THE SHIELD OF ACHILLES

by Bobbitt, Philip

  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.

  CHAPTER TWENTY-ONE

  The Congress of Vienna

  AT 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-cr
eated 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.

  Metternich spoke for the rationalist, territorial state when he complained that civil and political “rights” existed, if they existed at all, in the nature of things; they could not be guaranteed by the adoption of rules. “Things which ought to be taken for granted lose their force when they emerge in the form of arbitrary pronouncements…”4

  The new mentality was otherwise: human rights could be brought into being by political will—too many persons had seen it done to believe otherwise. Freedom could be expanded, or contracted, depending on the form of the regime. A novel political society that freed the classes had conquered Europe, and a secularized, comparatively meritocratic state that energized commerce and trade had just won the war. Representative institutions could claim a basis of legitimacy on account of their relation to the popular will. Law was the chosen instrument of fundamental change.

  In this respect France was for other states a model of the new constitutional order, the state-nation. France was not the only model, however: both the United States (which had inspired France) and Great Britain, France's dogged opponent, presented to the world examples of this new and dynamic constitutional form. These states also sought ways in which to bind the mass of people to the interests of the State, and ways to represent the State as the creation and object of veneration of the nation. The importance of the state-nation, however, also lies in the kind of society of states it called forth. As one historian has observed, as “a result of revolutionary change in society, one can detect during the era of the Napoleonic wars the emergence of a public opinion to gauge actions of warring governments by the principles recognized in the teachings of international law.”5

  These principles awaited a constitutional convention to give them legal status. Thus, once again, war and constitutional change were followed by a peace settlement that took the form of a constitutional convention for the society of states, including even states that were not parties to the conflict. The new mentality—the mentality of the Congress of Vienna—brought issues to the fore that were quite distinct from those raised at Utrecht.

  The state-nations that met at Vienna sought a special international arrangement that was not sought by the other states (of various constitutional forms) that came to the Congress, nor by the various constitutional entities that appeared at the Congress that were not themselves states.6 The European state-nation powers, Britain and France, sought an international system that would strengthen them at home not by re-enforcing domestic coercion, but by providing an external consensus that would give international politics the stability and prestige of law and would ameliorate the international conflicts that had so recently threatened to polarize their domestic polities. The other great powers were not so well placed to become state-nations. After its adoption of French military reforms, Prussia was able to forge a state-nation, but it remained frustrated by the fragmentation of the German nation; Habsburg Austria seems never to have made the transition successfully. Unlike Prussia, whose embrace of the German nation was cramped by an older, narrower state form, Austria's embrace was too broad, encompassing so many nations that it could not persuade them that their magnification lay in the service they might render the state. Russia, like her quixotic nineteenth century rulers, oscillated between a passionate intoxication with the state-nation ideal, for which its popular institutions were hopelessly ill-suited, and a reactionary rejection of the threatening modernity the new forms embodied.

  THE CONSTITUTIONAL CONVENTION: THE CONGRESS OF VIENNA

  The constitution of the new international system was the Final Act of the Congress of Vienna, supplemented in time by various “amendments” ratified at subsequent congresses. The Congress was therefore the constitutional convention of Europe, and it was seen as such by the state-nations that brought it into being. This constitution represents a response to three points of acute sensitivity to the state-nation: the self-consciousness of the new constitutional form, which could not depend merely upon custom for its legitimacy and must therefore earn its right to govern through the studied design and implementation of its institutions; the role of public opinion, which had become so influential in this new order that it demanded recognition by politicians; and the requirement that government policy be justifiable on the basis of articulated principles that themselves were taken as legitimate (thus requiring that the judgment of legitimacy go well beyond merely assessing the head of state). With regard to international affairs, these three points of importance played out in the following way, respectively: there was a demand for a particular legal instrument, consciously designed to prevent future wars in Europe; when public opinion became engaged by matters abroad, there had to be a way for politicians to replace diplomats as the effective actors; and inherited principles regarding the “general interest” of all states, and of the “balance of power”—set forth in earlier international constitutions and enjoying the prestige and legitimacy of tradition—had to achieve a new consensus among the powers in order for the behavior of these states to seem principled yet these principles had to be updated and modified in order for them to be practical.

  THE NEED FOR A NEW INSTRUMENT

  The demand
for an institution that was purposefully designed to deal with future conflicts arose in several ways. First, it was apparent that the Utrechtian system, which had succeeded in limiting war for a certain period, had been utterly unable to prevent a new sort of war, one that was so destructive that it had to be deterred in order to ensure the survival of states.7 There was a fatal vulnerability in the elaborate conventions of the territorial states that became manifest once the energies of a state-nation were deployed against those conventions. Territorial states could not quite ever combine in a sustained coalition because they could so easily be bought off with territorial concessions at each other's expense. Enduring coalitions had not been necessary to fight the brief, limited wars of the terr-ritorial state system—indeed, there was a distinct value to that system in maintaining highly fluid relationships but they were indispensable in the new era of conflict. Furthermore, the elites required to manage the elegant diplomacy of the ancien régimes had been replaced in some states by parties hostile to them. The Utrechtian system, however, as much as the territorial states that it comprised, depended upon an international elite. In any case, the prosecution of unlimited war took on a momentum owing to the national fervor that fueled it, regardless of who was in charge. Carefully calibrated restraint was scarcely possible in the face of popular passions.