“The consent of all nations is the law of nature.”
On the Law of Nations is a powerful brief in favor of what the United States Supreme Court in 1900 declared to be “the customs and usages of the civilized world.” (In Paquete Habana, the highest court declared international law to be “part of our law” and therefore binding upon the American government and upon American citizens. Article One, Section Eight of the Constitution gives Congress the power to punish “Offenses against the Law of Nations.”) By “international law,” Moynihan means the evolving customs and written legal obligations defining international relations and preventing those relations from becoming entirely arbitrary. What makes this brief particularly compelling is Moynihan’s honesty regarding the obstacles to achieving his goal.
Despite his stated admiration for Woodrow Wilson, for example, Moynihan cites the policies of President Wilson and of his secretary of state, Robert Lansing, in order to underscore the difficulty of applying international law fairly. Though Wilson’s appeal to Congress for war against Germany on April 2, 1917, invoked international law, Wilson and Lansing had schemed to bring about American involvement in the conflict. They had filtered public information through government agencies and had drawn the Germans into peace negotiations in December 1916, while urging the British and French to remain intransigent. Moynihan notes that both American geopolitical interests and the cultural biases of the Eastern establishment predestined the United States to incline toward the Allied side. But the struggle in Europe was between constitutional monarchies (England against Germany and Austria-Hungary), not, as it was depicted, between besieged democrats and aggressive militarists. And Wilson’s allegations concerning violations by Germany of international law were both hypocritical and hyperbolic, given the insincerity of America’s claim to neutrality and the rough moral equivalence that could be demonstrated between the two sides.
Throughout the book Moynihan takes the position “pacta servanda sunt,” which holds that civilized states, like civil individuals, should keep those obligations they publicly accept. He is therefore troubled that the United States encroached upon the sovereignty of the British Commonwealth, which it claims to recognize, by invading Grenada. He is also disturbed that American Presidents now take military actions against foreign powers without declarations of war and without seriously consulting Congress. Neither international conventions nor constitutional restraints are currently permitted 2 to stand in the way of American foreign policy. Moynihan bristles at a statement by Robert Bork, made on the eve of the Panama invasion, that “by eliminating morality from its calculus, international law actually makes moral action appear immoral.” The “moral action” that Bork was justifying without reservation was “restoring democracy and freedom” to people who had lost them. Bork was explaining why the United States was morally obligated to ignore the sovereignty of other states whose behavior it found objectionable.
Much in Moynihan’s brief should please authentic conservatives and, conversely, drive neoconservatives up the wall. Despite his past as a Cold War liberal and his occasional Wilsonian aberrations, Moynihan (at least in his latest book) takes views on foreign policy similar to those of Thomas Fleming and Murray Rothbard. My own notions of sovereignty being Hobbesian rather than Jeffersonian, I for one would have no strong objection against a chief executive taking military action without consulting Ted Kennedy and Howard Metzenbaum, providing always that two conditions be obtained: one, that there must be an obvious danger to the safety of the American people; and two, that the use of force must be justifiable in terms of public security, not by pointing to a new world order. My only reservation with allowing our current chief executive to exercise sovereign powers is our present difficulty in sorting out two entirely different political aims: the protection of American lives and vital national resources, and the reconstruction of the world. The confusion of the first with the second is the result of an historical process that needs to be examined. Moynihan touches on that process, but never explores it in depth.
What he calls the “law of nations” was in fact an Eurocentric development, with Roman roots. Coming into existence in early modern Europe, this order of things, to which the German jurist Cad Schmitt devoted his last great work, assumed a more or less fixed territorial arrangement among European nation states. The jus publicum Europaeum made allowances for war in the case of otherwise unresolvable disputes, but imposed limits on such conflict. War took place between professional armies, but was not supposed to injure civilians. Countries faced the danger of having to cede land but could not be entirely displaced, and disputes were to be treated as strictly political, without incorporating the older ideas of “just wars” and “just causes.” Schmitt observes that Europeans arrived at this thoroughly dispassionate view of international relations after a century or more of religious struggles between and within their countries. Instead of continuing to slaughter each other ad majoram gloriam Dei, European leaders and jurists cast about for a new and less violent kind of international relations. It was one that appealed to Thomas Hobbes, Francois Vatte, and David Hume but could not hold sway in the world according to Robespierre, Lenin, or Bork. In any case, the jus publicum Europaeum became increasingly irrelevant the farther one moved from European culture or from the prerevolutionary Europe that produced it. Today, international law has become subject to a wide range of ideological variables, including the right of insurgents, also recognized in the U.N. Charter, to overthrow oppressive regimes.
Like Moynihan, I would like the world to return to a “law of nations,” but unlike him I do not believe that the means to this end is “global democracy.” Repeating Woodrow Wilson’s tendentious but meaningless dictum, that democracies do not make war on each other, Moynihan expresses the pious wish that Wilson was correct in his assertion. Wilson intended, as his neoconservative disciples have, that the United States foster good relations with and among nations having compatible institutions and values. Hapless countries with opposing values and institutions (e.g., Imperial Germany, Austria-Hungary, and Saudi Arabia), have been made by Wilsonian critics to appear criminally undemocratic as well. Their villainy has been exaggerated, in some cases, in order to portray their culturally alien societies as politically wicked.
There is no historical reason to assume that ancient or modern democracies have been more peace-loving than other regimes. Even before the French Revolution combined democratic missionizing with violence and genocide, David Hume noted the tendency of ancient democracies and republics to be relentlessly imperialistic. And in modern imperialism a similar tendency has been discernible. It was among Radical Republicans in France, Fabian socialists in England, and forward-thinking Americans at the turn of the century that imperialism found some of its readiest recruits. In modern, America it is, predictably, the democratic globalists, not the Taft Republicans, who have been beating the drums for a pax Americana. Moynihan views modern India as “democratic” because of its electoral process and at least limited civil liberties. In view of that country’s conquest of Goa, its meddling in ethnic wars in Sri Lanka, and its past eagerness to become embroiled with Pakistan, I find it an exaggeration to describe democratic India as “peaceable.” Certainly it has not been more peaceable than its neighbor Pakistan, governed by a sequence of military regimes.
Having entered these qualified objections, I should add that Bork’s previously quoted remarks, which resemble enormities ascribed to Jeane Kirkpatrick, are even more alarming than Moynihan suggests. They amount to an open invitation to apply armed force against any state that is not in step with currently accepted definitions of “democracy” and “freedom.” In fact, there is no reason to assume that our definitions of these political buzzwords will remain constant, and it is entirely conceivable that we may eventually overthrow governments that fail to replicate our civil rights revolution and our feminist reforms. We have already taken belligerent action against a friendly state in southern Africa. And prominent liberal journalists, during the heady month of August 1990, were advocating that America impose female emancipation on Islamic societies. Modern democracy may indeed turn out to be the kind of rogue elephant that we have long considered communism to be.
If so, we can forget about Moynihan’s, or anyone else’s, restraining law of nations.
[On the Law of Nations, by Daniel Patrick Moynihan (Cambridge and London: Harvard University Press) 224 pp., $22.50]