THE SHIELD OF ACHILLES

by Bobbitt, Philip

  Kelsen is also a target for Kirchheimer. When Kirchheimer berates the Weimar constitution because it sacrifices its will and substance in favor of formalistic institutions, when he claims that the parliamentary state “tends to disappear behind its own legal mechanism,”70 he is faulting Weimar for achieving precisely the goals Kelsen sets for the State. Because Kelsen treated sovereignty as a ghost, the politics of class compromise result in the “impossibility to find, in our age of formally democratic structures aiming at social equilibrium, a satisfactory answer to the question of who is the wielder of sovereignty, that is, who makes the actual decision in the conflict situation.” Whereas parliamentary democrats take it as a major achievement of their ideology that it can transmute difficult and potentially deadly political disputes into peacefully resolved legal ones, Kirchheimer contemptuously calls this an attempt to “juridify” conflict. A writer so attracted to violent and final conflict doubtless hoped that the emergency that he believed Weimar to be incapable of handling would be one, at least in part, of his own making.

  Far from pluralism, Kirchheimer yearns for a purifying solidarity that has found expression in our own times in the Khmer Rouge campaigns in Cambodia and the Cultural Revolution in China. For Kirchheimer, the cultural ethos becomes the constitutional ethos. As there must be a commonly shared cultural ethos in order for the State to achieve unity, so the constitutional ethos spreads to every aspect of cultural life. The consensus that emerges from the defining decision of revolution (Kirchheimer calls it the “creative act of revolution”) not only determines the fundamental law of the State, but also specifies policy choices and even the form of much everyday life. Because values correspond to the social context, a truly homogeneous social order will result in a cultural, moral, and social homogeneity. Only this conformity is capable of producing the necessary strength to deal with the emergency situation.

  Kirchheimer praises the Bolsheviks for seeing and, unlike the liberal parliamentarians, for saying that law is no more than a political instrument to be used to discipline those who have yet to accept the values of the community. Because the decisions taken on behalf of that community must, in the case of the exception, be normless, the distinction between enforcing the values of the community and mere physical coercion is erased. Even compliance cannot be anticipated when the dictatorship governs according to exigency only. Law and force become the same thing. Lenin puts this forthrightly: “The court is not to abolish terror… but it should make it understandable and should elevate it to a legal rule, as a matter of principle, clear-cut, without hypocrisy and without embellishments.”71

  Because legality equals social justice, there is no distinction between the legitimacy and the justification of a legal rule. The arbitrariness and radical discretion imposed by the exigency—which amounts to what can be justified by events—becomes the rule. In Kirchheimer's description of an authoritarian socialist alternative, the rule of law is reduced to nothing more than what those with power decide. “The Socialist and Bolshevik Theory of the State” argues

  that whereas the explosion of legal instruments (in the form of new labor and social welfare courts, for example) in the West is expressive of democracy's anti-political refusal to make a decision in favor of a set of common interests and values… [l]aw in the Soviet Union is directly linked to the Communist Party's program and is made, as Lenin notes, “an instrument for education and for imparting discipline”… [Thus] the Bolshevik legal system is based on ever-changing “temporary law.”72

  Kirchheimer approvingly reports that in the Soviet Union law had become “so dependent on the government objectives at any given time that the suggestion even was made to limit the validity of the new Soviet Civil Code to only two years.”73 In any case, what such a system aims at is not the application of formal law, but rather a judicial system of the appropriate revolutionary consciousness so that each situation is treated in a way that is plainly adapted to the mores of the socialist community.

  This union of cultural and constitutional ethos divided fascism and communism from parliamentarianism. In 1939 Kircheimer bewilderedly wrote that “the attempt of the [fascist] legislature and the judiciary to use the criminal law to raise the moral standards of the community appears, when measured by the results achieved, as a premature excursion by fascism into the field reserved for a [socialist] society.”74 But by 1941, he conceded that the Nazis had “closed the gap which, under the liberal era, had separated the provinces of law and morality.”75 We are inclined to forget that, until the mid-1930s, liberal parliamentarianism, not fascism, was the principal target of communists. In the chapter “Elements of Anti-Semitism,” for example, in the Dialectic of Enlightenment by Adorno and Horkheimer, the authors had even concluded that “the German fascists were not anti-Semitic but were liberals who wanted to assert their anti-liberal opinions.”76

  The brief Weimar period from 1919 to 1933 has often been studied as a textbook case of state formation in times of economic and political crisis. This discussion of various law professors active in that period has aimed to provide a survey of the three principal alternatives in play at the time. All of those persons discussed above were, in one way or another, concerned with the problem of how to achieve legitimacy for the new German state. So long as the ideological valence of the new nation-state form lay undecided, in any state where these alternatives contended on roughly equal terms there could be no stable constitutionalism for the State. Unlike the forms of the State in earlier periods, the nation-state requires an ideological shadow before it can come to life. When it acquires this shadow, it is a formidable strategic archetype, as the Nazis and the Soviets, no less than the liberal democracies, demonstrated.

  The Weimar experience thus provides a national microcosm of an international phenomenon, the unstable competition among ideological forms of the nation-state that occurred in the aftermath of Versailles. Parliamentarianism, fascism, and communism contended in every major state, although in none were these forces so finely balanced as in Germany. Just as there could be no peace within Germany until this competition of values was settled for the German state, so also there could be no peace among states until the same question was answered for the society of states. It was necessary to determine which of the three putative ideologies of the nation-state would achieve legitimacy because each of these ideologies contended on the level of legitimacy: that is, each offered a standard by which the promise of the nation-state to enhance the welfare of the nation would be judged. Each form attacked not merely the policies of its competitors but their very right to govern, even to participate in political life. Normal politics could not take place until this fundamental question was resolved.

  Many readers will recall that when Hitler accepted the surrender of France in 1940, he insisted that the signing of the articles take place at Compiègne, in the same railroad car where German generals had been forced to surrender in 1919. But few are likely to remember that in 1919, at Clemenceau's insistence, the Treaty of Versailles was signed in the Hall of Mirrors because this was the place where, in 1871, Bismarck had had William I proclaimed ruler of Germany, the first nation-state in Europe.

  CHAPTER TWENTY-THREE

  The Peace of Paris

  THE PEACE OF VERSAILLES did not bring closure to the epochal conflict that had begun in August 1914. Like earlier international constitutional conventions, Versailles enshrined a new constitutional order, which was the nation-state. But the nature of this form of the state required a further decision among ideologies, and with respect to this decision, Versailles was premature.

  Versailles did attempt to certify one ideological variant of the consti-tutional order, but this variant was not accepted by two important states, Germany and the Soviet Union. The ideological option endorsed by Versailles, the parliamentary nation-state, accepted the legitimating premise of the nation-state that it was based on the will of the people and was constituted for their material benefit. Parliamentary ideology went on, ho
wever, to specify free, fair, regular, and open elections as the means of determining the popular will. The parliamentary nation-state made voting publics the judges of whether their governments were in fact maintaining and enhancing the welfare of the nation. Moreover, this type of constitutional form required governments to comply with their own laws and to administer law impartially. Accountability to the electorate provided the ultimate check on whether such respect for the rule of law was forthcoming from the State.

  The parliamentary nation-state, however, was by no means congenial to many persons in Germany, on whom it was pressed by the Versailles victors, nor to the new state of the Soviet Union, which proffered to the world its own variant of the archetype of the nation-state. Until the fascist and communist alternatives to the parliamentary nation-state were discredited in the eyes of the German and Russian people, the Long War could not end, for this war, like other epochal wars, continued precisely because it had become a struggle over alternative constitutional orders and thus the State itself was at stake.

  In time both the fascist and communist Great Powers were defeated and their constitutional forms discarded. Nazism, with its claims of militaristic racial superiority, was thoroughly beaten by an alliance that included the multiethnic United States and the Slavic Soviet Union. Most damning, however, to German fascism was the disclosure of the death camps, a logical culmination of fascist ideas about racism and the State. The disgust and horror experienced by civilized people everywhere effectively removed fascism from the list of possible choices that nations might consider in forming states and marginalized it forever to the dormitory rooms of misfits. At least one cannot add futility to the cruelties suffered by the victims of Nazi concentration camps, for these victims did not die in vain. They defeated fascism just as surely as did the victorious soldiers at Normandy or Kursk, because the crimes committed against them rendered fascism odious. The discrediting of communism came in a different way—though the exposure of the murder of millions of innocents played a similar role. In this chapter we will discuss how this delegitimation came about in the Soviet Union and in the Warsaw Pact countries, and how this led to the Peace of Paris that completed the work of Versailles in 1990.

  THE END OF THE LONG WAR

  What brought about the end of the Long War and the adoption of the parliamentary nation-state by Russia and a united Germany? At present, most accounts of these extraordinary events can be grouped in two general categories: those that argue that economic pressures—perhaps intensified by the defense policies and diplomacy of the Reagan administration—forced the Soviet state to buckle; 1 and those accounts that argue that it was Mikhail Gorbachev's drive for domestic reform that opened up the path that led eventually to Paris.2 To the extent that they recognize the interconnection between domestic and international events, either approach might provide a satisfactory account: if the Soviet regime was compelled to adopt market methods in order to compete strategically, it may be that these reforms led to an unraveling of the command ideology even though they were merely intended to modify the command economy (as is often prophesied for China); if glasnost and perestroika (policies we may roughly translate as transparency or openness as applied to government and restructuring as applied to the economy) loosened the grip of the police state, this made it harder to crack down on secessionists in Eastern Europe and in the Soviet republics. And, of course, these approaches might be seen as complementary, or even as mutually reinforcing. Perhaps Gorbachev's domestic policies of liberalization were intensified by a sense of strategic desperation, or perhaps his conciliatory posture towards the West reflected the more humane norms of his efforts at domestic reconstruction.

  I propose, however, to offer a somewhat different account. The two approaches I have thus far described are the consequence of separating strategy and law. The former treats international relations as driven by the strategic requirements of force and the relative comparison of capabilities alone. As the Athenians told the Melians, the strong do what they wish, the weak suffer what they can. From this point of view, the bipolar world should have continued even after the constitutional changes brought about by glasnost and perestroika, because these did not significantly affect the correlation of forces between the superpowers.* I do not believe the facts will bear out any abrupt shift in the force capabilities between the superpowers that would have compelled the change in Soviet policies that occurred in the late 1980s (although significant changes did occur thereafter). Yet while the relative capabilities of the United States and the USSR did not change very much during the years from Gorbachev's accession to power in 1985 until 1989, international relations were fundamentally transformed during that one year. In any case, such an account does not tell us why the Soviets reacted to their dilemma in the way they did (rather than by heightening tensions, as Andropov chose to do when confronted by Reagan's adversarial posture, or by simply grafting market mechanisms onto the party state, as the Chinese have chosen to do).3

  The second approach treats constitutional developments as causing, but not caused by, international change. In this view, Gorbachev's domestic reforms led to the collapse of the communist system because he sought to dismantle a totalitarian system that had previously held the states of Eastern Europe and the Soviet republics in thrall. I am skeptical, however, that Gorbachev came to power committed to parliamentarianism and determined to effectuate its triumph over communism. Nor do I believe that he was willing to permit the subordination of the Soviet position internationally in order to achieve domestic reform, nor that he was foolish enough to believe that he could delegitimate the communist system without placing increased strains on his ability to restrain defections from the Warsaw Pact, including the option to use force. Nor does this account tell us why Soviet reformers did not embark upon political liberalization coupled with a demand for international concessions, that is, a radical extension of the Brezhnev/Helsinki policies or any of the other plausible programs of domestic constitutional reform that did not entail a strategic retrenchment.

  The Long War ended when General Secretary Gorbachev—as he was before he sought a new constitution that styled him president—attempted to mimic the strategies of the West in order to compete more successfully internationally, and this mimicry led, unintentionally, to constitutional changes he was unable to control. These changes, in turn, prevented him from falling back on the old strategy of international coercion and he was forced irresistibly into an ardent effort to join the community of parliamentary states—the Versailles/San Francisco community—as the only way of saving the geopolitical position of the USSR, which his own policies had jeopardized. The political problem for the West, without a satisfactory solution to which the Peace of Paris would not have been possible, was to keep Germany from succumbing to the temptations of neutrality during the process of Soviet change, without so alienating Germany that it would go off by itself when that process was complete. This required the United States not only to persuade President Gorbachev that he should urge that the United States stay in Europe—a complete reversal of Soviet policy hitherto—but also to concert American allies in the acceptance of a stronger, unified Germany. If the principal character in this account is Gorbachev, the figures of the American secretary of state, James Baker, and his Soviet counterpart, Eduard Shevardnadze—both, like Bismarck and Castlereagh, political party men and not professional diplomats—and the U.S. president, George H. W. Bush, were equally crucial.

  Thus the Soviet Union under Gorbachev followed the historical pattern of states mimicking their successful competitors.4 This brought about the loss of legitimacy experienced by the Communist Party in the Soviet Union and in Eastern Europe. Eventually the history of Communism came to be seen as one of moral and physical impoverishment. The communist state became detached from the legitimating basis of the nation-state, the mission to better the welfare of its people.5

  Gorbachev did not set out to dismantle communism or the Soviet state; rather he was a committe
d communist who frequently reaffirmed that commitment. “We are looking within socialism,” he declared, “rather than outside it, for the answers to all the questions that arise.” In his devotion to the socialist alternative he was no less committed than Deng Xiaopeng, the other pivotal figure in the communist world during this period. As Adam Michnik acutely observed in 1987, Gorbachev's reforms should not be interpreted as advancing liberal democracy but instead as efforts on behalf of the “socialist counter-reformation.”

  Essentially Gorbachev attempted to retain control over [the Soviet empire] through allowing, and then even encouraging, reform of communism domestically with the expectation that his own model of perestroika would prevail and bring to power similarly minded leaders in the Soviet bloc. The need for Gorbachev's counter-reformation was provoked by the legitimation crisis of the Communist party…6

  I believe it can be shown that the strategy of counter-reformation was not the result of an economic decline in the Soviet Union in the years leading up to Gorbachev's accession to power. In the four years following Gorbachev's election as general secretary in 1985, however, the consequences of his mimesis of the West—the attempt to graft market management techniques* of decentralization onto socialist planning—drove the Soviet leader into increasingly desperate maneuvers until, in 1989, admission to the society of parliamentary nation-states was the only way left to preserve a role for himself and unity for the Soviet Union. Even this failed him, but it is important to see this development as a culmination in tactics that resulted in the astonishing decisions to combine international conciliation with pro-market and pro-democracy domestic policies. Indeed, only if we appreciate that the need for legitimation was driving Gorbachev's improvisations once the program of radical reform of the economy failed, with each new maneuver further sapping the stature of the Party in the Eastern bloc as well as in the Soviet Union, can we appreciate how unilateral concessions to the West were a rational response by a leader anxious to preserve a bipolar world. The Soviet Union was no weaker militarily, and the United States no stronger, in 1989 than in 1985, yet