We hear from time to time expressions of a wish to abolish war by establishing the rule of law. Why, it is said, if differences between individuals are settled by judicial process, should not differences between states also be settled by judicial process? Law is the antithesis of force, it is said. If law reigned, there would be no war. This line of argument consists of three steps or points, logical enough in sequence; but each of the steps presumes a fact that is not true.
The first point made is that differences between states can be settled in the same manner as differences between individuals. But, as a matter of fact, they cannot be so settled. It is perfectly true that arbitrations have been held, and that arbitral arrangements do exist for the settlement of some types of international disputes. Yet arbitrations are not compulsory. Neither the Permanent Court of Arbitration at The Hague nor the World Court of International Justice has the power to compel appearance, as a local judge does by issuing a writ or as a county sheriff by serving a warrant can bring individuals before the bar of justice. Individuals are subject to laws, but nations are sovereign. Individuals are subject to authority, but nations make their own authority. An individual’s independence of action is limited by superior governmental power, but nations are jealous of their independence of superior power. Still, attempts have been made to draw larger analogies than these. It has been said that the nations of the world could settle their disputes and live peacefully together the same as do the separate sovereign states of North America within our federal union. People have pointed to the large number of judicial decisions handed down by the Supreme Court of the United States which have settled disputes between Rhode Island and Massachusetts (12 Peters 657), between Louisiana and Mississippi (202 U. S. 1), and between many other states, and also between the states themselves and agents of the federal government in Washington. (Missouri v. Holland, 252 U. S. 416; Tennessee v. Davis, 100 U. S. 257). And yet the people who point these things out have overlooked the fact that these states submitted their differences to the Supreme Court. Having subscribed to the Federal Constitution they were compelled, or could have been compelled, to submit their disputes to that court. The Constitution and the Supreme Court and Congress may have preserved the federal union. The power of the government in Washington may have been recognized, but it is recognized in all our states only because it has shown itself able and inclined—when necessity demands—to exert its power by force of arms. When a state disagrees with another state or with the government in Washington, it submits its case to the courts for it has learned that the federal government in Washington is capable of enforcing its will. New England once had her thoughts of secession as well as South Carolina. Do the words “Shay’s Rebellion” or “The Whiskey Rebellion” mean anything in the history of our country? Sometimes the federal courts function because separate states or the separate communities accept their jurisdiction. But sometimes the federal power has had to be forcibly invoked, and the idea and principle of our union and the force of our federal laws have had to be powerfully impressed upon recalcitrant elements. And so, whether we speak of the individuals or whether we speak of the states which make up the United States, we still find there is no real similarity to the states of the world. The first point made by those who would substitute law for war is argued by analogies which are not true.
The second point made is that law is the antithesis of force. So it may seem at first glance, suppressing the corner brawl and the breaking and entering of midnight burglary. But does not a policeman carry a club and a revolver? Does not the state provide its jails and the government its penitentiaries with stone walls, iron bars, and bolted doors? Law is an idea. It is a principle. It is a rule of action. To make it effective there must be enforcement. To apply it, there must be the use of force, or the threat of force. A President of the United States exemplified the weakness of merely judicial processes when he remarked: “Chief Justice Marshall had made his decision. Now let him enforce it.” On another occasion, Andrew Jackson was ready to back up the law of the Constitution by the armed forces of the country. His statue stands in Washington in front of the White House. On its pedestal is inscribed his most famous declaration: “Our Federal Union, it must be preserved!” And it is not by chance that the sculptor has represented him in the uniform of a general, and that the statue and pedestal are surrounded by cannon, the implements of war. Decades later, when Abraham Lincoln struggled for the maintenance of the Union, he employed the land and naval forces of the United States. From 1861 to 1865, as General Sherman pointed out in 1876 to General Meigs, “the Supreme Court was absolutely paralyzed; their writs and decrees were treated with contempt south of the Potomac and Ohio; they could not summon a witness or send a deputy marshal. War, and the armed power of the nation, alone removed the barrier and restored the United States courts their lawful jurisdiction.” As Admiral Rodgers well pointed out at Williamstown in August, 1923, law is not the antithesis of force at all. Law depends upon force. He said:
Law does not prevail by moral force against those who for many reasons are determined to resist it. Popular language often embodies a conception of the public more truly than the formal precision of scholars and professional men, and every day we are reading in the papers of the “war upon the bootleggers!” The law has drawn its sword from its scabbard and is swinging it against the forces of disorder, or rather, in more modern parlance, it has “pulled its gun,” and there is bloodshed.
When a local disturbance gets beyond the power of a state governor, he may—under certain restrictions—call upon the President for troops to maintain peace and order. An alleged wrongdoer may come freely before the magistrate to defend and clear himself. Yet, usually, the police officers have to seize a murderer or a burglar and compel him to submit his will to judgment in accordance with the general ideas, principles, and rules of action which the people of the country have enacted into law. The will of the people rests only upon the power of the people’s agents. The rule of the people rests only upon power over the people. Law is not the antithesis of force. It may direct the use of force, but it does not disregard force altogether. A judicial process is the forceful application of an idea, principle, or rule approved by the people against an opposing force and a contrary principle. The second point made by those who would substitute law for war fails likewise to have any weight or truth.
The third point made is that if law reigned in international affairs, there would be no international war. That is to say if all ideas, principles, and rules of action were universally accepted in international relations there would be no war. Yet, states are ambitious. States are covetous. States are desirous of defending themselves from aggression or insult. Their ideas, principles, and rules of action are not uniform. In order to have international law supplant international war, all states must submit to a common rule. All states must be willing to forego their independence of action, and to sign away their separate sovereignties. All states must be willing to submit to judicial settlement of all disputes. And that is just what they are now unwilling to do. There have been many thousands of arbitrations in the world, and only a mere handful of arbitral decisions not accepted by the parties thereto. The difficulty has not been to enforce decisions, but to compel the states to come to the arbitral table in the first case, to compel them to abandon that independence of action of which all patriotic states are jealous. This is a difficulty which must be apparent to every reader of the newspapers of the last five years. The principal American objection to joining the League of Nations has been founded on the fear that we might be compromising our independent isolation and entangling ourselves with European responsibilities. The principal popular objection against our subscribing to the World Court was founded on the fear that we might have to submit our actions to a jurisdiction superior to the will of our own government. If the nations of the world should all submit to such a general and superior jurisdiction, there would be an effective international law. But it would be effective only because it would be enforceable. It might be said that international war had ceased to exist and that international law had taken its place. But if international law disappeared it would have disappeared only because nations had disappeared, as separate sovereign entities. We would not have states. We should have only a single world state. And that world state would only be enabled to continue to exist as a unified organization, because it would have the power of enforcing its executive decrees and judicial decisions. There would probably be attempts at secession from the world state just as there were attempts to secede from the United States. There would probably be a world civil war, to settle for once and all the doctrine of "state sovereignty." And even if there were no such world civil war to maintain the supreme world power, that world power would be supreme only because it had the force necessary to repress risings against it. There would be little or no change, in reality. Merely a change in phrase. It makes no difference whether you would call a conflict of the future a civil war or an international war, it would be a war just the same. It makes no difference whether you would call the power that would rule the world “dominating diplomacy,” or whether you would call it the “rule of law.” Force would be the substantial and powerful arm of enforcement, just as it is today. Administrative and executive departments are necessary. Laws do not enforce themselves. And administrative and executive departments function by the strength of the governments under which they function. This is what the late President Wilson meant when he said that the removal of Article X from the Covenant of the League of Nations would take the teeth out of that organization and render it useless and ineffective. And so the third point of our opponents likewise fails of proof.
In order to secure the rule of law internationally, then, we must have the use of force, force exerted by a single nation willing to fight for the rights of neutrals, as was the United States in I9*7> force exerted by a group of nations willing to fight for international honesty and scraps of paper solemnly agreed upon, or force exerted by a world-wide organization of nations bound together into a single body. International law is not a set of rules universally accepted. Some of its doctrines are accepted by some nations; some by others. By the Declaration of Paris in 1856, certain nations banned privateering in time of war; and in 1898, the United States reserved the right to use privateers—even though not using them. A treaty of 1919 concerning the Aaland Islands is the broadest acceptance of the doctrine of the three-mile limit; and yet France, and Spain, and Scandinavia would prefer to protect themselves by six-, nine-, and twelve-mile strips of territorial waters. And Great Britain and the United States have agreed, for certain purposes only, to “an hour’s steam from shore and announce that three miles is the standard limit. International law is influenced by, and is dependent upon, municipal enforcement. International law is not the law of all nations, but only of those nations that accept it. Each nation believes in and enforces and stands by its own conceptions of international law.
“International law,” says Professor Reeves, “is merely a body of rules and customs that have grown up among nations more or less similar for use among themselves.” It is understood that international rules for the conduct of warfare are applicable only between those nations that have subscribed to those rules. Between those nations and nonsignatory nations, persuasion, force, and reprisals are the only means of securing the supremacy of the rule. These rules, says the British Manual of Military Law with reference to the rules of land warfare, are applicable only in conflicts with civilized states. Against uncivilized people, the Manual adds, they are supplanted by such regulations as the corn- wander in the field may think appropriate in the particular circumstances of the campaign. This is something we too frequently forget when we hear of international law. We forget the nonsignatory states, the unenlightened peoples, and the uncivilized nations. It has been pointed out that there are sixteen hundred million people on this earth, that a thousand millions of them are not far from the savage state, and that five hundred millions are ready to fight for what they want if they think they can win the fight. We, of the United States, are only a hundred million strong. And that makes the total. Even supposing that the six hundred millions believed in international law as a rule of state action, supposing they should abolish war between themselves, supposing they should scrap their armies and navies, and supposing them sufficiently civilized to abolish the use of force—supposing all of these things, what of the other billion people on this earth not far from the savage state? Read the words of Professor Reeves:
International law is not applicable to uncivilized people and could have no influence upon them…Most wars are caused by political differences, and international law is legal and cannot prevent political clashes, r he influence of international law toward an orderly and peaceful world is of the greatest importance, but to expect of it the settlement of all the Political, racial, economic, religious, and other differences and thus avoid war, is not only ridiculous but is utterly unfair and misleading. International law is based on the experience of more or less similar people and its influence, although naturally pacific, is not preventive of disputes beyond its realm. (Williamstown Address)
The limitations of international law are not generally taken into consideration by those who wish it to supplant war. Its limitations are really three in number. In the first place, it does not apply to the uncivilized races. In the second place, it does not even apply to all civilized nations. In the third place, it does not apply fully even to those civilized nations who recognize it. Arbitration is a splendid thing, but it is much overrated. The arbitration treaties for which the United States receives much credit, for example, have a very limited value. They provide for arbitration to settle “differences which may arise of a legal nature, or relating to the interpretation of treaties,” and always “provided that they do not affect the vital interests, the independence, or the honor of the two contracting states, and do not concern the interests of third parties.” Indeed, it might almost be said without fear of contradiction that they deal only with things that have never led to war. Some of these things, in a few isolated instances, may have seemed to lead to war; but they were always merely the pretexts of war. The real causes of war are those very “vital interests” and that very “independence” and that very national “honor” which the arbitration treaties except from judgment.
The nations of the world are national states. They are warlike states. It is madness to believe that we now live in a peaceful world. It is all right to dream of a warless world, to hope for it, and to work for it. World peace will only be brought about by widespread education to higher ideals and by the passing of time. World peace will only be brought about by a world organization capable of enforcing its will upon rebellious nations. In the meanwhile we find an Englishman saying:
England lies in the center of the world’s land masses and therefore focuses their trade. London is the fulcrum of the world’s money market. Yet we must remember that we neither towed England into its present latitude and longitude nor did we throw stones into the sea until it emerged. No, “Britain at Heaven’s command arose from out the azure main,’' and was given not only a charter, but a population, who have come, therefore, to regard themselves as God’s Englishmen, so well looked after by Providence that there is no need for them to worry about anything whatsoever, since we too are a Chosen People. (F. J. Adkins, Historical Backgrounds, p. 245)
In the meanwhile we see a great empire sending its traders and settling its people to all the corners of the seven seas, and protecting them with a mighty fleet and with efficient military garrisons, until their battle flags form a continuous link about the earth upon which the sun never sets. In the meanwhile, on the other hand, we see China, heedless of proper armed preparedness, careless of advances in methods of warfare, inefficient in armed organization—China a prey to bandits and revolution within and a victim to despoilers and aggressors from without.
This is the state of the world today. The civilized law of the world is maintained by the use of force. There is a country constable at the crossroads. There is a county sheriff in the village. There is a police force in the town and city. The civilized white race maintains its supremacy by force of arms. The Indians belong to a subject nation, conquered by the westward moving forces of a federal government. The standards of conduct of the brown, and yellow, and black races are not those of the white. The standards of peoples and of nations are not the same. We believe in prohibiting the manufacture and use of intoxicating liquors, and need armed revenue agents to make our prohibitions even partially effective. We believe in American ideals and institutions, and erect barriers against the too rapid entry of immigrants from foreign countries into our land. The civilized states of the world believe in civilization, in civilized modes of action, ways of thinking, and in international law. And the civilized states of the world must be prepared to uphold that civilization and that law. For this, potential and effective force is necessary.