It is common nowadays to believe that just war is that waged to export the “values” (and institutions) of liberal democracy, among which is placed (and stands out) the ideology of human rights. Alongside this is the thesis—often connected—that to prevent “unjust wars” and punish their perpetrators requires international tribunals. Thus reversing, or rather applying in the wrong context, De Maistre’s judgment that “where there is no judgment, there is confrontation.”
We say the context is wrong because De Maistre’s judgment is the synthesis of a discourse on sovereignty, the example of which is precisely the Tribunal: “In the Tribunals one sees the absolute necessity of sovereignty; because man must be governed just as he must be judged, and for the same reason; that is, because where there is no judgment there is confrontation” (Du Pape, II, 1, trad. it. di A. Pasquali, Milano 1995, p. 155). But, in De Maistre, the whole presupposes sovereignty and state, and a Tribunal—the office of the latter.
Instead, in postmodern thought, the (international) court is the alternative/substitute of the state. That is, it is the opposite of Hegel’s judgment that “there is no Praetor among States” (Grundlinien der philosophie des rechts, § 313). Here, conversely, it is assumed that there can be, and is able to uphold (i.e., enforce) its judgments, as, within the state, police and other state departments and offices do, availing themselves of the (state) monopoly of the legitimate use of force. However, that the problem is actually this, and not that of jus dicere, is forgotten, and so are the various historical experiences that prove it.
But is this kind of warfare really just? And does it conform to real criteria of justice? A historical examination can contribute to the answer.
At the dawn of the jus publicum europaeum, Christian theology, which outlined its principles, identified the requirements of just war in the (legitimate) authority of those who waged (and declared) it—the just (war) motive, the right intention, and the correct manner of waging it. Just cause was understood in the “classical” legal sense, that is, as the protection of concrete rights violated. The necessity (and legitimacy) of war then stemmed from the absence of an authority that could settle disputes by redressing rights violations by effective command and enforcement by the disputants. In this legal construction, there is no room for abstract “rights,” only (very) concrete ones. Suarez, in listing examples of “just cause” for war, makes almost an enumeration of the “actions” recognized in Roman law for the restoration of injured rights: taking impediment of transit of other people’s provinces (claims), (confessoria servitutis), as well as injuries to the right to customary economic relations. These are rights based on history and custom; that is, on a concrete order, to the maintenance and preservation of which the remedy of war contributes.
The subsequent evolution, induced to make just war rather than a means of restoring law, that of preserving the power, (security, balance) of states, and, consequently of the international community, is founded on the pluralism of political units. Not that the protection of law (which in itself is a power) no longer constituted just cause, but alongside or rather above it, the reason of defense of power was added (and prevailed). An example is offered by Montesquieu “The life of states is similar to that of men: the latter have the right to kill in self-defense, those have the right to wage war for their own preservation;” and he continues “Between citizens, the right of self-defense does not imply the necessity of attack. Instead of attacking, they have only to resort to the Courts.”
Therefore, they can only exercise this right of self-defense in subjective cases, in which they would be lost if they waited for the help of the law. But among societies, the right of self-defense sometimes implies the necessity of attacking, when a people realize that a longer peace would give another state the opportunity to destroy it, and that attack is at that particular time the only means of preventing such destruction. To conclude: “The right of war is therefore derived from necessity and a strict adherence to right. If those who direct the conscience or the advice of princes do not abide by these standards, all is lost; and, if we are to be founded on arbitrary principles of glory, welfare, utility, streams of blood will flood the earth” (Ésprit des lois, X, 2 trad. it., 1965, pp. 247-248).
That to derive the right of war from necessity means nothing more, since necessitas non habet legem, that there is no need for a right to be restored. On the contrary, that in case of necessity it is legitimate to violate the right.
The situation changed with the French Revolution. Until that time, it was normal for wars to be a means of settling disputes (of power or law) between states that recognized and respected each other. The consequence of this was the intangibility of domestic law and of the states themselves. Wars ended with the “handover” of a few provinces or (more often) colonies that left the order essentially unchanged.
This system began to be shaken by the French Revolution: with the La Révellière-Lépeaux decree of the Convention on the Export of Revolutionary Principles, the “indifference” of the events of war, to the internal order of the states involved, began to be shaken. Likewise, respect for the existence of states, which, in the revolutionary and Napoleonic periods took the form of the creation of entirely new states (the sister-republics and then the states of the Napoleonic system), politically homogeneous with the victor; something that positively undermines the “constituent” and original right to form a community. Kant wrote that against the unjust enemy, the victors cannot go “so far as to divide among themselves the territory of that state and make, as it were, a state disappear from the earth; for that would be a real injustice to the people who cannot lose their original right to form a community” (I. Kant, Methaphisik der Sitten § 61). And what it says for the disappearance of states also applies to the creation of new ones by the victor. What is equally interesting is that with the formula of “guerre aux chateaux, paix aux chaumiéres” began and legitimized the exportation of abstractly formulated principles, foreign to the communities that had to forcibly import them and often generating a “new” form of warfare—the partisan (modern) one, in which the “importing” community, through the guerrilla movement, progressively assumes the character of the enemy (and belligerent subject), as a people in arms. The most radical formulations of which are that of Mao-Tse-Dong, and the related practice is that of the anticolonial wars of the 20th century.
The conclusion of World War II confirmed this in an entirely different context. Early on, in the Atlantic Charter, it was written that the governments of the United States and the United Kingdom declared at that time that they “respect the right that all peoples have to choose the form of government under which they ask to live, and desire that sovereign rights and the free exercise of government be restored to those from whom it has been forcibly taken away,” as confirmed at Yalta, “for every liberated state in Europe, to every former European satellite state of the Axis.” That is, even if someone had not expressed the intention.
The implementation practice of this declaration was, as is well known, that each of the liberated people gave themselves the form of constitution corresponding to the color of the uniforms of the liberators (occupiers).
Constituent power, as later explicitly stated for sovereignty, was (to say the least) limited by it. And one has to wonder, at this point, whether to limit powers that are in themselves unlimited (such as, precisely, constituent power and sovereignty) is not to deny them at the very root, as implied in the doctrine of the modern state from Sieyès to Victor Emmanuel Orlando.
As for International Criminal Tribunals, institutions popularized in the last century for the purpose of judging the vanquished enemy (by the victors), these were completely unknown, because they were rejected by the jus publicum europaeum, in which the principle that par in parem non habet jurisdictionem was in force. Hence, between sovereign states, one could not judge the other (and the whole was true, both for the “apex” bodies and for the others). What is more, Kant considered connatural, in every peace treaty, the “amnesty clause” (reciprocal) between the contracting parties. What is most striking about this practice (established for centuries) is its realism that adapted it far better than contemporary pan-jurisdictionalism to the concrete order of communities endowed with equal rights and dignity. Firstly, because it raises the problem of justice (and law) in concreto: the activity of the judge is not a pure position of norms, but the application of norms to a concrete fact; even just and agreed upon norms, if applied selectively, or by an unbiased judge, or resulting in unenforceable judgments, do not possess the characteristics commonly attributed to justice, nor do they have the real utility of justice.
Now, common connotations of these Tribunals are (always) that the accused coincides with the vanquished; (very often) that the judges are the victors; that for practical purposes (i.e., to conform the new order to the factual (and power) situation created as a result of the war, the decisions of the Tribunals have no bearing. The prevailing function is liturgical: to clothe with the solemn robes of justice what was decided by war, morally disqualifying the vanquished enemy. They are in essence the auto-da-fés of globalization. But that the need to be resolved has already been resolved by war, the outcome of which is really “conformative” of order, and that the Tribunal’s judgment adds or detracts nothing to this is self-evident. Unlike that of a “domestic” judge whose decision is essential to the rights (and life) of the adjudicator.
Common notion of these two “innovations” is mostly believed to be the “democratic” character that the state and modern warfare have acquired in the last two centuries. Hence democracy, deemed a valuable asset by those peoples who have struggled to acquire it, would be a gift—just as important—to those who never dreamed of it. But, most likely, they did not do so because they did not judge it so valuable as to be worth a war or a revolution. Moreover, and even more, “export” wars and international tribunals are linked to an aspiration (illusion) for peace. It is considered better to have democratic governments in power in other countries because they are judged to be less prone to war; and Tribunals would be the means of preserving peace by punishing those who violate it. But as to the former, history shows that democracies are no less warmongers than other forms of state; indeed, in fact, they are, as to the intensity of war, more so. Already in describing the characters of the Athenian one, Pericles, in the speech reported by Thucydides (Peloponnesian War, II, 35-47), treads, as it were, on its warlike exploits (and virtues). Even more, in modern times, democracy has (mostly) been combined with levée en masse and the intensification of hostility.
But if still for democracy, there is hope that the “modern” aspect of it will prevail (according to Benjamin Constant’s well-known distinction) i.e., the liberal element, tolerance, esprit de commerce that in any case conditions the esprit de conquête, for the remedy of the Courts no reasonable hope is in sight. Because in that case it is, in essence, a matter of substituting politics (and the political) for law. An old recipe, which can only work if the court takes on political connotations, i.e., ceases to be a (pure) judicial body and becomes—organizationally and functionally—a political unit or official organ thereof; that is, capable of making use of force (thus with an appropriate organization), and thus be “power” in the Weberian sense; that is, capable of enforcing—concretely—its commands. Those who believe this believe they have invented politics without (the means of) force. A Prince (all coup and no) Lion. A subject who has not yet appeared in history, and who, being contrary to a realistic conception of man, it does not seem possible will ever appear there. Not least because if the Court makes use of the force of states, it is this, and not the judgment, that will determine the real relationship between international justice and the executing state (or states)—since the execution of judgments is the decisive fact, it will be the ability or willingness to do so that will determine the possibility of what really matters; that the decision be observed and move from normative imagination to concrete order, conforming it.
Moreover, the rationalism underlying the doctrine of the modern state has constructed as its “User’s Manual” the Reason of State. “Reason of State” was based on—and was one of the consequences of—both secularization, configured (also) as separation/limitation between temporal and spiritual power, and the autonomy of the political, its extraneousness-indifference to other spheres of human experience. Also determined by the latter was the specific purpose of the policy: the protection, security and well-being of the community of reference, with religious or moral objectives being excluded—or taking a back seat. If a pope in the Middle Ages could proclaim a crusade, the same could not be done by an absolute monarch of the modern age, whose specific function is the one mentioned above, and not to promote the diffusion of a faith or a morality. Different, but only in part, for the right (or rights): in that case the protection of those, if corresponding to an interest of the state is the task of the state. However, according to the doctrine of jus publicum europaeum, by right in such cases is meant the right pertaining to the state and its subjects; on the other hand, it is excluded that it is justa causa belli to protect rights that do not belong to one’s own state or subjects. Which in “wars for democracy” is sacrificed to an overbearing altruism, and whose probable (and visible) effect is to multiply (the justae causae) of conflicts.
(E.g. see, Suarez, De Charitate-De Bello, section IV: “Unde, quod quidam aiunt, supremos reges habere potestatem ad vindicandas iniurias totius orbis, est omnino falsum, et confundit omnem ordinem, et distinctionem iurisdictionum: talis enim potestas, neque a Deo data est, neque ex ratione colligitur;” also see, Bellarmino, Scritti politici, Bologna 1950, p. 260).
Just what the rationality of those jurist-theologians of the Counter-Reformation sought to avoid.
In this sense, this conception was in accordance with the theory of Reason of State, which is not a legal conception (although it has great legal implications) in the sense that it is not based on the concept of law, but rather on the concept of interest: it is the task of the state to protect the (general public) interest of the political community (salus rei publicae suprema lex). What is in accordance with that is lawful and should be done. By contrast, in the case of “democratic wars,” the supreme lex of the state’s interest ends up, precisely in situations of exception, in the background; and in the foreground is placed instead an abstract justice, promoting rights of which it is not clear whether and how much the “protected” aspire to enjoy (and how much they want to sacrifice for those). The purpose of politics and the state is no longer primarily that of the common good of the state and the community, but the affirmation-protection of (abstract) rights or a political regime.
True, state interest and defense of liberal democracies can coincide, as in Roosevelt’s aid to Britain during World War II, even before the U.S. entered the war; but the fact that the ideological motive is externalized and that of power concealed, confirms, and constitutes a sui generis application, of the Paretian theory of residues and derivations, as of the oblivion of the lesson of Thucydides (the well-known ambassadorship of the Athenians to the people of Melos) that the first determinant of political action is (the defense, preservation, and enhancement of ) power.
(The President’s well-known phrase that the U.S. would be the “arsenal of democracies” did not express the fact that the U.S. interest was to help Britain and contain Germany and Japan, even though the political regimes of the three powers were not that).
The proof was seen, repeatedly, during the Cold War, in which very often the U.S. left alone and even supported and had for allies political regimes that in matters of democracy had credentials no better than those of Soviet regimes, i.e., real enemies.
Politically correct choice as much as ideologically contradictory.
In fact, the very examples given above demonstrate the essentiality of the correct perception of the enemy. If the enemy is perceived as such because it has a different order, with a different political regime or other values of reference, since politics (and the international order) is a pluriverse of different human communities, each people, which in itself is recognized as having the right to give itself the order it prefers, becomes, by virtue only of the magnitude of the differences, an enemy. It becomes such because its mode of political and social existence is not homogeneous with that of the “dominant” power (or powers).
It is an enemy not because of the actions done (to the limit that it can do) but only because it exists in a certain way. In this case, “wars for democracy” easily become the means of promoting political homogenization, which in turn may lead not so much to (political) globalization but to the construction of a new political entity, imperial and non-state, with rules, forms, and types of behavior that we do not yet know, but of which something is glimpsed. One glimpses in particular the (partial) loss of the impenetrability of the state, whereby its borders marked the boundary between internal and external, between domestic and international order.
On the other hand, such a criterion in choosing the enemy leads to contradicting the first rule of political action, which is to reduce the number of possible enemies. Expressed in history in so many ways, both as a rule for domestic and international politics—from the political practice of the Roman Senate, whose constant maxim was to divide peoples (Montesquieu, Considérations sur les causes de la grandeur des Romains e de leur décadence, ch. VI), who were potentially enemies (divide and rule), to the “never war on two fronts” precept of German strategy in the last century, twice violated, with the results we know. If the real enemy (i.e., one who is such by actions and contrasts of power and interests) is joined by the one (or ones) who are such by ideal differences, the rule is surely violated.
Thus the “democratic wars” appear as the negation of certain ideas peculiar to the modern state and politics, as delineated from the Renaissance onward, thanks to the peculiar form of political unity of the post-Medieval era and that is the state, but anticipated and nevertheless practiced for millennia.
It is precisely the state that is the first victim of such a shift in perspective. Its salient features: the distinction between internal and external, temporal and spiritual, impenetrability, the monopoly of the political (and of legitimate violence) are to a greater or lesser extent, contradicted by the spread of “wars for democracy.” Consequence of which is the imposition of a political regime, with its institutions and values of reference, of a claim to the permeability of borders, and thus to a limited sovereignty in its own territory in which different (command) powers come to compete. All incompatible with the jus publicum europaeum. Which was constituted on the attempt (successful for centuries) to bring different peoples together. Which was succeeded by the current one of doing so with (relatively and artificially) homogeneous peoples, at the price of increased “supranational” power.
True, democracy is based on a certain rate of homogeneity in the people, but this is a prerequisite, not a consequence of the choice of political regime; and, in any case, here we are dealing with external relations between states, not internal relations between the different components of a community. That is, unless the whole thing is the premise of the establishment of a new imperial political form, in which inter-state relations are replaced by relations within the Empire. In which case the internal/external (and other) logic would have a different meaning, all to be written.
(The last attempt to form a political unity between Muslims and Christians, Turks and Slavs, Protestants and Orthodox was the Union Treaty designed by Gorbachev and was terminated as everyone knows. On this subject we refer to our paper, “Dal comunismo al federalismo,” in L’Opinione (June 1991).
However, given that imperial political forms were (mostly) characterized by the distribution of jus belli among different subjects of political unity, it is all to be seen whether a future of union among (institutionally) homogeneous people is more peaceful than the coexistence among different people on which the jus publicum europaeum was based.
Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.
Featured: Allegory of Law and Violence (Allegory of King Charles I of England), by Jan Brueghel the Younger; painted ca. 1666-1669.