(Cross-posted from Opinio Juris.)
Two hundred years of Lincoln, February 12, 1809. ... what, if anything, does that Lincoln fellow, the rural rube from the wild edges of the American frontier, have to do with international law? Here are a couple of suggestions.
First, although it was far from Lincoln's first or central war aim, emancipation. The Emancipation Proclamation, as Howard Jones observes in his study of Lincoln's war diplomacy, was timed in large part to stem fears of Britain recognizing the Confederacy. Britain had concluded as a military matter that despite the population and industrial advantages of the North, the South was simply too large to be successfully conquered and held, and that as humanitarian matter, not to mention ending the economic disaster to the British cotton workers deprived of Southern cotton, the seesawing, inconclusive but fantastically bloody battles increasingly characterizing the "total war" should be brought to an end. Anti-slavery sentiment was strong in Britain, but economic privation from the cotton shortage high - the vote of British mill workers in at least one instance, however, to urge that Britain not recognize the Confederacy (despite the unemployment and privations) out of anti-slavery feeling being one of those rare moments of heroic cosmopolitan self-sacrifice. Since Lincoln's war aims up to that point did not include freeing the slaves, but simply a return to the status quo ante, Britain's government saw no reason why it should support the North over the South. The Emancipation Proclamation was intended in part, and timed in part, to make it that much more difficult for Britain to do so. In that regard it somewhat backfired, however, since it reached only to the states in rebellion - as British ministers observed, it reached only to the places where the Union writ did not extend, and did nothing for the slaves where it did. But British ministers also recognized that it had set the Union along the inexorable path of full emancipation, and Britain refrained from recognition.
Second, Lincoln's First Inaugural Address set forth an argument that resonates down to today of the principle of democratic governance. It is at once the most lawyerly argument perhaps ever offered as an inaugural address in the United States, an argument drawn quite specifically from the commercial law of partnership, of when it is permissible for a partner to withdraw and when not, and yet also exquisitely passionate ("I am loathe to close ... we must not be enemies ... the better angels of our nature"). The concern in that address is to say that the American experiment in democratic self-governance cannot be an exercise in which, each time a party is unhappy with constitutional arrangements to which it has given binding consent, it simply leaves. The result would be an ever subdividing polity until nothing is left - and it becomes prey to autocracies from without.
The argument, an argument for Union, by force if necessary, has served ever since as an argument in civil wars - mostly recently seen in arguments from Belgrade over the status of Kosovo, and if rump Serbs in some part of Kosovo were one day to decide to form their own independent enclave, it will figure again, only this time from Pristina. The argument against division is sharply contested today - pitting democratic self governance of the majority against arguments from self-determination, and my guess is that most people today, me included, think that union or separation is really decided by facts and circumstances on the ground, messy, long running, historical - is anyone willing to go to war over Quebec? Once one separates the question of slavery from the Civil War, was Lincoln right - that question reverberates in many contests around the world. But it also reverberates in a different way in the contemporary world, as official ideologies of toleration of differences in Western society gradually shift away from the Voltaireian notion of toleration to a language of official multiculturalism that is, at bottom, simply the re-creation of religious communalism in societies that are less and less liberal, in the sense of the neutral application of the rule of law to individuals in the public sphere, and increasingly centered around governance of individuals through their group and communal identifications: a reasonably apt description of Western Europe's direction and perhaps eventually America's as well. Communalism, however politically expedient for a society trying to manage identity conflicts, is still illiberalism.
But the First Inaugural and the Second are each premised upon another argument that continues to echo within international law: the debate over democratic sovereignty - sovereignty vested in the People and investing the government with authority and legitimacy from below - and global governance by some globally federal body. It is a fundamental divide in political culture - is the source of constitutional legitimacy the people in some direct sense, voting sense, ballot box sense, or is it some universal law or values or something from out there representing what the People would do if they were universally good. Each side can, in some way, claim the sovereignty of the people, but one is far more their direct expression than the other, and on this the differences between political culture in America and Europe are considerable. Either way, we owe to Lincoln a definition of "sovereignty" that is unmatched for its economy of expression: a "political community, without a political superior."
Finally, the Second Inaugural is an object of study and, in American constitutional religion, veneration really, as Lincoln's anguished attempt to justify a war and its war cost, in blood and treasure: not an unfamiliar question within international law and politics. I have always found it remarkable how much certain passages of the Second Inaugural echo Clausewitz, that one embarks upon war, but the frictions and passions of war make it impossible to confine it as one thought at the outset. It is also an address that might in some ways be characterized as the "Anti-Versailles": Lincoln was urged, particularly by radical abolitionists of his own Republican Party, to pin the blame, and the cost, and the burdens - reparations, even - for the war upon the South. He refused to do so, and the Second Inaugural offers his argument for why not. It is a remarkable argument, because it says, in effect, we fought for Union, but the Union is of north and south; if the burdens of the war were imposed solely on the south, it would make a mockery of the cause - Union - for which we fought; the burden, and in particular the moral evil of slavery, falls upon the whole political community. But then we note - with great importance to international law and conflict - this argument only really makes sense in the context of a political community, and war within a political community - I said anti-Versailles, but in an important sense, the argument of the Second Inaugural is not universal, as among political communities, but only applicable within a political community divided within itself.
The Second Inaugural is a current study for me, however, mostly for a quite different reason, one going to the ethics of war. The traditional question of the ethics of war - just war theory, other forms of ethical debate about war, including its expression in both jus in bello and jus ad bellum - is the right and wrong, good and bad, of war. Is it ever justified to resort to war? Can there ever be moral and, by extension, limits on war, or are we in the Hobbesian state of nature in which no limits can be admitted because we are subject to 'a necessity of nature' in seeing after our own survival. The Second Inaugural, however, raises a quite different, and really logically prior, question in the ethics of war, one not usually addressed, indeed hardly ever addressed: how is one to know the rights and wrongs, good and bad, of war? Each side "prays to the same God," after all, reads "from the same Bible"; yet both cannot be right, or perhaps neither is right, or fully right, or perhaps there is no right and wrong of it at all, and what is left is merely the application of force, as a matter of mere preference but not morality as such. Is it possible to know, and if it is not possible fully to know, how then should one act, when the consequences involve the lives of hundreds of thousands?
The most profound ethical point of the Second Inaugural, I have gradually come to believe, is not the call for reconciliation and an early example of what, in just war theory today, we would call jus post bellum nor is it even the recognition of the shared responsibility of this political community for slavery. It is, rather, the way in which the Address seeks to steer a path between moral relativism about the conflict, or else simply assertion of absolutist morality admitting of no possibility of moral error. Lincoln is a rhetoricist, not a philosopher, and he seeks to thread his way between these two by a form of language, rather than an argument as such. Whether it is successful, philosophically, is not so clear, but the formulation Lincoln adopts in a handful of phrases makes clear that he is seeking to bridge the gap, "with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in" - which meant, at the time of delivery, not yet reconstruction, but war, fighting at Petersburg, the last outpost before the Confederate capital at Richmond.
Consider the possible twists and turns of that phrase, however: firmness in the right, yes, but as God gives us to see the right - not, however, as we see the right, necessarily, nor even as God sees the right, but as "God gives us to see the right." These are not the traditional or usual questions of the ethics of war. But they are the questions that anguished Lincoln at the end of the war, and it seems to me they are questions that ought to figure more strongly in debates over ethics and war, just war, and even the laws of war.
Why? Because if you don't have an answer to these questions, you have the option of saying, there's no right or wrong in a moral sense, or at least none that you can know, with respect to war. In the case of war, it raises the possibility of war without limits. Walzer famously raised unlimited war as a consequence of realism - by which he really meant Hobbesian state of nature reasoning - but you can get to unlimited war through quite different directions, either if you endorse moral relativism in connection with armed conflict, or if you endorse moral absolutism. In the case of moral relativism, it becomes morally acceptable to fight, or not fight, as you like, or you can withdraw morally into a quietist neutrality (which is not unknown in the privileging today of humanitarian neutrality as the 'highest' moral stance in war, rather than ever taking sides), or else simply treat your cause as the arbitrary application of power and go with it.
Alternatively, you can be so certain of your moral cause, moral absolutism, that you can also justify a war without limits - because you are fighting for the right and the just cause, and the other side does not - once again leading to the possibility of a war, waged in the name of justice, without limits. This is what many northern abolitionists believed, and as an ethics of war, it seems to be close to what William Tecumseh Sherman believed (the realist-sounding 'war is hell' trope associated with him notwithstanding) - this war is simply the physics of equilibrium being re-asserted following a violation of natural law.
In other words, when we raise the question of 'how do you know and what if you can't?' in connection with the ethics of war, it is not merely a rehash of the endless general debate over moral relativism and moral knowledge. On the contrary, it raises a specific and harrowing possibility in the ethics of war specifically - the possibility of unlimited war, war without limits. That is the needle Lincoln seeks to thread, by forms of language woven into the Second Inaugural, because everything about the conduct, his conduct, of the Civil War has led, step by step, away from limited war to, finally, perhaps the first 'total war' of the industrial age.