'The Outlawry of War'

I

DURING the war it was generally believed that the way to prevent war in the future was to make war swiftly and unitedly on all future Germanys. Theodore Roosevelt, as early as September 1914, had urged the formation of what he called an international posse comitatus against ‘outlaw’nations. This same suggestion was adopted subsequently, under the name of a League to Enforce Peace, by Mr. Taft, Senator Lodge, and others. In the spring of 1916 President Wilson was publicly converted to the idea that a war of aggression was the concern not merely of the attacking nation and its victim, but of all civilized nations, that an attack on one was an attack on all, that a breach of the peace should in the future be answered by united enforcement of peace. It was in this context of thought and feeling that a Chicago lawyer, Mr. S. 0. Levinson, launched his proposal for ‘the outlawry of war.’¹

Political leaders had not yet divided along partisan lines, and with two million American men on their way to French battlefields none expressed any aversion to European entanglements. Mr. Levinson was safe in assuming that what the United States was then doing, in March 1918, it would in the event of another aggression do again. Therefore, it was naturally in the current of public opinion for Mr. Levinson to argue that the Roosevelt-Taft-LodgeWilson theory of a League to Enforce Peace would be strengthened and clarified if war itself were declared a punishable crime in international law. There would then be no hesitant neutrality, no doubt about the right and duty of all nations to join in the war against a nation like Germany. Mr. Levinson’s phrase, therefore, seemed less novel then than it does now. For in the mood of those days he had merely found a rather picturesque name for the generally accepted theory of a war against war.

The same idea was, of course, taken to Paris by President Wilson. But of Mr. Levinson’s phrase nothing much was heard until a year afterward when the first draft of the Covenant of the League of Nations was printed. Then the phrase reappeared in a speech delivered by the late Senator Philander C. Knox. But there had begun a radical change of meaning. The phrase which Mr. Levinson had coined to clarify the purposes of a League to Enforce Peace was now the name of a substitute for the League of Nations. For Mr. Knox, who was the acknowledged leader of the irreconcilables in the Senate, their most courageous guide and their shrewdest counselor, was not content with a purely destructive attack on President Wilson’s project. He acknowledged the need of a substitute, and he started out with Mr. Levinson’s help to construct a new plan for peace upon the idea that war should be declared an international crime.

In Senator Knox’s first speech, delivered the first of March, 1919, the ‘outlawry of war’ is still associated with the idea of a League to Enforce Peace. Mr. Knox is definitely opposed to the League of Nations, but he continues to discuss ‘a league,’ based upon a ‘constitution’ which is to call upon ‘the powers signatory, to enforce ‘ the decrees and awards of an international court, ‘as against unwilling states, by force, economic pressure, or otherwise.’ However, within a few months, concurrently with the rising tide of American opinion against the League and all covenants to use force, Mr. Knox and Mr. Levinson changed their minds. In formulating their ‘plan to outlaw war,’ they cast aside not only the League, but a league as well, and deprived their international court of any power to enforce its decrees.

After the death of Senator Knox the outlawry of war seemed for a time to be forgotten. President Harding alluded to it at the opening of the Washington Conference, but nothing was done with his suggestion. Then early in the year Senator Borah adopted the slogan and the idea, and became the political leader of what is now an organized campaign. Mr. Borah is advocating the ‘outlawry of war’ and the defeat of the Permanent Court of International Justice.

We find then that the phrase was first employed in order to strengthen a league, before there was a League. It was used to defeat the League after there was a League, and to advocate an international court before there was a Court. Now that the Court has been created, it is being used to defeat the Court, and to advocate another court which does not exist.

II

The phrase is associated then, as a matter of political history, with a perfect record of irreconcilability. But this association is, I think, personal and accidental. It was a chance happening that Senator Knox adopted the phrase in his attack on the League. It is a chance happening that Senator Borah uses the phrase in his attack on the Court. For there are many devoted adherents of the League, beginning with Lord Robert Cecil, who would like to find a way to define war and outlaw it. There are many who support the existing Court, beginning with Mr. Elihu Root, who also would like to outlaw war. The phrase is as appropriate in Lord Robert Cecil’s mouth as it was in Mr. Knox’s, in Mr. Root’s as in Senator Borah’s. It is only an accident of irreconcilable politics in the United States Senate which has identified ‘the outlawry of war’ with active opposition to every established institution for the prevention of war.

How accidental is this association may be judged from the position of Senator Borah. Not once, but many times, Mr. Borah is on record against the League because it is alleged to be a superstate which will destroy our national sovereignty. But this belief about the League does not deter Mr. Borah from employing his eloquence to deride the existing World Court because it has no power to take jurisdiction in all international disputes! Because there has not been formulated by world conference an authoritative code of law covering the matters about which nations dispute! Mr. Borah’s confirmed objections to a superstate sleep comfortably in the same mind with his demand for a Supreme Court of the World, modeled on our Federal Supreme Court, having its gigantic powers in conflicts between states, including, if Mr. Borah’s analogy means anything, the power to annul acts of all parliaments, including our own Congress!

A position so illogical must be a political accident. There can be no necessary connection between the outlawry of war and the orthodox philosophy of the irreconcilables. There is, rather, a deep contradiction between them, a contradiction so deep that it has produced the extraordinary spectacle of Mr. Borah objecting to a superstate and at the same time demanding a supercourt, and a superconference to legislate a supercode. We have nevertheless to discuss the outlawry of war in this setting, as a project for world peace offered by the irreconcilable opponents of the existing League and the existing Court. With proposals to work for the outlawry of war through existing international organizations, such as Lord Robert Cecil and Mr. Root have entertained, we are not here concerned. We are faced with the fact that the American campaign for the outlawry of war is led by men who have fought and will continue to fight not only the League, and the Court, but even such conventions as were reached at the Washington Conference.

Straight is the path and narrow is the gate for those who wish to join Mr. Borah’s campaign for the outlawry of war. The idea of attempting to make war a crime still belongs to men of all shades of opinion. But the ‘outlawry of war,’as a political label, is now the name of what purports to be a comprehensive plan of world peace, fundamentally different from any yet attempted, and in the test of action, antagonistic to all.

III

The Borah plan for abolishing war is embodied in Senate Resolution 441, introduced on February 14, 1923. The plan has three parts: first there is to be a universal treaty making war ‘a public crime under the law of nations’ and ‘a solemn agreement or treaty to bind’ every nation ‘to indict and punish its own international war breeders or instigators and war profiteers’;

Second, there is to be ‘created and adopted ... a code of international law of peace based upon equality and justice between nations, amplified and expanded and adapted and brought down to date’;

Third, there is to be created ‘a judicial substitute for war’ or ‘(if existing in part adapted and adjusted) in the form or nature of an international court, modeled on our Federal Supreme Court in its jurisdiction over controversies between our sovereign states, such court to possess affirmative jurisdiction to hear and decide all purely international controversies as defined by the code, or arising under treaties.'

This is the scheme which in Mr. Borah’s opinion is to abolish war. This is the scheme which is to do what the League and Court, in his opinion, cannot do. This is the scheme which has such promise of effectiveness, in the minds of the advocates of the outlawry of war, that they are determined to defeat not only American adherence to the League, but the modest proposal of President Harding to adhere to the Court. It is this scheme, they say, or none. There is no other way to end war.

What they are relying upon fundamentally is not their court and their code, but the treaty ‘outlawing war.’ They believe that this slogan has the power to arouse and then to crystallize mankind’s abhorrence of war. They believe a declaration that war is a crime would legalize pacifism throughout the world, and deprive the war spirit of its legality and authority. The war-maker would then have to be the conscientious objector, the pacifist would be under the shelter of law and order and conservatism. Once this radical reversal of patriotic and legal values had taken place, war would be almost unorganizable, because pacifism would be the authoritative morality of the nations.

We are dealing then primarily with a moral crusade in favor of complete moral disarmament. If the propaganda were successful, machinery for keeping the peace would not be very necessary, because the propaganda itself, so its sponsors argue, would destroy the will to war. Once nations had learned not to wish to fight, keeping the peace would be an easy matter. Therefore, the advocates of the plan, except for controversial purposes, have given little thought to, and place little emphasis upon, their project for a new court and a new code.

Nevertheless, before men commit themselves universally to a pacifism so radical that it destroys the patriotic code which they are accustomed to associate with their security and their national destiny, it is likely that they will inquire very closely into Mr. Borah’s machinery for keeping the peace. He will have to prove, I think, that his court and his code effectively promise to prevent war, if he is to induce mankind to disarm, first morally and then physically. Men will scrutinize rather closely this new code and this new court under which, having rendered themselves militarily impotent, they are to live.

IV

It is clearly easier to arouse large audiences to a denunciation of war in general than it is to persuade them to agree on the principles of a code. Men agree that war is a horror and a crime. They do not agree easily on the fixing of boundaries, the right to secede, the right of revolution, the control of raw materials, access to the sea, the rights of minorities, tariffs, immigration, the status of colonies, the rights of property. They do not agree easily about what constitute, in Mr. Borah’s words, ‘purely international controversies.’ People are fairly unanimous against war. They are wholly unanimous in their professions of love for ‘equality and justice.’ But they quarrel fearfully about what is just and what is equal. They are divided over the general principles which ought to decide great issues. They are even more divided over the interpretation of the facts in specific cases under general principles.

Shall boundaries be determined by nationality or by economic geography? May Ireland secede from the Empire, may Ulster secede from Ireland, may three counties secede from Ulster? Is revolution permitted? Is revolution assisted by a foreign power permitted? Are the natural resources of undeveloped countries the property of the natives to have and to hold as they see fit, or have European and American nations rights in them, and how are those rights to be apportioned? Do nations which happen to block the access of other nations to the sea owe any duty to landlocked peoples, which ought to limit their sovereign rights over their own ports and railroads? Are national and religious minorities, whether they be Germans in Poland or Negroes in Mississippi, to be protected by any rule of international law? Is the tariff a ‘purely’ domestic question? Is prohibition applied to foreign ships a domestic question? Is discrimination against immigrants a domestic question? Have colonies the right to revolt? May Mexico confiscate American oil property? May the United States confiscate sealed liquor on foreign ships?

Now when Senator Borah proposes to create a code of international law as a substitute for war he must mean, if he means anything, a code which establishes legal rules covering such questions. But who is to make such a code? Mr. Borah’s resolution does not tell us. The Knox-Levinson plan calls for a world conference to perform the feat, and other advocates speak of a convention of experts and jurists. Little attempt is ever made to describe how this code is to be made. The point is passed over lightly with some reference to the codification and creation of international law.

But the word ‘creation’ is perhaps the biggest word in the English language. To create a code ‘based on equality and justice’ is to legislate authoritatively on all the major classes of disputes in which nations engage. Nothing like it is attempted under the existing League. For his plan involves, whether Mr. Borah likes the name or not, the setting-up of a world legislature. The conference which was to make the code would have to lay down laws affecting the very existence of governments and the destiny of nations. It would have to legislate on questions touching their political independence, their liberties, their power, their prestige, their economic opportunities, and their pride.

To talk easily about a conference to create an international code is either idle talk, or it is as stupendous a proposal as can be conceived in politics. It requires for the first time in human history the creation of a genuine world legislature. For, if the code was to be anything more than a set of pious evasions, no one world conference could conceivably create it. One might as well have expected the first United States Congress to create in its first session a code of American national law. No: this world conference would have to convene and reconvene, and keep on, in the words of Mr. Borah’s resolution, amplifying the code, and expanding it, and adapting it, and bringing it down to date.

This world legislature would unavoidably represent the cabinets and foreign offices of the day. Can anyone imagine a government which did not keep a death grip on a delegation which was legislating on a rule affecting, let us say, the national boundaries? And thus there vanishes wholly the hope that the world can be governed, to use Mr. John Dewey’s terms, by ‘ legal coöperation’ without ‘political combination.’ If there is to be law for the court to apply, there must be lawmakers. And lawmakers are politicians, guided for the most part by the pressures of their constituents upon their own ambitions and habits and personal ideals. Let Mr. Borah ask himself, then, whether he is prepared to entrust the creation of such a code to Lord Curzon, Mr. Hughes, M. Poincaré, and Baron Kato, or to any other men he knows. And then let him ask himself whether he thinks the United States Senate will ratify a code that all the other parliaments of the world will also ratify.

It requires no gift of prophecy to see that if he could induce the world to establish such a code, Mr. Borah and his most devoted followers would be lined up against ratification as irreconcilable opponents. They would hate the result if and when they achieved it. For any code created within this generation would have to legalize the status quo at the time the code was formulated. It is unthinkable that Great Britain, France, Japan, or the United States would agree on any specific set of principles which impaired their empires, their Monroe Doctrines, or their alleged strategic requirements. Lest there be any doubt on this point I quote from Senator Knox’s original speech of March first, 1919, proposing the outlawry of war: ‘Under such a code we would not be called upon to arbitrate the policy involved in our Monroe Doctrine, our conservation policy, our immigration policy, our right to expel aliens, our right to repel invasion, our right to maintain military and naval establishments, or coalingstations, within our borders or elsewhere as the protection and development of this country might demand, our right to make necessary fortification of the Panama Canal or on our frontiers, our right to discriminate between natives and foreigners in respect to right of property and citizenship, and other matters of like character.’

We must not be called upon, said Senator Knox, to arbitrate these questions. In other words, we would go to war rather than yield our position.

One may call this the outlawry of war if he likes, but I suspect that a foreigner would call it the outlawry of those wars which might interfere with Senator Knox’s conception of the interests, needs, and manifest destiny of the United States. Let fifty other nations also draw up a catalogue of questions over which they would rather fight than submit to a tribunal, and the amount of war you will have outlawed will not be noticeable.

V

The advocates of this plan are fond of saying that the ‘war system,’ consisting of armaments, alliances, and the diplomacy of prestige and strategic advantages, rests upon the fact that war is ‘ legalized.’ Whether this be a correct analysis is not important in view of the fact that the advocates of the outlawry of war propose to continue to legalize all kinds of wars. ‘ War shall be defined in the code,’ says the Knox-Levinson plan, ‘and the right of defense against actual or imminent attack shall be preserved.’ Senator Borah’s resolution seems to justify, in addition, wars of liberation. Now if you have the right to go to war for what you call your liberty, and the right to go to Mar because you think an attack is imminent, it would be a stupid Foreign Office indeed which could not legalize any war it thought necessary or desirable. The only war outlawed under this plan is a war openly announced to be a war of aggression. There are no such wars. Even Germany’s war in 1914 was dressed up readily enough as a war of defense against an imminent attack by Russia in military alliance with France.

The wars permitted under the outlawry of war are not confined to the defense of frontiers against invasion. If that were the case the advocates of the plan would agree to submit every international dispute to an international tribunal. We have seen that Senator Knox had no idea of doing any such thing. His list of disputes that may not be arbitrated covered all the really vital disputes in which the United States is likely to be involved. It covered all the main contentions with Japan, the whole field of LatinAmerican relations, our whole economic policy, our whole strategic and military system, and for good measure everything that ‘the protection and development of the country might demand.’ Senator Borah, though less specific, is no less definitely against arbitrating vital questions. His way of excluding them from judicial processes is to deny that they are ‘ purely international controversies.’ But of course controversies between nations are none the less controversies because you choose not to call them international controversies. If you feel I am hurting you badly, you are not pacified by my telling you to mind your own business.

The Borah plan to outlaw war consists of a code which, in theory, outlaws war and lays down rules governing all the relations among governments. But it consists also of a set of reservations which withdraw from the scope of the code and the competence of the court many, if not most, of the major policies which cause disputes. Finally it disembowels the outlawry of war by legalizing wars in defense of those major policies which are excluded from the competence of the court and the code.

Mr. Borah, in other words, is proposing to outlaw those wars which can be described as ‘purely international.’ He is proposing to outlaw theoretical wars which nobody wishes to wage, since all actual wars result out of the conflict of sovereign, domestic interests. A ‘purely international controversy’ which does not involve, or appear to involve, the domestic safety, domestic interests, or the domestic pride of the disputants is not worth worrying about. Even in this wicked and pugnacious world such a harmless and uninteresting controversy does not often lead to war. To outlaw war simply in respect to such controversies is a lot of trouble for nothing. For, until a man is willing to say that he is ready to submit any and every dispute affecting the peace of the world to adjudication, he has not made up his mind to outlaw war. An irreconcilable senator, who is jealous of American sovereignty, can play with the idea. He cannot really understand it and still believe in it.

VI

It is illuminating to inquire how an idea like the outlawry of war, which expresses so deep an aspiration, should have become so confused and sterile. The answer is to be found, I think, in Mr. Borah’s resolution, where he says that ‘the genius of civilization has discovered but two methods of compelling the settlement of human disputes, namely, law and war.’ Mr. Borah means by law the judicial process, and in my opinion his generalization is utterly untrue. The genius of civilization has invented, besides law and war, countless other methods of settling disputes. It has invented diplomacy, representative government, federalism, mediation, conciliation, friendly intervention, compromise, and conference. The notion that the judicial process in a court is the only method of peace is fantastic. Mr. Borah, every day of his life, is engaged in adjusting disputes between the state of Idaho and other states, between capital and labor, between the farm bloc and the manufacturers and bankers. If he believed that the only alternative to war was resort to the courts, he would not be wasting his talents in a nonjudicial body like the United States Senate. He would either be a judge or be arguing before judges.

Nevertheless he believes, and many admirable people believe with him, that the only method of international peace is ‘to create a judicial substitute for war.’ It is on this belief that the outlawry of war has foundered. For when you come to the actual task of creating this judicial substitute, you find, as Mr. Knox found and as Mr. Borah has found, that you cannot, or will not, devise a code of international law covering all disputes, and that you will not give to any court jurisdiction over all disputes. Therefore, in the pinch, you find yourself wishing to outlaw war but not to outlaw the wars you may feel compelled to wage.

You find a large class of disputes which your judicial substitute will not cover. They are the most important disputes of all, because they involve precisely those vital interests about which peoples are most ready to fight. The difficulty is fundamental and inescapable in any plan to outlaw war by a purely judicial substitute. And, if you are really in earnest about minimizing or abolishing war, it is these marginal, nonjusticiable disputes which must occupy the centre of attention.

By the growth of international law some of these disputes can be made justiciable. But, for as long a future as we can forsee, there will remain whole classes of the most dangerous disputes which no code and no court can deal with. For them diplomacy is required, diplomacy working by conference, compromise, bargaining, good offices, and also, in the last analysis, I believe, by the threat of force. One may admit the rôle of force in diplomacy without embarrassment, considering how thoroughly the right to wage war is actually reserved by the advocates of the outlawry of war.

The central fallacy of their argument is this refusal to acknowledge the necessity of diplomacy for just those warbreeding disputes which are not within the competence of their code and their court. For, if diplomacy is a necessary method of maintaining peace, then no plan which does not provide for it can be an effective plan to abolish war. And if the method of diplomacy is necessary, then the reform of that method is one of the most urgent of human needs.

For ‘the diplomatic method,’ as Mr. Root has pointed out, ‘ is the necessary method of dealing with immediate exigencies and dangerous crises in affairs. Under such circumstances there is no other way to prevent disaster. Argument and persuasion and explanation, the removal of misapprehensions, the suggestion of obstacles and advantages, conciliation, concession, stipulations for the future, and the still more serious considerations to which diplomacy may finally resort — all these are employed to deal with immediate and acute situations. The slow processes of judicial procedure are not adapted to deal with such exigencies.’

Mr. Root might have added that the judicial procedure inevitably is corrupted if it is burdened with the making of major political decisions. For, if the judges of Mr. Borah’s Court are asked to decide questions for which no rule of law exists, they must either invent a law and thus legislate, or, in the guise of law, they must make political deals. Mr. Borah, therefore, is not eliminating political entanglements. He is entangling his proposed court in the politics of the world. The result would be a court with all the vices of politics and a diplomacy as cumbersome as a lawsuit.

This conclusion may be tested by considering another remarkable statement in Mr. Borah’s resolution. It is a pronouncement to the effect that our Supreme Court has maintained peace between the states. If that is true, what has been the function of the Executive and the Congress these last one hundred and thirty-five years? Does Senator Borah seriously think that our Supreme Court, existing in a political vacuum, could have adjusted the sectional, group, and class conflicts of American history? He cannot think that, and therefore, when he has stopped to consider the matter, he cannot continue to think that an international court, in vacuo, can maintain the peace of the world.

But Mr. Borah has not fully considered the matter. He speaks in his resolution of conferring upon a ‘real’ international court jurisdiction modeled upon that of our Supreme Court. Mr. Borah has no smallest intention of doing any such thing. We may dogmatically assert this, because we shall as soon behold the sun stand still in the sky as see the irreconcilable Senator from Idaho argue that nine judges at the Hague should have the same power to annul a law passed by Parliament or Congress as our Supreme Court has to annul the acts of a State Legislature.

VII

Mr. Borah is not really promoting a practical project that will stand up under analysis. He is giving currency to a metaphor, and a somewhat inaccurate metaphor at that, which, like its predecessor, ‘the war to end war,’ condenses and expresses, but does not direct toward any organized result, the hatred of war. Incidentally, though that is no part of this discussion, he is exploiting the sentiment which the metaphor evokes in order to prevent our adherence to the only world court which exists, or in this generation is likely to exist. Once more we witness the tragic futility of noble sentiments frustrated by confused ideas.

Once more a fine aspiration, which must be universal in order to prevail, has become entangled in the prejudices and politics of a faction. Once more we behold the spectacle, so delightful to Satan, of men who wish to establish universal confidence and coöperation on earth, refusing in the smallest measure to coöperate among themselves. It is a pity. For if Mr. Borah and his friends took the ideal of world coöperation seriously, and understood its difficulties, they would count it no slight matter that fifty sovereign nations have actually agreed on something, even though that something is as defective as the existing League and the existing Court. If Mr. Borah loved his ideal of coöperation as constantly as he yields to his habit of irreconcilability, he would wish to promote, rather than to destroy, what coöperation there is. For only by practice can coöperation become a habit. And only when coöperation is a powerful habit, will peoples be willing to make the enormous sacrifices which the outlawry of war must finally involve. But to say to the world, as Mr. Borah’s associates have in effect done from the start, that mankind must meet our terms or none, and coöperate on our principles or none, is to perpetuate precisely that temper of mind which the outlawry of war will most need to outlaw.

Nor can we say to mankind: ‘Under the leadership of an American president we led you into a League of Nations, and under the intellectual leadership of an American lawyer we led you, with the apparent blessing of both political parties, into the Permanent Court of International Justice. Now that you are in, and we are outside, it occurs to us to lead you out of the League and out of the Court. When you are out of the League and out of the Court we led you into, we promise to lead you into a much better court and perhaps even into another association of nations.’

Were the Senate now to reject the existing Court, we should establish our reputation as a diplomatic philanderer. Prudent foreign governments when we made our next periodic proposal would have to ask bluntly whether the young man’s intentions were serious and honorable.