Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
Finally, the universal scope of the Christian community imposed restraints on a prince's reasons for going to war. Wars among Christians needed a legal justification. It is instructive to compare Aquinas's rules as to what constitutes a just war, addressing as he was a society of diverse princes, with those of Augustine, who spoke to an imperial audience. Aquinas's rules are an effort to “enhance the security of legitimate possession.” Indeed we can trace the current preoccupation in international law with justification for war to this period when it was the aim of the medieval Church to limit the use of force to the maintenance of world order, where the “world” was Christendom.
War against non-Christians provided the exception to these efforts at limitation. Here also the unique combination of competing princes and a universal order militated in favor of a developing multinational culture. A crusade had to be proclaimed by the pope, and there were strict rules governing such proclamations as well as the relationships that obtained among the participating princes. The crusades are an example of this interplay between local identification and universality, one that is often misunderstood by a sort of anachronistic psychological Marxism that would expose them as a mere facade for plunder. As Christiansen has retorted:
To present [the Crusades] as… matters of interest disguised as matters of conscience… is too easy. It avoids the unavoidable question of why men who were never reluctant to wage war for profit, fame, vengeance or merely to pass the time, without any disguise or pretext, nevertheless chose to claim that certain wars were fought for God's honour and for the redemption of mankind.
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It is important to observe that war in each of the theatres of European expansion was sanctioned by papal authority: the
reconquista
of the Iberian peninsula, the efforts to recover Palestine and re-establish the Roman Christian kingdoms in the Near East, and the expansion north and eastward against the pagan Slavic lands. All of these were Christianizing missions, given legal warrant and therefore legitimacy in the eyes of other princes by the sanction of the Church. As we shall see, it was the withdrawal of the universal Church from its legitimating role, leaving in its wake a society of political entities that were unable to assert an objective legitimate status, that in part produced the modern state.
The princes of this period were not territorial in the sense of having a fixed settlement and identification with that locality and its people; that would come later. At this time, the sense of their subjects was too local to be national; and the princes' sense of themselves and their property was determined by inheritance and to a much lesser extent by solidarity with a particular land or its inhabitants. They were not the monarchs of nations. The Henry V who fought at Agincourt to recover his property on the continent is unlikely to have spoken the sentiments of a nationalist, Renaissance author like Shakespeare in exhorting his men. For Harry, yes; but not necessarily for England and St. George. Nor were these princes of
states
; rather they governed realms, each with a rudimentary administrative apparatus that was impermanent and fixed only to the person of the prince. As princes without nations and without states, they were in some ways well suited to give birth to what would become international law because they had legal relations with each other that required legal rules. Princes made contracts: the law of contracts for princes became the international law of treaties; princes made war and the international laws of war arose from the laws of torts and crimes among princes; the international law of territorial conquest and session arose from the laws of property and the inheritance of estates among princes.
On this distinctively medieval pattern is the present international law based. This accounts for many traits that persist in that law, as the law of the society of princes became the law of the society of states.
Medieval Christendom was not yet a society of politically distinct states. But at first in Italy, and then throughout the area, the complex horizontal structure of feudal society crystallized into a vertical pattern of territorial states, each with increasing authority inside defined geographic borders.
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This change was begun by the conquest of Constantinople in 1453 by the Ottoman Turks, when two events of profound consequence for the Italian cities occurred: first, the steep, high walls of Constantinople, hitherto thought to be impregnable, were battered into rubble by gigantic wrought-iron tubes that fired balls made of stone; second, a large population of talent, including a group of classical scholars, largely Greek, who were the inheritors of the premedieval tradition, were driven out of ancient Byzantium and forced to immigrate to the university towns of Italy. The only comparable injection of such talent into a thriving society might be the exodus of European refugees during the 1930s and the consequent quantum change in the quality of American universities and eventually American cultural life.
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The classical ideas of these scholars found an eager audience in Italy: parallels to the Greek city-states and the Roman city-republic appealed to the pride of the Italian city-realm. Moreover, an enormous cultural energy was released once Italian society, whose periodic eruptions of piety had never quite exhausted its love of power and pleasure, was shed of the sheer weight of hypocrisy that the medieval Church had steadily accumulated on its behalf. Finally, classical ideas—or rather Renaissance notions about such ideas—provided a rationalization of events, as the city-realm began to thrive on its independence and assertiveness, that seemed more in accord with reality than did medieval universality and the dual allegiance to the ecclesiastical and the feudal. Questions that could be answered only
by reference to biblical and dogmatic texts increasingly seemed to lack the urgency of questions that could only be answered by reference to the world. The trajectories of artillery are, for example, a matter of physics, not of church doctrine. The “bombards” of the Turks presaged the change in government that would bring into being the new idea of the State.
But the huge cannon of Mehmed II that destroyed the fortress walls of Constantinople was difficult to transport and slow to arm. The French king, Charles VIII, however, financed the development of a cannon so light that it could be easily transported.
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Cast bronze replaced wrought iron when it was discovered that the method used to found church bells could also create cannon.
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The catalyst for constitutional change occurred when Charles VIII invaded the Italian peninsula in 1494 with a horse-drawn siege train of at least forty artillery pieces. Contemporaries of this event immediately appreciated its implications: in 1498 the Venetian senate declared that “the wars of the present time are influenced more by the force of bombards and artillery than by men at arms” and desperately began trying to organize to meet this challenge. Others, too, recognized this moment as a turning point. Francesco Guicciardini, the Florentine diplomat and statesman, wrote in the 1520s:
Before the year 1494, wars were protracted, battles bloodless, the methods followed in besieging towns slow and uncertain… Hence it came about that the ruler of state could hardly be dispossessed. But the French, in their invasion of Italy, infused so much liveliness into our wars that whenever the open country was lost, the State was lost with it.
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Facing such a strategic challenge, Italian cities could no longer simply rely on their high walls and fortified towns to protect them. Machiavelli, writing in 1519, said that after 1494, “[n]o wall exists, however thick, that artillery cannot destroy in a few days.” Suddenly walls, towers, moats—all were rendered obsolete.
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As a result, princes and oligarchs made a pact with an idea: the idea was that of the State, and its promise was to make the ruler secure. The State—a permanent infrastructure to gather the revenue, organize the logistical support, and determine the command arrangements required for the armies that would be required to protect the realm—was established to govern according to the will of the ruler. In time, however, it would become clear that it was not the prince's immortality that was gained by this move, but the State's. Just as Renaissance princes had found
they needed more secure, more professional armed forces than the seasonal contributions of medieval knighthood could provide, so the new Renaissance state would gradually turn to less idiosyncratic guidance than that offered by princes in order to aggrandize its wealth and power.
Thus, the modern state originated in the transition from the rule of princes to that of princely states that necessity wrought on the Italian peninsula at the end of the fifteenth century. It is certainly true that there were states before this period; but these, like the city-states of Thucydides, did not self-consciously think of themselves as juridical entities separate from (and sometimes operating in opposition to) the civil society.
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For Thucydides the State is never a thing—it has no “legal personality” as we might say. The State is always an irreducible community of human beings and never characterized as an abstraction with certain legal attributes apart from the society itself. The modern state, however, is an entity quite detachable from the society that it governs as well as from the leaders who exercise power. This detachment gives the State its potential for immortality.
We can date the appearance of such a way of looking at the State to the time when the legal and material attributes of a human being were ascribed to the State itself. All the significant legal characteristics of the State—legitimacy, personality, continuity, integrity, and, most importantly, sovereignty—date from the moment at which these human traits, the constituents of human identity, were transposed to the State itself. This occurred when princes, to whom these legal characteristics had formerly been attached, required the services of a permanent bureaucracy in order to manage the demands of a suddenly more threatening strategic competition. (The first permanent legations, for example, accredited to a particular court rather than merely serving as temporary emissaries, date from this period.) This strategic competition provoked what Finer has defined as the essential characteristic of the modern state: that
the paramount organ of government is subserved by specialized personnel; one the civil service, to carry out decisions, the other—the military service to back these by force where necessary and protect the association from other similarly constituted associations.
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Strategic competition on the Italian peninsula provoked military innovation by Italian cities that were rich but weak. In the armies of the great powers, France, Aragon, and England, the number of soldiers raised by feudal levy was compounded with that raised by hiring mercenaries. Since the fourteenth century, however, the Italian cities had relied entirely on privately organized professional armed forces. Single groups—the
compagna di ventura
—were recruited, supplied, and paid by their commanders, the
condottieri
, who sold their services to the highest bidder. The necessity for, and later the ambition of, the
condottieri
was a crucial element in the creation of the first modern states. For it was these mercenaries whose expensive services animated the need for the princely state, and whose ambitions then exploited the legitimating resources of that state, once the transfer of legal personality from the person of the prince to the princely state had occurred.
The
condottiere
was a contract employee. The word derives from the Italian for “contract,”
condotta
. The necessity to employ mercenaries became general on the peninsula once a few cities hired such forces because the shifting alliance structure of the region meant that no city could rely on the mercenaries of another.
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Once the superiority of the professionalized forces of the
condottieri
became clear, this innovation swept through all the cities of the peninsula as one after another mimicked the innovation lest it be engulfed by it. This necessity forced princes and oligarchs and ruling councils to rely more heavily on a bureaucratic apparatus, first to fund the
condotte
and later to provide for the acquisition of artillery. The
condottieri
themselves soon saw the advantage in turning their force on the authorities by whom they had been hired and supplanting them.
To rule the city he had seized, however, the usurping
condottiere
needed legitimacy. The
condottieri
took their contracts from a prince or oligarchy and hence from them alone derived the
condottiere
's legal status. The princely state, however, once severed from the prince who brought it into being could provide a legal status for the
condottiere
apart from that of an employee of the prince or ruling council whom he had deposed. Thus this irony gave birth to the modern state and its unique problem, its problematic relation to the elusive status of legitimacy: only a State, however rudimentary, could provide the prince with the infrastructure necessary to maintain expensive mercenaries, but once this infrastructure was erected, it could also provide others with the means of exercising the power they had seized,
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and legitimate their doing so.
This reification of the State reshaped the international society that had come into being in the Middle Ages. The Italian peninsula was a perfect laboratory for such a new society: the principal political actors spoke a common language; they were physically proximate; none was so powerful as to make diplomacy irrelevant; repeated invasions by French, Spanish, and Imperial forces, throughout the period of this transition, were unable to establish an hegemony that could overcome a careful balance of opposing powers, which necessitated complex negotiations and intercourse; and, most importantly, the rulers of these cities faced a need for law that only an international society could satisfy, namely, the legitimation required by those who seized power by force or held it without the imprimatur of dynastic right. In these geopolitical circumstances, the Italian Renaissance
produced the first princely states and, almost as a corollary, the inheritance by these entities of the legal status hitherto reserved for the persons of princes. Far too little attention is customarily paid by legal scholars to the effects of other states on a state's own constitutional system. In the Italian laboratory we can see the mimetic, competitive, reactive relationships among these states and the significance of these relationships for the constitutional order.
The Italian peninsula was dominated by five city-realms: Rome, Naples, Milan, Florence, and Venice. The center of the Renaissance in Italy was Florence, whose situation was similar to that of the other city-realms. It was her solution to that situation that provided other cities with the form on which the princely state was modeled. What were the characteristics of the Italian situation within which Florence and other cities found themselves?
First, the cities were defined geographically, as opposed to the usual springing dynastic inheritances of princes. Realms that were increased (or decreased) by the happenstance of inheritance and marriage often yielded disparate, unconnected properties scattered across Europe. This tended to fracture rather than consolidate a common culture. Second, the cities were wealthy—Florence had an annual income greater than that of the king of England and the revenue of Venice and its
Terra Ferma
at the middle of the fifteenth century was 60 percent higher than that of France, more than double that of England and Spain
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—in a world that had recently come to a money economy. These cities could afford a bureaucracy and profit by it. Third, the wealth of the cities was coveted by others; yet the cities had populations too small to create effective militias, and therefore required mercenaries. Fourth, the Italian rulers of these city-realms faced a new and menacing technology that threatened to make obsolete the sheltering walls and turrets that protected them from their French and Habsburg predators.
This transition from prince to princely state provides us with an initial example of a strategic imperative animating a constitutional innovation—an instance, that is, where the insistent question of security in a specific context (geography, wealth, small population) yields a new legal solution and requires a story to rationalize that solution. If the constitutional innovation of the modern state was in part a response to the threat posed by mobile artillery to the walled cities of Italy, the precise shape of that response—the princely state—was not governed by strategic considerations alone, but also by the felt need to ensure legitimacy for the leadership that wedded its future to this new creation.
A vulnerability rooted in questions of dynastic legitimacy underlay all the principal city-states of Italy. Consider the situation of the cities' leaders in 1454. In Milan, the dynastic line had ended in 1447; one candidate for the succession was Francesco Sforza, a
condottiere
and the husband of the
last male heir's illegitimate daughter. The Holy Roman Emperor, Frederick III, claimed the Duchy of Milan as forfeit to the Empire, there being no rightful dynastic claimant. The Kings of France and Spain also pressed claims.