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Bobbitt on Bobbitt

About the author
Philip Bobbitt holds the Walker Chair in constitutional law at University of Texas. He has held several senior posts at the National Security council..
Shield of AchillesThe Shield of Achilles by Philip Bobbitt: buy it from Amazon

One of the difficulties with talking about The Shield of Achilles is that it doesn’t have what is sometimes called an ‘elevator speech’. An elevator speech, in the advertising industry, is an explanation that can be provided to a potential consumer between different floors of a building, while trapped in an elevator. ‘End of history’, ‘clash of civilisations’, ‘imperial overstretch’, ‘offensive realism’ – or globalisation for that matter – these are all important elements in thinking about international relations. But my book doesn’t really lend itself to encapsulation like that, because it is not about a single idea, it is more about a methodology or a way of thinking about problems that are not usually integrated with each other.

Here’s what I have in mind. Over the last decade, during which I wrote this book, four big ideas predominated in international relations: Francis Fukuyama’s very dramatic The End of History and the Last Man; Thomas Friedman’s The Lexus and the Olive Tree about globalisation and its benefits; Sam Huntington’s, The Clash of Civilizations, first published in Foreign Affairs; and a new book by John Mearsheimer The Tragedy of Great Power Politics, which pretty much captures most of Henry Kissinger’s views about realism. Each of these books has made very important contributions, but it seems to me they were equally obviously short of the mark, and I think their authors would acknowledge this.

Let me give you specific examples. Fukuyama got the end of ideology right, but he missed the resurgence of nationalism. He missed Islamic fundamentalism. He imagined that the end of the ideological world of the 20th century would bring a sort of stasis. Getting that wrong is a major shortcoming. Friedman has the benefits of globalisation, the sort of virtuous circle idea, and its benefits for pluralism exactly right, but he missed the vulnerabilities that globalisation piles on both rich and poor, wealthy and destitute. Huntington certainly got the cultural backlash of different regions right, but he missed the variations within different, what he calls, ‘civilisations’, and what we might call ‘regional cultures’. And Mearsheimer has got the inevitability of war down pat, I think, but in doing so, he ignores what kind of war we’re likely to fight, and concentrates on a particular sort of war that seems most unlikely.

Now, these are four very brilliant men, and four very articulate works. How could they be so good and yet fall so far short? And I think the answer is that each one separates law from strategy, and this is a disintegration that we are so accustomed to that we don’t really even notice it. Let me revisit each of those examples.

Fukuyama saw the resolution of the struggle over the old constitutional order; which of the three competing ideologies – fascism, communism and parliamentarism – would ultimately triumph? He saw that. So he dealt with the constitutional side, the law side. But he missed the strategic implications of that resolution – that this will give birth to a new complex. It wouldn’t end in stasis.

In the same way, Friedman saw the emergence of a new constitutional order. He wasn’t focused on the old constitutional order like Fukuyama. He was looking ahead, but he dismissed the birth pangs that new constitutional orders go through, because he wasn’t talking about the relationship of this order and law. So these two men, Fukuyama and Friedman, dealt with the law side, but they ignored the strategic link to law.

 Huntington and Mearsheimer, by contrast, focused on the strategic side, and they ignored the law side. In Huntington’s case, he focused on the causes of wars between regions, but he ignored the constitutional variations within regions. The most dangerous flashpoints today, I would imagine, are between India and Pakistan, all part of one civilisation, according to Huntington; North Korea and South Korea, again, part of the one general Asian culture, North Asian culture; and in the Middle East. And what is significant about each of these states is they have very varying constitutional structures, quite conflicting structures. But if you look at them as though they’re just all states, like billiard balls arrayed on a snooker table, you don’t see that, and you ignore the law side. And the same thing is true of Mearsheimer. He has dismissed law entirely, and has treated the states as if they’re always the same, ignoring the fact that it’s the variations that often not only lead to wars, but win wars.

Reintegrate law and strategy

So I think one way to characterise The Shield of Achilles is to say that it re-integrates law and strategy. If I had to come up with a half dozen messages in lieu of coming up with just one, I would say that’s the first one, that law and strategy are the inner and outer faces of the state, that they are topologically inseparable, that transformations in the constitutional order lead to revolutions in military affairs, and vice versa. Sometimes the era of causality goes from the political revolution to the military revolution, as, for example, when Napoleon and other revolutionary generals, found that they did not have an Officer Corps to fight the highly disciplined Cabinet wars of the 18th century. What they did have were a million passionate nationalists – men who’d never worn a uniform, never marched, never fired a weapon and tactics had to be adapted to that raw material that was a consequence of the French Revolution. But sometimes the arrow runs the other way. It was the movement of mobile artillery into the Italian Plain at the end of the 15th century that brought forth all this extremely expensive rebuilding of the walled city states in Italy, the need for a more competent, advanced bureaucracy, more binding alliances, and more money for mercenaries. So my first message is, integrate law and strategy.

Revive the study of history

My second message is that if you do that, it will revive the study of history. There are academic questions having to do with the integration of law and strategy. For example, what was the military revolution that created the modern state? Was it the one I’ve just mentioned about mobile artillery and the advanced bureaucracies of the rich, weak city states of Italy? Or was it, perhaps, some subsequent military revolution – for example the gunpowder revolution of the next century? If you are willing to think of the present in terms of the future, you are greatly facilitated by thinking about the past, and especially – although this is horrible a neologism – the ‘periodicity’ of the past.

And one of the things this book does is to try to re-order those periods. Instead of saying that there was one state, as I think most of us were taught, a nation state that was created in 1648, I say that there have been several constitutional orders – one, indeed, preceding 1648. These orders are the consequence of what I call ‘epochal wars’, and the great peace conferences that end such epochal, coalitional multi-decade wars write constitutions for the new society of states born out of those wars.

So that when I talk about the long war of the 20th century, a war that I say encompasses World War I, World War II, the Bolshevik Revolution, the Spanish Civil War, the Korean War, the War in Vietnam, and the Cold War, I don’t mean that we will stop using descriptions like ‘World War II’. Nor do I mean that, for many purposes, it isn’t very useful to talk about the Korean War as a separate entity – we still talk about the War of Smolensk even though we talk about the Thirty Years War. I mean that, for one set of purposes, one particular way of understanding, this periodicity can be very helpful. It helps explain why there have been more than one military revolution, and it doesn’t force us to choose just one. It helps explain why we can say today that the state is thriving, even though the nation state is undergoing some pretty severe challenges and is in a state of great decay.

And it is particularly helpful with respect to international law. If you take, as most international lawyers (and I think many international law scholars) do, an ahistorical view of international law, you can think that it’s always been pretty much the same since Rome – Rebus sic statibus (rules change when circumstances change) is, after all, a Latin phrase. Then, you’re inclined to think that the current state of international law is co-extensive with the rule of law, and that any profound change in that status is illicit. But when you realise that this binds you to a set of rules that really is only about a century old, you might be much more willing to craft new legal rules within rule of law, though they contradict the premises that we had at Versailles and San Francisco.

The state is becoming more powerful 

My third message is derivative of the first two – it is that the state is not dying. The state is becoming more powerful. When states face a fundamental threat to the constitutional order, which is defined as that order whose legitimacy is based on a distinctive compact, they change the basis for that legitimacy. They do not simply go out of business. Right now, the nation state faces, I’ll say five, quite arbitrarily, threatening developments.

First, an international system of trade and finance that removes from a nation state the ability to control its own currency and much of its fiscal affairs.

Second, a set of transnational threats, including migration, environmental damage, and epidemics such as AIDS, which are essentially borderless.

Third, an international cultural and communications network that prevents any nation state from protecting its own culture. I don’t see how states can protect against, for example, child pornography on the Internet. (It’s said – I’m not sure how they know this – that something like 60 per cent of educated Chinese get their news off the Internet, which must be extremely frustrating to the political leadership.) Fourth the development of weapons of mass destruction – weapons so powerful that any sort of perimeter fence is really rendered pointless.

And fifth, a system of global human rights, that requires every state to obey certain fundamental rules, regardless of what their own internal laws are. When, for example, NATO went into Kosovo, it did not do so because the Serbians threatened another state. For the purposes of international law, the Serbians are the final interpreters of their own laws and they saw what they did as legal. We went into Kosovo because we believe that the government of Serbia had lost its sovereignty, that sovereignty arises from the people, and that there are some things you can do to your own people that will cause a government to forfeit its claim to rule. I think we’ve seen such things occur recently in Rwanda, in Cambodia, and of course, for much of the 20th century.

These five borderless threats are profound threats to the nation state, the form of the state that promised to better the welfare of its national cultural group. But whenever I say this to my classes, or to an audience I always add, ‘Don’t stop paying your taxes. Pay those parking tickets, because the state is doing very well, thank you, and it will maintain itself by shifting to a new basis for legitimacy.’

Appreciate the distinction between the nation state and the ‘market state’

And that’s my fourth of these half a dozen messages; that is, if you can appreciate the distinction between the nation state and the ‘market state’ then many contemporary advances look a little different. For one thing, you can see the emergence of the market state. We are only just a few of years down the road to what will be a many decades long process, but you can already see signs of this happening.

This summer it was announced in the UK that there would be differential postal rates for rural communities and for small businesses – because it costs more money to deliver the mail to these – and there was outrage. And that’s because we’re accustomed to the nation state, which delivers its benefits equally to all, as opposed to a market state that tries to create market incentives and prices government services at a market-driven price rather than an equal price.

In my country, the US, we’re having a furious debate over cloning. Right now, all human cloning is banned, and if the ban stays it is going to have many profound effects upon the location of companies around the world who do this sort of research. If you see this as a reaction of the nation state to the market state, the nation state is saying, ‘We want a broad legal rule. We want a regulation banning this on moral grounds. This is offensive to our culture and the value we place on human life.’ And you see that the forces pressing for cloning are those that say, ‘We will be able to maximise the opportunity for people who cannot have children, or for cures for diseases, or transplants’, then you can see that what’s going on here is not simply a policy debate. It is something on the edge of a constitutional transformation.

This plays itself out in all sorts of policies: in welfare programmes, where you try and put people back to work rather than subsidise them for simply child-raising; in the health care market, where we’re rather brutally bringing a cost to bear on medical decisions, something people would in the past have considered quite unacceptable, although it may have happened in a subterranean way, nevertheless.

Even the left/right distinctions look very different when you think about the change from a nation state to a market state. In the US, there are parties on the left who want affirmative action and parties on the right who want to ban abortions. But really, both are nation state advocates, because they want laws and regulation to support their moral views. Now, they differ on those views. Fair enough. Some are conservatives, some are more liberal. But that’s the role of law for them in the state.

By contrast, those who oppose affirmative action say they want people appointed to jobs, or let into colleges, and graduate programmes, on the basis of some sort of market, some kind of competition. And they want to maximise a woman’s right to choose her opportunity whether to have a child, or when to have a child. These are ‘market state’ attitudes, even though they are left and right.

War will always be with us

The fifth message is that, while we cannot outlaw war as we have attempted repeatedly in the 20th century – a nation state idea, by the way – and while war will always be with us, we can choose our wars. And I think we’ve faced three realistic possibilities for war today. One kind of war is a coalition war made up of states who will come together for a particular operation, and then return not to a permanent alliance such as NATO, not with the same legal structures or treaty structures, but to a more ad hoc set of coalitions that are governed by a kind of case law rule or precedent that they themselves generate in the process of waging these wars. And these are wars of humanitarian intervention, of wars against terrorism – wars, I believe, in which all the great powers can collaborate. And I note that today, the relations between the US and Russia, after September 11, are better than they’ve ever been in my lifetime.

But there are other kinds of wars that, I think, are far more threatening to the peace and stability of the world. We can imagine regional cataclysms, in the Middle East, in the Sub-Continent, in North Asia. And we can even imagine high-tech, critical conflicts between regions, for example, some kind of conflict between the US and Europe. In the first of these cases, the regional cataclysm, I think this is a consequence of US withdrawal from the world. And I think we all agree that the administration’s initial policy of withdrawing from involvement in the Middle East was a great mistake – shoving aside the Clinton Plan and instead saying, ‘You fellows – now sort it out!’ is something that I think people now regret. But US withdrawal increases the likelihood of the regional cataclysm.

By contrast, it’s US unilateralism that increases the chance of conflict between regions. And this unilateralism is not simply the responsibility of the US. Yes, we have to be sensitive to it and overcome, sometimes, our understandable frustrations at any kind of coalitional warfare, which is very difficult to maintain. But other states, also, need to appreciate some of the sensitivities of the Americans, and the fact that you cannot ask the Americans to provide the young men, materials, and the world logistical structure, and not also give them some kind of support and protection for doing so. This may take us into a debate about land mines and the International Criminal Court.

Markets need states

My sixth of these seven messages is about the market state itself. The market state is not a market. Markets need states. They need the law which, as Paul Hirst has very accurately said in his review, undergirds markets. If you want to know what free capitalism, capitalism sauvage, really is, you can go to the black market in Russia. This is not a successful market state, but it’s a highly successful market! The market state, I believe, will come in different variations. I, personally, don’t happen to think there is any preferred form of the three forms I call the ‘entrepreneurial’, the ‘managerial’, and the ‘mercantile’. But I think they all have this in common for us today, that we need to develop those values and institutions that the market state does not develop: those of collaboration, of decency, of deference, of the protection of cultural communities. These are things that the market state just sweeps aside, and one of the points about drawing attention to the market state is not to become its advocate. I’m not a diplomat accredited from the future. It’s to make us aware of these things happening so we can compensate and mitigate.

There is no call for gloom or despair

And my final message – if this were an elevator speech, it would have to be the Empire State Building! – my final message is that despite the rather beautiful and powerful introduction to my book by Michael Howard, I do not think this is a message of gloom or despair. I think that if we can take our eyes off some of the rather petty and, I believe, decayed policy battles, and confront some of these rather terrifying threats, that we have every reason for hope – that mankind is indomitable, creative, and can prevail. But only if we can look at our situation quite clearly, and not be distracted by some of the more petty frictions that politics and international politics are prey to.

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