THE SHIELD OF ACHILLES (91 page)
Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
Le droit des gens
was published in French, the language of eighteenth century diplomacy, but it was not well received in France. The French had always been dubious about the role of international law. “They are all doctors,” groaned d'Avaux at Westphalia, referring to the legalistic mentality of the German delegates
27
and expressing an attitude toward law that endures among diplomats to the present. There was something faintly ridiculous about a middle-aged Swiss bureaucrat from a second-rank German power declaring that the law ordained that sovereignty lay in the people and that the king was superseded by the State. Or so at least it seemed in 1758. Rather Vattel received his warmest reception in America. Citations to his great work appear frequently in the
Federalist Papers
, the most important interpretive document concerning the U.S. Constitution. Indeed the
Federalist Papers
take their legal significance from the fact that they were used to explain the Constitution to the American people and thus represent our best evidence of the understanding of the sovereign ratifiers as to what powers were to be conveyed to the new government. The importance of this fact lies in the idea of popular sovereignty; otherwise, why would it matter what the people were told in order to win their endorsement? Vattel appears in
McCulloch v. Maryland
, the foundation case for doctrinal argument in American constitutional law, as well as in
Gibbons
v. Ogden
, the fundamental constitutional case construing U.S. federal power to regulate commerce.
Perhaps French antipathy lay in their suspicion of the Utrechtian constitution itself. Like Wolff, Vattel approved of the balance of power, and he shared the conviction embodied in the Peace of Utrecht that the rational application of the principles of equilibrium would assure European order. France, whose ambitions were checked at Utrecht, regarded this order as stacked against it. Though it came as a surprise to the states of Europe, it was not Prussia (which ruthlessly exploited the Utrechtian system) that shattered the constitutional consensus of Utrecht but France, which had never fully shared its goals.
When we read today, largely in the literature of welfare economics, about the canons of rationality, we are reading the legacy of Leibniz and the “science of interests.” Grotius believed that the deep consensus among states derived from the way in which rules were made. Vattel asserted that this consensus arose from the way rules were followed. Both ideas are noticeably modern, which suggests that, like the archetypal forms of the State described in Book I, the jurisprudential approaches to the law of nations enter into history and remain, reappearing in an enlarged suite of choices as the society of states matures. For Wolff and Vattel natural law (what we would call the subject matter of the social sciences today) does not force man to obey certain rules, but is rather the ground of all rules, on the basis of which any particular rule is evaluated. The duties of the State toward itself are very much like the rationality that a “sovereign” consumer is thought to embody in making social and economic choices; out of an aggregation of such choices comes the most efficient system, by which is meant the system that maximizes the interests of the participants. Social choices are constrained by freedom—the freedom of the choices of others, whose choices affect our own—Leibniz might have told us. 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.
A
T THE OUTBREAK
of the French Revolution in 1789, the French army had profited from a series of reforms, discussed in Chapter 8. Nevertheless it was still the army of a territorial state: the officer corps numbered fewer than 10,000, of whom more than 85 percent were drawn from the nobility. Thus the Revolution initially faced a potential challenge from an army that might become the basis for counterrevolution. If the aristocratic officer corps of the army were suppressed, however, then France faced the prospect of an army without trained leaders. By the end of 1794, partly in reaction to a new military oath introduced in September 1791, replacing the old oath to the king, more than half the officers had fled. By 1799 less than 3 percent of the officer corps came from aristocratic backgrounds. In 1790 conscription had begun, and in August 1793 the National Convention introduced the
levée en masse
by a decree conscripting all French males into the nation's armies until the foreign enemies of the revolution had been defeated.
“All Frenchmen… are called by their country to defend liberty… From this moment until that when the enemy is driven from the territory of the republic, every Frenchman is commandeered for the needs of the armies.” Thus the “nation in arms” was born. By the spring of 1794, France had more than 700,000 men in military service. While the armies of the territorial state were in place everywhere in Europe when the French Revolution broke out, soon, in Clausewitz's words, “such a force as no one had had any conception of made its appearance. War had suddenly become an affair of the people, and that of a people numbering thirty millions, every one of who regarded himself as a citizen of the state.”
1
The conventional account of the wars of the last decade of the eighteenth century and the first decade and a half of the nineteenth stresses the ideological bases for the conflict: the war was fought by France to spread revolution to the rest of Europe, it is said, and this struggle to bring about a new order for each state was abruptly altered, in Napoleon's hands, to become a war to impose French norms generally—of culture, administration,
rational statism—and to enhance the wealth and prestige of France itself. Opposed to France were reactionary governments of various kinds—parliamentary monarchies, petty princelings, ancient dynastic houses—who wished to restore the old order in the domestic arenas of politics and to restore the balance of power internationally.
In Book I, however, a somewhat different description has been given, one that suggests greater continuity between the revolutionary governments of France and the Napoleonic era, and a greater convergence between France and her adversaries. All the wars of France during this period were fought in order to obligate the mass of persons to the French state. Among this vast people various groups from the bourgeoisie were employed in the service of the state; for their members there were lower taxes and greater public expenditure owing in part to the enormous subsidies extracted by France from her conquered neighbors; working men found in the state an employer of last resort—the army (whose mass employment would not have been possible under the strategic and tactical constraints of the armies of the territorial state); and for every class a new meritocracy arose that measured status according to services rendered to the State.
The wars of 1792 – 1815 between France and various coalitions of other European powers were united, strategically and constitutionally, by the political program of the French Revolution. This program sought an end to the territorial-state autocracies and the replacement of these regimes by government in the name of the people, based on the people's political liberty and legal equality. If the people were the source of political legitimacy, then the people had a responsibility to defend their rights and powers against attack. The right of suffrage entailed the duty of military service. Conscripted armies replaced the small professional armies of the territorial state. Although France was ultimately defeated, the constitutional result of the epochal war waged from 1792 to 1815 was not to restore the ancien regimes of the territorial states.
The French innovations were soon carefully copied and more rigorously implemented in Prussia. The aristocratic, cruelly disciplined army of professional soldiers that Frederick the Great had developed was replaced by a “universality of responsibility for service in war, binding upon every class of civil society. Through this it will be possible to inculcate a proud warlike national character, to wage wearying wars of distant conquest and to withstand an overwhelming enemy attack with a national war.”
2
The Prussian military reforms from 1807 on were designed to effect this change. Here it is enough to say that the Prussian force that fought from 1813 onward waged war with the same patriotic motivation as that which inspired the French. As Clausewitz wrote, it was “a war of the people.”
As with the wars of Queen Anne and the peace brokered by Bolingbroke, a new constitutional form of the State had arisen. When Louis
XVIII was set upon the throne of France by the victors in 1814 he was required to take an oath to the written constitution. Throughout Europe the regimes of the territorial states underwent seismic constitutional change, transforming themselves into state-nations, copying the constitutional form of their chief predator, France, and their chief defender, Britain. When the Congress of Vienna met to decide upon a new constitution for the society of states, it mandated that this new constitutional form be the essential element in determining a state's legitimacy.
The constitution of the state-nation system was embodied in a set of treaties that may for the sake of convenience be collectively referred to as the product of this Congress. These treaties restored (twice) the Bourbon dynasty to the throne of France, conditioned upon the acceptance by the king of a constitutional arrangement based on popular sovereignty; took the 300-odd pre-Napoleonic states, combined them into some thirty states and bound them into the German Confederation; recognized the state of Switzerland as a single, permanently neutral, federal state-nation whose constituent parts were organized along national lines; combined Belgium with the Netherlands and recognized a new state, the United Netherlands; re-created the state of Poland out of the Grand Duchy of Warsaw and effectively made it a colony of Russia; gave Britain Dutch colonial holdings in South Africa and Malta; made Finland a colony of Russia, and Norway a colony of Sweden; set up the congress system by which the member states of the international society of states would periodically meet to review implementation of, and decide cases arising from, the international constitution that had been agreed to at Vienna; elaborated an important constitutional human right
*
through the abolition of the slave trade; allocated to a directorate of the great powers the authority to maintain the new constitution; set up various procedural rules, including those governing diplomatic practice; prescribed the lawful use of international rivers by states; and, with respect to Austria and Prussia, extended the range of their state governance to adjacent, or previously held, territories as a means of strengthening those states. In other words, Vienna performed the constitutional functions for the nineteenth century society of states that Augsburg, Westphalia, and Utrecht had performed in earlier centuries. None of the key ideas associated with the Congress of Vienna—the maintenance of the
balance of power
, the insistent attention to
legitimacy
, the sensitivity to or dismissal of various national aspirations, and the institutionalization of the great power alliance—can be fully understood absent this constitutional perspective. Familiar terms of the past, such as the balance of power and legitimacy, take on a new meaning in the new constitutional context that is embodied in the acts of the Congress of Vienna; newer ideas, like nationalism
and collective security, that are familiar to us today were differently understood then in the historical context created by the new international constitution.
The Grand Coalition that defeated Napoleon, like the coalition that opposed Louis XIV, was not really fighting for the legitimist claims of a dead constitutional order, whatever these coalitions claimed. As Macaulay observed,
the war of 1815 belongs to the same class of war with the war which the ministers of Anne carried on against the house of Bourbon [i.e., the wars of Louis XIV]. The claims of Louis XVIII were to the coalition of 1815 what the claims of the archduke were to the coalition of 1701—a means—and not an end.
3
When those coalitions were victorious, they sought at Utrecht and, later, at Vienna the ratification of a new constitutional form. The mentality of the generation that met at Utrecht was in contrast to that which convened in Vienna, however. At Vienna, it was understood by all parties that international relations were developmental, organic, subject to change and human direction even at a fundamental, constitutional level. The American Revolution no less than the French Revolution (but no more than the Napoleonic legal reforms that spread to the territories conquered by the French) had shattered the idea so dear to the territorial state that custom and natural law were the sole sources of binding legal rules.