If you are destined to read only one book on international law, read this one. It's bound to create controversy, but it will get you thinking, and that's what great books do.
Two Yale Law professors here present an enlightening, and thoroughly enjoyable, historical account, specifically addressing what the authors frame as the “legality” of war. Once upon a time, the authors contend, war was “legal”; today, it is not. August 27, 1928, they say, marked the turning point, the day the Kellogg-Briand Pact of 1928 (aka, Paris Peace Pact) was signed, the slightly-regarded (until now) international treaty that purportedly made war “illegal.”
Since then—despite the intervening Second World War and lesser armed conflicts—we have been living in a world where war has been outlawed. This “outlawry” of war, the authors say, was the dawn of a New World Order, one in which the legitimacy of law has been replaced by new forms of peace-keeping, such as the imposition of economic sanctions, which the authors subsume under their coined term, “outcasting.” Built on a foundation of a popular, but questionable brand of jurisprudence (i.e., legal positivism, one which denies the role of justice or ethics as a necessary condition to legitimate man-made law), their argument runs together well.
The authors support their thesis with a fascinating (though imperfect) dive into the history of legal thought on the subject of “war.” Reaching back to the 17th Century, they tell the story of a Dutch lawyer named Hugo Grotius, author of the 1625 legal treatise, “The Rights of War and Peace,” which quickly became the textbook on international law. In his book, Grotius explored how Rights are derived from the nature of man and how men resolve controversies among each other when Rights and their correlative Duties appear in conflict. In this Old World Order, Hathaway and Shapiro contend, War, as a means to resolve such conflicts, was deemed entirely “legal.”
But in the aftermath of World War I, a confluence of concerned Americans formulated a new vision of international law and worked to bring about a New World Order, one in which war was “outlawed.” Here the authors present an engaging account of the story of several so-called unsung heroes who brought about the Paris Pact of 1928, which the authors find so important.
But was it really? Did the Paris Pact really “outlaw war”?
Only if you use the terms “law” and “war” as you would at a cocktail party. Professors of jurisprudence, if they are to be taken seriously, are obliged to be more precise and this failure of precision leads to some questionable conclusions about the Paris Pact and the Nazi war trials. (The book is 609 pages, with notes, so the length of this review was unavoidable, though I spare you the notes).
To begin with, Grotius never said or even suggested that war was “legal.” Nor can one reasonably infer that he did so. War (or Peace), said Grotius, is a state or condition in which two people or peoples find themselves depending upon the nature of their political association.
He says so in the opening sentence of his 1625 textbook: “All Controversies between such as are not associated under one Civil Law, as between those who never yet entered into any Civil Society, or that are among themselves several Nations, whether they are private Subjects, or such as are invested with Sovereign Power, whether. Kings, Nobles, or Free People; All such controversies, I say, are to be referred to the times, either of Peace, or War.”
That is to say, if two or more people, or groups or nations of people, are associated “under one Civil Law,” they are at Peace. Otherwise, they are at War. Connecticut is not in a state of War with New York, because they are associated under a Civil Law, the U.S. Constitution, under which all “controversies” between them are settled, not by the use of force between them, but by the courts of a federal government. Court rulings are enforced by a power (i.e., to use physical force) wielded by a federal executive, a power which both states have granted to the federal government on an exclusive basis to use for the express purpose of settling those controversies. The political states of War and Peace exist whether or not armed conflict actually occurs.
Would this mean that the United States and Great Britain are in a state of War? Yes, according to Grotius (following Aristotle, Cicero, Polybius, and Philo, all of whom have expressed this precise jurisprudential insight). Any two nations not bound by a common Law (i.e., a civil authority granted a monopoly on the use of force to settle controversies between them), are at War.
The word “war,” says Grotius, does not signify “the Act itself,” but “the state or condition” of those who would use force. “So then,” he continued, “War may be defined to be the State or Condition of those that contend by force as such.” This is the definition of war that has been used for centuries before Grotius, and centuries since, but which has apparently been forgotten by many 21st century “jurispruds” (Shapiro’s word) who’ve been teaching law at institutions like Harvard, Yale, and Columbia.
Thus, the Paris Pact of 1928 never made war “illegal.” Indeed, to say that war can be “legal” or “illegal,” and therefore can be “outlawed,” is a hopeless non-sequitur. As Grotius pointed out, the word War, as a legal term of art, is not an activity that can be “outlawed”; rather, it is a state of affairs. What can be “outlawed,” at least with respect to two contending parties (but not completely), is the activity of armed conflict, or physical force; when it ceases, it’s called or armistice (i.e., a stoppage of armed conflict).
So, if the Paris Pact of 1928 could not outlaw war, could it have outlawed the use of armed conflict (i.e., physical force) to resolve conflicts?
Of course, not. Nor would we ever want to, at least not completely. Even when you create a state of Peace, as between New York and Connecticut under the U.S. Constitution, the use of physical force does not get “outlawed”; its legal use only shifts to the federal government. You create Peace by entering into a political association that guarantees that disputes will be settled by a trusted third party (e.g., a judiciary backed by a mutually pre-authorized use of physical force). Thus, even under the U.S. Constitution, the use of force has not been fully “outlawed.” On the contrary, the federal government has been given the power to use physical force justly against the states and their people to resolve disputes among them.
How one uses legal terms of art, such as “war” and “legality,” is no small matter of semantics. Whether one agrees with the authors’ jurisprudential assumptions, their equivocal use of those terms in the book calls into question their central thesis: that the Paris Pact of 1928 actually changed something.
What Grotius really said, which is just as true today, is that, in a state of War (as well as in Peace), the best you can do is determine when the use of force is “just” or “unjust.” We all know, for example, that the use of physical force in “self-defense” is “just,” as long as the means and extent of the force used is limited to what is appropriate to preserve life and property. You could justly, and lawfully, kill a person in self-defense. In this sense, even deadly physical force is perfectly legal. Humans killing humans has never been completely “outlawed,” nor should it be, because self-defense is a human right, a right that we have by nature to live (and live well) and which no government can alienate from you.
In sum, we never completely outlaw the use of physical force, even in a state of Peace. To suggest that “war” can be outlawed makes no sense, as you can’t outlaw a state or condition between two people. Either they are politically associated by some just means or they are not. That’s the difference between War and Peace. Neither is the use of physical force ever "outlawed"; it’s “just” use shifts from individuals (and states) to the administration of a common constitutional government, but never entirely, as individuals (and states) always maintain a right to use physical force in self-defense.
So, what difference does it make? Well, let’s take the Nazi’s.
Leaving aside its jurisprudential defects, Shapiro and Hathaway’s excellent narrative continues with the authors’ eye-opening behind-the-scenes account of the jurisprudential battle underlying the Nuremberg trials. The story of the German legal scholars Hans Kelsen and Carl Schmidt, including their personal clashes before the Second World War, and their respective roles in the prosecution and defense of the surviving Nazi leadership at the end of the war, would have warranted a delightful book on its own.
The question before Kelsen (working for the Allies) and Schmitt (for the Nazi defendants) concerned the basis upon which the Nazi leadership could legally be tried and convicted for initiating an aggressive armed conflict, or “conquest,” against other nations when there appeared to be no valid “law” against such aggression. (Accountability for war crimes and other atrocities they were accused of committing was a related, but separate, issue).
The defense [read: Schmitt] contended that “a fundamental principle of all law—international and domestic—is that there can be no punishment of crime without a pre-existing law.” That is, you can’t enforce a law “retroactively” concerning events that happened before the promulgation of the law. No applicable pre-existing law existed, said Schmitt, being “that no sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders.” Therefore, the defense contended, without a law that was violated, there could be no ex post facto punishment for the “crime” of initiating an aggressive war.
The prosecution responded by pointing to, among other things, the Paris Pact of 1928, under which its signatories, including Germany, each “renounced” recourse to armed conflict (Article I) and agreed that the settlement of all disputes or conflicts between them “shall never be sought except by pacific means” (Article II). This, contended the prosecutors, was a valid pre-existing “law” under which the individual defendants could be convicted and punished for initiating an aggressive war.
According to authors, the Tribunal used the Paris Pact as the foundation for its decision to convict and punish the accused. But did the Tribunal really rely on the Paris Pact? Here is what the Tribunal actually said, which is not quoted in the book:
“The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. . . . Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.”
Thus, the Tribunal did not rely on the Paris Pact, only upon “general principals of justice” that underlie treaties such as the Paris Pact. The Tribunal acknowledged that the maxim that prohibits the retroactive enforcement of a law is “in general a principle of justice.” But the “maxim has no application to the present facts,” because the attacker “must know that he is doing wrong.”
In other words, when deciding a case upon general principles of Justice, as opposed to Law, the rule against invoking law ex post facto (retroactively) is not an issue, because the precepts of Justice, unlike rules of Law, do not require promulgation. Justice does not require promulgation, because the precepts of Justice are discovered by man, rather than created, as rules of Law are. Any man can discover these precepts through rational inquiry; for this reason, they need not be promulgated to be binding in conscience.
Shapiro and Hathaway are “shocked, shocked” by this justification. They criticized it as “disappointing, indeed slightly shocking,” “unconvincing,” and “extremely unfortunate.” They even suggest that the decision leaves the impression it was “legally unfounded and politically motivated, a typical example of a victor’s justice.”
But the authors could only have reached these conclusions through the lens of their parochial form of jurisprudence, i.e., legal positivism, which assumes that general principles of Justice have no role in the Law or what is deemed “legal” or “illegal.” They simply don’t believe there is such a thing as general principles of Justice, which every man-made Law is conditioned upon. In their view, there is only man-made law. That’s it. To hell with Justice, because there’s no principled way to discover it. As far as they are concerned, the Paris Pact of 1928 was valid law and the Tribunal blew it by not basing their decision on it, relying instead on “general principles of justice.”
But was the Paris Peace Pact really a “law” that outlawed war?
The authors say yes. But both Schmitt and Kelsen would turn in their graves at that conclusion. What each of them effectively said, albeit at different times, was that the Pact‘s renunciation of war was not “Law,” because it was not accompanied by a specific penalty that could be exacted by a body with the just and exclusive authority to do so. That is the very definition of Law. The Paris Pact simply does not pass muster as a valid “Law.”
Schmitt forcefully contended that the Pact provided “no statute,” “no penalty,” and “no court.” Indeed, Hans Kelsen’s own jurisprudence was, ironically, in complete agreement with Schmitt on this point: for a legal norm to become a rule of Law, one must attach to the norm “certain coercive acts (sanctions) as consequences to certain facts.”
Indeed, Kelsen later admitted that the Paris Pact failed due to “its own technical deficiency.” It “undertook,” he said, “too little by obliging the States to seek pacific settlement of their disputes without obliging them to submit all their conflicts without any exception to the compulsory jurisdiction of an international court.” Without such authority, and a specific penalty to exact, the Pact was a not a Law that could be promulgated.
Thus, the Tribunal rightfully rejected the Paris Pact as an “outlawry” of war on which to base the conviction of the Nazis. Instead, they based their decision on the “general principles of justice” upon which such treaties are based. By doing so, the Tribunal became a bulwark against the scourge of legal positivism which the prosecution, and now our 21st Century law professors, would have us suffer.
Even Justice Robert Jackson, the Allies’ chief prosecutor at the Nuremburg Trial, later conceded that the Tribunal did not rely on any specific treaty, such as the Paris Pact, to convict the Nazi’s. They simply relied on the common law. Nor was he shocked at that decision: “The fallacy of the idea,” he wrote, “that law is found only in [specific sovereign or legislative enactments] appears from the fact that crimes were punished by courts under our common-law philosophy long before there were legislatures.”
So much for the Paris Pact of 1928. It never was “Law,” nor did it or could it “outlaw” war or any just or unjust armed conflict.
That notwithstanding, the authors are correct in making a distinction between the Old World Order and the New World Order, but the Paris Pact could not have been their inflection point. The authors present facts that make a better case that the New World Order began later when in the 1930’s nations came to reject two long-standing precepts of international law that are reflected in Grotius’s treatise.
First, came the rejection of the idea that “to the victor goes the spoils,” regardless of whether the use of force was just. Thus, under the Old World Order, a nation who wins territory by conquest, whether justly or unjustly, gets to keep the territory. One would think that the justice of keeping the spoils would depend upon whether the use of force was just. But Grotius seemed pessimistic about whether we could ever determine which side acted justly. The transaction costs of making that determination were just too high. So, the spoils always went to the victor.
There was never a “right of conquest”; Grotius’s rule of “recognition” of spoils to the victor, if you will, was merely a practical way at that time to put an end to the fighting without dragging everyone else in the world into the fighting. The rule makes less sense today, as modern communications make the determination of the facts leading to war more transparent.
Indeed, it was President Herbert Hoover, together with his Secretary of State Henry Stimson, who deserves the credit for overturning the Old World Order in this regard, and the book does a great job of recounting this part of the history. The Hoover administration embraced a policy of “non-recognition” (of the spoils of war) when the U.S. refused to recognize Japan’s territorial gains against China. This was an act that could have been done whether or not the Paris Pact of 1928 ever existed. The Stimson Doctrine, as it has since been called, was simply a “general principal of justice.” One nation should not profit from initiating an unjust war. Grotius, if alive today, would have completely agreed with that.
Second, in Grotius’s world, a nation that failed to remain strictly impartial or neutral with respect to disputes between belligerents was considered drawn into the war. In the face of the growing Nazi threat in Europe, the United States found such a rule untenable and agreed to provide arms, financial and other assistance to one side while not “declaring war” or otherwise immediately entering the military fray. Thus, by signing the Lend-Lease Act, President Franklin Roosevelt knocked down the second pillar of the Old World Order by discriminating between belligerents. Given the threat posed by the German’s to the United States and its allies, it seemed the just thing to do. The Paris Pact of 1928, lacking the force of “law,” had nothing to do with it.
Of course, these shifts in policy were attributed by some to the Paris Pact of 1928, but others strongly disagreed. The Pact itself said nothing about the spoils of war or neutrality. Attributing to the Pact the rejection of outdated notions of conquest and strict impartiality seems, at best, tenuous, a convenient excuse. How could sixty-three nations have been suckered into signing something that could later be so broadly interpreted?
Grotius’s view on these two points were simply outdated. But his basic point about War and Peace being political conditions among men, and that armed conflict can be waged either justly or unjustly, remain as true today as ever. Indeed, the authors’ complete rejection of Grotius, even to the extent of egregiously grouping his name with Carl Schmitt (Nazi sympathizer) and Sayyid Qutb (the father of radical Islamic terrorism) is, if not shameful, completely unfair.
Grotius produced for mankind a remarkable, cogent defense of Human Rights that has been equaled by few. His mistakes (i.e., regarding spoils of war, neutrality, collateral damage) have been corrected by better information, communications, and applied technology. Nevertheless, by no means could Grotius be interpreted as standing for “Might Means Right.” He did not legalize war; he merely suggested a means of distinguishing between “just” and “unjust” uses of force.
Grotius stood for the primacy of Justice over Law, that a law that is unjust is a law in name only. This is the very point made by Martin Luther King in his Letter from Birmingham Jail, a tenet of justice that Shapiro outright rejects elsewhere. Indeed, if there exists a jurisprudence that stands for the proposition that “Might Means Right,” it is in Shapiro’s legal positivism. The authors’ accusation against Grotius appears a mere projection of their own views.
In any event, the New World Order seems best attributed, not the Paris Pact of 1928, but to changes in international policy arising from the need to effectively combat Hitler’s unjust aggression. Now, neutrals were allowed to discriminate between belligerents, providing arms, financial and other assistance to one side, embargoing trade to the other, while not directly entering the military fray. And, as the authors’ pint out, quite correctly, this change opened the path to the United Nations and modern forms of collective action which the authors have creatively coined, outcasting.
The use of collective action, such as economic sanctions, as an alternative to the use of arms to resolve disputes, is indeed the chief characteristic of the New World Order. And the authors’ discussion of outcasting at the end of the book takes a mature look at today’s world and the challenges we face in confronting violent ideologies that are irreconcilable with our own.
Most sensible people, however, would take a dim view of using outcasting as our only alternative in the face of physical threats. The use of appropriate physical force in self-defense has always been “just” and should never be “outlawed.”
Only the most totalitarian regimes would think of making all use of physical force “illegal.” Indeed, the “outlawry” of all armed conflict would be an egregious violation of human rights. At the end of the day, individual human beings are at the top of the political food chain, not nations. Nations exist to defend individuals from harm and when the use of arms—such as in self-defense of one’s safety or freedom or in defense of a just government—is the only resort, its use is just and the right to use it should never be “outlawed.”
Bob Kohn is a Visiting Scholar at Columbia Law School. He earned his law degree (J.D.) at Loyola Law School, Los Angeles and a Masters of Law (LL.M) at Columbia Law School where he was a James Kent Scholar and a student in Scott Shapiro’s class on Jurisprudence.
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Remarkable Book If you want to better understand international relations in the context of conflict
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