THE SHIELD OF ACHILLES

by Bobbitt, Philip

  CONSTITUTIONAL INTERPRETATION: THE LAW PROFESSORS

  We [hoped]… that the Congress would crown its labors, by substituting for [the territorial state's] fleeting alliances (the result of necessities and momentary calculations) a permanent system of universal guarantees and general equilibrium… [T]he order established in Europe would be placed under the perpetual protection of all the parties interested, who by wisely concerted plans, or by sincerely united efforts, would crush at the outset, any attempt to compromise it.47

  The constitutional order created by the five powers and ratified by the Congress embraced several treaties: the Treaty of Chaumont—which, by binding the parties to pursue victory despite tempting French offers of advantageous individual peace settlements, was the key to all that followed—the first Treaty of Paris, the second Treaty of Paris (which followed Napoleon's defeat at Waterloo), and the Final Act at Vienna. Pursuant to that system, further treaties were made—notably the Holy Alliance and the Quadruple Alliance—and further congresses were held, at Aix-la-Chapelle (1818), Troppau (1820), Laibach (1820), and Verona (1822), which attempted to apply the arrangements earlier agreed upon. This system of congresses soon proved logistically cumbersome, however, and for most of the life of the Constitution of Vienna, informal meetings of the directorate replaced grand convocations. This directorate, acting on behalf of the Concert of Europe, set frontiers, recognized states, resolved crises, and declared new rules of international law. If the role of the ratifying congresses was erased, however, what gave the great powers the right to promulgate new law?

  Two answers were given by remarkable nineteenth century figures whose contributions to jurisprudence have left an important legacy, even if the international form with which they were concerned—the society of state-nations—has disappeared. Both men were law professors, but otherwise the careers of John Austin and Johann Bluntschli could not have been more different.

  AUSTIN

  Austin's life (1790 – 1859) was one of repeated disappointments. He began the study of law in 1812 after five years in the army. For a dozen years he then practiced, unsuccessfully, at the chancery bar. In 1826 he was appointed the first professor of jurisprudence at University College, the University of London. This career, too, ended in fiasco: he resigned his chair in 1832, having failed to attract students to his lectures. For a while he served on the Criminal Law Commission and then, in 1836, on the Malta Commission. He moved to Paris and lived there until the upheavals of 1848. He then went to Surrey, where he died ten years later. He had published his fundamental views in 1832, the year he was forced to abandon his professorship, but these were given little attention during his lifetime. His lectures on jurisprudence were only published posthumously.

  Austin's answer to the problem of consent posed by the great-power directorate was to deny that the relations among nations were governed by law at all. Austin did not deny that there were international rules of behavior; indeed the source of these posed the problem to be addressed. Nor did he deny their efficacy and power. Rather he attributed these rules, which were an important factor in international relations, to custom. International law “consists of the opinions and sentiments current among nations generally,” he wrote. It is “a law in name only,” because there is no sovereign governing the states who are supposed to obey these rules.

  “In order to [provide] an explanation of the marks which distinguish positive law, I shall analyze the expression ‘sovereignty,’” he began. Austin then proceeded to define law as the commands of a sovereign addressed to political inferiors, backed by threats of harm in the event of disobedience. “The generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person, or determinate body of persons, must not be habitually obedient to a determinate person or body,” i.e., must itself be sovereign. Thus obedience is not a rational matter, as for Hobbes, nor a consensual one, as for Rousseau, but merely a fact. Whether it is justified is not a matter for the lawyer, who confines himself simply to analyzing what is. This distinction between legitimacy (a matter of habit) and justification (a matter of morality) tracks a similar distinction made by the architects of the Vienna settlement.

  Notice that positivism, as Austin's doctrines are known, does away with two of the core ideas that had shaped international law from its inception at the time of the birth of the modern state: natural law and the theory of the just war. Natural law, whatever its content—and the positivists took some pleasure in pointing out that, unlike other observable phenomena in nature, no one could agree on the content of allegedly “natural” law— became an irrelevancy. If a provision was enacted into law by the sovereign, then that act made that provision law, whatever its origin; and if the sovereign denied authority to a “natural” law, it ceased to have any legal effect. As to the just war, its “justice” was a matter of morality, not of law. Whether a war was lawful was a matter of the sovereign's rules. For example, if the constitutional law of the United States were scrupulously followed, the fact that the United States manufactured an incident that provoked an attack (as, it is claimed, was the case in the Mexican-American War) while relevant to the moral judgment of the acts of the United States, was scarcely material regarding the legality of those acts. A war might be lawful but unjust, or just but unlawful; there was no necessary correlation. To the problem of whether more than one belligerent might prosecute a just war, the positivist would reply, “That's not my department; consult the clergy or perhaps (today) the psychoanalyst,” for positivists tended to treat moral judgments as projections of the emotions of the persons declaring moral rules. These concepts form the core of the jurisprudential doctrine of positivism, which, crucially, distinguishes law from morality. Although law might well be derived from moral precepts, such precepts become law only when commanded by a sovereign.

  This approach to law perfectly suited the Vienna system. That system was of course a product (and key determinant) of its Age. A self-consciously designed constitutional system, it reflected the idealism of the late eighteenth century, just as the system of Utrecht had reflected (and contributed to) the rationalism of the Enlightenment. Like the Vienna system itself, positivism reflects the self-consciousness, attention to public behavior, and sensitivity to the bases for legitimacy that characterized the state-nation. It raised, however, a fundamental question for this form of the State: is sovereignty defined in terms of domestic law or international law? It must be one or the other, because only de jure sovereignty, as opposed to de facto sovereignty, could serve as the fount of law. But if, as Austin claimed, international law was non-law—that is, it was only the positive (as opposed to natural) morality imposed by the opinion of the society of states—then international law could not confer a de jure status on the states it recognized as sovereign. On the other hand, if de jure sovereignty were a matter of domestic law only, then—at least outside the club of like-minded European state-nations with consistent customs—there was no consistent basis on which it might be identified. Sovereignty then became merely a matter of de facto control, and this the sovereigns of the directorate were at pains to deny, believing as they did that domestic revolu-tion—which seizes sovereignty—was a real source of potential destruction for their international constitutional system.

  BLUNTSCHLI

  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 pla
y 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.50

  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.”51 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.”52*

  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.53

  Like the American Law Institute, the Concert of Europe “presupposed a certain harmony.”54 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.”55 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.

  CHAPTER TWENTY-TWO

  The Versailles Treaty

  IN 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: t
he 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.