.” It exists because it is recognized by “the norms of international law.” Nations with states have their own norms, to be sure, but they depend upon the norms of international law for their validation and, ultimately, their survival.
Carl Schmitt spoke for nationalism, and indeed for fascism. For Schmitt, “legality was derived from a correspondence between the legal rule and the cultural needs and identity of the society.” The State sets down the law, not the international order. Weimar Germany was weak because its regime, liberal parliamentarism, had been “imposed on Germany by the Versailles Conference,” by foreigners with no regard for German cultural needs and identity. “The State defines itself by the distinction it draws between friend and enemy,” a distinction its culture and identity, contrasted with the culture and identify of foreigners, makes plain to anyone with eyes to see. The State’s sovereignty “is the power to determine when an emergency situation” in the State’s relations with such foreigners, or with domestic enemies, arises, “and thus when the legal rules that ordinarily govern should be suspended,” and the State had better have the ability to make firm and timely decisions on such matters. Parliamentary regimes can’t do that; they are “ineffectual and ultimately self-destructive” guardian of the State. Parliamentarism leads not to real democracy but to “government by an intellectual and liberal hierarchy” that dithers while Rome burns. “True democracy relies on the principle that equals are treated equally and, just as importantly, that unequals are not treated equally”; this being so, “true democracy requires homogeneity—the assemblage of equals—and, sometimes, the eradication of heterogeneity.” By privileging the middle and especially the professional and merchant classes, liberal and parliamentary democracy is no democracy at all, but only a means of concealing “the dominance of the bourgeoisie behind a facade of legal procedures,” which obscure “the clash of values,” the conflict of friends and enemies, “that lies at the heart of politics.” “The lives of its citizens dissolve into consumerism, hedonism, and an attraction to cults.” A man like Kelsen is only the “intellectual descendant” of “Jewish philosophers such as Spinoza and Moses Mendelssohn, who wished to cripple the state out of self-interest,” to replace real politics with commerce and “the supremacy of impersonal law.” The misrule of Germany by men animated by their theories will mean, as Schmitt put it, “the loss of all that is noble and worthwhile,” indeed “the loss of life itself,” inasmuch as “the value of life stems not from reasoning, it emerges in a state of war where men inspirited by myths do battle.” Life is worthless unless you have a purpose for which you are willing to sacrifice your life. Without a hierarchy of men ruling a homogeneous nation, Germany and indeed all the world will be dragged down the rancid swamp of the Last Man.
Against both the Kelsenian rule of law and the Schmittian rule of racial elites, the Frankfurt School advanced a neo-Marxist account of law. Endowed by a wealthy young Marxist, the Institute for Social Research in Frankfurt was founded in the 1920s and received additional funding from the Prussian state government, then controlled by democratic socialists. György Lukács and his colleagues regarded both legal positivism and fascist nationalism as epiphenomenal distractions from the underlying reality of class conflict. In capitalist society, “the relationship among human beings had taken on the form of the relations among things”—what the Schoolmen called “reification.” Reification leads to “alienation,” the estrangement of human beings from themselves, from consciousness of themselves as non-things. Since “Marxism” and “capitalism” had become loaded terms, the substituted “critical theory” for Marxism and “forces of domination” for capitalism. Law is simply one of the masks for domination, “a by-product of the class struggle.” In the 1930s, several of the Schoolmen migrated to the United States, where they found an academic home at Columbia University.
The international regime impasse of the 1920s and 1930s guaranteed that the “epochal war” begun in 1914 would become what Bobbitt calls “The Long War.” World War II didn’t settle it, although it did eliminate one of the principals. From the 1950s through the 1980s, the Soviet Union adopted several strategies in its increasingly desperate effort to overtake and defeat the prosperous liberal democracies. The struggle ended under the premiership of Mikhail Gorbachev, who attempted (as Lenin had done in the 1920s) to liberalize the regime temporarily in order to draw in ‘capitalist’ investment, which was supposed to remain under strict Communist Party scrutiny (as it has been, under the more intelligent Communist Party regime that rules the Chinese mainland and Hong Kong). The Soviet problem was that there was no Stalin to close this down; Gorbachev’s “efforts inadvertently threw the Soviet state into a crisis in which his increasingly desperate measures—all efforts to copy successful programs to some degree—only further ensnared him.” “When his program of economic reform failed, he himself ad too greatly weakened the state apparatus for it to recover, and there was left only the residue of the delegitimation campaign he had all too successfully conducted.” Gorbachev never abandoned his hopes of seizing “strategic advantages over the United States,” particularly in the realm of nuclear weapons, but he ran out of time. The development of civil associations such as the Polish labor coalition and the Czech ‘parallel polis’ additionally undermined Soviet rule over its European empire. “Legitimacy deserted the Soviet state.”
The Charter of Paris ended the Long War. The Soviets agreed to the reunification of Germany and its incorporation into the Western Alliance. It was also supposed to put Russia “along a path that would transform it from a communist to a parliamentary state”—a path not taken for very long, although it still seemed open in 2002, when Bobbitt published his book. The Charter also upheld the principle of human rights, which would find its practical implementation in the liberal democracies, where it already existed, and in the Central and Eastern European regimes that superseded Communist oligarchies there. [1]
Because liberal democracy in Russia and even in China seemed plausible to many contemporary observers (although not to this reviewer), Bobbitt could project the formation of yet another kind of state, “the market-state,” replacing the “nation-state.” What kind of international order will they form?
The market-state “declines to specify the goals for which opportunity is to be used,” instead securing its political legitimacy “through the active pursuit of opportunity for its citizens.” Bobbitt foresees three varieties of market-state: the hedonistic, free-market oriented entrepreneurial market-state; the protectionist mercantile market-state; and the social-welfare- providing managerial market-state. Internationally, all of these market-states will emphasize technological development, the globalization of culture, and the liberalization of trade and finance. Technological innovation will include the invention of more accurate weapons of mass destruction in many more hands, not all of them rulers of states. Globalization of culture will include “immigration on a scale never hitherto seen in peacetime,” inasmuch as immigrant labor typically costs much less than indigenous labor, at least in the economically advanced states. And because market-states set no goals for their residents, having abandoned “the integrative function of the nation-state, which sought to transform immigrants into versions of the pre-existing national group of the country to which they had come,” there will be less resistance to such mass immigration. Globalization of culture will also strengthen sentiments favoring human rights, sentiments also beneficial to market economies. Computer technology has already made regulation of trade and finance difficult, inasmuch as the value of states’ currencies are now set by the market fluctuations computers can register instantaneously; money itself becomes a commodity, “like soybeans or petroleum.” Computers, globalization, and acceleration of financial markets will make economic warfare much more sophisticated, as (for example) China might ruin the American corn crop by smuggling in a pathogen, although Bobbitt optimistically judges such warfare unlikely, given the market-state’s need merely to increase opportunities available to its own residents, rather than to injure the lives of the residents of foreign states.
He identifies three “fundamental choices” market-states will make. Regarding weapons of mass destruction, entrepreneurial market states (e.g., the United States) will usually choose to encourage non-proliferation of them, whether through deterrence or treaty; they will meet the challenge of immigration and human rights “by encouraging a global network of economic growth premised on the transparency of sovereignty,” i.e., on the right of states to take action against states that have forfeited their “right to legitimacy” by violating the norms of the market-state; and they will seek “to increase the absolute wealth of the society of market-state, taken as a whole, without regard for distributional effects.” Mercantile market states (e.g., China) will usually choose to rely on multilateral arms-control agreements, to address immigration and human rights by encouraging “the fragmentation of states within ‘umbrella’ megastates,” and to manage economic growth in light of their interest in the distribution of good internally and internationally. Managerial market-states (e.g., the states of the European Union) will attempt to limit the proliferation of weapons of mass destruction by working for the “internal liberalization through economic growth”; they will protect national cultures and promote regional networks of international law; and they will prefer slower but steadier economic growth than either the entrepreneurs or the mercantilists. The choice of these options will “reflect [the] different views of state sovereignty” held by the three market-state “views of state sovereignty.” “Inevitably, one of these sets of approaches…will dominate the constitution of the society of market-states, because a society of states that pursued policies that were inconsistent with respect to state sovereignty would produce an incoherent and unstable condition.”
Wisely declining to predict which of these projected market-states will prevail, Bobbitt contents himself with describing the “possible worlds” each would produce, once dominant. The prevalence of entrepreneurial market-states will produce “The Meadow,” a world valorizing individual creativity, wherein weapons of mass destruction will “be placed in escrow” under the control of “a multinational, quasi-private consortium and no future development of such systems [will be tolerated, on pain of pre-emption.” The prevalence of mercantile market-state will produce “The Garden”—more ethnocentric than the others, jealous of “the absolute equality of states to determine their own security needs,” inclined to form food cartels and to fight trade wars. The prevalence of managerial market-states will produce “The Park,” with bigger governments, more regulation of the environment and more protection of minority rights; internationally, this will bring looser immigration rules, greater political autonomy for regional minorities, and the manipulation of tariff policies to reward ‘green’ states and to punish states not so ‘green.’ But all market-states will increasingly “look to transnational entities, like multinational s=corporations and subnational institutions, like particular interest groups to provide for their tangible well-being.”
Recalling that “war provided the means by which consensus was achieved in the past,” Bobbitt expects further military conflicts as market-states struggle on behalf of their models. Correctly, he did not anticipate a large-scale war for the next decade or so. Following the terrorist attacks on the United States in September 2001, he did expect continued “asymmetric warfare” launched against the critical infrastructure of states, along with “transnational environmental and epidemiological plagues.” Against such violence, entrepreneurial states will practice regime change, mercantile states will uphold the Augsburg-Westphalian principle, managerial states will move only with approval by the United Nations or “at least the ratification” of intervention “by a regional security organization that is itself endorsed by the U.N.” No state will eschew intervention altogether. Although chronic, asymmetrical, low-intensity conflict might remain the only kind of conflict in this next epochal war, the possibility of a cataclysmic war, similar to the world wars of the past but with different weapons, or stealth wars characterized by “unattributed disruption” of enemy states, could also occur. Under these circumstances, the United States “must choose the sort of war we will fight, regardless of what are its causes, to set the terms of the peace we want.” After all, “if we wish to ensure that the new states that emerge are market-states rather than chronically violent nation-states it may be that only war on a very great scale could produce the necessary consensus.” But since “civil disobedience and civil strife will become more widespread, and more threatening,” states like China and Russia may fight “a silent war, fought with largely cover means because overt conflict is too risky and too discrediting.”
Given these ambiguities, the United States will need to reorient its policies in a number of areas. He begins with the news media, which have shifted from functioning as means of transmitting the opinions of rulers and would-be rulers to the public under the state-nation to the addition of public opinion itself in the nation-state to the current, more ambitious practice of “act[ing] in direct competition with the government of the day.” That is, the market-state has spawned a set of journalists who have made a market of political authority and compete vigorously within it. Alas, “the media are completely untrained for this task—ethically or politically.” Neither are some politicians, but both sides will need to live with the new circumstance.
In the increasingly ‘globalized’ international order of the market-state, environmental conditions are often staged as “international security issues,” as “the market-state sets the stage for a strategic conflict over their resolution”; and, indeed, ‘global warming’ has become exactly that sort of thing. Similarly, market-states’ restrictions on agricultural and raw materials will be causes for conflict, although in this case such conflicts have always been with us. Crime and corruption have been internationalized, and although epidemics have never been respecters of borders, the acceleration of international transit will make the threat more acute. As mentioned, weapons will circulate more freely, as (it might be added) will covert military personnel, as now seen in the Chinese infiltration of soldiers and other ‘operatives’ into the United States via Mexico and, less dramatically, university student exchange and scholarship programs.
“Potentially the most disturbing” of these areas of threat is critical infrastructure. It, too, is no longer confined to national territories. In the market-states’ race to forge a “world economy,” banking, telecommunications and energy infrastructure has been redirected to “the path of greater efficiency rather than greater national security.” Attacks on it may be “impossible to trace.” “Nor is it yet clear what government should do,” or what private firms should do. Law won’t help, much, because “there will never be sufficient time or resources to write legal rules ahead of the imaginative cyber designer”; “only experienced managers in the sectors themselves, acting daily and learning constantly, can stay ahead of this threat.”
Despite these hazards and complications, Bobbitt does not expect the state to wither away. He does expect states to become more cartel-like, less territorial. As such, “they can either be a force for consensus and harmony or they can harden into competing alliances with limitless capacity for conflict” (“corporations, after all, are designed to compete”). One way things might go is toward zones of “free trade and/or defense,” what Bobbitt calls “umbrellas.” This would require a worldwide pluralism, the abandonment of attempts to instantiate human rights, globally. There would be, in other words, “a market for sovereignty” itself, as the directors of each umbrella would strive to make themselves as attractive as possible to their constituent populations and to potential constituents. Such a world order or “constitution” would be pluralistic but not morally relativistic, requiring a substantial and enforceable worldwide consensus on “the maintenance of a force structure capable of defeating a challenge to peace,” rules governing financial and military intervention by the great powers during crises underneath the “umbrellas,” some degree of free trade, and so on. There must also be “a consensus on the rule that no state that meets the standards of the Peace of Paris—free elections, market economy, human rights—ought to be the subject of threats of force.” That is, Bobbitt’s pluralism means “the view that some values are to be preferred to others, and that these preferred values are those democratic and peaceful institutions that permit individuated and diverse cultural development in the context of nonaggressive relations.” To assure this happy condition, states must decide “when it is appropriate to use force in this new world” and “to determine, as a society of states, when to collectively sanction the use of that force in this world.” Bobbitt regards this as possible because “states are losing control of their sovereignty, especially if this is conceived in territorial terms” but, at the same time, the market, “acting alone, can never coordinate the defensive tactics I have described.” Enforcement of peace will still require the capacity to wage war, even if wars must be directed against non-state actors as well as against ‘rogue states.’ “National security will cease to be defined in terms of borders alone” and “the line between the public and the private hat has been the essential division between state and society has been partly effaced because of the critical infrastructures are in the hands of the private sector.” “There will be no final victory in such a war. Rather victory will consist in having the resources and the ingenuity to avoid defeat.”
Looking back with the advantage of more than two decades of events between ourselves and The Shield of Achilles, it must be said that Bobbitt underestimated the resources of the nation-states and the importance of regime differences among them. For example, Bobbitt hoped that the threat of terrorism could induce NATO to include Russia as a full member, and that Russian statesmen would want that. But Russian statesmen obviously regard NATO as a greater threat to themselves than terrorists, and NATO has come to see the Russian regime as both more enduring and less amenable to cooperation as they, and Bobbitt, had hoped. More formidably still, the oligarchs who run China run its economy and have established their own computer network, both of which have been deployed to enhance Chinese nation-statehood and indeed a Chinese imperial strategy against the detested liberal democracies. Bobbitt might reply that this means that an epochal war of transition between the nation-state and the market-state model now looms over us, and indeed may have begun soon after the end of the epochal Long War of the twentieth century. If so, his bid to become the next Tocqueville is still alive.
Note
- Bobbitt identifies four legal schools that registered the end of the Long War: the legal process school, which emphasizes legal proceduralism within courts systems; the nominalist school, which defines laws as ‘texts’ independent of the intentions of their authors and signatories; the New Haven school, which holds that lawyers and judges do not so much follow the law as shape it to their political tastes; and consensualism, which holds that “the content of international law depends wholly (or almost wholly) on the consent of states.” All but consensualism are American theories, but consensualism has carried the day.
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