A Final Thought on Mark Janis’ ‘America and the Law of Nations’

by Kenneth Anderson

Having now finished America and the Law of Nations, let me add one more thought.  I had originally been interested in this book principally for the period between the world wars; my work on the UN has given me a long interest in the collective action failures of the League, and attempts to judicialize aggression as a crime at the ICC has likewise given me an interest in earlier attempts to outlaw war, e.g., Kellogg-Briand.  But instead I find that the chapter that most captured my attention was Chapter 4, “Dodge, Worcester, Ladd, and Burritt: Christianity, Courts, and World Peace.”

That chapter argues that to “a surprising extent, the international courts of today are the offspring of nineteenth-century American utopians, religious enthusiasts by and large untrained in the law.”  (p. 72.)  Antebellum Americans, at that.   Given my own steeping in the European history of the later 19th century and the founding of the ICRC, I had always assumed that, to the extent there was what today we would call a transnational social movement toward these kinds of utopian impulses, they would have been centered in Europe.  Locksley Hall, The Parliament of Man, all that.  I would not have guessed that fifty years or more before, the provincial, remotely located Americans would have been making waves in these matters.  But Janis makes a strong scholarly case that antebellum American religious progressivists played a deep and wide role in fostering the spirit of internationalist utopianism that embraced the idea of international tribunals.

But note – and I think this remains relevant today – that historically this progressive movement was located within, and was sheltered by, a still larger, or at least more transcendentally motivating, universalist utopianism – Christianity itself.  It is not, so far as I can understand from Professor Janis’s account, the form of disconnected, deracinated cosmopolitanism that is sometimes urged as the basis for liberal internationalism today.  Perhaps we have come so far, in the progression of culture, technology, and ever more expansive idealism that the mediating universalisms such as religion can be set aside, but I rather doubt it. Rather, the risk of today’s deracinated cosmopolitan-liberal internationalism is, on the one hand, that it cannot and does not succeed on its own terms – but still manages to neuter, on the other, the one form of large scale political organization that has shown itself itself, even with its many failures, able to deliver to those it governs, the nation-state – particularly expressed as liberal, democratic, and secular (in the sense of divided public-private).  Vive Westphalia, &tc.

ps.  Reading over the comments, it seems as good a time as any to quote from Thomas Berger:

“Address me not in Christian sentiments,” said the Lady of the Lake, “the which I find too coarse for fine kings.  Thine obligation was to maintain power in as decent a way as would be yet the most effective.”

The irony, of course, is that the Lady offers Arthur a nearly pitch-perfect expression of Niebuhrian Christian moral realism.

pps.  I can’t resist adding that this is one of the wittiest books I’ve ever read, and (peculiarly) quite possibly the most instructive I’ve ever read, either, on the virtues and vices.  Since I include in that list the Bible, Pilgrim’s Progress, Vanity Fair, and the writings of Philippa Foot, that is saying quite a lot.  Anyway, I also have always had a weakness for the opening sentence of the novel:

“Now Uther Pendragon, King of all Britain, conceived an inordinate passion for the fair Ygraine, duchess of Cornwall, and having otherwise no access to her, proceeded to wage war upon her husband, Gorlois the duke.

Not everyone shares this high opinion – the yea-sayers include my older brother, my younger brother, my nephew, and my daughter.  And the Los Angeles television writer and producer, Tim Maile.  The nay-sayers include … my Beloved Wife.

http://opiniojuris.org/2010/06/28/a-final-thought-on-mark-janis-america-and-the-law-of-nations/

12 Responses

  1. Assuming the analysis is right, another question would be why the majority of American Christians being heard today are by and large opposed to the same progressive ideals they once heralded…such a sad demise of those high ideals…

  2. “Assuming the analysis is right, another question would be why the majority of American Christians being heard today are by and large opposed to the same progressive ideals they once heralded.”

    I take it that your familiarity with American Christianity is extremely limited?

  3. I think we have to think in terms of call and response.  I am curious whether the early antebellum persons were also those fighting slavery in that period.  That battle on a human rights plane and  the way the intersections of those persons in different countries occurred was wonderfully analyzed in Ian Clark’s International Letigimacy and World Society (Oxford 2007).

    I really get my nits up when I see the “utopian” term placed on people who just do not agree with what people who call themselves “realists” think. 

    Rather, the idea of dialogue at the heart of these visions is just one aspect of the way to filter and disaggregate and reduce the stresses between the states.

    Nation-states have done both graet and awful things.  No need for a paean to them for they are amoral structures of power seeking to control the monopoly on violence.

    The Christian movements in the United States are diverse so do not let the loud ones or the ones who have the most television evangelical aspects, dictate your vision of us.  For example, Thurgood Marshall’s Episcopalianism was one of the motivating factors for his work on racial equality all during all those years.  The Episcopal church is looking at canonizing him as a saint.

    Best,
    Ben

  4. Professor Anderson’s description of that “form of disconnected, deracinated cosmopolitanism that is sometimes urged as the basis for liberal internationalism today” is at once a red herring and strawman. It is the former because no respectable political theory or philosophy of cosmopolitanism today is properly characterized as “disconnected” or “deracinated,” although we might use those words to capture a species of globetrotting academics living lives of affluence and privilege, all the while enamored of high technology, mesmerised by the Realist’s slavish deference to State power, and keen on destroying any scheme, however tentative or hypothetical, they wrongly imagine or rightly understand to threaten to their lives of affluence and privilege, including the socio-political and legal systems, structures and processes upon which that affluence and privilege rests. This is “capitalist cosmpolitanism” with a vengeance. In short, they are afraid of the generalizing consequences of our moral principles, of the logical consequences of a consistent (hence non-arbitrary) notion of human rights, of the equalizing logic of meaningful distributive justice, of the truly universal application of democratic principles and values. It is the communitarian critique redux and writ large, and no less impotent for all that: as Stephen Holmes amply demonstrated in several books, its fears and complaints amount to an impressive inability to appreciate the myriad historical and political virtues of the Liberal tradition from Hobbes through Rawls, the selfsame virtues that made possible democratic constitutions and ways of governance (I know, Hobbes was not a straightforward Liberal, but he argues for several of the tradition’s axiomatic premises that animate both its theory and praxis).
    It is a strawman on par with the ideological trope regularly invoked by the likes of Hitler and Stalin, both of whom “launched regular invectives against ‘rootless cosmopolitans,’” fearful of what it meant to express kindness to strangers, to think deeply about our shared humanity, to make real the notion that our obligations extend beyond family and nation to all of humanity (and most cosmopolitans would not deny that it’s often the nation-state that remains the best vehicle for meeting the basic needs necessary to satisfy the most fundamental human rights, i.e., and for example, very few cosmopolitans advocate anything remotely like ‘world government,’ whatever greater or alternative role they might ascribe to transnational or international processes, structures and institutions).

    Read, for instance and for yourself, the definitions, discussions and theories of cosmopolitanism articulated in the volume edited by Gillian Brock and Harry Brighouse: The Political Philosophy of Cosmopolitanism (2005), or Simon Caney’s Justice Beyond Borders: A Global Political Theory (2005), or Kwame Anthony Appiah’s Cosmopolitanism: Ethics in a World of Strangers (2006), or Robert Goodin’s pathbreaking argument, Protecting the Vulnerable: A Reanalysis of Our Social Responsibilities (1985), or Allen Buchanan’s Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (2004), or Larry May’s incredible series of works articulating a philosophical and legal theory for international criminal law. In none of the above representative titles will one find anything deserving description as some sort of “disconnected, deracinated cosmopolitanism,” an appellation more fitted to the lifestyles and tastes of not a few contemporary academics, affluent tourists or privileged globetrotters, North and South, but especially in the North.

  5. Benjamin, that was ONE heck of a response, although the use of the word…’deracinated’ is a mind bender. Kenneth sure has a way with words.

  6. “Niebuhrian Christian moral realism”–a locution that says more about Niebuhr’s own philosophical assumptions and moral psychological views than it does anything about Christ’s teachings. Jesus, let’s be plain and clear, was no “moral realist,” a fact well appreciated by the likes of Tolstoy, Albert Schweitzer and Dorothy Day. Niehbur provides us with a political ethic well crafted to serve as as ready-made ideological apologia with which we might retrospectively bless Holy Roman Empire and not hesitate to sanction American exceptionalist and hegemonic foreign policy, an ethic that trumps if not embarrasses the individualist moral ethic of Jesus.

    Living in the Kingdom of God is effectively consigned to the familial and intimate realm of everyday life while the ethical standards of collective conduct are conspicuous by their distance from such a life, from the moral standards intrinsic to the daily round. Such moral schizophrenia, in effect, routinely sanctions Machiavellian “dirty hands,” while transforming Henry Kissinger into a sanctifed statesman. The Christian counsels of perfection and the notion of exemplary atonement become irrelevant to a public realm constitutionally liable to the corrosive effects of the increasing gap and differences between individual and collective moral standards: all the easier to rationalize the dropping of atomic bombs on civilians, the firebombing of cities and the use of napalm on villagers; all the easier to practice torture and targeted killings with a clean conscience; to materially support all manner of despotism and dictatorship; all the more easy to rationalize the subversion of democratically elected governments not to “our” liking, to go to war in Vietnam and Iraq, to pronounce on the virtues of nuclear non-proliferation while turning a blind eye to Israel’s nuclear weapons; all the more likely we’ll obsequiously defer to the economic logic and dehumanizing imperatives of casino, corporate and high-tech turbo-capitalism…that is, as long as it sustains our relative global affluence and privilege.

  7. “Thine obligation was to maintain power in as decent a way as would be yet the most effective.”

    Yes.  So hard, though, to agree on how to define decency and how to measure effectiveness.

    Can sometimes the only decent act be to restrain from the exercise of power?   Or does power possessed obligate its use…noblesse oblige?

  8. Well I think the answer to Guy’s question is rather straightforward.  At the time when Christianity more visibly advanced the cause of progressive values, the Christian Church as an institution was seen by society and the State as a far more legitimate partner in advancing a moral-political agenda than it is today in the West.  The Christian values that Patrick so eloquently summarizes were mediated and realized by Christianity in its institutional Church form.  And since Patrick mentioned Hobbes, then surely he knows that Hobbes severely criticized the then-Church (the Anglican and Roman Catholic Churches as institutions at that time were nearly identical) for ignoring the statements of Christ that his kingdom was not of this world, and therefore the premise of the Church’s temporal institutional claims and power were false.  Since that time, it is Christianity in its institutional form rather than its personal ethics that have been hammered down, so that today in the West the Church (any sect) as an institutional partner of the State for mediating those ethics as part of a larger political purpose is considered completely illegitimate by nearly all persons who consider themselves liberal.  For instance, while I have not read Christopher Hitchens’ book God is Not Great, I strongly suspect it focuses entirely on the temporal institutional aspects of organized Christianity rather than on a studied analysis of Christ’s sayings as a basis for a moral code.

  9. Alan!  You’re going to regret asking this question, as eventually I’ll post the entire book line by line.

    Well, in the paragraph preceding what I quoted, Arthur – who is dying from a treacherous wound by Mordred – says to the Lady of the Lake:
    “I would ask why you attended me only in the beginning of my reign … leaving me altogether without magical counsel.  Lady I could have used some!  For ’twas reality that brought me down, and I had no defense against it.”
    [I quote this because, in fact, the whole passage is about the nature of political and moral realism.  But Arthur goes on, partly to the question Alan raises, refraining or not from the use of power:]
    “Was I wise to tolerate the friendship between Launcelot and Guinevere for so many years?  I know that I thereby connived in a Christian sin.”
    [Which is where the Lady picks up, "Address me not in Christian sentiments ...]
    “and a Camelot without Guinevere, and a Round Table without Launcelot, were inconceivable, as would be an Arthur who put to death his best friend and his queen.  All human beings must perform according to their nature.”
    Now Arthur did wonder at this speech.  “Then the will is not free?  But we are selected for whichever?”
    “This is the wrong question, said the Lady of the Lake, “being merely political and not concerned with the truth.”
    (Apologies, all, I will stop quoting this book, at least for the moment.)
  10. With regard to Hobbes: Hobbes was of course anxious to undercut the putative religious reasons for internecine violence among avowed Christians. Hobbe’s own moral and political philosophy (and I’m one with those who find Hobbes a sincere Christian) remains a variation on the Natural Law tradition! And thus one (if not the most fundamental) axiom of which is his understanding of the Golden Rule in Christianity (in his case, specifically as principle–or theorem–of reciprocity). (See works by Sharon Lloyd–especially her latest–by way of filling this out)  

    Incidentally, my normative understanding of what Christianity should be centers on the Gospel portrait of Christ and his parables and other sayings. The notion that Christ’s Kingdom is not of this world was in response to those who thought Jesus as the messiah would be in keeping with the Hebraic or Israelite messianic and covenantal promise found in the lineage of King David, such that Christ as messiah would be a worldly ruler of that sort (hence the Zealots and the Roman criminal and political rationale for his crucifixion). But of course there are plenty of formulations that suggest that living in the Kingdom of God is possible, indeed obligatory, here and now, and these certainly have socio-political and economic implications for those who take this imperative to heart…. The crux of the problem is how to realize this imperative in the darkness of conventional power politics (one reason Gandhi felt compelled to engage in the ‘purification’ of politics through the use of the ashramic ideal and the taking of vows as part of his constructive social progam). As to what Jesus said in the Gospels, I’m more or less in agreement with Anna Wierzbicka in What Did Jesus Mean?: Explaining the Sermon on the Mount and the Parables in Simple and Universal Human Concepts (2001). This is an altogether remarkable book.

  11. Ken -  You are a good teacher.  You make people think.  I was your student 16 years ago and find that so I remain.  I don’t regret asking the question; I will have to reread the book rather than make you quote it further here. 

    You have a talent for finding application of seemingly unrelated resources to the same problem; for taking something “out there” and bringing it “in here” in a way that signifies.  For example, I have often thought about the relationship, first shown to me in your classroom, of Lincoln’s second inaugural address and Clausewitz’s theory of war.  I wrote a little about it in Chapter 12 of a little textbook a colleague and I once put together for a Naval Academy class.  We called the book:  “Naval Law: Justice and Procedure in the Sea Services.”  Both Lincoln and Clausewitz seem to suggest that “the often limited aims of humans in war may be transformed in unpredictable ways by the very forces they let loose in pursuit of those aims…” 

    Lincoln suggested that “The Almighty has his own purposes,” while Clausewitz’s paradigm seems to me more Newtonian; an effort to apply scientific thinking to a theory of war and infer its “laws of motion” from close observation of the phenomena.  But, in the end, both Lincoln and Clausewitz suggest that war, whether ruled by the hand of God or by laws of nature operating in accordance with some kind of autonomonous programming, has its own rules that tend to drive it out of human control.

    So where do we find ways to impose limits on an activity that, according to Clausewitz, once set in motion  has “no logical limit to the application of …force?”

    Clausewitz argues that limits are imposed by the political objectives of the nation-states that choose to use force – to go to war.  Lincoln seems to hint that God may have something to do with it.

    So can we find limits on cruelty and mayhem in international behavior in the operation of religious thought and institutions or in political ones?  (And should we even seek such limits?)  Where do the limits come from?  As Lincoln pointed out, “The prayers of both could not be answered; that of neither has been answered fully.”  This might cast some suspicion on religion as a source for limits in war, or in any other aspect of international behavior, for that matter.

    More to the point, does it matter, so long as we can find and impose limits, if limits are required for the survival of the species? 

    I have doubts that religion – Christianity or any other, provides a foundation for limits in war.  Indeed, it is not difficult to construct an argument, it seems to me, without too deep an historical analysis, for the opposite.  Was it a Christian or a Muslim who said on the eve of battle:  “Kill them all, and let God sort them out.”

    My thought is that law can provide some of those limits — international law seeks to do so, and for me, it doesn’t matter much whether the foundations of that law is in religion or in nature or in both – and certainly we can find Christian foundations in the law of war, as well as those of other religions, as well as in what Jefferson might call self evident truths.  The test ought, it seems to me, to be the utility of the tool, not its source.

    “All human beings must perform according to their nature” says the Lady of the Lake to the dying King.

    I am reminded of Thucydides report of the Melian dialogue:  “The strong do what they can and the weak suffer what they must.”

    But the thing is, the strong don’t always do what they can, as Arthur did not.  I wonder why.

    Reality brings us all down eventually I suppose, for there indeed is no defense against  it.

    And now my turn to quote a source that is “out there:”  

    “The truth is out there.”

    I now realize for the first time that this is a double entendre

  12. I recently read America and the Law of Nations, which I enjoyed very much. In looking up opinions on the book I came across your posting and I thank you for sharing your thoughts. 

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