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BOOK I
State of War

Paradise Lost
(Book III, lines 111—125)

. . . They therefore as to right belonged,
so were created, nor can justly accuse their maker, or their making, or their fate,
as if predestination overruled their will, disposed by absolute decree or high foreknowledge: they themselves decreed
Their own revolt, not I: if I foreknew,
foreknowledge had no influence on their fault,
which had no less proved certain unforeknown.
So without least impulse or shadow of fate,
or aught by me immutably foreseen,
they trespass, authors to themselves in all both what they judge and what they choose; for so
I formed them free, and free they must remain,
till they enthrall themselves . . .

—John Milton


Introduction:
Law, Strategy, and History

Law, Strategy, History—three ancient ideas whose interrelationship was perhaps far clearer to the ancients than it is to us, for we are inclined to treat these subjects as separate modern disciplines. Within each subject we expect economic or political or perhaps sociological causes to account for developments; we are unlikely to see any necessary relation among these three classical ideas. They do not appear to depend upon each other.

Of course we understand, from the point of view of any one of these three disciplines, how events in one can affect events in another. A war is won, and international law changes, as at the Nuremberg trials that followed World War II and called to account those who had obeyed orders they believed to be lawful. Or a war is lost, with the consequence that a new constitutional structure is imposed, as happened to Japan after World War II. Thus does strategy change law—and we call it history. Or the law of a state changes—as by the French Revolution, for example—and this change brings about the levée en masse that enables a Napoleon to conquer Europe through strategic genius; thus does law change strategy, and this too we call history. Or history itself brings new elements into play—a famine drives migration across a continent or technological innovation provides the stirrup—and an empire falls, and with its strategic collapse die also its laws. With all these examples we are familiar, but we understand this interrelationship as the by-product of cause and effect, the mere result of wars, famine, revolution, in which history is simply the record of events, organized according to the usual subject matters. We scarcely see that the perception of cause and effect itself—history—is the distinctive element in the ceaseless, restless dynamic by means of which strategy and law live out their necessary relationship to each other. For law and strategy are not merely made in history—a sequence of events and culminating effects—they are made of history. It is the self-portrayal of a society that enables it to know its own identity. (1) Without this knowledge a society cannot establish its rule by law because every system of laws depends upon the continuity of legitimacy, which is an attribute of identity. Furthermore, without such a self-portrayal, no society can pursue a rational strategy because it is the identity of the society that strategy seeks to promote, protect, and preserve. One might say that without its own history, its self-understanding, no society can have either law or strategy, because it cannot be constituted as an independent entity.

History, strategy, and law make possible legitimate governing institutions. For five centuries, the operation of these institutions has been synonymous with the presence of the modern state, and so we may be inclined to think of the subjects of these disciplines—history, strategic studies, jurisprudence—as mere manifestations of the State. Such a reaction is natural enough with respect to law: some writers, such as Kelsen (2) and Austin, (3) have held that there is no law without the State. And other writers, such as Machiavelli (4) and Bodin, (5) present strategy as an aspect of the State, for it is the State that sets the terms of engagement pursued by generals, that fields their armies and declares their wars or announces their capitulations. It is even plausible to regard history in this way: for this reason, Hegel wrote that history ended at the Battle of Jena, with the birth of the state-nation, for history ends with the creation of an institution that makes the Absolute attainable. (6) These reactions are understandable but they are misguided.

The State exists by virtue of its purposes, and among these are a drive for survival and freedom of action, which is strategy; for authority and legitimacy, which is law; for identity, which is history. To put it differently, there is no state without strategy, law, and history, and, to complicate matters, these three are not merely interrelated elements, they are elements each composed at least partly of the others. The precise nature of this composition defines a particular state and is the result of many choices. States may be militaristic, legalistic, and traditional to varying degrees, but every state is some combination of these elements and can be contrasted with every other state—and with its own predecessors—in these ways.

The legal and strategic choices a society confronts are often only recombinations of choices confronted and resolved in the past, now remade in a present condition of necessity and uncertainty. Law cannot come into being until the state achieves a monopoly on the legitimate use of violence. Similarly, a society must have a single legitimate government for its strategic designs to be laid; otherwise, the distinction between war and civil war collapses, and strategy degenerates into banditry. Until the governing institutions of a society can claim for themselves the sole right to determine the legitimate use of force at home and abroad, there can be no state. Without law, strategy cannot claim to be a legitimate act of state. Only if law prevails can it confer legitimacy on strategic choices and give them a purpose.* Yet the legitimacy necessary for law and for strategy derives from history, the understanding of past practices that characterizes a particular society.

Today, all major states confront the apparently bewildering task of determining a new set of rules for the use of military force. Commentators in many parts of the world have observed a curious vacillation and fecklessness on the part of the great powers at the very time those powers ought to be most united in their goals, for the Long War that divided them has now ended. Or perhaps it is the end of the Long War that accounts for such widespread confusion. Because the ideological confrontation that once clearly identified the threats to the states of either camp has evaporated, it has left these states uncertain as to how to configure, much less deploy, their armed forces. (7) What seems to characterize the present period is a confusion about how to count the costs and benefits of intervention, preparedness, and alliance. What does the calculus for the use of force yield us when we have done our sums? Only an unconvincing result that cannot silence the insistent question: "What are our forces for?" (8) Because no calculus can tell us that. We are at a moment when our understanding of the very purposes of the State is undergoing historic change. Neither strategy nor law will be unaffected. Until this change is appreciated, we will continue the dithering and the ad hockery, the affectations of cynicism and the placid deceit that so typifies the international behavior of the great powers in this period, a period that ought to be the hour of our greatest coherence and conviction. It is not that the United States did or did not decide to go into Somalia or Bosnia; it's that the United States has made numerous decisions, one after the other, in both directions. And the same thing may be said of the pronouncements of the other great powers regarding North Korea, Iraq, and Rwanda. "Ad hoc strategies" is almost a contradiction in terms, because the more states respond to the variations of the hour, the less they benefit from strategic planning.

The reason the traditional strategic calculus no longer functions is that it depends on certain assumptions about the relationship between the State and its objectives that the end of this long conflict has cast in doubt. That calculus was never intended to enable a state to choose between competing objectives: rather, that calculus depends upon the axiomatic requirement of the State to survive by putting its security objectives first. We are now entering a period, however, in which the survival of the State is paradoxically imperiled by such threat-based assumptions because the most powerful states do not face identifiable state-centered threats that in fact imperil their security. Having vanquished its ideological competitors, the democratic, capitalist, parliamentary state no longer faces great-power threats, threats that would enable it to configure its forces by providing a template inferred from the capabilities of the adversary state. Instead, the parliamentary state manifests vulnerabilities that arise from a weakening of its own legitimacy. This constitutional doubt is only exacerbated by the strategic confusion abroad for which it is chiefly responsible. So the alliance of parliamentary great powers,* having won their historic triumph, find themselves weaker than ever, constantly undermining their own authority at home by their inability to use their influence effectively abroad. With a loosening grip on their domestic orders, these powers are ever less inclined to devote themselves to maintaining a world order. The strategic thinking of states accustomed to war does not fit them for peace, which requires harmony and trust, nor can such thinking yet be abandoned without risking a collapse of legitimacy altogether because the State's role in guaranteeing security is the one responsibility that is not being challenged domestically and thus the one to which it clings. We have entered a period in which, however, states must include in the calculus of force the need to maintain world order. This is not the first such period; indeed, the last epoch of this kind was ended by the eruption of the conflict that has just closed, leaving us so disoriented. Accordingly, there is much to learn from the study of that conflict, and also from earlier eras that were marked by changes in the constitutional form and strategic practices of the State.

Preliminarily, there are a few widespread preconceptions that must be put to one side. In contrast to the prevalent view that war is the result of a decision made by an aggressor, I will assume that, as a general matter, it takes two states to go to war. The common picture many Americans and Europeans have of states at war is that they came into hostilities as a result of the aggression of one party. It is like a class bully in a schoolyard who provokes a fistfight in order to terrorize his classmates. But the move to war is an act of the State and not of boys. States that wish to aggrandize themselves, or to depredate others, may employ aggression, but they do not seek war. Rather it is the state against whom the aggression has been mounted, typically, that makes the move to war, which is a legal and strategic act, when that state determines it cannot acquiesce in the legal and strategic demands of the aggressor. So it was with Germany, Britain, and France in 1939. (9) So it was with Athens and Sparta in 431 b.c. A corollary to this idea is the perhaps counterintuitive notion that sometimes a state will make the move to war even when it judges it will lose the war that ensues. A state that decides it can no longer acquiesce in a deteriorating position must ask itself whether, if it chooses to resist, it will nevertheless be better off, even if it cannot ultimately prevail in the eventual conflict.

Many persons in the West believe that war occurs only because of miscalculation; sometimes this opinion is combined with the view that only aggressors make war. Persons holding these two views would have a hard time justifying the wisdom of Alliance resistance to Communism the last fifty years because it was usually the U.S. and her allies and not the Soviets who resolutely and studiedly escalated matters to crises threatening war. Besides the obvious cases involving Berlin in 1952, or Cuba in 1962, we might add the decisions to make the move to war in South Korea and in South Viet Nam, the nature and motivations of which decisions are underscored by the persistent refusals of the Americans and their allies to bomb China or invade North Viet Nam. That is, in both cases the allied forces fought to stop aggression by going to war and declined to employ decisive counteraggression.

Those persons who concede these facts and conclude that these decisions were wrong, and yet who applaud the victory of the democracies in the Cold War, are perhaps obliged to reconsider their views. For it was this peculiar combination of a willingness to make the move to war coupled with a benign nonaggression, even protectiveness, toward the other great powers that ultimately gave the Alliance victory. Sometimes this matter is confused in the debate over precisely how this victory was achieved. Was the Cold War won because U.S.-led forces militarily denied Communist forces those strategic successes that would have sustained a world revolution? Or was it won because northern-tier markets were able to build an international capitalist system that vastly outperformed the socialist system (and an international communications network that informed the world of this achievement)? Such a debate misses the point, perhaps because it is suffused with the assumptions about war and miscalculation to which I have referred. Neither military nor economic success alone could have ended the Cold War, because neither alone could deliver legitimacy to the winning state, or deny it to the loser. Moreover, neither military nor economic success was possible without the other: can one imagine a European Union having developed without Germany, or with a Germany strategically detached from the West? Even the ill-fated American mission in Viet Nam contributed to the ultimate Alliance victory: a collapse of military resistance in Indochina in 1964 would have had political effects on the very states of the region whose economies have since become so dynamic (analogous to those effects that would have been felt in Japan following a collapse of resistance in Korea in 1950). The political and economic, far from being decisive causal factors on their own, are really two faces of the same phenomenon. Only the coherent union of a constitutional order and a strategic vision could achieve the kind of results that ended, rather than merely interrupted, such an epochal war. We shall have to bear this in mind with regard to maintaining either success, political or economic, in the future.

Contemporary imagination, however, like so many aspects of contemporary life, is suffused with presentism. This is often commented on by those who lament the current lack of interest in the past, but it is equally manifest, ironically, in our projections about the future. This leads us to the third preconception that must be dismissed: namely, that future states of affairs must be evaluated in comparison with the present, rather than with the unknowable future. One encounters this often in daily life, in the adolescent's decision to quit school so "I can make more money" (because going to school pays less than working in a fast-food shop) or the columnist's claim that "if we balanced the budget, interest rates would drop and growth would increase" (because the government would not be adding to the demand for borrowed money). In those cases the speaker is making the mistake of comparing a future state of affairs with the present, and omitting to imagine what an alternative future state of affairs might be like (if he stayed in school and qualified for a better job; if the government steeply increased taxes in order to balance the budget), which would provide the proper comparison. If this seems altogether too obvious, let me give one famous example of this preconception.*

Many commentators believe that the turning point in the 1980 U.S. presidential elections came in the first debate between the candidates when Governor Reagan asked the American people to consider the question "Are you better off today than you were four years ago?" Indeed, this riposte was so successful that it was used in the 1984 debate by Reagan's opponent, Walter Mondale; and used again by George Bush against Michael Dukakis; and then used by Governor Clinton against President Bush.

Such a question, however, can scarcely be the measure of a presidential administration because the one thing we know is that things will never stay the same for the length of a presidential term, regardless of who is in power. Governor Reagan ought to have asked the public in 1980, "Are we better off now than we would have been if President Ford had held office these last four years?" This is the measure of the choice to be made, which might be phrased: "Will we be better off in four years, not 'than we are now' but 'because of the choice we are asked to make now'?"

The calculus employed by a state in order to determine when it is appropriate to make the move to war is, similarly, future-oriented. It asks: will the state be better or worse off, in the future, if in the present the state resorts to force to get its way? For half a millennium, the State has been an attractive institution for making political decisions precisely because it is potentially imperishable. The State, being highly future-oriented, can channel resources into the future and harness present energy for deferred gains. But this quality of futurism is also its vulnerability: the State is a clumsy instrument for persuading people to make sacrifices when objectives are in doubt, or to parry subtle long-term threats, because the interests of the people can easily be severed from those of the State when long-term objectives and goals are at issue. In the long term, as Keynes remarked, we are all dead. In periods in which the objectives to be pursued by the State are unclear, its very habits of orientation toward the future do not help to marshal the popular will, and thus the State is apt to be disabled from carrying out commitments that may be necessary for its ultimate security and the welfare of future generations to which it is, faute de mieux, committed. Threats such as the destruction of the ecology, the erosion of the capital base, potential threats to its critical infrastructure, and especially demographic developments all play on this vulnerability, for each such threat can call on a vocal domestic constituency that, out of reasonable motives but a present-minded orientation, can paralyze rational action. And, it should be noted, military power can quickly erode if a state does not accurately conceptualize the threats it actually faces, and thus neglects to adopt a strategy that meets those threats.

It is interesting to ask just what the United States, for example, at the end of the twentieth century took to be the objectives of its strategic calculus. According to a Pentagon White Paper at the time, there were three such objectives: deterrence, compellance, and reassurance. (10) It can be easily shown, however, that these three objectives were hangovers from the era just past, indeed that they were borrowed from theories about the objectives of nuclear strategy. What is less obvious is that, at the end of the war the Alliance had just won, objectives such as these were worse than useless because they tended to obscure the tasks that the United States had to undertake in order to redefine the goals of its national security policy. Let us look at each of the three purported objectives.

Deterrence is an extraordinarily limited theory that relies on a reasonable but extraordinarily broad assumption. That assumption is that the State will make decisions as a result of balancing the benefits to be achieved by a course of action against the costs incurred in pursuing those benefits by the particular means proposed. This assumption, in turn, depends on the commonsense observation that human beings can imagine pain greater than that they now endure, that they can imagine happiness greater than that in which they now delight, and that they will evaluate possible futures in terms of their mixtures of these two imaginary states. For instance, deterrence is a common means in criminal law, in the classroom, even in the family. "Don't even think of parking here" reads a familiar sign that reflects this approach.

As a strategy, deterrence makes most sense in the extreme case of nuclear deterrence, where the interest of the state in simple survival intersects the clarity of the danger of annihilation. Deterrence is more problematic, however, when the calculations on which it relies become more complex, or when these calculations are clouded by cultural differences and varying attitudes toward risk, or when the facts on which such calculations depend are uncertain or colored by wishful thinking. In other words, the idea of deterrence is itself so much a part of human nature that it can be applied only as it is affected by the various fallacies and shortcomings to which human nature is prey. Moreover, the strategic theory of deterrence is of a very limited application. It is scarcely deterrence, much less nuclear deterrence, that prevents the United States from invading Canada (or the other way around). Our political relations with Canada—an amalgam of our mutual history (including past wars against each other), our shared institutions, our intertwined economies, our alliances—are what render the idea of an attack by one on the other absurd enough to have been the basis for a popular satiric comedy. Rather, military deterrence is a concept that is useful within war or the approach to war, once political relations have become so strained that hostilities only await opportunity. It is only because we have lived for so long at war that we are inclined to miss this point, and that we have come to think of deterrence as a prominent feature of the international relations of a peacetime regime.

Drawing on work by the economist Jacob Viner, Bernard Brodie introduced into American strategic thinking the remarkable idea of nuclear deterrence. To see how revolutionary an innovation this was, we need only recall Brodie's famous conclusion. He wrote, "Thus far the chief purpose of our military establishment has been to win wars. From now on its chief purpose must be to avert them. It can have almost no other useful purpose." (11) This makes a great deal of sense when dealing with nuclear weapons. The destructiveness of such weapons and their possession by our adversaries required a revolution in thinking about the purposes of our military forces. The military managers and politicians of the 1950s who were inclined to treat nuclear weapons as though they were simply bigger bombs had to learn a new, eerie form of strategic calculation. Deterrence, as a general matter, however, is a poor mission statement for a state's armed forces. No state, even one as wealthy as the United States, can afford to maintain the forces that would successfully deter all other states acting independently or in combination. One can see from the Pentagon White Paper that this idea of Brodie's in the nuclear context—the use of armed forces to avert war—has now infiltrated the conventional, that is, the non-nuclear mission statement. Not only is it unrealistic to assert that the United States must maintain forces so vast as to be a matter of general, conventional deterrence. It also begs the one important question at the end of the Cold War: whom are we supposed to deter? Only when this question is answered can we so configure our forces as to realize such a policy. Deterrence does not come with its own specifications. If it takes two to war, then the idea of deterring wars without a specified adversary or threat is nonsense. The simple intuitive appeal of being so strong militarily that no one dares threaten you is an absurd idea for a state. Indeed, such an idea, however appealing, can actually weaken the state because the diversion of its resources into an undirected defense establishment undermines the economic and political strength the state will require should it find itself in a dangerous confrontation.

Advances in weapons technology make it possible for the leading states of the developed world to produce weapons of mass destruction that are so deadly relative to their size and cost that they can bypass even the most sophisticated attempts at defense by attrition. A corollary to this fact is that these weapons can be deployed clandestinely, so that the possibility of retaliation can be defied, and thus the strategy of deterrence rendered inoperable.

Compellance, too, is an idea that originated in the strategy of nuclear weapons and has been imported by the White Paper into the world of conventional forces. There is some considerable irony in this. Thomas Schelling introduced the neologism "compellance" as a complement to "deterrence" because this ancient concept of the use of force had become lost in the bizarre new world of nuclear strategy. (12) Schelling used "compellance" to describe the coercive use of nuclear weapons. This occurs when the threat of the use of such weapons seeks to compel an adversary state to actually do something it would otherwise not do, rather than merely refrain from doing something it would like to do (which is the purpose of deterrence). Compellance has been a purpose for armed force or, indeed, violence generally throughout the life of mankind. Yet it too is inappropriate as a mission statement for American forces. Only if we have a clear political objective can we determine what form of compellance is appropriate strategically. To say the mission of our forces is "compellance" is very like saying the mission of our minds is "thought." It is both a true and an empty sentence.

Compellance has had a good run lately. It was compellance that forced Saddam Hussein to evacuate Kuwait, once he had occupied and annexed it. It was compellance that forced Slobodan Milosevic to abandon Kosovo, a province he hitherto controlled utterly. These were worthy objectives, even if our execution of our war plans was not faultless. It would be good to have had a Bush Doctrine or a Clinton Doctrine, spelling out precisely for what reason and in what contexts the United States will compel other states by force, not only because the public in a democracy has a right to such an articulation of purpose, but also because without such limiting guidelines, compellance has a way of bringing forth countervailing force. When he was asked what the lesson of the Gulf War was, the Indian chief of staff is reported to have said, "Never fight the United States without nuclear weapons."

Interestingly, the third idea said to make up the mission of U.S. forces today is an idea also drawn from nuclear strategy. Sir Michael Howard is the father of the notion of "reassurance" in nuclear strategy. (13) In a series of essays and lectures he stressed reassurance as the key element in American nuclear strategy—an element not directed at our adversaries, but toward our allies. Much stronger forces are required, he concluded, to reassure a nervous ally who is dependent on U.S. nuclear protection than are actually required to deter a targeted enemy from attack. Like the contributions of Brodie and Schelling, this insight has been of crucial importance in the development and understanding of nuclear strategy. I doubt, however, that it can be of much use in the absence of a threat to the Atlantic Alliance, or to any of the states who have relied upon the American nuclear umbrella. Of what exactly are we to reassure our allies?

Reassurance as an idea in nuclear strategy depends on the crucial distinction between extended and central deterrence. The former term applies to the extension of American nuclear protection to Europe and Japan; the latter term refers to the threat of nuclear retaliation to deter attack on the American homeland. I have argued elsewhere that extended deterrence has driven U.S. nuclear strategy, not central deterrence. Reflecting on the evolution of nuclear strategy in Democracy and Deterrence, I concluded in 1983 that:

The fate of the world does not hang on whether the U.S. or the USSR reduce their weapons or on whether they freeze their technologies. Indeed it should be easy to see that were either goal pursued too single-mindedly, there would result a much more dangerous world as other powers entered the nuclear field, approaching parity with the superpowers. Rather, our situation will be determined by whether Euro-Japanese security is enhanced, from their perspective, by our strategies, military and diplomatic; whether the public can be made to understand and support such steps as do enhance the extended environment when it has been told more or less constantly that it is the number of weapons and the advance of technology that causes (or cures) the problem. . . . (14)

I still endorse this view, but such reassurance is now far less easy to achieve because it has largely ceased to be defined. Reassurance played a crucial role during the final phase of the Long War, from 1949 to 1990, because it prevented multipolarity—the proliferation of nuclear weapons to states such as Germany and Japan—and thereby made possible the quite stable deterrence relationship between the United States and the Soviet Union. Reassurance, I will argue, has an equally vital role to play in the twenty-first century as our strategies move toward a greater emphasis on defense and deception. This will not be possible, however, if we continue to think and plan as though the stable relations that attended the possessors of weapons of mass destruction in the Cold War are somehow intrinsic to such weapons. Indeed, in my view the use of nuclear weapons is likelier in the first fifty years of the twenty-first century than at any time in the last fifty years of the twentieth century, but we are lulled into complacency about this because of the nuclear stability we experienced in that period. As one commentator has put it,

our current strategic thought tends to project this peculiar experience into the future. It assumes that the use of mass destruction weapons will either be deterred or be confined to localized disasters caused by strategically incompetent terrorists. Competent adversaries, this thinking implicitly assumes, will have to emulate the “revolutionary” military technology that we now possess, but at the same time adhere to our old, counterrevolutionary strategy, as worked out in our superpower rivalry with the former Soviet Union. But, unfortunately, our old strategy is not an immutable law of nature. A highly competent enemy might well emerge who will seek to destroy the United States by using mass destruction weapons in a truly revolutionary kind of warfare. (15)

Thus we won’t be able to reassure our peer competitors because we will fail to appreciate the true threats they face. Instead, mesmerized by “rogue states” whose hostility to the United States is essentially a by-product of our global reach that frustrates their regional ambitions, we will find ourselves increasingly at odds with the other great powers. Until we know what will serve the function of maintaining the Alliance that has become a proto–world order, we know not what to assure our allies of (or insure them against). The problem for the United States has become to identify its interests and future threats so that it can use its power to strengthen the world order that it has fought, successfully, to achieve, and that can, if properly structured and maintained, re-enforce American security to a far greater degree than the United States could possibly do alone. This is essentially an intellectual problem, just as the solution devised by the United States and its allies to the universal vulnerability that attended the development of nuclear weapons was an intellectual solution. (16) But faced with the immense difficulties of anticipating a new strategic environment—both at the state level, where peer competitors may emerge as threats, and at the technological level, where weapons of mass destruction make nonsense out of our defense preparations—who is eager to take the bureaucratic and political risks inherent in accepting this challenge? (17) How much more likely it is that we will extrapolate from the world we know, with incompetent villains and heroic (and recent!) success stories.

Our present world, this “Indian summer”* as one writer puts it, not only presents a beguiling invitation to complacency reinforced by new technological possibilities. It also offers an opportunity to undertake some fundamental reassessments without the terrible pressure of war. Recent American successes in the Gulf War and in Yugoslavia, however, may tend to discourage any too-radical revisions.

Paul Bracken correctly concludes,

The focus on the immediate means that a larger, more important question is not being asked: should planners redesign the U.S. military for an entirely new operational environment, taking account of revolutionary changes in military technology and the possible appearance of entirely new kinds of competitors? (18)

And Fred Iklé adds that

. . . military planners, as well as most scholars, would shrug off these cosmic questions and instead nibble at the edges of the problem—worrying, say, about whether a tactical nuclear weapon could be stolen in Russia and sold to Iran, or whether Iraq might still be hiding some Second World War–type biological or chemical agents. (19)

A failure to take seriously the new strategic environment can have costly consequences in the domestic theatre as well. Should the use of a weapon of mass destruction occur, the state in which this happens will undergo a crisis in its constitutional order. How it prepares for this crisis will determine the fate of its society, not only its sheer survival, but the conditions of that survival. Some societies may become police states in an effort to protect themselves; some may disintegrate because they cannot agree on how to protect themselves.

The constitutional order of a state and its strategic posture toward other states together form the inner and outer membrane of a state. That membrane is secured by violence; without that security, a state ceases to exist. What is distinctive about the State is the requirement that the violence it deploys on its behalf must be legitimate; that is, it must be accepted within as a matter of law, and accepted without as an appropriate act of state sovereignty. Legitimacy must cloak the violence of the State, or the State ceases to be. Legitimacy, however, is a matter of history and thus is subject to change as new events emerge from the future and new understandings reinterpret the past. In the following chapters, we will see how the standards against which state legitimacy is measured have undergone profound change, animated by innovations in the strategic environment and transformations of the constitutional order of states.

It is often said today that the nation-state is defunct. (20) Recently, in a single year, two books were published with almost identical titles, The End of the Nation-State (21) and The End of the Nation-State: The Rise of Regional Economies. (22) To these can now be added Martin van Creveld’s distinguished The Rise and Decline of the State. (23) There are skeptics, however, who point out that both nationalism and the State are thriving enterprises. Moreover, for all the transfer of functions to the private sector, we don’t really want the State to fade away altogether. There are many things we want the State and not the private sector to do because we want our politics rather than the market to resolve certain kinds of difficult choices. And, it must be conceded, the market itself has need of the State to set the legal framework that permits the market to function.

What is wrong in this debate over the demise of the nation-state is the identification of the nation-state with the State itself. We usually date the origin of the nation-state to the Peace of Westphalia in 1648 that ended the Thirty Years’ War and recognized a constitutional system of states. In fact, however, the nation-state is relatively new—being little more than a century old—and has been preceded by other forms of the State, including forms that long antedated the Thirty Years’ War. The nation-state is dying, but this only means that, as in the past, a new form is being born. This new form, the market-state, will ultimately be defined by its response to the strategic threats that have made the nation-state no longer viable. Different models of this form will contend. It is our task to devise means by which this competition can be maintained without its becoming fatal to the competitors.


*This is the true import of Clausewitz’s celebrated remark that “war is the continuation of politics by other means.”

*A great power is a state capable of initiating an epochal war, that is, a conflict that threatens the constitutional survival of the leaders of the society of states. Attacks by lesser states can be swiftly rebuffed (as Iraq learned in the Gulf War). Even a state whose forces can be decisive in a particular campaign—like North Viet Nam’s—can neither initiate nor terminate an epochal war. Its attacks are insufficient to call the constitutional survival of its adversary into question or to settle such questions when they are posed by others.

*Even a thoughtful commentator can succumb to this fallacy, as when Michael Mandelbaum asserted that the NATO mission had failed because the people of the Balkans “emerged from the war considerably worse off than they had been before.” James Steinberg, “A Perfect Polemic,” Foreign Affairs (November/December 1999): 129.

*Written before September 11, 2001; see the epilogue.


NOTES: INTRODUCTION: Law, STRATEGY, AND HISTORY

 1. Cf. La Pietra Report (2000), which affirms national histories, but of a very different kind. “Instead of assuming the nation to be the “natural” unit of historical analysis, it acknowledges a variety of relevant and interrelated geographical units of history. It urges not only the exploration of the different historical forces, including transnational ones, that made and sustained the nation and national identities but also the importance, always changing, of the nation in relation to other social units, from the town, to the transnational region, to solidarity with all peoples of color, to international corporations.” Thomas Bender, “Writing National History in a Global Age,” Correspondence: An International Review of Culture and Society, no. 7 (Winter 2000/2001): 14.

 2. Hans Kelsen, General Theory of Law and State (Cambridge, Mass.: Harvard University Press, 1945).

 3. John Austin, Province of Jurisprudence Determined (Cambridge, U.K.: Cambridge University Press, 1995 [1832]).

 4. Niccolò Machiavelli, The Prince, trans. Harvey C. Mansfield, Jr. (University of Chicago Press, 1985).

 5. Jean Bodin, Six Books of the Commonwealth (B. Blackwell, 1955 [1606]).

 6. Georg Wilhelm Hegel, The Phenomenology of the Spirit (1807), trans. A. V. Miller and J. N. Findlay (Oxford, 1979). Also see Roger Kimball, “The Difficulty with Hegel,” New Criterion 19 (September 2000): 4.

 7. William A. Owens, “The Wrong Argument about Readiness,” New York Times (September 1, 2000): A27.

 8. See, e.g., Thomas Friedman, “It’s Harder Now to Figure Out Compelling National Interests,” New York Times (May 31, 1992): E5.

 9. See A. J. P. Taylor, The Origins of the Second World War (Penguin, 1961) for a related argument.

10. U.S. Department of the Army, Decisive Victory: America’s Power Projection Army (Washington, D.C.: Department of the Army, 1994). See also the Quadrennial Defense Review (May 1997, http://www.defenselink.mil.pubs/qdr/) and the Bottom-Up Review (October 1993, http://www.fas.org/man/docs/bur/).

11. Bernard Brodie, “Implications for Military Policy,” in The Absolute Weapon: Atomic Power and World Order, ed. Bernard Brodie (Harcourt, Brace, 1946), 76.

12. Thomas C. Schelling, Arms and Influence (New Haven: Yale University Press, 1966).

13. Michael Howard, “Lessons of the Cold War,” Survival 36 (1994–1995): 165.

14. Philip Bobbitt, Democracy and Deterrence (New York: St. Martin’s Press, 1988), 286.

15. Fred Ikle, “The Next Lenin: On the Cusp of Truly Revolutionary Warfare.” The National Interest 47 (1997): 9.

16. Bobbitt, Democracy and Deterrence, 19–96.

17. But see Ashton Carter and William Perry, Preventive Defense (Washington, D.C.: Brookings Institution, 1999).

18. Paul Bracken, “The Military after Next,” The Washington Quarterly 16 (1993): 157.

19. Fred Iklé, “The Next Lenin.”

20. See also Robert D. Kaplan, “Fort Leavenworth and the Eclipse of Nationhood,” Atlantic Monthly (September 1996), and Martin van Creveld, The Transformation of War (Free Press, 1991); see also van Creveld’s The Rise and Decline of the State (Cambridge, U.K.: Cambridge University Press, 2000).

21. Jean-Marie Guehenno, The End of the Nation-State (University of Minnesota Press, 1995).

22. Kenichi Ohmae, The End of the Nation-State: The Rise of Regional Economies (New York: Free Press, 1995).

23. Martin van Creveld, The Rise and Decline of the State (Cambridge, U.K., 1999). See also Empire.