THE SHIELD OF ACHILLES (96 page)
Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
This paradox was taken up by Johann Bluntschli (1808 – 1881), a Swiss jurist whose life was as studded with success as Austin's was with disappointment and failure. Bluntschli presents the remarkable case of a law professor who achieved enviable mastery in two societies: after a successful scholarly and political career in Switzerland, he emigrated first to Munich in 1848, and then to Heidelberg, where he remained for the last twenty years of his life as the most prominent international lawyer in Bismarck's Germany. In 1873, he founded the Institute of International Law, which continues to flourish, and his name was well enough known to have been appropriated by George Bernard Shaw for the main character in his play
Arms and the Man
.
In 1866, Bluntschli published
Das moderne Kriegsrecht
, which became the basis for the codification of the laws of war enacted by the Hague Conferences of 1899 and 1907.
48
In 1868, there followed
Das moderne Völkerrecht
, which presented an apparently comprehensive system of international law in the form of a tersely worded codification with explanatory notes. It was immediately translated into several languages and quickly became the standard reference work for diplomats. In 1885, the author Pradier-Fodere wrote with some asperity that Bluntschi's book “is almost the only one which is today consulted by diplomats and all those obligated by their profession to possess some notion of international law.”
49
Das moderne Völkerrecht
appeared when Bluntschli was sixty. He was already known as a figure of unusual stature—a statesman and religious leader of liberal and cosmopolitan views, a “good European.” The book was received as his masterpiece, the mature expression of a humane and cultivated mind. Nonetheless, the book was sharply criticized for one notable departure from the style of previous treatises.
While there had been earlier private attempts at codification of international law, that of Bluntschli was marked by a rather puzzling peculiarity: in view of the imperfection of the law of nations, he deliberately filled the gap by what he considered the commendable view, without drawing the necessary line of demarcation between law and proposal.
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When we understand Bluntschli's project, however, this aspect of the book will appear more dazzling than puzzling.
Indeed, to Americans familiar with the
Restatements
of the American Law Institute (ALI), Bluntschli's
Handbook
will seem comfortingly fami-iar. Like the ALI, Bluntschli dealt with a mass of instances, “cases” decided by governments, though not, as with the
Restatements
, cases decided by courts, for “[t]he preservation of the peace of nations did not
depend upon the resolution of lawsuits.”
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Bluntschli dealt with examples of state behavior as these established “customary” international law. Not all this behavior could be rationalized as following the same rule, and thus, in discordant cases, Bluntschli stated (or “restated”) the “better rule” as the rule of law.
For our purposes, the importance of this approach is the basis in law it gave to the acts of the Concert of Europe. Because the directorate was composed of the great powers, and because customary international law is principally determined by the acts of the most influential states, the acts of the directorate—so long as they rationally followed a consistent and principled course—created law, an international common law, as it were. The conundrum of the positivist was thus solved: sovereignty is bestowed by the international community, but that community's rules are the consequence of combining many cases of individual behavior by those states already acknowledged as sovereign. The acts of states, therefore, not those of the international community (which has no sovereign), can be amalgamated to give de jure status to the acts of any one state.
Like the debates and actions of the ALI, such an approach works best within a community of very similar actors. This makes such an institution vulnerable to “an attack upon its myths,” those fundamental assaults that proceed by disagreeing with the basic premises of the system on perspec-tival grounds, allegedly demonstrating the arbitrariness and self-serving nature of fundamental assumptions. Moreover, there is no mechanism to resolve disputes among the sovereigns themselves because for the Concert there was no ratifying congress. When these two vulnerabilities were seized upon by imperial Germany, a state that rejected the constitutional premises of the state-nation and embarked upon the brinkmanship by which Alsace-Lorraine was annexed and Europe was intimidated, the constitutional system established by Vienna collapsed.
The Vienna constitution had sought to reconcile the general interests of Europe as a whole with the individual interests of the European states. In a protocol to the Belgian Conference of 1831, this passage occurs: “
Chaque nation à ses droits particuliers; mais l'Europe aussi à son droit. C'est l'ordre social qui le lui a donne
.”
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*
Bluntschli had hoped that a European confederation would develop in order to provide just the check he foresaw was needed in case of a breakout by one great power. In his last major work,
Lehre vom modernen Staat
, written four years after Bismarck had refused great-power mediation in the Franco-Prussian conflict, Bluntschli argued that as states experienced greater security, they were able gradually to turn away from preparations
for war and be more inclined to pursue peaceful cooperation. He doesn't seem to have appreciated that, for the new nation-state, the enhancement of the security of the state would be transformed into the enhancement of the security of the people, and that this goal created new ambition, new hungers. After the Franco-Prussian War, which may in some senses have enhanced the security of both states, Germany nevertheless was fearful of French revenge, and France was eager to recoup her lost provinces; their arms competition became all Europe's.
… Europe was in peace, the Armed Peace, which like the German Empire is a thing unique in history. Never before had the state of the world been fully armed or on a war-footing without war breaking out. This was the condition of Europe from 1871 to 1914. It was organized for war. Every continental Great Power was a state or nation in arms, ordered, equipped, instructed, and ready for instantaneous war. The peoples lived under perpetual danger of destruction, but they discounted the fear, as is the way of mankind when the danger is permanent, just as they discount the fear of death from traveling by train. Nevertheless the danger was always present… after 1871, with universal conscription, the standing armies were always on a war-footing… the front-line fighting army was always mobilized, always in being, in time of peace as much as in time of war.
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Like the American Law Institute, the Concert of Europe “presupposed a certain harmony.”
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Following the creation of the German nation-state, Bismarck labored, as we have seen, to restore the credibility of the institution he had done so much to destroy. The Congress of Berlin and the Berlin Conference of 1884 were convened as a result of his advocacy. In 1878, Bismarck's mediation prevented a war between Great Britain and Russia.
The Concert, however, had ceased to function as an institution of European politics. It had become, instead, an instrument of German foreign policy. For Bismarck, “Europe was nothing more than a geographic reality.”
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After all, what “nation” did Europe answer to? The state-nation asks only that the state represent the nation; the nation-state is a more demanding mistress.
I
N
1883, as Bismarck was completing the transition from Prussian state-nation to German nation-state, Friedrich Nietzsche wrote:
Somewhere there are still peoples and herds, but not where we live, my brothers: here there are states. State? What is that? Well then, open your ears to me, for now I shall speak to you about the death of peoples. State is the name of the coldest of all cold monsters. Coldly it tells lies too; and this lie crawls out of its mouth: “I, the state, am the people.” This is a lie!… This sign I give you: every people speaks its language of good and evil, which the neighbor does not understand. It has invented its own language of customs and rights. But the state tells lies in all the languages of good and evil; and whatever it says, it lies—and whatever it has it has stolen.
1
Here are heard many of the complaints against the imperial state-nation: that it acts in solidarity with other state-nations, rather than representing the nation; that it claims to be the nation when in fact it is acting to perpetuate and serve its own interests; that it is indifferent to—cold, shares no sentiment with—the people who alone are the source of its authority and wealth.
It is a common error to say that the imperial states defied nationalism. On the contrary, these states exalted nationalism and claimed it for themselves. Imperialism, in the words of one of its greatest historians, William Langer, was “a projection of nationalism beyond the boundaries of Europe.”
2
It was the co-opting of nationalism by the state-nation that so infuriated Nietzsche: the state-nation had subordinated the nation to itself. “Ask not what your country can do for you, but what you can do for your country” might well have been spoken by the leader of a state-nation.
By contrast, the nation-state replies, “Go ahead: ask! Let's see what we
can do for you!”
*
For this reason, the nation-state provided social security, free public mass education, universal suffrage, and redistributive taxation. The nation-state sought its legitimacy in the betterment of the welfare of its people. This, however, brought forth a shadow for every variation of its constitutional form. The shadow of the nation-state is its ideology: by setting the standards by which well-being is judged, ideology explains how the State is to better the welfare of the nation. Whereas the state-nation had studiedly contrived to legitimate itself through the creation of a certifying club of other state-nations, admission to which stamped the state as the representative of the nation in whose name it ruled, the nation-state could not resort to this method. It tried this tactic, as we shall see. At Versailles in 1919, and still later at San Francisco in 1945, the great powers tried to reproduce the authorizing society that would legitimate their claim to rule, as their predecessors had done at Vienna. But this could not succeed, because three different kinds of such states presented themselves as best at serving their peoples. Until the debate among fascism, communism, and parliamentarianism could be settled, the nation-states could not form a legitimating society, because it was the legitimacy of their competitors that each ideology attacked.
A number of historical conclusions follow from this: first, that the war that began in 1914 must properly be seen as having continued until 1990, at which time a legitimate constitutional form of the State achieved a consensus among the great powers; second, that the constitutional mandate sought by the parties at Versailles was therefore premature, and could only come when the ideological conflict among the great powers was settled; and third, that the so-called failure of Versailles was to a very great degree preordained, and perhaps could not ultimately have been avoided. In Book I, we took up the first of these conclusions. Here we shall take up the second and third.
Although the Versailles agreement might have been a constitution for the society of states in the way that the peace agreements at Westphalia and Vienna may be said to be, it can be quickly shown that this was not quite the case.
†
The Treaty of Versailles and the various other treaties that together form the Peace of Paris of 1919 did not constitute a settlement consensually agreed to by the great powers who fought the war. The treaty terms of Versailles were imposed upon Germany, while hostile military action—a
blockade that starved thousands to death during the pendency of the Peace Conference—was still underway. A single state's constitution can of course be imposed by war, but a constitution for the society of states requires consensus because it depends upon the vanquished state playing by the rules once the war is over. Moreover, the United States refused to ratify the treaty that emerged from the Peace Conference, and the Soviet Union was excluded altogether. No constitutive agreement can emerge when so many great powers are absent or alienated.
