THE SHIELD OF ACHILLES

by Bobbitt, Philip

  Even as recently as a decade ago Bobbitt's approach, and yet more, his conclusions, would have seemed profoundly shocking to international lawyers and specialists in international relations alike. The conventional wisdom of the Western world, derived from Kant through Jeremy Bentham, proclaimed by Woodrow Wilson in 1918 and implemented by Franklin D. Roosevelt in 1945, was that war was a condition of international disorder that should and would be remedied by the development of international law and enforced by appropriate courts on the model of those prevalent in Western democracies. On that basis had been created the whole apparatus of the United Nations and World Courts on which we allegedly depend today for the maintenance of international order and which quite manifestly fails to provide it. Bobbitt goes back to an older and bleaker tradition: that associated with the name of Niccolò Macchi-avelli, who wrote in a time in many respects very comparable to our own. Then as now the accepted paradigm of legitimate order, in his day the hierarchy of feudalism, was breaking down. A new template of legitimacy was needed, and could be provided only by a new institution, the State, termed by Thomas Hobbes “That Mortal God—our peace and defence.” The State promised peace and defense to its members in return for their allegiance, their money, and, if need be, their lives. But the State could emerge and sustain itself only through success in war, and success depended on mastering the appropriate techniques—the weapons systems, the motivations, and the financial underpinning. Success in war legitimized the State, and the structures developed by the successful states—not simply the armed forces themselves but the financial arrangements required to pay for them and the constitutional relationship between rulers and ruled that made those arrangements possible—became the new paradigm for political authority and obedience throughout the European continent.

  “International relations” thus became the relationship between sovereign States. But whence did those States derive their legitimacy? By the nineteenth century two very different schools of thought had developed. In Western Europe and the United States, after the English, American, and French Revolutions, it was assumed that the legitimacy of the State arose from popular consent enshrined in written or unwritten constitutions. Since these constitutions guaranteed domestic justice and order, it was further assumed that a similar mechanism would produce justice and order between states themselves. States that disturbed international order were behaving as “illegally” as were rebels against domestic order, and war against them was as legitimate as forcible proceedings against domestic rebellion. But in nineteenth century Germany a very different analysis had been developed by Hegel and his disciples. The State, they pointed out, was created not by law but by war. Since the State was not only the highest but the sole creator of legitimacy, self-preservation was the State's first duty and the primary concern of its citizens' allegiance. As the State had come into existence through war (a thesis self-evident in the case of Prussia, but no less applicable to the Untied States) so it could only survive and express itself through war. This philosophy was to shape German policy in the first half of the twentieth century. If Germany had won the two World Wars, the subsequent settlement would have borne the stamp of Hegel rather than that of Jeremy Bentham.

  This is Bobbitt's starting point: “Law and strategy” he writes, “are mutually affecting.” There is a constant interaction between the two. Legitimacy itself “is a constitutional idea that is sensitive to strategic events”—not least to a “strategic event” so cataclysmic as losing a war. Nevertheless, although wars may create and mold states, it is the State that creates legitimacy both domestic and external, and it is legitimacy that maintains “peace.” If states can no longer maintain their legitimacy, or if their capacity to do so is called into question, then there will be another war, the out-come of which will create a new legitimacy. To ignore the legal aspect of international order is a recipe for the total and permanent war preached by Ludendorff and, more effectively, his younger colleague Adolf Hitler. To ignore the strategic aspect, as did Woodrow Wilson and his disciples, is at best to forfeit the capacity to create an international order reflecting one's own value system; at worst, to see it destroyed altogether.

  In the first part of this book Bobbitt shows how the very nature of the State has been determined by the changing demands of war, and how it developed through a series of what he terms “Epochal Wars.” In early modern Europe, princes had to create state mechanisms—administrative bureaucracies, legal systems, fiscal apparatus—to extract enough taxes from their subjects to enable them to conduct wars that were made increasingly expensive by the need to pay full-time mercenary forces, to build fortifications, and to buy guns. At the same time they created a common structure for reciprocal acceptance and mutual recognition, a “Society of States” that was eventually established by the Peace of Westphalia in 1648, to be updated at Utrecht in 1713 and again at Vienna a hundred years later. The legitimacy of this structure—states defined by territorial boundaries ruled by dynastic rulers “absolute” in their jurisdiction—was challenged at the end of the eighteenth century by the concept of the “nation,” one that not only created a new criterion of legitimacy but could alone provide the numbers and motivation of a new age of mass warfare. But if these newly enlisted masses were to be motivated and militarily effective the State had to provide not only defense but welfare and education, and if they did not the “audit of war” would find them out. That was what happened in the First World War, which destroyed the dynastic regimes that proved unable to mobilize and motivate their peoples. But no peace was then possible until an alternative criterion of legitimacy emerged that could win universal acceptance. A three-cornered struggle had to take place between the liberal democracy of the West, the bellicose tribalism of Nazi Germany, and the authoritarian socialism of the Soviet Union. So for Bobbitt the Long War that opened in 1914 ended only with the Soviet collapse in 1990 and the apparent triumph of Western concepts of “legitimacy.”

  The settlements reached at Paris in 1990 that concluded both the Second World War and the Cold War that followed it might have been expected, like its predecessors at Vienna, Utrecht, and Westphalia, to introduce another long period of stable peace. Both Germany and Russia were now democratic nation-states and accepted “Western values”; not only the rule of law legitimized by democratic consent, but a further criterion of legitimacy that had developed in the West during the struggle against totalitarianism—the recognition of universal “human rights”: a major derogation from the state sovereignty that had been the basis of international relations since the Peace of Westphalia. But there was another and yet more fundamental difference between this peace settlement and its predecessors. Those had established a stability between nations that rested on a balance between the powers. This recognized not so much the triumph of Western democratic values as the overwhelming and apparently unchallengeable power of the United States: its supremacy in the weapons systems created by nuclear and information technology, its enormous wealth, and the universal attractiveness of its popular culture. America's European allies were at best subordinate and dependent associates. This, so it was hoped, would be a unipolar world of a kind not seen since the fall of the Roman Empire; but like the Roman Empire, it would be based on a rule of law.

  What went wrong? It is here that Bobbitt's thesis becomes fascinating and controversial. One obvious feature of the Paris treaties was that, although they may have settled the problems that had tormented Europe for the past hundred years, Europe was now only one region in a global system whose complexities that settlement did not begin to address. Even within Europe, the settlement could not deal with the fallacy that had invalidated the Wilsonian world vision from the very beginning. Nation-states, the building blocks of the international community, are not “given”: they have to be created. Nations—self-conscious ethnic communities—do not create states, though they can certainly destroy them. On the contrary, with few exceptions, states create nations. Even in Europe the problem of “state-b
uilding” in the Balkans remained, and remains, unsolved, while elsewhere in the world stable nation-states are the exception rather than the rule. More common are states that have signally failed to create nations, and can barely function as “states” at all.

  Further, even the great nation-states that possessed the cohesion and discipline to fight and survive the two World Wars were already becoming obsolete. It did not require a mass effort of national dedication to produce the weapons that destroyed Hiroshima and Nagasaki, nor could a similar effort have preserved them. It was largely the realization of their reciprocal vulnerability that prevented the conflict between the West and the Soviet Union from erupting into violence, and made it possible for the Soviet Union to be defeated by American “soft power.” For if weapons of mass destruction could so easily penetrate the conventional defenses of the nation-state—and to nuclear there were to be added chemical and biological threats—so could, in peacetime, economic strength and cultural dominance. Instant communications made possible by information technology were creating a global society that, though far from homogenous, was increasingly interdependent, and within which no nation-state, however powerful, could regard itself as independent and invulnerable: not even the United States, as it discovered on September 11, 2001.

  So as the development of guns had destroyed the old feudal order, and the development of railways the old dynastic order, now the development of computers has destroyed the nation-state. Not the State itself, as Bobbitt is at pains to show: the State will always be necessary to provide security, fiscal organization, and law. But in the same way as princely states mutated into dynastic territorial states, and they in their turn into nation-states, now nation-states are mutating into what Bobbitt terms “market-states,” and the second part of his book is devoted to describing the nature of market-states and the possible kinds of world that they may create. The plural is significant: Bobbitt provides no single scenario for the future but multiples, none of them very attractive: we are required to choose among a wide range of equally disagreeable dystopias. We are also required to choose among a wide range of possible wars, because Bobbitt is under no illusion that, any more than their predecessors, market-states will provide perpetual peace. At worst there may be cataclysms, at best a continuation of the low-key global violence to which we have become accustomed over the past ten years and from which not even the wealthiest and most powerful communities will be able to escape. The best they can do is reduce their vulnerability, and the only victory they can look forward to is avoidance of defeat.

  This book was virtually complete before the events of September 11 gave a horrible reality to Bobbitt's description of the possibilities that now lie before us. But for that, The Shield of Achilles might be ranked with such massive prophecies of doom as Spengler's Decline of the West, which scared us witless in the 1930s and is now deservedly forgotten. Such a fate is unlikely to befall this volume. Anyone who believes that the author contemplated with equanimity the future that lies before us should first read the poem from which the book takes its title. Bobbitt believes that mankind could be facing a tragedy without precedent in its history. It is not clear that he is wrong.

  —Michael Howard

  Prologue

  We are at a moment in world affairs when the essential ideas that govern statecraft must change. For five centuries it has taken the resources of a state to destroy another state: only states could muster the huge revenues, conscript the vast armies, and equip the divisions required to threaten the survival of other states. Indeed posing such threats, and meeting them, created the modern state. In such a world, every state knew that its enemy would be drawn from a small class of potential adversaries. This is no longer true, owing to advances in international telecommunications, rapid computation, and weapons of mass destruction. The change in statecraft that will accompany these developments will be as profound as any that the State has thus far undergone.

  THE END OF THE LONG WAR AND

  THE TRANSFORMATION OF THE MODERN STATE

  This book is about the modern state—how it came into being, how it has developed, and in what directions we can expect it to change. Epochal wars, those great coalitional conflicts that often extend over decades, have been critical to the birth and development of the State, and therefore much of this book is concerned with the history of warfare. Equally determinative of the State has been its legal order, and so this is a book about law, especially constitutional and international law as these subjects relate to statecraft. This book, however, is neither a history of war nor a work of jurisprudence. Rather it is principally concerned with the relationship between strategy and the legal order as this relationship has shaped and transformed the modern state and the society composed of these states. A new form of the State—the market-state—is emerging from this relationship in much the same way that earlier forms since the fifteenth century have emerged, as a consequence of war. This war, the fifth great epochal war in modern history, began in 1914 and only ended in 1990. The Long War, like previous epochal wars, brought into being a new form of the State—the market-state. The previous form—the constitutional order of the nation-state—is now everywhere under siege.

  As a result of the Long War, the State is being transformed, and this transformation is constitutional in nature, by which I mean we will change our views as to the basic raison d'être of the State, the legitimating purpose that animates the State and sets the terms of the State's strategic endeavors.

  The nation-state's model of statecraft links the sovereignty of a state to its territorial borders. Within these borders a state is supreme with respect to its law, and beyond its borders a state earns the right of recognition and intercourse to the extent that it can defend its borders. Today this model confronts several deep challenges. Because the international order of nation-states is constructed on the foundation of this model of state sovereignty, developments that cast doubt on that sovereignty call the entire system into question.

  Five such developments do so: (i) the recognition of human rights as norms that require adherence within all states, regardless of their internal laws; (2) the widespread deployment of nuclear weapons and other weapons of mass destruction that render the defense of state borders ineffectual for the protection of the society within; (3) the proliferation of global and transnational threats that transcend state borders, such as those that damage the environment, or threaten states through migration, population expansion, disease, or famine; (4) the growth of a world economic regime that ignores borders in the movement of capital investment to a degree that effectively curtails states in the management of their economic affairs; and (5) the creation of a global communications network that penetrates borders electronically and threatens national languages, customs, and cultures. As a consequence, a constitutional order will arise that reflects these five developments and indeed exalts them as requirements that only this new order can meet. The emergence of a new basis for the State will also change the constitutional assumptions of the international society of states, for that framework too derives from the domestic consti-tutional rationale of its constituent members.

  THE RELATIONSHIP BETWEEN MILITARY

  INNOVATION AND CHANGE IN THE CONSTITUTIONAL ORDER

  Ever since Max Weber, 1 scholars have argued that a revolution in military affairs brought forth the modern state by requiring an organized system of finance and administration in order for societies to defend themselves. Accepting this premise, however, it is unclear precisely which revolution in military affairs actually brought the modern state into being. Was it the use of mobile artillery in the sixteenth century that abruptly rendered the castles and moats of the Middle Ages useless? Or was it the Gunpowder Revolution of the seventeenth century that replaced the shock tactics of pikemen with musket fire? Or the rise in professionalism within the military in the eighteenth century and the cabinet wars this made possible (or was it the change in tactics that accompanied mass conscription in the nineteen
th century) ? One important consequence of asking this question in this way is that it assumes that there has been only one form of the modern state: the nation-state. If, as many believe, the nation-state is dying owing to the five developments mentioned above, then this scholarly debate about the birth of the state has consequences for its death.

  But if we see, on the contrary, that each of the important revolutions in military affairs enabled a political revolution in the fundamental constitutional order of the State, then we will be able not only to better frame the scholarly debate but also to appreciate that the death of the nation-state by no means presages the end of the State. Moreover, we will then be able to see aright the many current political conflicts that arise from the friction between the decaying nation-state and the emerging market-state, conflicts that have parallels in the past when one constitutional order was replaced by another and led to civil strife within the State and spurred novel and deadly conflict abroad. Finally, we will be better prepared to craft new strategies for the use of force that are appropriate to this new constitutional order—and vice versa.

  THE RELATIONSHIP BETWEEN THE CONSTITUTIONAL ORDER AND