War, the State and International Law in Seventeenth-Century Europe

Olaf Asbach, Peter Schröder

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317000365
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

One of the great paradoxes of post-medieval Europe, is why instead of bringing peace to a disorganised and violent world, modernity instead produced a seemingly endless string of conflicts and social upheavals. Why was it that the foundation and institutionalisation of secured peace and the rule of law seemed to go hand-in-hand with the proliferation of war and the violation of individual and collective rights? In order to try to better understand such profound questions, this volume explores the history and theories of political thought of international relations in the seventeenth century, a period in which many of the defining features and boundaries of modern Europe where fixed and codified. With the discovery of the New World, and the fundamental impact of the Reformation, the complexity of international relations increased considerably. Reactions to these upheavals resulted in a range of responses intended to address the contradictions and conflicts of the anarchical society of states. Alongside the emergence of "modern" international law, the equation of international relations with the state of nature, and the development of the "balance of power", diplomatic procedures and commercial customs arose which shaped the emerging (and current) international system of states. Employing a multidisciplinary approach to address these issues, this volume brings together political scientists, philosophers, historians of political thought, jurists and scholars of international relations. What emerges is a certain tension between the different strands of research which allows for a fruitful new synthesis. In this respect the assembled essays in this volume offer a sophisticated and fresh account of the interactions of law, conflict and the nation state in an early-modern European context.

PART I
Introduction

Chapter 1
War, the State and International Law in Seventeenth-Century Europe1

Olaf Asbach and Peter Schröder

From the Seventeenth to the Twenty-First Century – and Back

The seventeenth century is of particular importance for the study of the theory and practice of the modern state, of the system of international relations and of the question of war and peace. The pivotal significance of the developments of this time may be seen, for example, from the large number of studies and debates in political and cultural science, international law, philosophy, and social, economic and cultural history that have taken it as their subject.2 It is striking that they often draw an open or implicit relation between developments and problems then and now. This became especially clear a few years ago in the commemoration of the 350th anniversary of the Treaties of Münster and Osnabrück, which brought the Thirty Years War to an end in 1648.3 The peace settlement signalled the end of an era of state-building and confessional wars in that the following period saw the establishment of new structures and institutions that re-ordered social and international relations by means of modern state power.4 Of the research and debates occasioned by this anniversary the same may be said as of those brought forth by the anniversary a few years before, celebrating the publication of Immanuel Kant’s Zum ewigen Frieden in 1795. Both observances initiated a wave of writings, conferences and projects on questions of the institutional and normative re-thinking of international law and peace that continues to have an effect today in interdisciplinary efforts and at the international level.5 In spite of their often historico-political content and frequent instrumentalisation of their subjects, or precisely because of this, both these focal points of political, historical and philosophical debate are extraordinarily instructive. For after all, they are applicable and capable of being updated in a historico-political and ideological respect only because we can discuss through them fundamental problems of the present, whether in order to conceive these problems rationally or to transform them ideologically.

The forms and configurations of political, social, cultural and legal institutions and structures, especially as they developed and were consolidated in the Europe of the seventeenth century and were globalised in the second half of the eighteenth century, make up the common factual reference point of these scholarly and political debates.6 Anglophone research in particular sums up these developments and transformations under the term “Westphalian order”. Here the Peace of Westphalia is a symbol for a specific set of new social and political actors, institutions and dynamics, and for the political, legal and philosophical forms in which they are to be conceived and framed. And it is precisely these structural and functional connections that have come to stand increasingly at the centre of current debates. It is this constellation, so the general tenor of articles on this debate show, that has been fundamental to modern and global relations into the second half of the twentieth century, but that in recent decades has fallen into a crisis of truly epochal character. For when basically new actors, structures and dynamics shape political, socio-economic and cultural action, all the forms, institutions and criteria used to organise, analyse and evaluate them must also be completely reconceived.

These connections among the structures and dynamics of the state, international relations and war in the seventeenth century, which are constitutive for an understanding of the relations and developments of the future as well as the present, may be exemplified by three, frequently interwoven strands of contemporary debate and research. Focused on these strands, the seventeenth century, and the turn of the twentieth century, appear to be both the beginning and the end of a specific historical epoch.

From the Birth of the “Leviathan” to the End of the Nation-State

Many current debates revolve round the question of the change or decline of the state and state sovereignty brought about by the process of globalisation. From the perspective of these studies and diagnoses (sometimes in combination with a more or less clear practical-political orientation), the seventeenth century in general and the symbolic year “1648” in particular stand for the establishment of the “modern state”. The crisis that followed upon the dissolution of the feudal-corporative order, overarched by imperial rule and christianitas, and the numerous resultant political, economic, socio-cultural and religious conflicts and wars, led to implementing the state as a new, centralised institution. The state now lay claim to an exclusive monopoly on legislation and the use of force, and justified its internal and external sovereignty with the competence to guarantee general conditions of law, freedom, peace and order; this was the foundation upon which social stability and the secure pursuit of individual and collective interests was to be made possible.7

In the eyes of many observers, this organisational form of social coherence, which has decisively determined political structures for centuries, has today fallen into a crisis or even come to an end.8 Under the catchword of “globalisation”9, they have discussed all those developments and processes that seem seriously to undermine the organisational, regulatory and directive institutions of the national state, from the globalisation of production and finance capital, the development of new sub and transnational actors and institutions, to ecological problems that are no longer amenable to the regulatory power of nation-states.

From the Westphalian Order to the New World (Dis)Order

From the mid-seventeenth century on, the establishment of the sovereign state generated a new system of international relations.10 Its central figures are states that confront one another with the claim to sovereignty and no longer acknowledge an overarching legal and normative instance such as emperor and pope. This radically transforms, and in a specific sense rationalises and secularises, the theory and the practice of the international system: both become the object of a purely rational calculus of interests that seeks to secure the policies and wealth, position and goals of each individual state by the use of political, military, economic, financial and other sources of power. On the one hand, as a correlate of reasons of state in foreign policy so to speak, the concepts and political strategies of a balance of power and of a politics of interests gain the ascendancy; on the other hand, a new kind of international law emerges that is primarily understood as the law of states. Together, these tendencies come to form the fundament of political and international thought and action in the new system, first in Europe and then across the globe.11 From this results the secular character of the present crisis of the international system.

When today, under catchwords like the “end of the Westphalian state system”,12 scholars detect an upheaval in international relations, they are noting the end of fundamental structures of an order that has been in effect for more than three centuries and that dominates contemporary institutions and outlooks.13 This is a matter not merely of a quantitative increase in new international actors alongside states, or a growing complexity of power relations and problem-solving strategies, but rather of the perception that we are living through the collapse of the entire political and socio-cultural, institutional and conceptual framework that has emerged since the seventeenth century.14 The manifold efforts to create transnational forms of integration and cooperation as well as new regional and global institutions and mechanisms, and thereby to achieve a re-determination of international private and public law, represent attempts to reformulate international relations and international law. Opinions differ widely, however, as to whether this is a supplement to or a surrogate for the hitherto state-centred world and legal order.

From the Nationalisation of War to the Unleashing of New Wars

The upheavals within the classical “Westphalian order” come to the fore with particular clarity in the current discussions of (the at least supposedly) “new wars”. In early modernity, the establishment of the new state system, for whose territorially defined organisation of rule the claim to external sovereignty was constitutive, went hand in hand with nationalisation of war. The Westphalian Peace was, as it were, a symbol for a new international system that made states alone the legitimate actors in the declaration, conduct and ending of wars.15 We might speak of a downright symbiosis between the state and war in modern times, although the views that underlie the interpretations of the foundations of and relations between these two phenomena are based on very heterogeneous evidence, both empirical and theoretical. War and the rules of war became exclusively an affair of the state. The upshot of this “nationalisation process”, however, was quite ambivalent: historically and systematically it harboured the opportunity for a “civilising”, “managing” and “juridification” of the ius ad bellum and ius in bello as well as the potential for an extraordinary increase and intensification of the use of organised violence.16

The increasingly often used designation of “new wars” indicates the diagnosis of a basic breach of this “Westphalian order”.17 On this view, the previously mentioned processes of the “de-nationalisation”, pluralisation and globalisation of actors, resources and structures of conflict lead to shelving the well-rehearsed forms in which wars have hitherto been thought of, explained and politically and legally legitimated. They are now being replaced by completely new – or perhaps better, completely old – organisational forms, modes of thought and strategies of legitimation, such as were known before the forming of the Westphalian order and which are marked by a basic pluralising and “privatising” of the use of violence.18 Thus the emergence of the modern state system in the seventeenth century throws up the fundamental questions of war and peace, of international relations, international law and the rules of war, with a radicality comparable to our own day. September 11, 2001 was not necessary in order to prove that these questions have become significantly more urgent in view of the present degree of the global interlinking of political, economic and ecological problems, and the manifoldly increased potential for destruction.

The disciplinary and methodological perspectives, conceptions, diagnoses and assessments that appear in the previously mentioned studies and debates exhibit a broad spectrum of themes in each of the three indicated fields. The question whether the theoretical and empirical assumptions, methods and consequences of the various positions are objectively appropriate has aroused intense controversies. Precisely this heterogeneity of positions and the vehemence of the related debates attests to the need and the urgency of coming to grips with the historical and systematic foundations of the state, war and international relations as they came to be formed and consolidated in the seventeenth century, and have today become the quintessence of that which is understood under the label of the “Westphalian order”. Quite apart from whether we refer to the idea of the “Westphalian order” positively or critically, this order has constituted the central reference point of debates that are of extraordinary relevance not only for the scholarly, but also for the political process of agreement about the basic structures of past and present international relations and conflicts, and of our knowledge of them.

Towards a New Approach to the Seventeenth-Century International System

The aim of this volume is to present new studies and approaches in the investigation of the historical, systematic and contemporary meaning of the structures and developments of the state, war and international law in and since the seventeenth century, and to afford new accesses to these subjects. The previous reflections on the complexity of the related factual and methodological themes and dimensions show that current research is confronted by at least two challenges.

On the one hand, one desideratum of this research is a further, and particularly a methodologically reflective, study of the presuppositions, forms and consequences of the development of the modern state system, its political and (international) legal forms of organisation and the intellectual forms in which it is reflected. This requirement arises not least from the danger of being taken in by widespread anachronistic ideas of a “Westphalian order” such as may be seen in not a few historical, political and social studies, especially in the field of International Relations. One does not always resist the temptation of constructing as a backdrop to the (supposedly) completely new developments and challenges of the present a schematic idea of the (supposedly) completely different conditions and structures of the state, international relations and war that have prevailed since the beginning of modernity, and that are assumed to have no longer anything to do with contemporary historical reality and its practical and systematic-theoretical significance.

To guard against this danger, on the other hand, requires a much stronger interdisciplinary approach, that is to say, the systematic awareness and taking into account of the factual and methodological developments in other disciplines and contexts of research. Although in recent years and decades there have been numerous new approaches to and studies of the forming of modern society and the state system, and to questions of international law, war and peace, the various branches and perspectives of research have had the tendency to become isolated and independent of each other in spite of the fact that in the end they treat the same subject. Precisely the progress and differentiations within the various disciplines have led to highly specialised studies and debates that hardly admit to taking cognisance of other studies and approaches, and, if so, then only in stereotypical form. This is well illustrated by rese...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of Figures
• List of Contributors
• Acknowledgements
• Part I Introduction
• Part II Modern State and War – An Internal Nexus?
• Part III Modern Law of Nations – from Spanish Scholastics to Grotius
• Part IV State and International Relations – from Machiavelli to Hobbes
• Part V War and State in the Expanding European State System
• Part VI Conclusions and Perspectives
• Index