THE SHIELD OF ACHILLES (63 page)
Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
The Wilsonian program has long been the subject of criticism by diplomats. George Kennan's
American Diplomacy 1900 – 1950
is largely an
attack on the “legalistic-moralistic” preoccupations of American statecraft. Henry Kissinger's
Diplomacy
extends this critique by proposing a managed policy of equilibrium, relying on
Realpolitik
in the service of a balance of world power. Both writers stress the naïveté of Wilson. “A country that demands moral perfection of itself as a test of its foreign policy,” Kissinger writes, “will achieve neither perfection nor security.” But I wonder who is really the
naif
here. A politician twice elected president from a minority party, who skillfully took his country from a stubborn isolationism to world leadership, is unlikely to have based his decisions on a childlike view of human nature. Moreover Kennan's and Kissinger's descriptions of the pernicious effects of law usually sound a little off-key to any lawyer; they tend to exaggerate the role of litigation and then substitute that rather limited role of law in resolving disputes before courts for the more pervasive and profound pull of legal grammar in a constitutional society like the United States.
What Wilson—and Roosevelt—understood quite clearly was the domestic wellspring of a sustainable foreign policy. They sought popular endorsement by playing the U.S. government's strongest card, the American commitment to constitutional ideas as law.
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Both men attempted to universalize the American structure (with its three separate branches, its federalism, its separation of church and state) to apply not only to individual states but to the society of states as a whole. This vision is the subject of Part I of Book II, which follows.
In Part II of Book II, I will present the origins and development of international law according to the periods of the constitutional development of the State described in Part II of Book I. This development has been almost entirely a matter of European history. It is sometimes said, by Hans Kelsen among others, that constitutional law is derived from international law. And commentators today may draw erroneous support for this claim from the fact that international norms of human rights and supranational regional regulation have intruded as never before into state sovereignty. Once we understand, however, that international law derives from consti-tutional law—and thus follows the same periods of stability and revolutionary change charted in Book I—we will be able to appreciate that contemporary developments in limiting sovereignty are a consequence of the change in the constitutional order to a market-state, and are not imposed by international law, however flattering such an image may be to those who administer international institutions.
In Part III will argue that the great peace conferences that settled the epochal wars created the constitutions for the society of states. These constitutions will be described, and a similar attention given to their legal interpreters—lawyers and statesmen—as was given to the princes and generals of Book I.
In Part III, I will take up the emerging constitution of the new society of market-states. I will suggest that American principles of limited sovereignty better serve such a society than the European concepts that currently structure international law. I will imagine various constitutional orders of the society of market-states and conclude by arguing that, by varying the degree of sovereignty retained by the people, states will develop different forms of the market-state, yielding a more pluralistic constitution for international society. In some ways that constitution, and its international law, will resemble that of medieval society with its overlapping and complex system of jurisdictions (a society, in other words, that had no modern concept of state sovereignty based on the European model). In medieval Europe, a free city might owe legal duties to an ecclesiastical authority such as the local bishop, to a federal authority, and to a league of such cities, and even share certain legal responsibilities with local squires. The international law of the society of market-states will reflect an analogous complexity where multinational companies, NGOs, governments, and ad hoc coalitions share overlapping authority within a framework of universal commercial law but regionalized political rules.
Similar observations have led some commentators to suggest that the leading alternative to Wilsonian internationalism is a “new medievalism,” which will follow the end of the nation-state. Power will shift away from the State to nonstate actors, who will replace the formal exercise of power by governments with a world order of nonstate actors. Sometimes this is expressed in the phrase that “global governance is ‘governance without government.”
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This view, however, is more consistent with the conclusion that the State is evaporating than with the argument that the State is merely undergoing one of its periodic shifts in the constitutional order. The revolution in information technology that has so empowered non-governmental actors will change—but not, I think, destroy—the State. On the contrary, at the center of both Books I and II is the conclusion that non-governmental entities will play an important constitutional role in the operation of the market-state, not replace it. The most influential non-governmental groups cannot function in a nonstate environment. Human rights groups depend upon courts; the Red Cross depends upon armies and at least minimal civil order; Morgan Stanley depends upon the Basel Committee of Central Bankers. It is the nation-state that is dying, not the State. With it will go much of the power and influence of the great international
institutions of the society of nation-states, institutions like the World Bank, the United Nations, the International Court of Justice. This void will be filled by institutions and rules that reflect the new society of market-states because, as we shall see, international law and its structures arise from the constitutional order of states; when this order changes, as is now happening, the institutions of the society composed of states inevitably change also.
S
OCIETY OF
N
ATION
-S
TATES
THESIS: THE SOCIETY OF NATION-STATES DEVELOPED A CONSTITUTION THAT ATTEMPTED TO TREAT STATES AS IF THEY WERE INDIVIDUALS IN A POLITICAL SOCIETY OF EQUAL, AUTONOMOUS, RIGHTS-BEARING CITIZENS.
In the society of nation-states, the most important right of a nation was the right of self-determination. This, however, posed a conundrum for that society: given the interpenetration of national peoples in multiethnic states, when did a nation get its own state? Was it when a majority of the people of the state agreed, or when a majority of a national group—which was usually a minority of the persons in the state as a whole—demanded it? And when one national group held power, what were the limits on its treatment of other national groups (“minorities” within the nation-state), given that one purpose of the nation-state order was to use law in furtherance of the cultural and moral values of the dominant national group? Confusion arising from this conundrum led to a diffusion of international responsibility, culminating in the Third Yugoslav War in Bosnia, which finally discredited the legitimacy of a society of states built on this constitutional order.
While the far farewell music thins and fails,
And the broad bottoms rip the bearing brine
—All smalling slowly to the gray sea-line—
And each significant red smoke-shaft pales
,Keen sense of severance everywhere prevails,
Which shapes the late long tramp of mounting men
To seeming words that ask and ask again
:“How long, O striving Teutons, Slavs and Gaels
Must your wroth reasonings trade on lives like these
,That are as puppets in a playing hand
? —When shall the saner softer polities
Whereof we dream, have sway in each proud land
And patriotism, grown Godlike, scorn to stand
Bondslave to realms, but circle earth and seas?”
—Thomas Hardy
O
NE AFTERNOON
in the mild winter of 1991, several trustees of the university sat waiting in a Victorian parlor at Princeton. The parlor was on the second floor of “Prospect,” the Italianate mansion on campus that formerly housed the university's presidents, until in the 1970s proximity to students became more dismaying than endearing.
In this room there were two paintings: over the fireplace a portrait of Woodrow Wilson, twenty-eighth president of the United States, tenth president of Princeton, the occupant of Prospect at the turn of the century. On the adjacent wall another oil portrait hung, apparently executed at about the same time by the same artist. Its subject had a singular face, quite unlike the handsome Presbyterian features of Wilson. This other man had more delicate, less open features: a carefully clipped white mustache, rather cold gray eyes, a small chin above a high, starched white collar. He wore a broad-brimmed buff-colored hat and a long pale duster. If Wilson's face was idealistic, virile, and Miltonian, this man's face was quiet, unflappable, the face of a rather shrewd baronet.
He had not matriculated at Princeton. Nor had he been a professor or university figure. The trustees, bored by waiting, wondered who he was. No one knew: not the editor-in-chief of
Time
magazine, nor the chairman of the Union Pacific Railroad, nor the U.S. Senator, nor the university president, a polymath whose interests were almost as broad as the curriculum. Someone read the nameplate, “E. M. House,” and then some of the party recalled. “Colonel” House, as he was known to his contemporaries, had been the most famous American in the world in 1919, excepting only his ally and friend Woodrow Wilson. This fame was the result of a friendship unique in twentieth century American political history, for Wilson had devolved on the silent and mysterious Colonel the extensive powers of the U.S. presidency, though House never held any governmental office. His elusive figure was for seven years the alter ego of the president. House was
often sent on missions to foreign governments though he was given no precise instructions save the president's assurance that he knew House would “do the right thing.” House bypassed the Department of State entirely and communicated directly with Wilson by a private secret code. Indeed the two men seemed always to communicate with one another in a kind of mutual but exclusive sympathy. Yet in 1919 the two parted in Paris, never to meet again: Wilson to return to the defeat of the League of Nations and the rejection of American international involvement, of which House was the principal architect; House ultimately to vanish into the obscurity with which he had assiduously cloaked his achievements. House's story is the story of how America moved from being a marginal actor on the world scene to attempting to remake that scene on the basis of American consti-tutional ideas.
Edward Mandell House was born in Houston, Texas, on July 26,1858. His father had come from England to make his fortune, first to New Orleans and then to Texas, where he fought in the Revolution. During the Civil War he was a blockade runner and there clings about Thomas House something of the Rhett Butler. Subsequently House became one of the leading citizens of Texas, a wealthy merchant, banker, and landowner. His son Edward idealized the West and its cowboy culture but he was small and after a childhood accident, rather frail. He was sent to Bath, England, for school and later to the Hopkins School in New Haven, Connecticut, to prepare for Yale. At Hopkins, House's roommate and closest friend was Oliver Morton (the son of Senator Morton of Indiana, Republican candidate for the nomination for president in 1876). When the nomination went to Hayes and the election resulted in a contested outcome, Senator Morton managed the Republican forces that won the White House. This was a constitutionally fraught period—in which the election was thrown into the House as the Constitution properly provides (they seemed to know better how to handle things in those days). The two teenage boys spent their time in Washington attending the sessions of the Electoral Commission on which Senator Morton was serving. This experience was a turning point for House. He became utterly absorbed by politics and he saw, he said later, that the system was actually run by a very few players in Washington.
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