THE SHIELD OF ACHILLES (89 page)
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Authors: Philip Bobbitt
That is to say, strategy had been severed from law by war.
Grotius's reaction to this situation had been to persuade states that they had a common interest served by adherence to the rule of law, and that pursuing this interest would strengthen them as states. The Grotian ethos would serve states by giving them the means to agree upon rules of their own devising, rules that no state acting alone could enforce upon the others. The Westphalian congress was the perfect forum for developing such a consciousness: not only did it bring together the representative actors for a lengthy period of time, the work of the congress demanded consensus reduced to written law (the treaties of Osnabrück and Münster). This consensus was the result of the successful effort at defining a common interest.
Grotius believed that this common interest, which was the basis for law, arose from the inherent sociability of man. Nowadays we might say that human beings only become complete in association with one another, that every associational society has a constitution, and thus the nature of man gives rise to law. Men seek law naturally, as roses turn themselves to the sun, because law permits and enhances their development. Other philosophers, notably Thomas Hobbes, believed that man's inherent nature was for power and that the role of law was to prevent the savage competition to which man's nature would otherwise lead him. Thus men seek law to compensate for their natures, as wolves submit to the pack rather than starve singly. Either approach supported the legitimacy of the individual kingly state, but there were profound differences between these two views regarding the law of the society of such states. There being no sovereign, Hobbes denied that an international law could exist; by contrast, Grotius denied that there had to be a supreme sovereign for there to be a law of the society of kingly states or sovereigns, and he implied that kingly states could only achieve complete legitimacy as part of a society of sovereigns to whom they owed certain duties.
It is often said that Hobbes and later Spinoza extrapolated from the life of the individual human being to that of the State. If the natural condition of men was one of endless war, then the superimposition of an absolute ruler, the sovereign State—Leviathan—did not terminate the state of nature, but merely transferred it to another plane. States are enemies by nature. Agreements to cooperate will be preserved only so long as fear of the consequences of breaking agreements binds the parties. Grotius, by contrast, extrapolated from the lives of persons in a society to that of states in a society. The natural condition of a society is one of potential cooperation—no man is an island sufficient unto himself. Not fear but aspiration binds states to their agreements.
Grotius's successors responded to Hobbes and Spinoza by asserting that man's capacity for reason removes him from the anarchic condition of animals and permits him to choose freely to be bound by law. The State, pre-cisely because it is a sovereign, will seek agreements and uphold them generally because it is rational to do so as a way of life for the State, whether or not upholding a particular agreement is to its advantage at a particular moment in time.
44
By means of this argument, Hobbes and Samuel von Pufendorf—the latter the most famous of Grotius's immediate followers—are brought into a measure of agreement: “Hobbes' opinion that the law of nature and the law of nations were the same was accepted by Pufendorf. He also accepted the assumption that separate states, having
no common political superior, stood in the same relations to each other as men in a state of nature.”
45
Pufendorf, moreover, believed that the law of nature provided the only basis for international law, because there was no other source for law such as exists in a society with a sovereign. Indeed he went so far as to deny the key Grotian insight that international law arose from the customs and practices of states, maintaining instead that only those rules that are derived from universal reason were lawful, this being the means by which natural law was apprehended. The law of gravity governed heavenly bodies; the law of states was to be derived by much the same rational means.
This is not the place to dwell on the shortcomings of Pufendorf; Leibniz has done this definitively.
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Nor is it necessary to complain about the habits of philosophers that addict them to imagining “states of nature” from which to extrapolate, heedless of the one natural state they know something about, namely the one they are in at the moment, which must be presumed to govern to some degree their speculations about other such environments. Indeed I think it equally likely that both Hobbes and Spinoza found their inspiration for the natural state of man in what they observed in the behavior of kingly states—Hobbes focusing on the domestic scene, Spinoza on the international—and reasoned back from this paradoxical interface of absolute domestic authority and apparent international anarchy to the nature of man, rather than the other way around.
However that may be, the political actors of the time confronted the problem of post-Westphalian law and order—namely, that in the absence of a universal sovereign every kingly state, which Westphalia had made the sole preserver of the liberty, authority, and even the life of the political society largely composed of such states, would attempt to aggrandize itself to the limit of its power. They solved this problem in a somewhat less reified, though no less abstract, way than the philosophers. Like the philosophers, the politicians and diplomats of this era were impressed by the power of reason to discover the principles of nature, and the power of rational systems to exploit those principles. This solution thus had much in common with the mathematics of the Age, but it was not achieved by or expressed in philosophical terms. Rather it was expressed in law, arrived at, as we shall see, by the legal means of a constitutional convention and the achievement of consensus at that congress.
T
HE
W
ESTPHALIAN
P
ROBLEM
—that, absent an absolute and universal sovereign, every kingly state would attempt to aggrandize itself to the limit of its power—found its most threatening expression in the campaigns of Louis XIV that directly challenged the Westphalian settlement. The solution to this Problem was ultimately expressed in a series of eight treaties known as the Peace of Utrecht, which resolved the epochal war composed of Louis's campaigns.
France and Spain had signed the Peace of the Pyrenees in November 1659, ending the one remaining conflict left open by Westphalia, just as Cateau-Cambrésis finally ended the Valois-Habsburg wars four years after Augsburg. Louis XIV married the Spanish infanta in Bayonne and returned to Paris in triumph. France, after some years of turmoil following the death of Louis XIII, was now united.
Once Louis was liberated from internal challenges and the administrative despotism of a sophisticated kingly state was securely in place, he began to make war on the territorial settlements of Westphalia in order to become the arbiter of European affairs. During this period the French state was supreme on the continent. French became the language of diplomacy, French architecture and literature reached their zenith, and the French canons of manners and taste were accepted as the standard throughout Europe.
For seventeen years—from 1667, when he led an army into the Spanish Netherlands, until 1684 when the Truce of Ratisbon confirmed him in all his gains since 1678—Louis's ambition dominated European events. Louis attempted to compel the states of Europe to recognize Ratisbon as an amendment to the territorial dispositions of Westphalia. The design flaw of Westphalia was that it invited this limitless aggrandizement on the part of the prevailing kingly state. In the pursuit of his goal, Louis actually brought into being the coalition and the animating idea that would prove both his undoing and also the undoing of the kingly state itself.
In 1686 this coalition, the League of Augsburg, was formed between the
emperor, the Dutch, the western German states, including the upper Rhine provinces, and, in the next year, Savoy. All were alarmed by French intentions and capabilities. Partly in reaction, partly in pursuit of his historic goals, Louis invaded Germany in 1688, burning Heidelberg and reducing the Rhine provinces to ruin. While Louis was thus engaged, William III of Orange landed in England, displaced Louis's ally James II, and took the English crown. Thus by the end of 1689, France faced the United Provinces, England, the Habsburg-led Empire, Spain, Savoy, and the principal German states. The Nine Years' War that ensued exhausted both sides, and in 1697 the Treaty of Ryswick brought a new armistice. Neither side was now able to penetrate the fortress line that divided them in the north. At this point Louis might have been content with his gains; he was certainly acutely aware of the forces arrayed against him. A diplomatic crisis developed, however, that ignited his dynastic ambition, ambition that drove the kingly state. This crisis, provoked by the death of Carlos of Spain in 1700, led to the final campaign of Louis's epochal war, the struggle over Spanish succession, in which Louis attempted to unite the French and Spanish kingdoms in the Bourbon line.
By 1709, however, Louis had withdrawn French forces from Spain and was fighting to preserve France itself. The battle of Malplaquet, near Mons, was a defeat for the French, though allied forces actually lost twice as many men. Now the allied campaign sank into a grinding, brutal, and expensive but indecisive struggle. Louis's efforts toward peace negotiations were consistently rebuffed.
Then in 1710 the Tory party resolved to end British participation in the war. The following year the emperor Joseph died—he had succeeded his father only six years before—and the Archduke Charles unexpectedly became emperor. Enthusiasm for continuing to fight in order to place this figure on the throne of Spain as well was hardly high in Britain. Bolingbroke, the new foreign secretary, argued that if Charles united the Habsburg possessions under a single crown, he would pose the same threat of hegemony that a Bourbon dynasty had created in uniting France and Spain. Thus Bolingbroke recast the purpose of the alliance as one organized to effect a balance of power (rather than to uphold the Treaty of London by recognizing the dynastic claims of the Archduke in opposition to Louis)—that is, replacing the war aims of a society of kingly states with those of a society of territorial states. By this means he provided the basis for a British about-face, as well as for the peace congress to follow.
Britain worked out a secret agreement with France. The British were to receive Gibraltar; Minorca; Nova Scotia, Newfoundland, and Hudson Bay in Canada; and, importantly, the
asiento
—the monopoly of the slave trade with the Spanish colonies—for twenty years. In return for these commitments, Britain forced the Dutch to agree to a general congress, threatening
to make a separate peace if the Dutch refused. Thus the congress opened at Utrecht in January 1712, in a climate of mutual suspicion.
The British and French had hoped to conclude proceedings before the next year's military campaign got underway. When this failed to happen, owing to Imperial intransigence, Bolingbroke ordered British troops to withdraw from the alliance, and obligingly provided this news, along with the plan of the allied campaign, to the French. The resulting allied catastrophe at Denain on July 24, 1712, finally persuaded the emperor of the need for a peace.
The Peace of Utrecht consists of eleven separate bilateral treaties.
1
That it represented a constitutional convention of the kind that had met at Osnabrück and Münster was well recognized by the parties. In his correspondence during the treaty process, Bolingbroke repeatedly referred to negotiations about the
“système général des affaires de l'Europe”
and to a “system for a future settlement of Europe.”
2
In fact, in the eighth of his “Letters on History,” which deals with Utrecht, he writes that the object of the congress was to achieve a “constitution of Europe.”
3
There was a general distinction drawn by the statesmen at the congress between the “private” interests of the states involved in the negotiations and the “public” interests of the society of the states of Europe as a whole.
4
Bolingbroke wrote to Torcy, his French counterpart, that “[t]he queen's ministers are far from wishing that the king should act contrary to his word and his honour; but Sir… something must be done for the sake of the peace and the interest of one individual must yield to the general interest of Europe.”
5
The ability to put forward a state's arguments in terms of a society of territorial states—a society, that is, characterized by a concern for the territorial stability of the whole—bedeviled and eluded some of the actors at Utrecht. The emperor, for example, “showed little aptitude for putting his case persuasively, neglecting to couch it in the idiom of international consensus…. Charles was quite literally unable to communicate on the international level [and] found himself increasingly isolated.”
6
The language of this new consensus was reflected in four striking contrasts with the idiom it superseded.
First, the language of “interests” replaced that of “rights.” “Rights” were something that kings might assert against each other; “interests” were something that states might have in common. Whereas the Westphalian monarchs had been concerned to establish the rights of the kingly states—the legal status of dynastic descent; the absolute right of the king
over his subjects, including especially control over the religious liberties of the persons within his realm; and the perfect sovereignty of each kingly state unfettered by any external authority—the society of territorial states was concerned instead with the mutual relationships among states, specifically with maintaining a balance of power within that society itself. At one point Bolingbroke observed explicitly that “enough has been said concerning right, which was in truth little regarded by any of the parties concerned… in the whole course of the proceedings. Particular interests were alone regarded.”
7
Second, aggrandizement—so integral to the stature of the kingly state—was replaced by the goal of secure “barriers” to such a degree that claims for new accessions were universally clothed in the language of defensive barriers. Aggrandizement per se was frowned upon and even regarded as illegitimate.
Third, the word
state
underwent a change.
8
A “state” became the name of a territory, not a people, as would occur later when state-nations began to appear, nor a dynastic house, as was the case at Westphalia. Bolingbroke, characteristically, swiftly picked up on the difference. When commenting on the dilemma facing Louis over Carlos's will, Bolingbroke wrote that “adhering to the partitions seemed the cause of France, [whereas] accepting the will [seemed] that of the House of Bourbon.”
9
Fourth, whereas the kingly states had seen a balance of power as little more than a temptation for hegemonic ambition to upset, the territorial states viewed the balance of power as the fundamental structure of the constitutional system itself. “The concept was no longer applied simply as a procedural rule (‘counteract any power if and when it threatens to become dominant‘), but as a device for controlling and planning—in advance, on this occasion—the structure of the system as a whole.”
10
At Utrecht, a new conception of the balance of power made its historic debut. Its novelty arose from the change the states of Europe were undergoing in their domestic constitutional orders. As the territorial state replaced the kingly state, the idea of the “balance of power” moved from providing the occasions for sovereign action to animating a constitutional structure for collective security itself. Consider this passage from one of the renunciation documents produced by the Congress and signed by Louis XIV's grandson, the Duke de Berry:
All the powers of Europe finding themselves almost ruined on account of the present wars, which have brought desolation to the frontiers, and several other parts of the richest monarchies among states, it has been agreed in the conferences and peace negotiations being held with Great Britain, to establish an equilibrium, and political limits between the kingdoms whose interests have been, and still are the sad subject of a bloody dispute; and to consider it to be the basic principle of the preservation of this peace that it must be ensured that the strength of these kingdoms give reasons neither for fear nor for any jealousies. It has been thought that the surest way of achieving this is to prevent them from expanding, and to maintain a certain proportion, in order that the weakest ones united might defend themselves against more powerful ones, and support one another against their equals.
11
All of these developments are evident in the exchanges between the two principal negotiators at Utrecht, Bolingbroke and Torcy.
The immediate problem lay in persuading Philip V, king of Spain and prince of the French royal line, to give up one kingdom or the other in order to forestall the situation in which he, through a series of deaths in his family, might unite the two crowns in one person. This diplomatic objective underscored the preventive nature of the territorial states' concept of the balance of power, and the structural role of this concept. The issue was given new intensity in 1711–1712 – 1712 by the deaths of three heirs to the throne of France. When in March 1712, Torcy told Bolingbroke of the death two days earlier of the Duke of Brittany, only his younger brother—a child of two who was suffering from the same disease as the little duke who had just died—stood between Philip and the French crown. There immediately ensued an exchange of proposals between Bolingbroke and Torcy that unmistakably disclose the changed world of the territorial state confronting the world of the kingly state that it would supplant.
Bolingbroke began by urging that Philip simply renounce his right of succession to the crown of France, and retain the kingdom of Spain he was at present governing. Torcy demurred; succession was a matter of divine will—a principle of the kingly state—and could not be lawfully altered. Torcy proposed that if Philip became king of France, he could at that point abdicate the throne of Spain in favor of his brother, the Duke of Berry, another of Louis's grandsons.
Bolingbroke took this counterproposal as evidence that a renunciation document
could
be effective: on the premise of Torcy's counterproposal, if Philip's “right to the crown of France comes to take place, he is not to enjoy both [crowns]; [but] how can he choose if he cannot renounce either? And can he renounce the crown of France, and not the right of it?”
12
Bolingbroke wrote Torcy:
We are happy to believe that you in France are persuaded that God alone can abolish the law upon which your right of succession is founded, but you will allow us to be persuaded in Great Britain that a
prince can relinquish his right by a voluntary cession and that he, in favour of whom the renunciation is made, may be justly supported in his pretensions by the powers who become guarantors of the treaty.
In this passage are the characteristic markers of the society of territorial states: the downgrading of the dynastic principle; the willingness to subordinate the rights of sovereigns to the interests of the states involved; and the use of collective security guarantees to ensure the balance of power itself.
When Torcy countered with a proposal that Philip commit himself at Utrecht to renounce one crown or the other in the event of a potential union, Bolingbroke underlined this essentially structural goal, and its difference from the Westphalian model of intervention: “You will say, all the powers are guarantors of this agreement; such a guarantee may really form a powerful alliance to wage war against the prince who would violate this condition of the treaty; but our object is rather to find out the means to prevent, than to support, new wars…”
13
Accordingly, Bolingbroke argued, Philip must make his renunciation now: then the guarantee of “the powers of Europe” only had to prevent Philip from reversing his word and seizing one of the two states, as opposed to forcing him to give up a state which he had already invested. Torcy replied: “A rapprochement is easily brought about… [Philip V] must remove the disquietude of Europe by an immediate declaration of the part he will take should the succession be ever open to him.”
Torcy spoke from a perspective that sought to preserve the sovereign scope of action for Philip. All of his concessions amounted to promises to take a course of action in the event a certain situation arises; they were “promises to make a promise.” By contrast, Bolingbroke sought a decision that would foreclose Philip's freedom of action. He justified this on the basis of an appeal to the balance of power and the good of the society of states. This difference in perspective—kingly versus territorial state—put the two men on different wavelengths. Bolingbroke at this point exasperatedly remarked:
The French have undoubtedly a great advantage in treating in their own language, and I can easily believe that some of the expressions in my letter to Monsieur de Torcy may have been either faint, improper or ambiguous; but surely the whole tenor of them makes it plain that we never intended to separate the option and the execution of the option.
*
Now the British put a new proposal on the table. Through a complicated set of contingencies, France was to receive Savoy and Piedmont if Philip agreed to stand down from the Spanish throne immediately, the Duke of Savoy replacing him. Having swapped titles with the duke, Philip would then carry Savoy with him when he inherited the French throne. If, on the other hand, Philip chose to remain king of Spain, he would renounce the French crown at once, and the House of Savoy, not Bourbon, would inherit the Spanish crown if Philip's line were to die out.
This scheme had the virtue of enlisting the energies of Louis because it promised an enlargement of his holdings. To this extent it was a Westphalian solution deployed for Utrechtian goals, as the balance of power would be maintained by separating the French and Spanish dynasties. Once he learned of the British offer, Louis pressed his grandson to give up Spain. Louis wrote Philip: “Should gratitude and affection for your [Spanish] subjects be strong inducements with you to adhere to them, I can tell you that you owe those same sentiments to me, to your family, and to [France]… I now call upon you to show me their effects.”
14
Philip complied, though he surprised his grandfather by choosing to renounce the throne of France and remain in Madrid. He had acquiesced to a plea from the old world of kingly states, but the effect was to ensure the success of the new world of territorial states. The treaty process now proceeded to a conclusion in the series of agreements known as the Peace of Utrecht. The elaborate French rituals of precedence that had so bedeviled sessions at Westphalia were dispensed with; it was agreed that the delegates would enter the meeting rooms in no fixed order and sit where they liked. As at Westphalia, the constitutional role of the congress was indicated by its power to recognize new states as members of the society of states. At Utrecht, Brandenburg appealed for such recognition and received it; henceforth the kingdom of Prussia was a member of the society of states, entirely apart from Brandenburg's role in the empire. The acquisition of defensive barriers
15
dominated the negotiations (in contrast to the rights to “compensations” at Westphalia). These arguments were necessarily clothed in the language of a systemic balance of power, even if the motives of the negotiators were sometimes indistinguishable from simple aggrandizement.
The Utrecht settlement and the regime it created brought about a major transformation of the international system… After Utrecht—with its emphasis upon, and indeed development of, the “Public Law of Europe”—there was a greater collective concern for preserving stability. Policymakers were therefore functioning in a new decision-making environment after Utrecht, basing their policies upon assumptions and interests quite different from the years before 1713.
16