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, however, 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 committed 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

[f]or Gorbachev and those closest to him the game in world politics had changed profoundly in the four years that separated his elections as CPSU general secretary and the collapse of Soviet power in Europe; if prior to 1985 the overarching object of Soviet foreign policy had been to strengthen the “positions of socialism” at the expense of the West, by 1989 a new goal—to secure Soviet admission to the elaborate collection of institutions that constituted the Western economic and political system—had arisen to take its place.⁷

This change in strategic objectives had come about as a result of the interplay between the international and the domestic, between strategic and constitutional change. It was Stalin's insistence on transforming the constitutional order of the states of Eastern Europe and the West's refusal to permit Germany to join this order, that kept the war going after World War II. As he told Milovan Djilas in the spring of 1945, “[w]hoever occupies a territory also imposes on it his own social system. Everyone imposes his own system as far as his army can reach. It cannot be otherwise.” Just as Napoleon had taken the tactics of artillery siege and broadened these, first to battle itself, and then to war against other states, so Stalin took the tactics of interstate conflict—the internationalized civil war of classes—and turned these tactics against the peoples of his own state and those he conquered.

This transposition was at the heart of the Long War, and it was no differ-ent in its way for liberal parliamentarians or for fascists. Each ideology sought to use its military victories against other nations as a means of imposing that variant of the nation-state that it championed. Thus, speaking of Poland's twentieth century conquerors, Michnik wrote:

In contrast to the Nazis, the Soviets imposed their own organizational structures on the Poles. [The Nazis] could not be bothered to create political organizations for the conquered people, whom they wanted to transform into a race of slaves [to serve the German nation]. The Soviet[s] systematically destroyed all social ties, political and cultural organizations, sports associations, and professional guilds, and abrogated civil rights and confiscated private property.⁸

And, it should be added, after the Japanese defeat the Americans rewrote the Japanese constitution, instituted a multiparty bicameral legislature and the Australian ballot, and provided for an independent judiciary.⁹

The real difference with respect to such forced conversions is between the nation-state, of whatever variant, and its state-nation predecessor. The imperial states of the nineteenth century were largely indifferent to the domestic social structures of their colonies so long as they were compliant. This point is ignored by those who claim that the Soviet Union was no more than a contemporary manifestation of historic Russian barbarity in politics. As John Gray noted in 1987,

this [claim] neglects the role of Marxian theory in constituting and reproducing the Soviet system and the relentless hostility of both to the traditions and achievements of the Russian people. [It fails] to grasp the radical modernity of the Soviet totalitarian system…¹⁰

This is the system that Gorbachev inherited: one that was preoccupied with the control of domestic society, which preoccupation was highly sensitive to global politics because international events had a profound effect on the legitimacy of the domestic regime. When Gorbachev attempted to transform Soviet and Eastern European domestic societies, it was with the goal of enhancing communism as a strategic actor; when this transformation only succeeded in delegitimating the socialist system itself, there were important consequences for Soviet international operations.

This process was begun by Gorbachev's adoption of the “revolutionary” methods of his predecessors, altered in content by the generational change which Gorbachev reflected and which was characterized by an attraction to some Western methods. Roughly speaking, Gorbachev went through three periods of cultural and political revolution: from 1986 to 1988, he attempted to renovate the domestic economy—not to prevent an imminent collapse, as sometimes appears in retrospect, but to make the socialist model more competitive internationally. In 1988 he broadened this agenda by introducing Western political reforms into the Warsaw Pact states (including the Soviet Union), though for different reasons abroad than at home. By 1989 he faced an unmanageable revolt in Eastern Europe, and economic and political disintegration in the Soviet Union, and he turned to the society of Western states for integration.

Radical economic upheaval was a periodic tactic of political reform in communist systems.¹¹ Stalin's “Second Revolution” discredited the NEP,* reversed Lenin's own reversals of his original program, and campaigned against the Old Bolsheviks. Gorbachev's program of perestroika was the last of such revolutions, and even its most memorable phrases were repetitions of slogans that originated with the Second Revolution, had lain dormant, and had been picked up again during the period of Khrushchev's radical populism.¹² From 1929, the beginning of the Second Revolution, to 1938 fourteen books used the word perestroika in their titles, but only two between 1939 and 1956. During the period of Khrushchev's radicalism, the term reappeared and nineteen such titles were published.

Gorbachev was a generation younger than the other members of the Brezhnev politburo of which he became a full member in 1980. His colleagues at that stage had lived through, and perhaps been formed by, the Stalinist “revolutions,” including the attacks on “left revolutionaries” and the adoption of “Socialism in One Country” that had subordinated international socialism to the improvement of the USSR. By contrast Gorbachev and his contemporaries described themselves as “children of the Twentieth Party Congress,” the congress at which Khrushchev had attacked Stalin and attempted to liberalize Soviet politics. If we may say that Brezhnev brought stability and predictability to a state that had been repeatedly jarred by Khrushchev, then we might also say that Gorbachev was eager to bring energy and innovation to a state that was widely perceived to have become sclerotic.

It was not a state, however, that was in deep economic difficulties or that was unable to hold its own in the superpower confrontation with the United States. Gorbachev's response to Reagan's challenge had more to do with his own dynamism and desire for innovation than with any particular difficulties imposed by the United States on the Soviet position. One can see this by simply comparing Gorbachev's response to American strategic initiatives in the world with those of Andropov and Chernenko, who worked in the early 1980s with virtually the same economic resources that Gorbachev had in 1985. When NATO refused to cancel its long-range theatre nuclear force deployments in Europe, Andropov abruptly withdrew from the Intermediate-range Nuclear Forces (INF) talks rather than bargain away the SS-20 forces that had prompted the NATO deployments in the first place. When Chernenko agreed to return to the talks, he offered a proposal—the so-called “zero option”—that eventually was accepted by the United States after Gorbachev had come to power. There was no noticeable difference in the strategic or economic conditions faced by the Soviet leadership under any of these men prior to 1988. The economy, which had grown at rates of 5 percent in the early 1970s, was, according to official estimates, slowing down to a rate of 2.5 percent by 1984, but this decrease was hardly unique to the Soviet Union. Growth in the United States, which had been at an average rate of 4 percent throughout the 1960s, had declined to about 2.7 percent in the 1970s and 1980s. Most Western European economies, already lagging behind the United States in per capita income, also experienced slower growth during the 1980s than the United States.

What did occur was a contraction of absolute growth in 1979 – 1982, but this was in part caused by a series of poor harvests and a drop in the utilization of industrial capacity, both temporary. In fact, grain yields rapidly improved from 1981 to 1986, apparently due to the adoption of improved agricultural technologies. Andropov's program of enhanced discipline also seems to have had a positive effect: industrial growth rebounded in early 1983. If the “core legitimation of Soviet rule was provided by the Marxist thesis that public ownership of the means of production, and the unified direction of production toward public objectives, would make a socialist economy more efficient than a capitalist one”¹³ and thereby enable the state better to provide for the welfare of the nation, then the contractions of the late seventies and early eighties were cause for some concern. After a long period in which the much poorer Soviet economy had grown at a faster rate than that of the richer and more developed West, it now appeared to be slowing down. This occurred, however, for so short a period and at so slight a rate that it is difficult to believe that it was in fact the source of the legitimation crisis that Gorbachev eventually found himself forced to confront. Rather, it was when Gorbachev sought to streamline the Soviet economy in order to make it more competitive strategically that his efforts inadvertently threw the Soviet state into a crisis in which his increasingly desperate measures—all efforts to copy successful Western programs to some degree—only furthered ensnared him. Partly this occurred because the piecemeal adoption of Western practices was counterproductive; partly because championing Western methods tended to enhance the prestige of the West at Soviet expense; but mainly because Gorbachev himself attempted to delegitimate Soviet practices in order to win support for his reforms—in much the same way that earlier internal revolutions had been conducted by Soviet leaders. When his program of economic reform failed, however, he himself had too greatly weakened the state apparatus for it to recover, and there was left only the residue of the delegitimation campaign he had all too successfully conducted. This climactic story began, it must be recalled, not with a Soviet program of conciliatory rapprochement with Western states, but with a pulsating ambition to compete with them.

Even before his election as general secretary, Gorbachev had warned that “[o]nly an intensive, fast-developing economy can ensure the strengthening of the country's position in the international arena, enabling it to enter the new millennium appropriately as a great and prosperous power.” When Chernenko died in 1985, Gorbachev became general secretary of the Communist Party. In one of his first speeches after assuming the leadership, he asserted that “the fate of the country and the place of socialism in the world” depended upon the Soviet Union reaching its economic objectives.

Gorbachev's first major announcement was the initiation of a strategy he termed the “acceleration” of economic growth, to be achieved by a quantum shift of resources into the machine-tools sector. This sector was directed to increase innovation and the share of new products in its output. Abrupt shifts of investment, which are characteristic of command economies, can bring about serious sectoral imbalances, slow growth, and cause inflation in the short term, but if the leading sector has been correctly identified, such investment strategies can bring competitive benefits. The Japanese approach of encouraging investment in certain identified sectors has, on the whole, been a success. And indeed the main feature of the Soviet 1986 – 1990 Five-Year Plan was a tremendous shift of investment into high technology.

For the USSR, however, the payoff of a stronger machine-tools industry never arrived because the government abruptly switched strategies. In 1987, barely two years after its adoption, the “acceleration” strategy was abandoned to the accompaniment of harsh attacks by Gorbachev on the command economy ideology that had produced such a policy. An alternative strategy of “radical economic reform” was announced. It is worth emphasizing that “radical economic reform,” far from implying a step toward a noncommunist program, was actually intrinsic to the communist system. Because the state was in charge of central planning for the economy—setting prices, allocating production targets, enforcing managerial discipline—any changes came from the top where advances in knowledge were expected to be reflected in refinements in policy. “Reforms reflected confidence in the strength of the system and its potential for improvement, and the revealing expression ‘further perfecting' was a standard part of reform decree titles. Some of the most sweeping economic reforms had been announced in the later 1950s, the golden age of Soviet society… when national income grew by more than 7 percent per year.”¹⁴

Gorbachev's new economic reforms consisted of attempts to graft market practices on to the centrally planned Soviet economy. Profit incentives were introduced and output targets deprecated. These reforms tended to undermine the authority of the command economy without actually producing the benefits of the market because they operated in isolation, without the background of the market and its free flow of labor, decentralized transactions, and demand pricing. In the Soviet environment, partial market practices either were of little effect or operated in perverse ways, as if to vindicate the microeconomic “theory of the second best.”¹⁵ Gorbachev's radical reforms brought about this contradictory environment: output targets were abolished but the state retained the right to requisition products at levels that encompassed most of enterprise output; the state renounced liability for enterprise debt but if losses were incurred, the ministry was the creditor of last resort; the ministry could no longer direct particular enterprises but was responsible for their overall performance; the “Law of the Enterprise,” which was supposed to give managers more discretion, stipulated managerial duties down to minute details.¹⁶ The economist Vladimir Kontorovich concluded of this reform agenda that

it could not work. Three elements of reform proved to be most destructive: managerial discretion over the output in excess of the state order, flexibility in wage and price setting, and strong incentives to earn above planned profit. Taken together, they frequently allowed the managers to raise prices of their products and the wages of their employees while cutting output.¹⁷

The effect was to increase inflation, which, in a command economy where prices were fixed, was reflected in worsening shortages of consumer goods. The actual economic contraction brought about by these reforms, however, was far less visible than the empty store shelves of which consumers complained.

During a series of addresses in 1986 – 1988, Gorbachev ridiculed central planning and the methods of the command economy, and called for “unleashing” the creativity of individuals, freeing them from overregulation and control and giving them a share in ownership. Compensation was to be tied to performance, not to a lock-step system that discouraged initiative. Part of the radical reform plan of 1987 provided for the election of enterprise managers by their employees. Nor was this delegitimation campaign confined to the shop floor:

The destruction of authority had actually started in 1986 with media criticism of managers, officials, and bureaucrats. This was a vintage communist campaign: high pitch, unrelenting, blanket demagogy…. The de-legitimation of authority and demoralization of those who wielded it swiftly led to an erosion of discipline. [By] 1988 it was becoming difficult to get workers for night or weekend shifts. Relations between suppliers and users, previously moderated by local Party committees, became more chaotic. Personnel cuts led to fewer and less coherent commands.¹⁸

More players moved into the vacuum thus created: miners went on strike, chemical and power plants were shut by environmental protests, and local authorities began to assert more independent control. The election of managers proved so costly to management control that it had to be reversed in 1990, but the collapse of managerial authority could not now be reversed.

Soviet statistics estimated the growth in national income in 1988 at 4.4 percent and in GNP at 5.5 percent (although the CIA estimated GNP growth at 2.2 percent). By 1989 there was widespread recognition that the reform agenda had failed. Most of Gorbachev's original policies had been reversed or abandoned; “acceleration” and “radical reform” were scrapped. Investment in high technology was frozen, and steps were taken to propitiate new players, the consumers and the workers. The Soviet Union had suffered other similar periods of recession but what now occurred was unprecedented: in the attempted reversal of the “acceleration” program and the “radical reform” program, it soon became clear that decrees to roll back these policies were simply being ignored and that the government in 1989 had lost control of the Soviet economy. By his attacks on the legitimacy of the system of central planning, Gorbachev had crippled the mechanisms that might have allowed him to halt the recession.

Broad public awareness of the impact of the reforms only came in 1990 when official statistics showed actual declines in GNP of 2 percent and 4 percent in national income. In 1990 military expenditures began to decline and higher priority was given to the production of consumer goods. By 1991 official data showed an extraordinary contraction of 15 – 17 percent, and the following year the rate of decline exceeded 20 percent.

There can be no doubt that the general secretary of the Communist Party played a decisive role in the collapse of the Communist system, ¹⁹ as did the United States president, but these roles are often distorted. President Reagan's confrontational anti-Soviet scheme, his increase in U.S. defense expenditures—particularly on missile defense—and his program of denying the Soviet Union hard currency (by holding oil prices down and thwarting the completion of a European pipeline) and high technology (by enforcing export controls) did not force the Soviet Union into an economic collapse. But these measures did focus attention on the superpower confrontation and challenged the complacent Soviet leadership, accustomed to détente in the Brezhnev years, to take up that challenge. This was enthusiastically done by the dynamic Gorbachev, who proceeded to mimic what he took to be the most successful strategic innovations of the West. This policy of partial strategic adaptation proved to be an economic mistake, but it only became an economic disaster when the political underpinnings of that adaptation began to be felt, because these disabled the Soviet Union from making the midcourse corrections that would have allowed it to stabilize and avoid the catastrophic economic events of 1990 – 1991. Moreover, the process of delegitimation used to win domestic support for these adaptations set in motion events on the international front—particularly in Eastern Europe—that ultimately played back into the constitutional politics of the Soviet republics and triggered the final collapse. All of these events followed the pattern of mutually affecting strategic and constitutional change described in Book I.

The Gorbachev of 1986 was hailed in many Western quarters as a conciliatory international leader; with the events of 1989 (including the acquiescence of the Soviet Union in German unification and Eastern European autonomy) and 1990 (especially the signing of the Charter of Paris) this view became the general opinion. Nevertheless, a less anachronistic description is probably closer to the truth.

For the confident Gorbachev of 1986 was by no means the supplicant of 1989. Two moves on the international scene won for him a wide following in liberal circles in the United States, Germany, and elsewhere: the surprise proposal made at Reykjavik in October 1986 to scrap nuclear weapons and the INF agreement signed in Washington in December 1987. I am inclined to believe that neither of these events justifies the conclusion that Gorbachev had abandoned, with these proposals, the Soviet aim to win decisive strategic advantages over the United States. On the contrary, both measures struck at the vitality of U.S. extended deterrence.

It is easy to lose sight of what was at stake in these dramatic negotiations, yet only if these stakes are kept firmly in mind can we make sense of the course of the talks. Very briefly, it can be said that the United States wished to treat Western Europe as part of its homeland (NATO having arisen in the period when there was only central deterrence), despite the reality of the end of deterrence identity between the United States and Europe (owing to U.S. homeland vulnerability to Soviet nuclear systems and the resulting birth of extended deterrence). At the same time, however, the USSR wished to treat Western Europe as a mere launching platform for the United States, not as a superpower in itself nor as a part of a superpower's homeland (because a threat against it was manifestly not as forceful as a threat against the U.S. homeland), despite French and British independent nuclear deterrents and the presence of American troops defended by nuclear weapons. Unwilling to concede the identity of security interests between the United States and Europe, the USSR could not, however, insist on wholly separate treatment either because to do so would have jeopardized the Russian insistence that its position as a superpower entitled it to parity with “the other half,” the rest of the developed world, then largely arrayed against it. This explained the constant Russian pressure on Western Europe to identify itself as distinct from U.S. interests, coupled with the contradictory refusal to treat Western European security concerns as on a par with those of the United States and the USSR.

One might draw the comparison in this way. For the Soviet Union, a superpower was entitled to pose threats (deployments) equal to the threats it faced from all sources; a balance existed when each superpower faced equivalent threats. For the United States, a superpower was entitled to pose threats equal to the threats posed by the other superpower; a balance existed when each superpower faced threats equal to those it posed. These paradigms are derived directly from the respective superpower relationships to Western Europe, one threatening, as it had to if its empire in Eastern Europe was ever to be truly secure, the other protecting, as it had to if its political and philosophical positions were not to be isolated in the world.*

There are two reasons why Gorbachev's strategic proposals have been regarded as evidence of his transcendence of previous Soviet thinking. First, many Western observers were themselves supporters of the abandonment of U.S. extended deterrence, that is, the abandonment of the protection of Europe by American nuclear weapons. Just as Soviet market-oriented reforms were applauded because they were associated in the West with economic efficiency and seemed likely to bring political liberalization, so dramatic cuts in nuclear weapons were also hailed as evidence of a reasonableness that heralded progressive political evolution. Second, later events did in fact lead Gorbachev to make significant concessions, and these—like the later economic collapse—imperceptibly color the way we see his earlier actions. Principal among these was his decision not to intervene to shore up the Communist regimes in Central and Eastern Europe. This was, I think it can be shown, a decision, as Gorbachev's admirers assert, dictated by his vision and not, at least at first, by necessity. That vision, however, was not one of a pluralistic Central Europe, independent of Soviet control. Rather it was a strategic vision, animated by a rather daring innovation: he would make the Warsaw Pact over in the image of NATO in order to protect it from the buffeting of developments in the domestic politics of its members, remove the stain of the Prague intervention when the Pact had been turned against one of its members, and use the alliance as a lever to pry away older leaders with whom he had little sympathy and replace them with younger ones who shared his dynamism and zest for innovation.

Throughout the 1980s various political and human rights movements in Eastern Europe had exploited the Helsinki Final Act declarations in order to develop civil institutions within socialist constraints. In Poland, Hungary, and Czechoslovakia there arose movements that anticipated the market state by bypassing state institutions and creating a sphere of private, associational action within which democratic methods and ideals prevailed. This was a daring intellectual leap, because it reversed the Marxist notion that materiality determines human consciousness. By simply creating a space where persons could speak the truth, recount their memories without self-conscious editing, and cooperate to perform nonpolitical tasks, these movements struck at the passivity that underlay the grip of Communism on Eastern Europe since its crushing of the popular revolts of the 1950s and 1960s.²⁰ The military strength of Soviet forces was no less in 1989, however, than it had been in 1968 when Warsaw Pact troops invaded and quickly overwhelmed Czechoslovakia. What had changed was not Soviet military dominance in Eastern Europe but the growth of an organized civil society there—as well as a different mood in the Soviet Union itself as a result of perestroika and glasnost. This new consciousness was reflected in literary works²¹ and philosophical essays, ²² but it found its most powerful institutional instrument in the Polish labor coalition Solidarnosc (Solidarity). Eventually this group embraced 90 percent of Polish workers; it assumed responsibility for managing production, settling trade disputes, and wage bargaining, thus bypassing communist institutions and rendering them obsolete by informally assuming their functions. When General Jaruzelski felt compelled to seize control of the country in 1981—in order to pre-empt Russian troops poised to cross the Soviet-Polish border—it was a tacit admission that the communist state had failed to legitimate itself with its principal constituency, the mass of industrial workers.

The Jaruzelski crackdown and the subsequent imposition of martial law were closely studied by the new Soviet leadership that came to power four years later. Shevardnadze concluded that imposing martial law had stimulated rather than silenced the noncommunist opposition. “So there is no reason,” he asserted, “to hiss at perestroika and cheer for military force. It would not be a bad idea for us to learn the lesson of martial law in Poland for ourselves.” Instead of opting for force—and here Shevardnadze and Gorbachev may have made an error by not distinguishing between Polish and Soviet force—the new Soviet leadership chose a strategy of counter-reformation, disclaiming the Brezhnev Doctrine and attempting to distance itself from the traditional communist leaderships in the other Warsaw Pact states, while striking the pose (which Gorbachev believed would be alluring) of a new, more humane socialism. This was certainly no mere miscalculation. Gorbachev was well aware that popular revolts had broken out in the Central European states whenever a Soviet leader had signaled the advent of a program of liberalization. This had occurred in Germany in 1953 after Stalin's death when Georgy Malenkov had briefly appeared to be contemplating a less restrictive relationship between the USSR and her allies; and again in Hungary and Poland in 1956 following the distribution of Khrushchev's secret speech denouncing Stalin.

Moreover, Gorbachev was also aware that the regimes which these revolts had briefly brought to power in Hungary and Poland had announced their intention to withdraw from the Warsaw Pact. Gorbachev was eager, however, to discredit the prevailing communist leaders in Eastern Europe in order to rally support for his own policies in the Soviet Union. If he were ever forced to order troops to fire on workers, the delegitimation crisis would grow even worse for communism in both places. He had to avoid being lumped with the leadership of a past generation, for whom (with the exception of Andropov) he had no great regard, and also thwart popular movements that might defect from the Warsaw Pact military alliance if these movements took power. A misstep in either direction would risk destroying the Warsaw Pact, as the inevitable domestic turmoil accompanying Gorbachev's liberalizations erupted in the member states.

If, instead, he could decouple domestic politics from membership in the Pact—as NATO had successfully managed to do—he might also be able to use the prestige and power of his role in the Warsaw alliance to improve his position at home without being dragged into embarrassing positions vis-á-vis the Soviet client states of Europe. If the communist governments could no longer maintain, let alone improve, the welfare of the populations they ruled in exchange for passive political and social compliance, it might nevertheless be possible to give responsibility for the economic problems with which these leaders had to deal to persons less tightly linked to the Soviet apparatus. Gerbachev thought he had found a way to detach the Warsaw Pact from the vulnerability of the Party, and even to strengthen his own control when like-minded leaders came to power in the associated states. The opportunity to test these ideas first presented itself in Poland.

A new round of strikes in 1988 forced the Polish regime to negotiate with Solidarity. Two outcomes of these negotiations were the acceptance of free associations—the cornerstone of the civil society developed in Poland and indeed the basic idea of Solidarity itself—and an agreement to hold partially free elections in June of 1989. Solidarity candidates proceeded to win virtually every seat for which they were allowed to compete, preventing Jaruzelski from forming a communist government. He then asked Solidarity to come into the government as a coalition partner. When Polish Communist Party leader Mieczyslaw Rakowski balked at this, Gorbachev telephoned him on August 22, 1989, and directed him to go along. In exchange, Solidarity promised to remain within the Warsaw Pact and to preserve communist control over the state organs of security. Jaruzelski would become president and chief of the armed forces; the Ministry of Defense would remain in communist hands. Now, Gorbachev calculated, the economic crisis triggered by the accumulation of debt from the previous communist regime would have to be dealt with by Solidarity. The Warsaw Pact was, if anything, stronger than before and promised to survive the domestic upheavals that seemed to be spreading throughout its membership.

This perception was flawed in two respects. First, to the Poles and to others in Central Europe, Gorbachev's policies reflected Soviet doubt about the effectiveness of coercion. This tended to embolden the nonCommunist opposition. Second, events in the Central European states inevitably reverberated in the Soviet Union itself. To Soviet citizens what was happening in Central Europe was unsettling, and made the communist alternative appear to be shunned by peoples thought to be fraternal allies.

The next opportunity to test Gorbachev's plans came in East Germany. When thousands of East Germans began packing the embassies of sympathetic Warsaw Pact states in an effort to expatriate to the West, Gorbachev gave approval to the Hungarian regime's proposal to open its border with Austria, permitting East Germans to flee. This triggered a mass exodus from East Germany and began the political crisis there that toppled the Honecker regime. As Michael Beschloss and Strobe Talbott wrote:

The Hungarian government had obtained the Kremlin's tacit consent in advance…. [Gorbachev] privately told his aides that Honecker would have to go, as soon as possible. “The East German leadership can't stay in control.” He ordered his General Staff to make sure that Soviet troops stationed in East Germany did not get involved in the strife that was sure to envelop the country.²³

After letting some nine hundred Germans escape in August, Hungary opened its borders in September. In October, Gorbachev met with Honecker in East Berlin and urged him to adopt “reforms”; twelve days later Honecker was removed from power and replaced by Egon Krenz. On November 9 the East German government opened up the Berlin Wall. Krenz announced that he was planning free, democratic, and secret elections. These elections removed him from power.

As Fyodor Burlatsky has put it, Gorbachev's original hope was to have “mini-Gorbachevs” come to power. As is now clear, he overestimated the degree of legitimacy of communist reformers in Eastern Europe. While his counterreformation might have worked in 1968, communist revisionism was long dead by 1989. A civil society had developed and with it, legitimate leaders had emerged [who] could demand greater concessions from the revisionist communists who were espousing the perestroika line.²⁴

Because these concessions were constitutional in nature they ultimately worked to defeat Gorbachev's strategic plan by destroying the Warsaw Pact.

On November 17, enormous spontaneous demonstrations erupted in Prague. Within one week the communist party leaders had resigned and a new government was formed. Now the process of constitutional mimicry began to operate against Gorbachev. Czechoslovakia and Hungary eliminated the leading role of the Communist Party from their constitutions in the fall of 1989, something hardly contemplated by perestroika. This quickly led to Czechoslovakia's decision to assert an independent foreign policy and to demand the removal of Soviet troops from Czech soil. On December 14, Poland announced that the agreement by which the Soviet Union had stationed troops in Poland was no longer valid. As Koslowski and Kratochwill concluded,

by allowing the eclipse of the leading role of the Communist Party within the bloc and at home, Gorbachev, probably unwittingly… defeated the rationale for the very existence of the bloc and its domestic institutions. When socialism was not automatically accorded a privileged position in the constitutions of any bloc state, the Warsaw Pact had lost one of its fundamental reasons for existence, making its continuation as an effective alliance less likely.²⁵

In February 1990 Gorbachev took two fateful decisions: He agreed to a plan for German unification and he essentially jettisoned the Communist Party as the vehicle for guiding the Soviet state. In that month he engineered the decision by the Central Committee to give up the Party's monopoly on power and allow a multiparty system. This move was completed when in March, Article 6 of the Soviet Constitution was abolished, thus legitimating opposition parties, and at the Twenty-eighth Party Congress in July, when the Party voted to give up its supervision of government by removing all government officials (except Gorbachev) from the Politburo.

But the Czech, German, and Polish revolutions in which Gorbachev had collaborated had encouraged rebellions in the Soviet republics. Widespread noncompliance with Soviet draft calls swept the country in 1990. The republics attempted to enhance their own legitimacy by declaring their separateness from Moscow, and assuring their publics that troops would not be used to suppress national movements. Boris Yeltsin, then the president of the Russian Republic, instructed Russian soldiers not to use force during the Lithuanian revolt, which occurred when the Baltic states asserted their independence from the USSR.

Gorbachev was no longer attempting to forge a more powerful and competitive Soviet Union; it was now a matter of simply preserving the Soviet state. This he decided could only be accomplished by joining the West. The vehicle for this partnership was collaboration in German unification. Such a partnership would offer him two advantages: it would enhance his personal political prestige as he would now be allied with the desirable West rather than the crumbling Party, and it would offer him access to financial support with which he might halt the Soviet state's quickening slide into bankruptcy.

This collaboration ended the Cold War. First fascism and then communism had been discredited, strategically and then constitutionally in the case of fascism, in the reverse order in the case of communism. Gorbachev's attempts to create a more strategically dynamic Soviet Union through constitutional innovation had in fact engineered a strategic collapse. In the wake of that collapse, legitimacy deserted the Soviet state.

A CONSTITUTIONAL AMENDMENT: THE PEACE OF PARIS

The focus now shifted to Washington, where an exceedingly complex set of problems presented themselves. While for many persons the chief American figure in the collapse of the Soviet Union was Ronald Reagan, a better case can be made for the team of George Bush and James Baker, who in 1990 faced a delicate and dangerous set of issues they managed to resolve with consummate skill. The fact that the Soviet Union collapsed on their watch did not, of itself, assure them a secure status in the pantheon of Western statesmen; to the contrary, had they pressed too hard in an effort to exploit the vulnerabilities of the Soviet position they might very easily have cast away the winnings earned by several generations of Allied leaders. Nothing could be more misleading than the cliché that the Bush administration “presided” over the demise of the Soviet Union.

George Bush and James Baker had formed their friendship in Texas. Bush's father had been an investment banker and later U.S. Senator from Connecticut; the son had come to West Texas to make his fortune in the oil business, and he had succeeded. Like the father, he now turned to public service. In Houston he met Baker; the two families soon became friends. Their backgrounds were not dissimilar: Bush had gone to Andover, then to Yale, where he studied economics and was tapped by Skull and Bones. Baker had gone to Lawrenceville, then to Princeton, where he studied politics and was bickered into the Ivy Club. Bush had joined the Navy after college and seen action in the South Pacific; Baker had joined the Marines during the Korean War. Baker had returned to Texas to go to law school and then had gone back to Houston, where his grandfather's firm was one of the largest and most successful in the country. Bush had moved to Houston to enter politics. When Baker was becoming the managing partner at a prominent Houston law firm, Bush was being elected the first Republican congressman from Houston in almost a century. The two men were tennis partners at the local country club. They had similar political views though one was a Republican by inheritance and the other a Democrat for much the same reason; both were centrist, mildly conservative, and rather non-ideological. When Baker's first wife died after an agonizing illness, Bush persuaded his friend to manage the Bush campaign for the Senate. Baker changed his registration and discovered a flair for politics that might have appalled his grandfather. Both men lost statewide races in Texas—Bush when he was defeated for the Senate in 1970, Baker when he ran for Attorney General in 1978. Neither man was a natural candidate. Indeed, excepting Bush's one successful race for the presidency (which Baker ran), neither has held public office by winning an election on his own since their defeats in Texas. Instead they flourished in high-level appointments in Washington, Baker first coming into the Ford administration as undersecretary of commerce, Bush having served Presidents Nixon and Ford in a series of senior posts (ambassador to the United Nations, director of Central Intelligence, envoy to the People's Republic of China). Bush arranged Baker's appointment at Commerce, and it was Baker who orchestrated Bush's most pivotal appointment, as running mate to Ronald Reagan in 1980. Baker managed the second Reagan-Bush campaign that assured Bush's primacy for the 1988 nomination.

Yet it was Ronald Reagan, who was a natural politician and had none of the awkwardness and self-consciousness of the privileged when they take up politics in a democracy, who brought both men to real power. He, and not they, had caught the wave of reaction that swept the United States in the late seventies and eighties. He made Bush vice president and then, to general surprise and some consternation among conservatives, chose Baker as his chief of staff. In Reagan's second term, Baker became secretary of treasury (having been blocked by conservatives from becoming national security adviser).

When Bush was elected, Baker was promptly named secretary of state. The Treasury portfolio is an ideal post, in the current era, to prepare for the State Department. It commands far less media attention and less competition from other players trying to usurp its role than the top jobs at State. By all accounts Baker was an effective treasury secretary, was partly responsible for the creation of NAFTA, successfully talked the dollar down in a tour de force of media and market psychology, and gained a reputation as a skillful negotiator. The Baker Plan to relieve Third World debt, however, never quite succeeded. Baker took to the Department of Treasury a team he had worked with at the White House, and these—Kimmitt, Zoellick, Ross, and Baker's spokeswoman Tutweiler—along with others he subsequently took to the Department of State. Thus by the time Baker went to State he had had eight years at the highest levels of government, in concert with a highly respected staff with whom he knew he could work effectively.

For several reasons Baker was better prepared for the role of secretary of state than any appointee since Dean Acheson. Like Acheson, he had served at the Treasury and had conducted negotiations with foreign states at the highest levels; like Acheson he had been a successful lawyer and thus blended a sense of practical affairs with the ability to interpret and formulate messsages; like Acheson he had cultivated with success members of Congress and the media, the two most powerful constitutional entities in Washington; like Acheson, he had served a charismatic president but had reserved his trust and intimacy for that man's less glamorous successor. But above all, like Colonel House, he had engineered the nomination and election of a man who regarded him as a trustworthy and intimate friend.

Beginning in late 1989—as Gorbachev changed direction and began aggressively seeking a cooperative relationship with the West—Baker developed an intense collaboration with his Soviet counterpart, Shevardnadze. From the following February, Baker and Shevardnadze met every single month (with one exception) until the signing of the Paris Charter.*

There were of course many issues to be thrashed out in this breathtaking schedule of meetings, but two particular objectives dominated all others. First, the Soviet Union had to be moved along a path that would transform it from a communist to a parliamentary state. Second, the incorporation of a unified Germany into the Alliance that had in one coalitional form or another fought the Long War, had to be accomplished. Of course these two goals were to a large extent intertwined, and this added to the complexity and difficulty of the diplomacy by which they were achieved. If either objective had failed, that failure could have sunk the other. For example, at the Twenty-eighth Party Congress in July 1990, anti-Gorbachev elements counted on the spectre of German unification to rally opposition against the government. If West Germany (the FRG) had appeared more threatening—less linked to NATO's essentially defensive posture, more likely to acquire nuclear weapons—the result could well have been increased support in the balloting for Yegor Ligachev, who had become the leader of the anti-Gorbachev forces. The prospect of removing the most critical state, East Germany (the GDR) from the Warsaw Pact and simply handing it over to the stronger FRG—a conquest without cost—ought to have been frightening enough to threaten Gorbachev's hold on power. The United States, however, had proved itself a supportive and sympathetic partner since the Malta summit and NATO at its London meeting the same month had publicly agreed to “eliminate the last vestiges of the Cold War.” Gorbachev was able to defend his policies by saying that the “context” provided by the Americans supplied the reassurance that enabled further agreements. Or to take a different counter-factual, if a more confrontational regime had replaced Gorbachev in Moscow, the German objective of reunification would not have simply vanished—it had achieved far too much momentum. Rather it would have been pursued by other methods, perhaps including the move toward neutrality with which the Soviet Union had so often tempted the FRG in the past. Bush and Baker thus had always to so maneuver in one dimension, the Soviet relationship, that they could use positive developments there to achieve results in the other dimension, Germany—and vice versa—when the historic relationship between the two states suggested just the opposite, namely that strengthening either society would alarm the other.

The most important steps that Bush and Baker could take to keep Gorbachev on the path toward assimilation into the society of parliamentary states had to do with protecting the increasingly hollowed-out shell of the Soviet state. So long as that state existed and so long as Gorbachev was its dictator—he had managed to ram through decisions when most of the Politburo opposed them, even in the case of the decision to remove the Communist Party's leading role in government—the Soviet Union would become increasingly parliamentary. Gorbachev was now careening along a course that could have almost no other desirable terminus for him than the embrace of Western economic and political multilateral institutions. Only a coup d‘état would interrupt this trajectory. If the state collapsed altogether, however, Gorbachev lost the reason for which he had turned to the West, which was the survival of the state. In such chaos, it was not clear in 1989 what leaders would succeed Gorbachev and what their policies might be. It may have appeared that the Soviet Union was unworkable and that it was disintegrating under its own, entropic forces, but in actuality the Soviet economy was

a workable system [though] decidedly inferior to capitalist economies. [I]t was compatible with modern industrial society and capable of technological change, increasing consumption, and taking on the rest of the world in military [and space] hardware.²⁶

Indeed it still possessed the world's largest arsenal of nuclear weapons. It was therefore imperative that Bush and Baker take every opportunity to insulate Gorbachev from the consequences of the ideological and political collapse of communism and to avoid appearing to exploit his troubles. After so long a struggle it would have been tempting to destabilize the Soviet system, covertly giving arms to the breakaway republics, flying into Eastern European capitals to make dramatic declarations on the order of Charles de Gaulle's “Quebec Libre!” speech, accelerating interest-payment schedules in order to increase pressure on the regime, and so on.*

From the West's point of view, however, the Soviet Union in some ways presented a more tractable set of problems than did the issue of German unification. Chancellor Kohl, who had often been derided as an unimaginative, plodding leader in comparison to his more glamorous (and rather more vain) predecessors Brandt and Schmidt, had seized the unification issue with an energy that surprised everyone, not least of all his allies. Legally, however, it was not an issue that was Kohl's to decide. The Four Power Agreement that originally divided Germany gave no sovereign status to either the GDR or the FRG. Unification would have to come about as a result of negotiations and agreement among the signatories to that agreement, namely France, Britain, the United States, and the USSR. Each of these great states had substantial interests in the outcome of German unification. Britain, France, and the Soviet Union were far from eager to see a resurgent, single German state in the heart of Europe, united only by a shared sense of German nationalism. Each state looked to use its role as one of the Four Powers to protect itself by managing the course of any unification. This arrangement, however, would deny Kohl the leading role as architect of unification and inevitably pit the Soviets (and possibly the French) against the United States and the United Kingdom over German membership in NATO and the continued presence of U.S. troops on German soil. Yet only Kohl was capable of keeping the new Germany in NATO; the Social Democrats in both Germanys had just agreed that a united Germany should not belong to any military alliance. The United States would have to find a way to reassure its allies that unification should proceed on Kohl's timetable and largely under his direction, and at the same time trust that Kohl would not compromise on the Alliance issue even though he would be subjected to enormous pressures to do so. These pressures would come from two sources: first, Gorbachev might make renunciation of NATO membership the price of Soviet consent to unification, and second, Kohl would soon face a pan-German election in which a large part of the electorate would have recently been at least nominal communists while Kohl's own coalition held a bare majority in the West German Bundestag.

Baker and his team handled both sets of problems with such effectiveness that it can be argued that their ultimate resolution in Paris ranks in significance with House's bringing the United States into World War I and Acheson's skillful creation of NATO and the Marshall Plan after World War II. Of course everything depended upon the president in each of these instances. George Bush possessed the personal modesty not to showboat at Gorbachev's expense and the patience to let the Soviet Union metamorphose internationally according to its own inner dynamic. Bush had cultivated good relationships with Allied leaders and was trusted by them. Perhaps most importantly, he deeply believed in the goals of the Long War. Every president has in his mind a predecessor who sets the mold for how he thinks the presidency should be conducted. For Franklin Roosevelt it was Wilson; for Lyndon Johnson it was FDR; for George Bush it was Dwight Eisenhower; for Bill Clinton it was John Kennedy. And for every presidency this mental model eventually causes great difficulties. President Bush was criticized for not having a domestic vision because he basically held, with Eisenhower, that the domestic sector would take care of itself if left alone by government. Bush was praised for his Gulf War leadership in part because, like Eisenhower, he proved to be an excellent coalitional war leader, sensitive to the political dimensions of alliance warfare. Eisenhower's life had spanned the Long War, and he held a crusader's view of its goals, expressed in the flat rhetoric of a centrist Republican. Bush was ideally suited to bring the Long War to a close, but he needed a foreign secretary who could devote himself almost wholly to this problem and devise and execute a set of negotiating tactics through the thicket I have described above, confronting and persuading three difficult parties: the Soviets, the Allies, and the U.S. Congress.

Instead of exploiting the increasing disarray within the Soviet bloc, the United States extended to the Soviet Union access to several multilateral institutions, offered financial aid and technical assistance for economic reform, and most importantly supported Gorbachev's obviously doomed efforts to hold the Soviet state together. Gorbachev's strategy now was to secure financial support for the Union, hoping that the republics would not wish to abandon a state that was their lifeline to economic assistance.*

During this period, Baker and his team devised a plan for effecting the reunification of Germany that had two important features: first, the Four Power Agreement would be used to create a “Two-plus-Four” negotiating framework, thus breaking out the two Germanys to negotiate with each other, and then presenting the results to the Four Powers, France, the United Kingdom, the United States, and the Soviet Union; second, Soviet consent would be sought for a new Germany within NATO. Both of these notions were highly controversial and there was strong opposition, within the Alliance and in Moscow, respectively, to both ideas. Baker, however, linked the two, realizing that by strengthening Kohl's position and Gorbachev's the United States stood the best chance of achieving its Long War goals—that is, of anchoring German democracy to the West and bringing the Soviet Union into the society of parliamentary states.

Initially, British, French, and Soviet foreign ministers rejected the Two-plus-Four plan, preferring what might be called “Four-plus-Zero” instead. This would have provided that the four powers agree among themselves on a program for reunification and then present it to the FRG and the GDR. This would have posed an insurmountable problem of what is sometimes called “path dependence,” the idea that the order in which decisions are taken affects their outcome. If an initial consensus among the Four Powers were required, the Soviet Union would be in a position to insist on a non-NATO Germany. But if the two Germany's themselves could reach consensus on a unification plan that permitted NATO membership, then the chancellor could bargain directly with Gorbachev and perhaps find a price for Soviet consent.* Moreover, “Four-plus-Zero” was a reprise of what had happened at Versailles—the imposition of a constitutional order without first achieving a consensus that included the German leadership.

In December 1989, President Mitterand and Prime Minister Thatcher met privately to share their misgivings about German unification. Earlier Mrs. Thatcher had emphasized that German unification was, after all, “more than a matter of the sensitivities of the German states.” She stressed that “the feelings and interests of other European countries” had to be taken into account. In Paris a debate began about whether a reunified Germany would kill the European Union. The diplomatic commentator, Pierre Lelloche, wrote at the time that “[t]he French are beginning to realize that post-Yalta Europe may well signal the end of French dreams of grandeur and French-controlled European ‘federation.’”²⁷ Baker, however, was able to persuade the British that “Four-plus-Zero” meant unacceptable delay and risked German unification by fait accompli. Without the British, the French could not afford to alienate German sensibilities by being the sole objector; in March the French Foreign Minister announced that France would not insist on a purely Four-Power agreement. In Ottawa on February 13, 1990, representatives of the Four Powers agreed on the “Two-plus-Four” plan.

Delivering “Two-plus-Four” cemented the U.S. relationship with Kohl, and in turn “enabled Kohl's government to persuade the Germans that a united Germany should stay loyal to NATO.”²⁸ Now Baker turned to winning the approval of Gorbachev for German membership in the Atlantic alliance. If this could be accomplished, then any residual German doubts about the wisdom of remaining in NATO would be quieted. At the same time, Baker sought to couple Soviet consent with approval of the Conventional Forces in Europe (CFE) Treaty, making drastic cuts in troop levels and armaments deployed across the Central Front of divided Europe. The vast size of the Soviet forces would be dramatically reduced and a system of international inspections put in place to ensure transparency—a confidence-building measure by which strategic surprise and an unintended chain reaction of mobilization and even pre-emption are sought to be avoided. The NATO fear of a massed tank attack that only the use of nuclear weapons could stop was abating. If Soviet consent could be won for “Two-plus-Four” and CFE, two parts of the three-part Paris Charter would be in place.

Chancellor Kohl now left for a hastily arranged meeting in the Caucasus with Gorbachev. About 3,000 East Germans were emigrating daily in addition to the 344,000 who had gone west in 1989. Kohl claimed that monetary union with the East was the only way of avoiding a complete East German collapse and a flood of refugees numbering in the millions. Gorbachev had continued to insist that a unified Germany would either have to be neutral or at least free of any foreign troops. The week of Kohl's visit, Yakovlev, Gorbachev's closest ally in the Politburo, asserted that Soviet troops would leave East Germany only when NATO left West Germany.

Three events beyond the Soviet Union, however, combined to change the Soviet position. First, at the Camp David summit in June Gorbachev had stressed his view that an American troop presence in Europe was a factor for stability. “I want you to know that I regard this as in your interest and in our interest,” he is reported to have told Bush, providing one more example of Gorbachev's increasing desire to become a part of a Europe-wide security system (within which, as many realized, Germany would sit uneasily as a nonnuclear power if the Soviet Union and not the United States were part of that system). Gorbachev had to be persuaded that the Soviet goal of a de-Americanized, denuclearized Germany was potentially catastrophic for Soviet interests: so long as Germany did not have nuclear weapons, the Americans would have to be present in Europe to provide a link to extended deterrence; if the Americans left, Germany was likely to acquire nuclear weapons for herself. Not two superpowers, half a globe apart, but the two largest armies in Europe would face each other, separated only by the Polish plain.

Then the Americans had proposed at the London NATO Council meeting on July 6 that the Soviet Union no longer be treated as an “enemy and that NATO should be transformed from a primarily military alliance to a primarily political institution.” Bush wrote to Gorbachev, “I want you to know that [the London Declaration] was written with you importantly in mind.” Having floated this offer scarcely a week in advance of the Kohl-Gorbachev meeting, the Americans waited anxiously for a reply.²⁹ Finally, on the day before Kohl left for Moscow, the West Germans announced they were sending the Russians food aid worth about $130 million. Against the background of these three events, on July 15 it was announced that Gorbachev and Kohl had agreed to a cut in German armed forces, a German subsidy to Soviet troops during the period of transition, and a Soviet undertaking to renounce all restrictions on the exercise of German sovereignty, including Germany's right to choose its own alliances. Kohl promised a broad program of economic assistance to the Soviet Union. The Soviets had abandoned their long-standing policy of forcing a German choice between unification with neutrality or continued German division with West German membership in NATO.³⁰

While Gorbachev and Kohl were celebrating their agreement, Ukraine became the seventh Soviet republic to declare its sovereignty. Like the Russian Federation, it chose for the moment to remain within the Union but it revoked the right of Soviet troops to remain on Ukrainian territory. Now the Soviets could hardly refuse to sign the CFE Treaty: in promising to remove troops from forward areas they were only conceding what would soon be forced on them. From the U.S. point of view, however, CFE established a precedent that would subsequently be used to govern agreements with Ukraine, Belarus, and the Russian Federation. There remained only the final piece, the commitment to parliamentarianism itself.

On September 3 Baker gave a summary of his goals: “to cast our vision beyond the prevention of war… to the actual building of peace. To prevent war, we must continue to deter aggression… To build the peace, however, America's role must go beyond balancing itself against remaining Soviet power.”

The “first task” on this agenda, he said, was

fostering legitimacy—or, to put it plainly, government selected by the people and responsible to them. After sweeping away the dictators of the past, the peoples of Central and Eastern Europe are working to build legitimate political orders that can endure. America must continue to stand with them, reassuring them of our commitment to their new democracies.³¹

He then proposed free elections as the qualifying standard for every state, and outlined a CSCE (Conference on Security and Cooperation in Europe) process to monitor such elections. This proposal was formalized in the Copenhagen Declaration, which was then ratified by the Charter of Paris and formed one of the crucial documentary elements of the Peace of Paris. When Gorbachev was temporarily overthrown in a coup d‘état, this provision was given such dramatic emphasis that the subsequent Moscow Declaration, the final document in the Peace of Paris suite, explicitly provided that democratic regimes were to be guaranteed by the state system and that the sovereignty of any state was forfeited if it failed to uphold the parliamentary model. The Long War was ending, and a new constitution for the society of states was being put in place.

In form, the Charter of Paris is more or less explicitly an amendment and extension of the Charter of the United Nations, which is reaffirmed in the text of the Charter of Paris. Indeed the Peace of Paris, which includes the Charter of Paris, can be seen as an amendment to Versailles (and San Francisco, which had promulgated the United Nations Charter). The final amendments to the Versailles/San Francisco system include the series of political agreements made by the participating states of the CSCE, beginning with the Helsinki Final Act in 1975, the Charter of Paris in 1990,* as well as the Copenhagen and Moscow Documents, which bracketed that Charter. These signified the end of the Long War by recognizing Germany, and created the instruments by which Russia was formally admitted to the society of parliamentary nation-states. Taken together, these agreements provide the texts of the constitution of the society of nation-states. As Judge Thomas Buergenthal wrote in 1992, the process I have called the Peace of Paris “has transformed into a new order for the world.”³²

For three days in Paris in late November 1990, the heads of state or government from thirty-four nation-states—including the Soviet Union, the United States, Great Britain, Germany, and France—met for the second time since the signing of the Helsinki Final Act in 1975. The Paris summit was neither one of the follow-up meetings contemplated by the Helsinki Final Act, however, nor one of the minor meetings provided for on specific subjects. Indeed a “summit of this nature was, in fact, not envisaged by previous CSCE decisions.”³³ Gorbachev proposed this reconvening of the parties that had first met at Helsinki in order to give the blessing of the society of European states to the “Two-plus-Four” agreements that unified Germany.³⁴ It was also felt that such a forum might encompass the signing of the CFE Treaty among twenty-two of the CSCE members, confirming for the entire European community an arms control agreement to which only some members were parties. Finally, the meeting in Paris would formalize the adoption of free elections in all member countries. The linking of these three subjects is significant for our study. Only when one variant of the nation-state had achieved consensus could the Long War end, unifying Germany and demilitarizing the central front. The commitment to parliamentary forms of election was thus a precondition, not a consequence, of the success of the other two issues to which it was joined in Paris.

The core provisions of the Charter of Paris that issued from this congress are contained in its first chapter, “A New Era of Democracy, Peace and Unity.” It declares that

Europe is liberating itself from the legacy of the past. The courage of men and women, the strength of the will of the peoples and the power of the ideas of the Helsinki Final Act have opened a new era of democracy, peace and unity… We undertake to build, consolidate and strengthen democracy as the only system of government of our nations. In this endeavor, we will abide by the following: Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and are guaranteed by law. Their protection and promotion is the first responsibility of government. Respect for them is an essential safeguard against an over-mighty State… Democratic government is based on the will of the people, expressed regularly through free and fair elections. Democracy has as its foundation, respect for the human person and the rule of law. Democracy is the best safeguard of freedom of expression, tolerance of all groups of society, and equality of opportunity for each person. Democracy, with its representative and pluralist character, entails accountability to the electorate, [and] the obligation of public authorities to comply with the law and justice administered impartially…³⁵

This charter then affirms the principles of the Helsinki Final Act, welcomes the new CFE Treaty, and concludes with an explicit approval of the Treaty on the Final Settlement with Respect to Germany signed in Moscow on September 12, 1990, which united Germany. Thus the title of the chapter: “Democracy [the provision for free elections and human rights], Peace [the endorsement of CFE], and Unity [the recognition of Germany].”³⁶

Other commentators likened the summit meeting to “the historic Congress of Vienna.”³⁷ In a perhaps unwitting reprise of Woodrow Wilson's remarks about the Versailles Conference, ³⁸ President Mitterand emphasized, however, that the Paris “Summit was the ‘anti-Congress of Vienna' because on the previous occasion the victorious powers remodeled the map of Europe without much regard for the aspirations of the peoples while the [Paris] Summit was the exact antithesis of such an approach.”³⁹

Perhaps most interesting for our study, however, is Mrs. Thatcher's characterization of the Charter of Paris as “a new Magna Carta.”⁴⁰ What the British prime minister had in mind by this description is the Charter's emphasis on the provision of human rights. This observation underscores the role of the Peace of Paris as a constitution. Earlier constitutions, particularly Augsburg and Westphalia, had intertwined human rights—religious freedom in particular, but also the right of immigration—with the powers of states, just as domestic constitutions do. In contrast to the U.S. Bill of Rights, which might be said to describe a structure wherein every power not granted to the government is retained as a human right by the people, Magna Carta is best described as granting rights. In the case of sovereign states, such as those that convened in Paris, their promises to secure human rights are indeed very similar to those of Magna Carta. The Charter of Paris provides that states “affirm that, without discrimination, every individual has the right to freedom of thought, conscience, religion or belief, freedom of expression, freedom of association and peaceful assembly, freedom of movement [and that] no one will be subject to arbitrary arrest or detention, subject to torture or other cruel, inhuman or degrading treatment or punishment…” This language is further evidence of the constitutional nature of the Long War—the struggle to define the source of legitimacy for the State from which the division of rights and powers arises—intertwining the domestic and international, the legal and strategic. “It is clear that states which adopt ideologies incompatible with the new… democratic public order must henceforth be considered in violation of their [legal] commitments.”⁴¹ Strikingly the Moscow declaration, the final element in the Peace, states, “the commitments undertaken in the field of the human dimension… are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned.”⁴²

The Peace of Paris provides the source of an overarching constitutional order that sets the standard to which all national legal and political institutions must conform. In Buergenthal's insightful words,

[t]hese constitution[al documents] articulate national political, social, economic and sometimes even moral values; they set various priorities for the nation; they establish or call for the establishment of governmental institutions; and they lay down the framework for the evolution of the political process. In short, they shape and are the ideological and political source of the nation's constitutional order…. The nation's law and legal institutions derive their legitimacy from these constitutions.⁴³

The Peace of Paris ended the Long War, amended the agreements at Versailles and San Francisco, and completed the process of formally globalizing the European nation-state through a universal international law. The Peace of Paris also, however, has elements of a transitional document about it for it gives a glimpse of the new constitutional order that is emerging and that has yet to suffer its epochal war.

These harbingers of the market-state include a change in the definition of sovereignty that allows human rights to become an enforceable part of international law, as was most recently seen in Kosovo, where Serbian sovereignty was abrogated; an effort to give formal recognition to nonstate institutions, like the media of journalism and the multinational corporation, and to give them a constitutional role in the life of the State according to consumer, not voter, preferences; to ensure for the market-state and its consumers free and open markets (just as Versailles had attempted to ensure free and open democracies for self-determining voters). All of these portentous changes were largely ignored at the time but each is highly controversial and likely to be the source of conflict in the future. Slobodan Milosevic is not the last leader to deny vital human rights to a group of his citizens—as the Dalai Lama might have reminded us. Some twenty states still attempt to censor or strictly control access to the Internet, and Malaysia has been successful—for the time being—in imposing capital flow controls to regain some measure of power over its currency. Most important, there are deep divisions—described in the scenarios in Chapter 25—among the three emerging versions of the market-state and their respective attitudes toward sovereignty and the relationship of sovereignty to human rights.

CONSTITUTIONAL INTERPRETATION: THE LEGAL SCHOOLS

In 1922 Maxim Litvinov, the Soviet foreign minister, said that “it was necessary to face the fact that there was not one world but two” and “there was no [other] world to arbitrate [between them].” In 1990, however, Gorbachev proposed, in a speech to the United Nations,

to expand the Soviet Union's participation in the controlling mechanisms of human rights under the aegis of the U.N. and within the framework of the European process. We think that the jurisdiction of the International Court in the Hague with regard to the interpretation and application of agreements on human rights must be binding on all states.⁴⁴

What developments had occurred in international law that reflect this enormous journey?

The international law that led to the Peace of Paris was a reaction to the failure of both Weimar and Versailles: that is, it was a reaction to the domestic consequences of the collapse of a legally constructed state and to the international consequences of the continuation of the Long War precipitated by that collapse. Not simply the laws, but the very state itself of Weimar* was purpose-built, and this obvious fabrication was inevitably contrasted unfavorably with the sentimental, allegedly ancient, customary state of the Wilhelmine Reich (though both were of a very recent consti-tutional order, the nation-state). The Weimar state was discredited by Versailles, which imposed a parliamentary form on Germany; and the failure of Weimar in turn was soon also to discredit Versailles, as it became apparent that the peace settlement had failed and that the war that began in 1914 had persisted beyond 1919.

It has rightly been observed that the international law of the period before the Long War

[saw] intergovernmental and non-governmental organizations playing relatively a minor role on the global stage. Customary law and state practice formed the primary sources of international law which served a largely interstitial laissez-faire function, reflecting vested national interests and leaving large realms of unregulated state activity.⁴⁵

The Long War, however, introduced a new era, which has been characterized as that of international institutions rather than international law.⁴⁶ The customary practices of the great state-nations gave way to the codifications of the nation-state, which created the League of Nations and the Permanent International Court of Justice. These products of Versailles reflected the nation-state's characteristic reliance on law. In the most public and historic way possible, however, the League and the PICJ soon proved to be failures.

The San Francisco replay of Versailles had intensified the move toward institutionalizing international law, with not much better results. Harold Koh puts this well:

Following World War II, the architects of the postwar… system posited [a] complex positive law framework of charters, treaties, and formal agreements, [an] intensely regulatory, global framework…. Almost immediately, however, the Cold War era and the intense bipolarity and political realism it fostered rendered this positivistic vision a Potemkin Village.⁴⁷

The irrelevance of international law to the global, epochal conflict then raging was compounded by changing attitudes toward law itself. Dean Acheson wrote dryly that “[t]hose who devote themselves to international relations… are understandably reticent about the role of law.” They knew, Acheson said, that law was what government officials said it was—no more—and that the study of law was the assessment of what, in fact, authoritative legal decision makers would do when law was invoked as a basis for decision making.* This was hardly welcome news to those international lawyers who hoped to restrain power through law; if law was only what the powerful said it was, how could international law compel a state to do anything that was not in that state's interest? And if that was the limit of the law, what did it contribute beyond the rational assessment of self-interest that would take place anyway?

Out of this intellectual and moral abyss, a half dozen schools of thought emerged, each trying to establish a justifiable yet realistic basis for international law. They began with the classic approaches that had originated with Vitoria and Suarez at the birth of the modern state, but these schools transmuted those inherited approaches in light of the challenge of the Long War and the death of the idea of a jurisprudence that was distinguishable from politics, a jurisprudence that could be found, rather than made (up).

The fundamental approaches that divided thinkers about international law before the twentieth century can be roughly characterized as formalism and naturalism. Formalism focuses on the extent to which legal truths are the result of following arbitrary rules, that is, rules that have no necessary relation to any particular content. The formalist in international law, like Suarez⁴⁸ or Austin (or Leibniz), derives the truth or falsity of a legal proposition from a fact unrelated to its content. The international law governing, for example, the extraction of minerals from the sea may change its content over time but so long as it is generally recognized by the society of states, it has the status of law. Any particular proposition of law (e.g., states are entitled to the minerals in their littoral waters) is true if the test of general recognition is met. By contrast, the naturalist in international law, like Grotius⁴⁹ or Bluntschli (or Hume), holds that the relationship between the content of legal rules and the world accounts for their truth or falsity. Legal rules must be in accord with the nature of man, which is part of the nature of the universe. For example, one of the doctrines of jus cogens† holds that slavery is a violation of international law. If a state were to deny this was the case—indeed if two states were to deny this proposition in a treaty between them—the proposition that slavery is against the law would still be true, because it is in accord with the most fundamental human rights that arise from man's capacity for free will. In the case of both naturalism and formalism, the truth of a legal rule is tied to something in the world, but in one case (naturalism) that something has to do with the content of the legal rule, and in the other (formalism) that something has to do with the status of the rule as law, irrespective of its content.⁵⁰

In the early twentieth century, principally in the United States, the foundations of these two traditions were shaken by a new movement, Legal Realism. One of its founders, Karl Llewellyn, had written in 1930, “What these officials [judges, sheriffs, clerks, lawyers, presidents] do about disputes is, to my mind, law itself.”⁵¹ Llewellyn and others then set about showing that it was virtually impossible to account for past decisions by reference to the body of legal rules alone, let alone to predict what officials would in fact do in actual cases in the future. When the move to a society of nation-states took international law away from a small coterie of sophisticated specialists and put it in the hands of mass propagandists seeking justifications for their foreign policies, international law became vulnerable to the disenchantment that arose from the Realist critique of law generally. It was obvious that international law was manipulated to rationalize rules rather than to determine them, that sometimes it was ignored in deference to powerful interests, and that it even appeared indeterminate, leaving its commands to be decided by the changing needs of foreign policy.

Formalism and Naturalism in international law played out in various different attempts to meet the challenge of Legal Realism. Formalism became the source of three schools of thought: Legal Process, Nominalism, and Consensualism. Naturalism served as the source of the New Haven School, Neo-Realism, and what might be called Perspectivism. These families of thought about the basis for international law have, as families do, overlapping memberships, black sheep, father figures, deeply held prejudices about each other, relationships deriving from birth order, inherited traits, exaggerated genealogies, and so on. The distinctions among them have to do with their answers to the two shattering twentieth century questions about international law: if the body of international legal rules cannot uniquely determine the legality of a particular act by the parties it is supposed to govern, how can it be law? And if international law is law, why doesn't it seem to have any effect? Indeed these two challenges, arising from developments in law (the claims of Legal Realism) and strategy (the persistence of the Long War), might be put in a single question: would the history of the twentieth century have been any different if there had been no international law?

LEGAL PROCESS

The advocates of the International Legal Process School begin with the answer to the Legal Realist challenge given by Henry Hart, whose influential work, The Legal Process (with Albert Sacks), initiated an entire movement in American jurisprudence. Hart sought to change the focus of jurisprudence from the substantive rule finding so much in evidence in nineteenth century treatises on law to the process of creating precedent. It's not what judges do, Hart told us; it is how they do it. Granting the Legal Realist's argument that assessing the substantive fairness of a particular outcome is a matter of ideology, Hart's approach holds that fairness will nevertheless result if methods of legal decision making that all parties concede to be fair are scrupulously adhered to. That adherence, not the substantive fairness of the rules, will in turn deliver legitimacy, and legitimacy will bring about compliance. Thus the International Legal Process School denies that law is altogether manipulable by the parties—and thus it retains its distinction from politics—because the legal process is distinct unto itself,* and is assessed by legal, not political, standards.

The Hart and Sacks materials that dealt with U.S. domestic law had emphasized the interaction of institutions and procedures. When Abram Chayes, Thomas Ehrlich, and Andreas Lowenfeld published a set of case materials on international law, these were self-consciously styled on the Hart and Sacks work. Like the earlier case materials, they cut across doctrinal lines, including case studies drawn from international business as well as public international law and those arising from the acts of international organizations as well as the acts of states. The authors met the Legal Realist attack on international law head-on: they explicitly asked, “How and how far do law and lawyers and legal institutions operate to affect the course of international affairs?” and, anticipating their own answer to this question, they added, “What is the legal process by which interests are adjusted and decisions are reached on the international scene?”⁵²

Hart's jurisprudence, however, was highly court-centered. The legal process was legitimate because the conscientious work of judges, rendering dispassionate judgments based on neutral, general principles derived from precedent, seemed to provide an answer to the Legal Realist's insight that the substance of the principles themselves could not be explained on a neutral basis, nor the scope of their application—their generality— justified on distinctly legal grounds. The role of courts and the availability of sanctions that render courts powerful were, however, far less in evidence on the international scene. Here, the International Legal Process advocates offered a startling defense of the analogy of their subject to that of Hart and Sacks: domestic law was not, in fact, as court-driven as it might appear. Much constitutional law was, for example, not reviewable by courts⁵³ and therefore the near-absence of judicial process in the international arena was not fatal to the Legal Process theory. Analogous institutional methods of constraining power by professionalizing the habits of officials were at work in both systems, domestic and international. Diplomats and senior officials also profited from the legitimacy conferred by well-understood rules, dispassionately applied.

But if the practical benefits of compliance with international law— predictability, mutuality, inertial continuity—were the basis for its operation, then presumably adherence to law would be abandoned when even greater benefits ran in the opposite direction, that is, toward noncompliance. That made legitimacy nothing more than a by-product of convenience. The international wing of the Legal Process School, by stressing the real-world forces making for coherence in and accommodation to law, sacrificed Hart's claim that legal process was fair not because it was efficient and effective but because it treated parties equally. By contrast, in the real world of international affairs, the relative weight and influence of the parties was supposed to be a determinative factor: that's what made the real world “real.”

CONSENSUALISM

Outside the United States, one school of thought overwhelmingly dominates international law. I have chosen to call that school—which to most of its adherents seems so authoritative, so indisputable, that the term school seems inappropriately sectarian—consensualism because it holds that the content of international law depends wholly (or almost entirely) on the consent of states. Because states are the only entities capable of endowing international law with authority (on this view), only law created by states can legitimately bind them; and because states are sovereign, they can only be bound by that law to which they consent. To the challenge posed by the Legal Realists, the Consensualist replies that the entire approach of Legal Realism is parochial. Of courseinternational law does not have the structures of compliance that domestic law does and therefore to the provincial mind might appear not to be law, just as snails or sweetbreads might not appear to be food to someone accustomed to the sort of cuisine found at McDonald's.

A system of law designed primarily for the external relations of states does not work like any internal legal system of a state… As regards [the question of] international law as “law,” the arguments of the critics [seize] upon… the topic of sanctions and compliance without recognizing the historical, structural and functional differences between legal systems within states and the international legal system as the necessary starting point of analysis. After all, there is no reason to assume that the international legal system must, or should, follow the historical models of centralized systems of national law… A horizontal system [like that of international law] operates in a different manner from a centralized one…⁵⁴

To the critic's point about the apparent failure of compliance with the legal order, the Consensualist has a suave and disarming reply. Because the international legal order is solely composed of those rules consented to by states, it is, ipso facto, usually complied with although its domain is more modest than those persons might wish who seek to use international law to reform states or coerce them into adopting particular policies. In any event, “spectacular cases of violation of international law, which attract the attention of the media more than regular conduct, are exceptional and should not be confused with the ordinary course of business between states.”⁵⁵

Consensualists share a fundamental premise: because international law is made and implemented by states, the consent of states, as manifested in their original intentions memorialized in explicit or implicit agreements, is the only basis on which rules may legitimately be said to govern state behavior.

Both parts of this premise, however, are under intense attack: the first because it seems to fly in the face of the increasing role of international organizations and the development of doctrines of human rights in international law that accord a legal role to the individual; the second, because the current behavior of states is a much surer guide to their attitudes about the propriety of governmental acts than an hypothesized “original” intention at some earlier time, even if that intention could be determined with accuracy (which is seldom the case).

There are answers to these objections. To the first, it might be observed that international organizations are to a large extent dependent upon the territorial entities—states—that fund them, carry out their mandates, and permit them to operate within their jurisdictions; this goes for the NGOs (nongovernmental organizations) as well, who exist at the sufferance of states, despite the occasional press release of the NGO that appears to suggest that it is the other way around. After all,

[o]nly states can be members of the United Nations, only states are entitled to call upon the U.N. Security Council if there is a threat to international peace and security, only states may appear in contentious proceedings before the International Court of Justice, and only states can present a claim on behalf of a national who has been injured by another state if there is no treaty [an agreement confined to states] to the contrary.⁵⁶

To the second objection, the Consensualist replies with alarm that to abandon the edifice of the law in favor of chasing after the current political practices of states is to abandon what is useful and distinctive about the law: that it provides a standard by which current state practices are to be judged. A constant revision of these standards in order to bring them into congruence with discrepant behavior sacrifices this role; it allows “acts that would otherwise appear delinquent [to be] alchemized into harbingers of revised standards.”

⁵⁷

The risk incurred, however, is that political actors will simply ignore a body of doctrine that increasingly departs from their interests. The Consensualist accepts this risk, underscoring the difference in mission between the Consensualist and other post – Legal Realist thinkers: the former does not seek to be a political adviser; rather he wishes to “preserve law's contribution to order by protecting its autonomy from ephemeral shifts in power and interests,”⁵⁸ even if it means appearing irrelevant. The Consensualist has one powerful arrow in his quiver—the ability to make governments squirm, to embarrass them, to require them to play the hypocrite before their publics—and he is reluctant to give up this high moral ground. The Legal Realist's reply concedes that, as la Rochefoucauld said, “hypocrisy is the compliment that vice pays to virtue,”⁵⁹ but asks “what good are compliments”?

There are, however, also very practical reasons why this particular school, so much ridiculed in the United States, is far and away the most dominant form in the world generally. One reason why the Consensualist position appears so unrealistic is that it treats the consent of all states equally, ignoring their relative positions of influence. This has the consequence of requiring a breadth of consensus to change international law that is very difficult to achieve and that gives marginally less powerful states a more influential role than those schools of international law that look to the behavior of the most powerful state as determining the content of legal rules. I think this in part accounts for the fact that outside the United States much of what Legal Realism regards as the “basic legal myth” still flourishes in international law. Not only European scholars⁶⁰ in international law, but also Asian scholars and commentators have been reluctant to depart from the traditional, Consensualist view of international law as located and determined rather than decided upon.⁶¹

NOMINALISM

The original intention of the states who are parties to a treaty or to a tacit understanding (as with custom) is binding in international law because that intention represents the scope of the states' consent. This is the basis for consensualism. But to what precisely did the parties consent? Not to their intentions, for states seldom have precisely the same intentions. Rather like partners in a marriage of convenience they share the same bed but dream different dreams. The parties consent to a text, however, regardless of what intentions, if any, they may have shared. Indeed as a predictor of behavior, the original intentions of the parties begin to decay as soon as the moment of consummation has passed. If international law is extrapolated from the behavior of states, then their once-consensual agreement on a matter must be counted an increasing irrelevancy because “original intention has no intrinsic authority”⁶² save what states choose to endow it with. Because the society of states is still in session, if intentions are to govern there is no reason to deny that society the authority to determine the propriety of a state's acts and omissions according to the present intentions of that society. But to do that is to accept that international law is no more than what states at any moment wish it to be.

A different approach to the problems posed by Legal Realism avoids the pitfalls of intentionalism by directing us to the text—for that is what the parties have agreed to, regardless of their intentions or their subsequent regrets. This approach can be termed nominalism.

The creed of the Nominalist might be put this way: Statecraft, long before there were written constitutions, found a role for written agreements.⁶³ Texts do not replace the networks of norms, conventions, and institutions that help to manage international relations and are so prized by legal process theorists, but formal writing in the diplomatic idiom does provide an economical and relatively unambiguous way for political leaders to commit themselves and their posterity, a necessity precisely because intentions may change. Besides this, written commitments catalyze a public dialogue over proposed commitments by the state. Such a dialogue can coalesce the public and its leadership around these commitments or prevent the state from making undertakings it cannot or should not fulfill.

It is true that “international law, like all law, involves the pursuit of social ends through the exercise of legitimated power and that in this sense it is reasonable to consider it as an aspect of the broader political process influenced by the factors that operate in politics generally.”⁶⁴ But law is not the same as politics, for the set of rules that law comprises is binding on the political process, that is, accepted “as a means of independent control that effectively limits the conduct of the entities subject to the law.”⁶⁵ Thus Oscar Schachter, a leading Nominalist in international law, rejects the Legal Realist's conclusion that international law is simply what states do. If we were to accept that state practice, and not the substance of legal rules, legitimates state action, then we would have sacrificed the binding, normative element of law. It seems as though we must then either put this element back in (as do the New Haven School personalities with whom Schachter was once associated) by empirically locating the normative nature of legal rules in a survey of the universally shared norms of the world's political cultures, or do without it, thus rendering law no more than an eccentric garnish, ⁶⁶ like a classical allusion in a modernist poem. The Nominalist, however, locates this normative element in texts, and supports his position by pointing to the empirical fact that states are indeed most likely to restrain themselves when bound by specific treaty language. This is the Nominalist cosmology—a universe in which legal rules can be distinguished from both statements about the world (e.g., states happen to observe the three-mile limit) and moral statements (e.g., for the good of all, states ought to observe the three-mile limit). While there are areas of the law—including the regulation of force, the right to self-determination, the economic rights and duties of states, and extraterritorial jurisdiction— where “the ratio of specific rules to general principles is low,” these are areas largely bereft of binding texts and, for this reason, are appropriate for the admixture of policies and practices.⁶⁷

One example of this approach can be found in the debate over the legal parameters of armed intervention. The United States has argued that because sovereignty arises from the people, states that repudiate that popular basis—by denying democratic forms, or by practicing terror against their own populations—forfeit their claims of sovereignty and are therefore subject to lawful intervention by other states. Both the Haitian and Panamanian interventions* can be legitimated on this basis. Yet the texts of the U.N. Charter, numerous treaties, and U.N. resolutions explicitly proclaim the territorial integrity of states and their right of independence without qualification. For Schachter, the idea that “wars washed in a good cause such as democracy and human rights” do not violate these explicit textual prohibitions demands “an Orwellian construction of those terms.”⁶⁸

Text-based Nominalism is to be distinguished from the Legal Process School by its recognition that the normative force of the law is not to be found in legal procedures, but in the creation and application of substantive legal rules that “necessarily involve conditions, determinants and values that fall outside the law.” At the same time, Nominalism is also quite different from Consensualism. For example, in the dispute over whether the special military agreements contemplated by Article 43 of the U.N. Charter are a precondition to the forming of military forces for missions endorsed by the U.N. Security Council—a dispute that arose over Desert Storm operations against Iraq—the two approaches came to different conclusions. An historical, consensualist account, reflecting the intentions of the framers and ratifiers of the Charter, would appear to require such agreements.⁶⁹ Schachter concluded, however, that the fact that there is “no explicit language in Article 42 or Article 43… preclud[ing] states from voluntarily making armed forces available to carry out the resolutions of the Council [validly] adopted under Chapter VII” permitted the use of these forces.⁷⁰

THE NEW HAVEN SCHOOL

Oscar Schachter posits this hypothetical: Suppose the U.N. Charter's unanimity rule for action by the Security Council were to be challenged on the ground that this rule was not, after all, compatible with the higher values of peace and security, as was shown countless times during the Cold War when the Soviet veto thwarted action by the Security Council. Suppose the network of treaties making up the Law of the Seas were to be held inconsistent with the fundamental goal of the freedom of the sea. Or imagine that one were to attack the decision of the International Court condemning Iran in the Tehran hostage case as invalid “by asserting it gives effect to diplomatic immunity, a ‘secondary' international policy rather than to national sovereignty, a ‘fundamental' goal.” There is no treaty, no legal rule, no precedent that cannot be unseated by an appeal to higher values— which is a way of saying that law is replaced in such analysis by policy. The object of this hypothetical exercise⁷¹ is to ridicule gently the New Haven School, ⁷² which exalts the fundamental values of world order as the indispensable guide to determining and applying international law.

The New Haven School is an informal collegium that resulted from the remarkable collaboration between Harold Lasswell, a polymath social scientist, and Myres McDougal, a Legal Realist law professor at the Yale Law School and academic empire builder of whom Clive would have been envious.

By the mid-1930s Legal Realism had successfully discredited the image of lawyers and judges mechanically finding the law and unreflectively applying it. The result was a widespread disillusionment with legal institutions as they came to be seen as more politicized and therefore less detached than had hitherto been believed. But whereas the three schools previously discussed each attempted to restore legitimacy to law and deflect the Legal Realist's indictment through a series of avoidance maneuvers, the New Haven School robustly embraced the fundamental insights of Legal Realism.

To the Legal Realists, law was “too filled with conflict… leaves too much open… too much to be decided” for legal rules to completely control a decision.⁷³ Yet it was this mechanistic, formulaic image that had sustained the law's prestige in the era of the state-nation. If there were choicesto be made—inevitable, ineluctable, inescapable choices—then axiomatic legitimacy could not be accorded whatever decision was made.

As Michael Reisman, the scion of the New Haven School dynasty, ⁷⁴ put it, McDougal and Lasswell—the School's patriarchs—undertook a “constructive operation… in the world community shattered by World War II precisely because the classical system [of world order] and the classic legal tradition were not working.”⁷⁵ Richard Falk, the Absalom figure in this drama and another second-generation spokesman for the New Haven School, noted:

The McDougal and Lasswell undertaking can be regarded as converting the core insight of legal realism into a comprehensive framework of inquiry, including the provision of a normative rudder… dedicated to the promotion of human dignity—by which to assess the relative merits of opposing lines of argument…⁷⁶

But of course Legal Realism did not simply fail to provide “a normative rudder”—it denied the very possibility of one, apart from one arbitrarily chosen (or unconsciously adopted). As a result, the New Haven School's helpful proposal of a golden rule by which to assess all other rules has proved to be the most controversial part of its program. That program does indeed co-opt, as Falk argues, the core insight of Legal Realism: that law is more than a collection of rules and that it is a continuous process of “authoritative decisonmaking.”* But in addition to its descriptive dimension (which is wholly consistent with the program of the Legal Realists) the New Haven School has a prescriptive dimension (which breaks new ground). The latter reflects the ethical norms of the parliamentary nation-state, not the scientistic ethical detachment of Legal Realism (even though it sometimes, unfortunately, adopts its locutions).

The New Haven School descriptive program depicts a process of law creation and application that aims to clarify the choices made by decision makers. Lawyers are assigned the role of “experts in making and helping others to make rational choices about law.”⁷⁷ Instead of merely summarizing the available precedent, the New Haven School attempts to analyze the factors that led to particular precedents and to posit various alternatives, using empirical studies where possible. The purpose of any process of legal decison making is to allocate resources according to the values of the community. The objective of the New Haven School analysis is to allow the decision maker to maximize the degree to which these desired values are in fact reflected in the ultimate allocations.

So far we have the program of the Legal Realists: to enable decision makers to maximize social values, ⁷⁸ going beyond the casual assemblage of anecdotal evidence confirmed by precedent and aiming instead at a systematic assessment of the empirical bases for all policy alternatives. McDougal, however, wished to ground this assessment in a particular set of values: specifically he wanted to measure all international law against the goal of promoting a world order founded on the fundamental principles of human dignity. This is the prescriptive side of the New Haven School program. McDougal subtly insinuated this prescription into the Realist program by claiming to have empirically determined the expectations of the community whose values law is supposed to promote.

For international law, McDougal held that the relevant community is that of the entire “earth-space” in which people interact. Far from concluding that such a space includes communities of incompatible value systems, ⁷⁹ the New Haven School identifies a common goal, human dignity. The realization of this common goal requires, as a practical matter we are told, a free, democratic, parliamentary nation-state.

Schachter is wittily dubious about this “empiricism” and attempts to turn the argument, as we shall see, into a textual one. He writes:

But how does one discover the values that some four billion people actually hold? McDougal has no great difficulty. He finds without any research but quite plausibly that the “overwhelming numbers of people of the world” want peace, security, respect, the right to determine their own destinies. These aspirations are summed up as the values of human dignity… A cynical critic may question the assumption that these values are universally shared. It is not only that they are rejected by many repressive regimes; it is also evident that peoples everywhere manifest aggressive tendencies, show contempt for different faiths and cultures, seek to dominate and coerce others. Can we say on a purely empirical basis that respect for the worth of an individual is a value held by most peoples?… The important fact for law and international politics is that these “higher” values have been accorded normative status by their inclusion in authoritative instruments [the texts of treaties, conventions, declarations, etc.] that have been accepted by virtually all of the world's governments… Their normativity also has a legal character inasmuch as they are embodied in legal principles expressed in such authoritative instruments as the U.N. Charter and other major treaties.⁸⁰

It is easy to see the distinction between Schachter's reliance on texts and McDougal's program. McDougal, too, realized that the values of human dignity can “be found in expressions in the U.N. Charter, the Universal Declaration of Human Rights,” and other documents. But while for Schachter this is what gives humane values their legal authority, for McDougal their presence in legal documents was merely evidence of the ethos of humanity underlying those documents. “The ‘precedents, treaties, and established legal concepts' to which Professor Schachter refers are of course relevant, but they are relevant only for the policies they express.”⁸¹

McDougal maintained that there was an ethos present in the society of states—the drive to win and secure human dignity—and this proved a decisive insight in the Long War between the parliamentary nation-state and its Communist foes. He correctly saw that there was no middle ground.

History is encoded in our institutions. McDougal sought to read that code by means of his meticulous if sometimes tedious lists. The history he read there united the basis of the legitimacy of the parliamentary nation-state (its commitment to individual dignity) with its strategy (to achieve a world order in which this commitment was not under mortal threat). But this position was not “compelled” by legal argument, no matter how passionately McDougal adhered to it.

The New Haven School has been controversial throughout this era. Thomas Franck has disparagingly written of “vogue-ish legal thinking, dominated by the school of policy science, [which] has professed its normativity even while advancing a theory of creative interpretation of positive law that is nihilist in all but name, thus pitting the descriptive and prescriptive aspects of the School against each other.”⁸² Louis Henkin has criticized the School's view of law as a policy process by noting that it is a view of law “not as is but always as becoming… The law is what God, or the United Nations, or History… will say—later—in judging what nations had done in the light of context and consequences.”⁸³ But no criticism was quite as furious as that which came from the staunch anti-Communist Dean Acheson.

NEOREALISM

Pollack concluded in 1987 that

American legal realism reached the zenith of its popularity in the first half of the twentieth century. Its supporters included many of the leaders in legal education, the judiciary, and the bar. This popularity, however, declined rapidly, and today the theory is without important representation.⁸⁴

This statement can only be true if the author intended to exclude virtually all senior officials working in the U.S. national security establishment. As Acheson put it in a scathing attack on McDougal:

Those who devote themselves to international relations in foreign offices at what is disparagingly called “the working level” are understandably and wisely reticent about the role of law. This, however, is not true of academicians who write about it and teach it…. When former Justice… Hughes bluntly… said that the Constitution is what the Supreme Court says it is, the lawyers were not too shocked, although they pretended that they were.⁸⁵

Acheson was referring to one of the sacred texts of Legal Realism, the remark⁸⁶ by Chief Justice Charles Evans Hughes—also a former Secretary of State—that appeared to concede Karl Llewellyn's point that law is a matter of what decision makers decided it to be. Moreover, Acheson accurately (I believe) represented the attitudes of many diplomats and officials that international law is little more than a pretentious irrelevance. George Kennan, whom we may take to speak for the career foreign service and other military and intelligence professionals, shared this view. I will not quote at length Kennan's celebrated attack on international law, because Acheson is a more influential figure in this matter, perhaps because Acheson, unlike Kennan, was trained as a lawyer and became a distinguished partner at Covington and Burling. More importantly, he was “present at the creation” not only of the doctrine of containment, NATO and the Marshall Plan like Kennan, but also of Legal Realism. A protégé of then-professor Felix Frankfurter at the Harvard Law School, Acheson was selected by Frankfurter, a leading Realist, to become law clerk to Supreme Court Justice Louis Brandeis, a leading icon to Legal Realists. Brandeis, Acheson would later say, “had taught him to be both a pragmatist and an empiricist,” the prescriptive and descriptive embodiments of Legal Realism.

In 1949, President Truman appointed Acheson secretary of state. His immediate task was to complete the process of bringing Germany and Japan into the society of states. In both cases, Acheson worked to qualify the sovereignty of the formerly fascist states where he ardently sought the development of democratic institutions. He was apparently heedless of the arguments from international law that these states had the right to develop their own security structures as they saw fit by virtue of their sovereignty, arguing instead that “world structure and order” demanded these invasive restraints. Because it was a matter of the stakes at risk in the Long War, which went to the heart of the constitutional existence of the parliamentary nation-state, Acheson believed American action on these questions could not be governed by any international legal rule. After all, the society of states that created such rules takes its legitimacy from its constituent states; how therefore could that society insist on the application of rules that might be fatal to its leading members? He later wrote:

I cannot believe that there are principles of law that say we must accept destruction of our way of life… [when] the power, position and prestige of the United States ha[s] been challenged by another state… [L]aw simply does not deal with such questions of ultimate power… No [international] law can destroy the state creating the law. The survival of states is not a matter of law.⁸⁷

Note the structural basis for this argument—that international law is created by a society of states that draws its constitutional power from its constituent members, and thus cannot impose legal rules that undermine the constitutional vitality and survival of the states themselves. It is impor-tant to distinguish this form of argument from the merely prudential—that it is simply wiser not to follow such legal rules—because although structural arguments have a prudential component, their terms basically are set by a constitutional structure and the inference that any legal rules thus derived must cohere with that structure. This principle provides the goal against which the prudence of any particular means is measured.*

The Neo-Realist finds something in the structure of international relations—its organization around states, their drive for power, their varying and often conflicting national aspirations, the differences in strength among them, the lack of a common morality—from which, given certain commonsense assumptions about strategic behavior, legal rules can be inferred. For example, consider the syllogism: (1) the constitution of the society of states provides for the sovereignty of all members; (2) thus there must be at least one thing that a state alone can decide for itself (there may be more) or states would not be sovereign; (3) determining one's vital interests is one item that must be for the state alone to decide because, as a practical matter, if this determination were in other hands the state would cease to be sovereign as all its other decisions could be manipulated or dictated. From this argument a legal rule regarding the admissibility of self-defense can be inferred—“A state always has the right to act on behalf of its vital interests—that is, those interests without which it would cease to be able to perpetuate its society's way of life.” This is in contrast to an argument that adduces reasons extrinsic to the structure of the society of states, either drawn from morality (“Some means of defending vital interests are inherently immoral and thus legally indefensible, for example, the use of nuclear weapons”) or from efficiency (“An arms embargo can legally be imposed on a state—like Bosnia—despite its sovereignty if the import of arms would only prolong a war whose outcome is foreordained”) or from some other, nonlegal parameter.

It was Acheson who brought Paul Nitze to the State Department. As director for policy planning, Nitze became the principal author of NSC-68, which firmly established a version of the doctrine of containment for which Kennan's famous Long Telegram* was, in retrospect, an overture. NSC-68† contained as its centerpiece a quotation from the Federalist Papers (#28), the most important legal document construing the U.S. Constitution and itself a rich mine of structural arguments about the relation between constitutional law and strategy.

There continues to be a debate, much of it revolving around NSC-68, about which country, the United States or the USSR, was responsible for the Cold War.⁸⁸ From the perspective of the present work, the two sides in this debate both manage to be wrong, claiming, respectively, that the United States started the war or that the Soviet Union did. The Cold War didn't “start”; rather the Long War never stopped. The United States bears responsibility for this, because the U.S. made “the move to war,” continuing the Long War, when it refused to acquiesce in Soviet expansionism. The key event was the invasion of South Korea, which was part of a general Soviet strategy.‡

In June 1946, Litvinov told an American correspondent that if the West granted all of Stalin's demands, “it would lead to the West being faced, after a more or less short time, with the next series of demands…” owing to “the ideological conception prevailing here that conflict between the Communist and capitalist worlds is inevitable.”⁹¹ There was “nothing” the United States could do to satisfy the Soviet Union, he told Averell Harriman. Until North Korea invaded the South, however, Truman refused to endorse NSC-68 and to increase military spending. In 1948, the administration had limited defense expenditures to $15 billion for 1950 and beyond, whereas NSC-68 had called for budgets more than twice that size. After the Korean invasion, the defense budget leaped from 5 percent to 12 percent of U.S. GNP. Acheson was the figure who made the strategy of NSC-68 into reality, orchestrating the effort to persuade the U.S. Congress to fund the military buildup and the Marshall Plan.

Yet Acheson was not a popular figure in Congress or in the country. Partly it was his habit of speaking too sharply (and too epigramatically) about his contemporaries. Adlai Stevenson, Acheson remarked, “had a third-rate mind that he can't make up.”⁹² The years Chester Bowles had spent doing advertising had created in him “a permanent deformity like the Chinese habit of footbinding.”⁹³ The people Dulles brought to the State Department when he succeeded Acheson as secretary “always seemed to me,” Acheson said, “like Cossacks quartered in some grand city hall, burning the paneling to cook with.” Partly it was his demeanor: great success in law school often conveys to young men who achieve it a certain haughtiness owing to their discovery that they are easily measured as superior to other brilliant young men at a way of thinking that is supposed to encompass all human endeavor.⁹⁴ Acheson's trans-Atlantic accent sounded like a phony affectation to Midwestern ears, an image enhanced by his waxed mustache and his tweeds. Perhaps the most famous remark about Acheson was made not by his mentors Brandeis and Frankfurter, but by Senator Hugh Butler of Nebraska, who said, “I look at that fellow, I watch his smart-aleck manner and his British clothes and that New Dealism in everything he says and does, and I want to shout, ‘Get out! Get out! You stand for everything that has been wrong in the United States for years.’”⁹⁵

No one would have said that about Myres McDougal, with his large bearlike figure and green eyeshade, more reminiscent of Roscoe Pound and the country store than of the Metropolitan Club. Though in fact McDougal's politics—with their redistributionary objectives, goals of racial equality, and statist definitions of property—were well to the left of Acheson's, McDougal's genuine warmth and affection for people made him less a target of personal attack than did Acheson's imperious manner. When Acheson attacked McDougal over U.N. sanctions against Rhodesia (Acheson had called the U.N. an “international orphan asylum”), the tone of his assault makes one wince, and although he accused McDougal of being “intoxicated by the exuberance of his own verbosity,”⁹⁶ it is a charge that more closely fits the attacker than the attacked. Acheson claimed that McDougal, in calling for economic sanctions against the white supremacist government of Rhodesia, “would impose upon states in the name of law [his] own subjective conceptions of justice.” In a later memorandum to the Nixon White House, Acheson railed against the “subjugation of Rhodesia to majority rule.”⁹⁷ “Conscience used to be an inner voice of self-discipline; now it is a clarion urge to discipline others.”⁹⁸ These remarks illustrate the difference between structural, Neo-Realist perspectives that tend to subordinate all issues to strategic matters (Rhodesia was a functioning, anti-Communist state), and ethical, New Haven School approaches that have the virtue (or the shortcoming) of treating the human rights of every person as equally valuable. Both approaches are to be sharply distinguished from what I will call Perspectivism—the adduction of extrinsic facts about the world, that is, facts not confined to the consti-tutional ethos of the society of states, nor to its constitutional structure—in order to resolve the Legal Realist's dilemma. That dilemma may be expressed thus: how do we restore legitimacy to law when it is subject to everyone's interpretation, and especially that of the deciders who create it and demand that the rest of us obey? The hard-working practitioners of American diplomacy, like their counterparts in law firms, may have an answer to this dilemma: they embrace it, and relish the fact they happen to be the deciders, but this is not a welcome solution to everyone else, and certainly not to Perspectivists.

PERSPECTIVISM

There are fundamental goals of the society of parliamentary nation-states that are often in conflict: sovereignty, democracy, human rights, and self-determination are examples. A state that denies human rights to its citizens can be subject to humanitarian intervention by other states in order to vindicate those rights, but this compromises sovereignty; a state that promotes democracy can, through the democratic operation of majoritarian elections and legislative action, end up denying rights to minorities; a national people that is permitted to create a state inevitably entraps persons who would have been in a majority in a differently drawn territory, or who become permanent, insular minorities in the one that actually comes about. McDougal refers to certain goals in conflict—such as peace versus justice, or freedom versus order—as antinomies that are in fact complementary and can be harmonized by reference to the overriding ethos of the constitutional order of the society of parliamentary nation-states, the dignity of man. But he appears unwilling to recognize that in some cases—perhaps the most important cases—there are other goals (such as the four mentioned above) that can never be wholly satisfied in the natural world of scarcity.⁹⁹ Like McDougal, Acheson recognizes the rueful truth of Llewellyn's claim¹⁰⁰ that for every legal maxim a countermaxim can be found, but also like McDougal, he has a preferred value, strategic security, that overrides all others, and that can be derived from the constitutional structure of the society of states within which international law must operate.

Perspectivists attempt to overcome what they believe to be the inherent cultural, class, and other biases in such overriding approaches, whether they are McDougal's or Acheson's, noting that these biases are especially evident in international law

when the higher goals are determined by the particular policies of a national state…. That [national elites] tend to regard their national state's conduct and policies as more conducive to achieving universal ideals is understandable. Sentiments, education, information sources and deeply rooted affinities are likely to prevail over the claims of distant, uncongenial societies.¹⁰¹

One might argue that the post-Versailles order is actually designed to give expression to such biases: by transposing to the international level the respect for the individual that structures the liberal, parliamentary domestic order, the system denies an external standard by which it is to be judged, regardless of whether this standard arises from the states themselves. Like the liberal constitutions of parliamentary nation-states that seek to allow each person to pursue his or her own path to happiness and fulfillment, international law in the current era, as Louis Henkin has observed, “is designed to further each state's realization of its own notion of the Good.”

The agnosticism of such a system toward particular substantive values is irksome to some. While they frankly concede the Legal Realist's argument that legal rules are indeterminate, they wish to bring external, nonlegal preferences to bear in order to resolve the indeterminacy problem. I will mention three prominent alternatives, but they are treated very cursorily because their impact on the international law of the society of nation-states has thus far been quite marginal. These alternative views are offered as exemplars of how an external standard, located in the world but not in law, might be applied.

One such option is feminism. A central feminist argument is that the international legal system is patriarchal, hierarchical, militarized, and masculinized. It has been urged¹⁰² that the practices of warfare favor men's lives over women's because the rules for combatants, who are almost exclusively men, tend to be better developed and better enforced than the rules governing the use of air power, which is often directed against civilian targets. The crucial dichotomy in law between the public and private that, on the level of the individual state, tends to cloak violence against women by privatizing it, on the international level protects the denial of human rights when these abuses are committed by nonstate, “private” actors.¹⁰³ There is some doubt as to whether feminists from different societies share the American feminist agenda, but there can be little doubt that violence against women, their suppression as political actors, and their economic subordination are phenomena found in every society, and that, moreover, issues relating to the family and children are largely neglected in international law.

Another external standard comes from Islamic fundamentalists who have been outspoken in their condemnation of Western values, explicitly including international law. Perhaps because the world of Wilson and House sought to project onto the globe a legal system in which states bore the same relation to international law as individuals did in the United States to domestic law, considerations of religion were excluded from international law.¹⁰⁴ This is not to say that Islamic notions of international legal rules have been excluded; during the International Court of Justice litigation over the Western Sahara, Islamic legal arguments were presented to the effect that the Polisaro insurgents in Morocco constituted a lawful state according to Islamic rules and that they therefore were entitled to self-determination. Rather it is that the basic supposition of international law in the era of the nation-state has been that shared substantive religious belief is not a prerequisite to common understanding. All nation-states, regardless of their religions, are equally bound to the international order.

Islamic scholars, who locate legal authority with God, cannot so easily separate law and belief. The public international law solution of order without shared belief is not available to [them] insofar as their work is informed by Islam. The arguments they make within Western categories are not authoritative to a Muslim. The arguments they make from Islamic authority do not confront the political organization of the contemporary world.¹⁰⁵

Yet law is argument—or, to put it another way, the modalities of legal argument determine how legal propositions are deemed true or false; to be outside these modalities is to be beyond legal discourse. That, of course, is what all externalist projects have in mind: to find a perspective outside the law from which to evaluate it and thereby to justify it when it corresponds to the preferences of that perspective.

A third alternative is proposed by the “critical analysis” school of jurisprudence. The title of Martii Koskenniemi's essay “From Apology to Utopia: The Structure of International Legal Argument” is suggestive of this approach.¹⁰⁶ International law, in this view, either amounts to an apology for state acts (legitimating international behavior) or it dissolves into utopianism (which is “incapable of providing a convincing argument on the legitimacy of any practices”). In either case, international law is “singularly useless as a means of justifying or criticizing international behavior.” This charge is certainly true. Indeed law itself, though it can legitimate, cannot justify its practices.¹⁰⁷ Koskenniemi argues that an international lawyer should be “committed to reaching the most just solution in the particular disputes he is faced with.” This will require “sociological enquiries into causal relationships and political enquiry into acceptable forms of containing power.”

Whether or not such a program rests on inquiries in which one can have supreme confidence, ¹⁰⁸ one can hardly be insensitive to the hunger for an external standard by which to assess the justice of our acts.

There are of course several other options in the Perspectivist portfolio. I have not mentioned the law and economics movement, ¹⁰⁹ communitarianism, ¹¹⁰ or the theories and terminologies of Ronald Dworkin, ¹¹¹ John Rawls, ¹¹² or Jürgen Habermas, ¹¹³ which have been so fruitful for jurisprudence at the noninternational level. I have only tried to give a sample of what a Perspectivist sort of approach is like.

As a postscript to this tour d‘horizon of the post–Legal Realist approaches to interpreting and applying the law of the society of parliamentary nation-states, I would make two observations. The first, which I indicated at the beginning of this section, is that these six alternatives are simply contemporary versions of Formalism and Natural Law. The Legal Process, Nominalist, and Consensualist schools have in common the belief that, as Brierly put it, “[n]othing can be law to which states have not consented,”¹¹⁴ although they differ in precisely how to determine that to which states have in fact agreed. Their primary jurisprudential task is the identification of what must be obeyed; hence their concern with locating the legitimate sources of law. The New Haven School, Neo-Realists, and Perspectivists all find something in the world, outside law itself, that validates international law, though they strongly differ as to what that something is, and what relation it must have to law in order for a legal rule to be legitimate. Their primary concern is the problem of making political choices; ¹¹⁵ hence their attention to facts extrinsic to the law that prompts, but does not decide, such choices. All these approaches are efforts to respond to the challenge of the Legal Realist, and none is necessarily the captive of the Left or the Right.¹¹⁶

My second concluding note is perhaps somewhat more novel, but it is in accord, as will be obvious, with the entire history portrayed in Book II. These six schools of international law track the six modalities of U.S. constitutional law, for as we have seen, international law is built out of the constitutional law of states and the international constitutional order of this period has been in part the work of American leaders, from Colonel House to Dean Acheson, who seized world leadership from the society of state-nations and then created, with the leaders of the other parliamentary nation-states, the coalition that fought and won the Long War.

The “modalities” of American constitutional law are the ways in which we characterize a proposition of that law as true or false. The six modalities of constitutional interpretation in the United States are (i) historical (relying on the intentions of the ratifiers of the Constitution); (2) textual (looking to the meaning of the actual terms of the constitutional text as these would be understood by the contemporary “man in the street”); (3) structural (inferring rules from the relationships that the Constitution mandates among its structures—federalism, the three branches of the federal government, etc.); (4) doctrinal (applying rules generated by precedent); (5) ethical (deriving rules from the ethos of the Constitution, described in the Declaration of Independence and elsewhere); and (6) prudential (seeking to balance the costs and benefits of a particular rule according to a parameter—economic, political, or otherwise—extrinsic to the Constitution).¹¹⁷ Other states may use different modal forms of argument—in Iran, religious argument and the sharia, for example, which would not be admissible in the United States forum—and even the modalities currently in use in the United States will change and develop through time.

It will be easily seen that each of the schools of international law discussed can be paired with its constitutional modality: consensual/historical; nominalist/textual; Neo-Realist/structural; Legal Process/doctrinal; New Haven School/ethical; Perspectivist/prudential. One sees these pairings in the willingness of the Consensualist to consult the travaux préparatoires and the constitutional originalist's desire to invoke the Federalist papers; the struggle of Henry Hart and his colleagues to formulate the Legal Process ideology to save doctrinalism in the face of Legal Realism; the efforts of McDougal to identify a universal ethos, the dignity of man, and so on.

The market-state described in Book I will also strive to make its consti-tutional form the template for a constitution for the society of states. How this struggle will play out remains to be seen. Whether we will face another epochal war on the scale of the Long War, I cannot say. But mustn't we try to anticipate what such a constitution would look like and how it might be reconciled to the society of states without a cataclysmic or critically disabling conflict? These issues are the subject of Part III.

In the winter of 1917, an observer standing on the corner of Fifth Avenue and 42nd Street in New York, and watching the persons hurrying up the broad stone steps of the neoclassical public library, would have observed five men who arrived separately but at about the same time each day. Only one man of this group, if any, would have been known to the public; that man was the president of City College, and more importantly, he was the brother-in-law of Colonel House, the most powerful political figure in America outside his alter ego and closest friend, Woodrow Wilson. The other men were also chosen by House: an historian from Columbia University; a rising young journalist from the New Republic magazine; a law partner of House's son-in-law; the director of the American Geographical Society. These five were the inner core of a secret group, codenamed The Inquiry, set up on Wilson's orders to bypass the State Department and formulate America's plans for the postwar world. Before the United States ever entered the First World War House had suggested to Wilson that a body of experts be convened to supply American delegates to the future peace conference with the information they would need.

The staff of The Inquiry was ultimately frustrated in its role. At the Versailles Peace Conference the group was marginalized by the president's isolation and the primacy of more institutional players. In any case, the advice of academics, journalists, and lawyers could hardly have averted the political catastrophe that befell their hopes at the Conference. When Wilson broke with House at the Conference, more was shattered than a remarkable friendship: the American dreams of a nonpunitive peace, of a postwar world order guaranteed by the great powers and built out of the self-determination of national peoples, an economic environment of nondiscriminatory trade practices, a political environment “safe for democracy”—none of this came to pass, in part, but only in part, because the Americans were unable to overcome the mercantile and strategic ambitions of their allies abroad and isolationism and ignorance at home. House wrote, when it was all past, “I wish we had taken the other road… [the peace settlement promised by Wilson to the Germans and to the public].” When the German representatives signed the treaty, the British diplomat Harold Nicholson wrote in his diary, “To bed, sick of life.” Even Lloyd George acknowledged that it was “all a great pity. We shall have to do the same thing all over again [we shall have to fight another world war] in twenty-five years at three times the cost.” John Maynard Keynes, who had been attached to the British delegation, wrote to his mother, “I've never been so miserable… [T]he peace is outrageous and impossible and can bring nothing but misfortune.” The American secretary of state, Lansing, noted his first reactions to the treaty document: “disappointment, regret, depression.”

By contrast, when the Peace of 1990 came to the world all of the great powers knew what must be done. James Baker, who in some ways played the role of Colonel House in a later era as the president's political manager, personal intimate, and international representative, did not need to convene a new version of The Inquiry to determine what the postwar program should be, because it had not essentially changed since Wilson's day. Chastened by another world war, the Cold War, and the nuclear annihilation that threatened them all, the Allies this time did not try to ruin their adversary but endeavored instead to include him in a New World Order. Unlike Lansing, Baker exhilaratedly wrote when he returned from his journey to Paris, “The very nature of the international system as we know it [has been] transformed.”¹¹⁸

With the Peace of Paris, a door closed in human history. The East/West global struggle had divided the whole world as sharply and carefully as Gregory XIII divided the then–New World of the sixteenth century. Now there are many able academics and civil servants working hard on the issue of what sort of new world the twenty-first century will bring into being, and how it will be divided. Surely we need a New Inquiry, for what we need to know is not simply where we are going, but where we are, and, then, where we can go. Governments everywhere are floundering with regard to their security policies. Some have pursued consistent policies, only to find that it has been a relentless pursuit of failure, enhanced by an inability to rethink, but when governments have been inconsistent—and no governments have been more so than the United States and Britain—these governments did not find their way to fresh insights, unless it was the insight that the policy that they have just adopted was one they had recently abandoned.

Does this matter? We are in a time of crisis, and must turn our attention to international terrorism. Why should we pursue thought when action is required? Colonel House had to have answers before his war ended; he didn't know it would continue for seventy more years. Now that the Long War is over, and the Peace of Paris signed, and the possibility of a new war looming, why must we urgently undertake a New Inquiry? Because we are daily making decisions that will structure the kinds of opportunities available to us in the future. “Once in a while a door opens,” wrote Graham Greene, “and lets the future in.” This is such a moment.

From Mythology

First there was a god of night and tempest, a black idol without eyes, before whom they leaped, naked and smeared with blood. Later on, in the times of the republic, there were many gods with wives, children, creaking beds, and harmlessly exploding thunderbolts. At the end only superstitious neurotics carried in their pockets little statues of salt, representing the god of irony. There was no greater god at that time.

Then came the barbarians. They too valued highly the little god of irony. They would crush it under their heels and add it to their dishes.

—Zbigniew Herbert

(translated by Czeslaw Milosz)