Thursday 12 January 2023

The complex nature of Peace



(L) A young D'Ors on the Left in 1938, fighting in the Tercio de Requetes Burgos in the Spanish Civil War (R) D'Ors with mentor and influence, jurist Carl Schmitt at the Cathedral of Santiago de Compostela, 1964

An Abridged Translation of Alvaro D’Ors’s “Silent leges inter Arma” from De La Guerra y de la Paz from the Castillian original. 

 

The idea of peace has become an obsessive idea these days. Those responsible for governing and simple citizens, men of bad faith and good faith, victorious peoples and defeated peoples, the best part of their mental activity is occupied with it, not to mention their political activity, in the realization of that concept. Peace, the concept is as ambiguous as it is appetizing, as unattainable, it would seem, as it is really sought after. Thus, these generations that are children of war, having been born in war and have suffered from war, appear to us vehemently obsessed with that ideal whose experience they have lacked: the ideal of Peace.

 

Peace, sovereignty, civil war:

The same phenomenon appears to have occurred, in a similar way, in the first century before the Christian Era, when the Roman world was plunged into an endless series of wars. It is true that those wars were mainly civil wars, and, on the other hand, our last wars have been mainly international wars, world conflicts, but that difference is not as important as it might seem at first sight. The difference between a civil war and international war is that in the first the contending forces originally belong to the same State, while in the second the armed conflict between armies of different States is assumed. But this difference is not so relevant, because the concept of State is a “relative” concept, and although the initial situation of the contenders is different in both cases, with the development of events, that difference tends to disappear. In civil war the aggressor/contender tends to establish, albeit provisionally, in a different State, its own sovereignty and with its autonomous hierarchy. On the contrary, in modern interstate warfare, the war itself forges bonds of unity, and in the end the victorious State comes to subordinate the defeated State to its sovereignty, albeit provisionally, in order to modify its structure in toto, including it’s legal regime and domestic policy.

 

This last phenomenon, by which modern international war imitates the characteristics of classical civil war, has been especially characteristic of the last world war.{1on this phenomenon of modern warfare, refer to the always astute considerations of Carl Schmitt in, Die Wendung zum diskriminierenden Kriegsbegriff[1938]}. The contestants did not consider each other independent, but rather, each one for his part, came to be considered as representative of a hypothetical superior order of universal justice.(My own words: this was more so the emphasis of the two ultimate victors, as opposed to the original combatants[the Reich, France, Britain] who organised foreign policy on the basis of a limited territorial-spatial concept of an Entente or a Großspais[keeping in mind League of Nations still did exist and that Ostplans and Stuckart’s plans in the West built upon a notion of a European concert, itself presupposing kultur and zivilisation for the Eastern Question]. Even the USSR had seemingly given up it’s germinated notion of world order to accommodate itself when Molotov-Ribbentrop was signed, and if we take Halder’s accounts to be true that Molotov sought entry into the Axis. The coming into being of the order of universal justice was an ideological development that true to the primacy of the political, now planetary in scale, was implanted with the assumption of hegemony). Both fought, in a way, for Humanity and not for exclusively national interests.

 

Hence, once the military tension is over, the victorious contender-and the result would have been in this sense, exactly the same if the success of the weapons had fallen on the opposite side- strives to apply to the defeated a norm that is not simply that of revenge, but rather claims to be a norm of that superior super-state justice, of that Right of Humanity which animated the reason of state in the first place. 

 

The war, therefore, assumed the status not of being a simple duel between two private sovereigns, but rather the persecution of a criminal against Humanity. the disturber of universal peace, and who his legitimate persecutor deemed to be, if I am permitted to use a simple analogy, who was the thief where it was the policeman. The contest was double, in this sense that each party tried, for its part, to embody the role of police and declared the thief contrary. Only the factual fact of the military success of one party and the defeat of the adversary came to determine the distribution of the respective roles. The victor, then, imposed himself as a policeman on the defeated. Now this is exactly what happens in civil wars. Although initially the formal legitimacy resides in one side and not in the other, this other one can come to acquire with the course of events —especially when the insurrection obeys a movement of fundamental justice— the condition of equally legitimate and recognised universal power. And if the insurgent side obtains victory, it ends up founding a new legitimacy on it. This means that civil war also sometimes acquires - and this is the case as we will see, with the Roman civil wars of the first century before the Christian Era – namely, the characteristics of an interstate war. Thus, the civil wars to which we refer were very much interstate wars, and the new international wars that the present generation has suffered/endured, especially the last world war, are very much civil strife.

 

On Neutrality:

Two very peculiar expressions of this phenomenon of modern warfare are found in two very clear and current events: the inadequacy of the concept of neutrality and the prosecution of war criminals. Neutrality loses all its meaning, all its raison d'être, from the moment war is conceived as a war for Humanity. If in the war purely national interests are not defended, but rather the global interests of all Humanity, it is consequential that if no one can consider themselves outside of those interests, that no one can remain neutral[judicially speaking]. The victor, set up as a policeman, will always be able to reproach the neutral for not having collaborated in the fight for universal justice and order of Humanity, and for having done so with his complicit abstention from the defeated defendant, in the same way that the police of any State would reproach to the citizen that he had declared himself neutral in her fight against the thieves(my own comment, do recall that this was the insistence of Stalin at Yalta when he demanded that Sweden, Franco’s Spain and the Shahdom of Iran be treated as belligerents subject to sanctions simply because they had played a vital role in providing their resources to the Reich in the war and had prior been important trade partners). 

 

The same is true of the fact of prosecution of so-called “war criminals”. If those responsible for the vanquished faction are prosecuted and sentenced, this can only be explained if we start from the assumption that they were rebels and violated a norm of Humanity, in the same way that the thief is condemned for having violated a norm of the state.(my own comment, even if those prosecuted had committed heinous acts during wartime, what of those who had not participated in or witnessed any of these events, such as the Deputy Führer who had undertaken a mad cross-Channel flight to sue for a white peace. If the charges were for the actions prior to the war, could the definition of transgression not have been applied to the victorious powers or even those who had fallen on the “victorious” side in the end who claimed their right to enforce supra-state laws?[Poland had also seized Zaolzie].

 

That is to say, the world war of our days was, in a way, a civil war of Humanity. But our subject does not refer to this interesting phenomenon of our time, which would require further consideration. If I brought up this order of ideas, it was only to show how between the civil war and the international war there is not such an essential difference that we cannot legitimately compare the era of the wars at the end of the Roman Republic with those of our days. 

 

Of things pertaining to the Romans:

Well then, in that ruinous period in the history of Rome the passion for peace also seized everyone's spirits. Peace was longed for in itself. Having understood this passion was the key to Octavian’s success and the secret that explains why Octavian could surreptitiously alter the traditional political form of the Romans[the transfer of the maiestas] and why constitutional innovations were tolerated that to no other ruler would have been allowed.

 

All this could be because Octavian was essentially peaceful and thus, with his very nature, fulfilled the most vehement desire of the men of his time(my own comment: it is wrong to think of ambition solely as the maiden of war, because Machiavelli was astute in seeing the character of the fox in equal esteem in the eyes of Gloria, in no sense is a tendency of political peace one of pure pacifism. In fact history has only proven that desire for peace oft serves the centrifugal interest, via consolidation, of Power. Did not the circulation of Lipsius lead to the popularity and reception of the Netherlands movement? Did not the Treuga Dei developments in fractured West Francia bestow the Capets legitimacy and catalyse the beginnings of the Crusading intent after the reframing of the Turk as hostes by glossators?). Once victorious, Octavian knew how to establish a period of peace, the proverbial Pax Augusta or “Augustan Peace”. That was the peace that that long-suffering generation, worn out by wars, longed for. Peace, stable and lasting peace, peace constituted in a definitive situation, peace as a state and not as a simple truce precursor/interim to a new war. [2, On the idea of peace, see. Nestle, Der Friedensgedanke in der antiker Welt (1935)].In its most genuine and etymological sense, the pax romana would have been conceived as a simple pact, as an interruption of the war; but the peace that the world was asking for was peace as a state, in the manner of the Greek eirene, and for this reason all the pacifistic philosophy that developed at that time is permeated with concepts borrowed from Hellenic philosophy, not Roman mores.

 

A representative figure of that historical moment, perhaps the most representative, is that of Marco Tullius Cicero. It is precisely from him that the phrase that serves as the motto for our current dissertation is taken, and which comes from his defense of Milo: Silent leges ínter arma. This sentence corresponds precisely to that moment in the history of Roman thought, in which the idea of peace has become an obsessive idea, and the breath of Greek philosophy penetrates the soul of Latium. The Hellenic influence in Cicero is revealed in the very appearance of the word leges in the broad sense of 'norms'. Obviously, the Greek nómoi are reflected here. The word lex, in the technical language of the Romans, had one several, though much more defined senses. Lex was properly a decisional statement, a concrete and determined legal statement; a statement that could be made between individuals, and then we have a lex privata, that is, the clause of a conventional legal transaction, a true lex contractus; or it could equally be a normative declaration of a public nature, and then we have a lex publica, that is, the law proposed by a magistrate requesting, previous favourable auspices, and voted by the popular assembly, by the elections.

Also called lex, the law par excellence, is the decemviral code known as the “law of the Twelve Tables”. The other sources of Law, such as the senatorial decrees themselves, the praetorian edicts, the responses of the jurists, were not properly considered leges. When Cicero speaks of leges in the context of our statement, he is not referring, naturally, to the leges privatae, nor exclusively to the leges publicae, but rather he wants to designate, in a broad and general way, all legal norms. That is precisely the Greek nómoi, a word that the Latins loosely translate as leges.[3, [On the transcendence of the Ciceronian translation of nomos by lex. Refer to. My Introduction to the edition of De legibus (Institute of Political Studies, 1953).] This loan from the Greek should not surprise us, since, as we say, we are dealing with an expression of Hellenic pacifist thought, imported by Rome(particularly after Sulla’s Greek campaign) at the time when it received the influence of all Greek philosophy.

Greek philosophy and poetry has, in effect, the contraposition of legality —and in a general way, of justice— with war, with violence, of the díke with the bie[in reference to Hesiod’s Megala Erga]. And in Greek also, on the other hand, the identification or association of peace with justice, of eiréne with díke[Plato, Laws BK III]. This does not mean that all Greek thought is unanimous in this same pacifist sense, since, even disregarding the aberrant position of a Maximus of Tyre, who sees war as a good in itself, there is a whole current of Sophistry, where such an opposition between War and Law is inconceivable on the same value plane of pacifist thought, since for her the nómoi are something contrary to nature, to physis, and war, on the other hand, is a spontaneous and profoundly natural event(in Thucydides, the laws are mandated and enforced, thus bearing a veneer of artifice). However, although Greek thought is not unanimously pacifist, we can say that almost all of it speculates on the presuppositional contrast between Justice, Law and Peace on the one hand, and Injustice, Violence and War on the other. Such opposition is perfectly assimilated by the Roman world thirsty for Peace at the end of the Republican era, and constitutes a fundamental element of all the new political ideology established by Augustus in the eminent form of the Pax Augusta, the Pax Romana. But this opposition did not exactly correspond to the most ancient and genuine mentality of the Roman people. In the first place, because the vis —a term used to translate the Greek bie— was not felt there as something absolutely contrary to Law, but rather something inherent to Law itself. Of course, there was an unlawful violence, but there was also a violence —a vis— that was at the service of Law. The oldest legal terminology of the Romans preserves traces of this way of seeing the act of violence: vindexvindicatiovindiciae, etc., are all terms of the oldest Roman procedural system that, by containing the root of vis, they reflect a conception of violence as a constitutive element of the Law itself. It is legal violence, violence authorized by law, since all that is genuinely Roman in it’s procedural system comes from a system of legalized violence, of ritualized violence. Ritualized warfare, which, precisely because it is ritualized, has lost the cruelty of real combat, but which still preserves, under a complicated form of symbolism and ritual, the spirit of war. An especially residual type of that old authorized violence we have, for example, in the execution of the manus iniectio, in which a condemned debtor could be violently seized, materially imprisoned, by the physical force of his dissatisfied creditor. Here the Law is not opposed to that act of violence, to that little war between individuals; it is limited to demanding certain forms and requirements; for the execution of that violence. Thus, in the most genuine mentality of the Roman people, War and Law are not conceived as antithetical terms. War and violence can be legitimate ways to act the Law. The ius can be acted through the visIus and vis, therefore, did not oppose each other in an irreducible and absolute way, as occurs in the common thought of the Greeks. (my own note, how funny that just as the Romans saw Greek philosophy as the trove for answers to internal conflict, the medieval minds themselves saw in “Roman Law” or Ius Civile specifically from Justinian’s Digest and Julian’s Canon, the inspiration for uniform law to guarantee peace. Rome found peace, but then came the despotism of Empire. Europe lost her ancient customs, as von Haller feared and found increased organisation, but the tumult of the epoch of nation-states, ideologies and mass democracy followed) 

This Roman conception illuminates with a particularly clear light the nature of war within International Law. Between States, war is not simply an infringement of the Law, but can be in many cases —and it is always subjectively intended to be so— a way of executing the Law; It is properly an action, an inter-state process, which must be ventilated in this way precisely because it deals with litigants who do not recognize a super-state body capable of imposing the Law by its own initiative and coercive force. 

On Law:

What's more: Law always needs, at all times, the help of force. When this force is assumed by the State, as it monopolizes all forms of legal executive violence, that violence no longer appears to us as violence in the strict sense, but as organized coercion. Thus, war gradually loses its characteristics as the State absorbs the practice of violent action by law and excludes individuals from it. Between a trial and a war, the difference is, then, in the degree of organization: a trial, basically, is nothing more than a bloodless and rationalized war. This explains the difference between Greek and Roman thought regarding the valuation of violence. If the Greeks consider violence contrary to law, it is because in their political life, otherwise very deficient[straddling between the economic and political organisational forms), the form of an absorbing State arose early, in the "city", in the polis. In Rome, in on the other hand, the old constitution was in all likelihood too strong for the State to be able to become so quickly a monopolizing organism for the violent action of the Law; this had to be distributed between the same incipient city(note the many differentiated terms in use in Latin-urbs, cive) and the powerful heads of the families; between these procedural wars were launched, and the State could not repudiate its violent action as absolutely illegal, in the same way that we cannot consider the military violence exercised, within any given international order, by the different States as absolutely illegal. An echo of that ancient Roman conception is preserved in a representation of the law—which we see in Cicero as the judge himself—as the provider of weapons. It is said that the law arms lex armat(in Pro Munera) and arma legume(in Pro Sextus)— and of using the weapons that the law provides to individuals. And we cannot deny that the Emperor Justinian, six centuries later, shows us a facet of his committed allegiance to Romanitas when he treats, in his legislative prefaces, laws and weapons without any nuance of antithesis. Weapons and laws are not opposed in the most genuine conception of the Romans. 

Although Cicero occasionally echoes that ancient Roman conception, we cannot deny that all his work is pervaded by peaceful Greek ideas, according to which weapons are insurmountably opposed to the laws, and that these pacifist ideas are much more congruent with the civil and anti-military nature of the Arpinate orator. “Give up your arms to the toga”… behold the most spontaneous voice of the great orator; the thought that best reflects the nature of his spirit. Because Cicero, combative in the forum and in political controversy, is an essentially peaceful man. It is not in vain that he belongs to a century thirsty for peace, and whose culminating figure is that of Octavian Augustus, for whom Cicero's thought, through correspondence and mentoring, had a decisive influence.

As much as at some point he says that the entire life of the forum and intelligence is under the custody of weapons(in Pro Murena), that must be understood by their virtue to impose order, that is, by their potential pacifism; because the rumor of the tumult is enough to silence the arts: artes ilico nostrae conticiscunt: artes ilico nostrae conticiscunt- (for) our arts have clashed/drawn swords. The aversion to violence, as vis, which is for Cicero the most opposite of Law(in Pro Caecina he says, ea vis quae iuri maxime est adversaria- violence is the great opponent of right law), causes the aversion to war to become an obsessive idea for him. His ideal atmosphere was that of the Forum, that of intelligent conversation, that of humanistic leisure, the atmosphere of the toga, the civil and peaceful garment of the Romans, and not the atmosphere of the sagum, or military garment. Because for an orator like him, there is no proper place among weapons. For a man of laws, like him, life among weapons becomes impossible, because weapons drown out the voice of the laws, hence, Silent enim leges inter arma. 

And so, here as in so many other moments, Cicero coined for the Roman world, and even for all of History, an eternal cry of peace, with Hellenic roots of course, but wrapped in a purely Latin form: Greek pacifism, which you now see a splendid toga. And the laws are silent between arms because the laws have their voice, vox legis(De Legibus III, 43). The laws are, in a certain way, according to a Greek conception and that Cicero romanises, personal entities, with their life, their personality, their voice. Not only is the law personalized, but it is even erected as a personal sovereign, as a true king; it is the nómos basileus of the Greeks, which has a deep-rooted tradition, from Pindar to the political theology of Byzantine legislation, going through Demosthenes and Chrysippus, whose theory is embedded among the texts of Roman jurisprudence in a late period, with profound Hellenic influence. In Cicero's work, the tendency to personify the law, due to the great rhetorical possibilities he lends, reaches an exuberant development. One speaks not only of the will of the law, voluntas legis, but also of the mind of the law, mens legis, and even of the eyes of the law, oculi legis. As a personal entity, the law speaks, allows, prohibits and orders.That is, the law has its personality and its life; but this life is made impossible among weapons, because his voice is drowned out among them. 

But say if we were to examine the concrete value this “silence of the laws” has in the Ciceronian text from which our motto comes. Cicero was not referring there in a vague way to the silence of the laws in times of violence, but specifically to legitimate defence. It is about demonstrating that Publius Clodius was killed by Cicero's client, Milo, in legitimate defence and affirming the legality of the violence exercised in that case:

“Could it be an unjust death that is caused to the insidious robber?  the lawyer asks. Because this is, judges, a law that was not written, an innate law, that we did not learn, receive, read or configure; according to which we were not instructed, but created; in which we were not educated, but imbued: that if our life is seen in some trap, in danger of falling due to the armed violence of the robbers or the enemy, any means of saving ourselves is lawful. Well, the laws, between weapons are silent and do not demand to be fulfilled by those who, by obeying them, would have to expiate an unjust punishment before being able to inflict it on the one who deserves it.”

Cicero refers, then, the silence of the laws to the case of legitimate defence. In what sense can we say that the laws are silent in this case? This forces us to make a few brief considerations about the nature of legitimate defence. Self-defence supposes the imminence of unfair damage against a person, but with the particularity that this danger cannot be neutralized by the intervention of official State violence. This is characteristic of legitimate defence: that the State cannot possibly intervene in time. To provide an example: A citizen of any State returns from the market. He has sold some cows and has the price in his pocket. As the shadows of night fall, he walks by himself, towards his house, through the woods. At a bend in the path, it had already happened to others, two sinister figures, threatening him with death, ask him for the money. That citizen is a good shot: he shoots his pistol and kills the robbers. What do we have there? The most universal consensus will say that that citizen acted in legitimate defence and that he should not be punished for having killed the two robbers. There will be no discrepancies here, there will be no points of view here; The opinion of one and the other will not be different according to the peculiar ideology of each one; even the robbers themselves would have recognized that innate law of human nature, that law not learned, but imbued, as Cicero says. And this is so, because that citizen was threatened by a danger that, in the first place, was unfair.

It was useless that that State to which the villager and the forest belonged had organized a magnificent police force, colossal prisons, most just and most active courts of justice; All that organization was useless for that situation. For the citizen threatened in those conditions it was as if no State existed. The State is in crisis at that moment. And against such a threat that the State is powerless to contain, the citizen, not as a citizen, but as a biological being of creation, can and must react violently. Such violence is not unlawful, because the laws, which are recognized as impotent to defend that citizen from the unjust threat, do not make themselves heard to judge his natural defence either. At that moment, the laws, impotent, are silent: Silent leges... On the other hand, a law that is not legal, but biological, that of the self-preservation instinct, is fulfilled; a law that, as Aeschylus says(in Eumenides, 448) of the law of revenge, that it is a law that does not speak, a silent law. Therefore, it is not really a question of a right to defend oneself, but of an abstention, of a silence of the law, in the face of the self-preservation instinct. It is the resignation of impotent human laws before the unappealable and brutal execution of a biological law.

But there is also another case in which the laws are silent, not because they are impotent in the face of the risk that threatens a citizen, but rather in the face of the risk that threatens the State itself. We could say that the same State is also sometimes faced with situations of legitimate defence. They are those exceptional situations in which the validity of the laws is suspended, a forced silence is imposed on them to give way to a martial law of security. The Romans called this suspension of legality in cases of exceptional danger to the State of tumult, the iustitium. It is not a question here of a temporary suspension between normality, but of a global suspension of all the legality of the State, a resignation of the same State to continue living, in the face of the danger that threatens it, under the same regime of legality that it had been observing. The will of the laws, their voice, is then replaced by the voice and the autocratic will of a real person, more agile and more intelligent than that other to face the dangerous situation and save the entire State from it.

The old Republican constitution counted for these cases of necessity with an institution of obscure and remote origin: the dictatorship. Elected by the Senate, the dictator assumed all the absolute sovereignty of the State for six months. However, this ancient Roman institution disappeared quite soon; precisely when the politics of the populares party, in the third century before the Christian Era, managed to subordinate the power of the dictator to the provocatio ad populum. As the autocratic management was limited to that appeal before the popular elections, the dictatorship lost its greatest utility and fell into disuse. Indeed, when Rome found itself in a state of alarm when Hannibal attacked, the Romans no longer resorted to establishing a harsh dictatorship, but rather, in those moments of danger and general confusion, power was assumed spontaneously by some determined citizens. . From the middle of the following century it was the Senate that came to resolve in states of necessity. But not directly, nor through the mediation of a dictator as before, but by reinforcing the command of some superior magistrates, normally the consuls, whom it converted for the time that the danger lasted, into magistrates of absolute power. The decision of the Senate adopting this form of constitutional exception was the senatus-consultum ultimum. To this end, they were granted a potestas maxima, by virtue of which they could conscript soldiers —in the quick form of the tumultus(roughly equivalent to state of emergency) and not in the ordinary form of the dilectus. They could also lead the war in a personal capacity and they could freely judge and punish any Roman citizen, as well as to allies, the socii Latini, without distinction between the battlefield and the very enclosure of the city.

The political skill of the Senatorial party managed to apply this exceptional solution, which was normally applied only in the case of foreign war, to new cases of civil insurrection. In this way, the insurgent, the inimicus, was equated with the external enemy, the hostis: the civil conflict rose, as we said, to the category of international war.(my own note: the infamous example of this put into practice was the outbreak of social violence when Gaius Gracchus was tribune in 122-121BC, and Lucius Opimius was accorded full power by the Senate to crush the uprising, resulting in the death of Gracchus and the brutal killing of Roman popular partisans). The Treasury was closed. Sessions of the Senate were interrupted. Public acts of all kinds ceased. All kinds of businesses, procedural procedures, and public auctions were suspended; all acts of the praetorian jurisdiction were inhibited. All legal life was paralyzed while the iustitium lasted: the laws were silent. It was time to put on the military sagum and hang the toga civilis, because the toga had to give way to weapons; that is to say, that situation that, for having been repeated so many times, Cicero, and in general the world of the time, abhorred with all his heart. It was the moment of tumultus, of war, of summary justice, of arms, and in that situation the laws were inhibited, kept silent.

Epilogue:

The laws are silent when the State is impotent before the threat against an individual; The laws are silent in the face of the threat against the State: legitimate defence in both cases: public here, private there. In both cases, the State is in crisis and its laws are inhibited by a natural law founded on the instinct of conservation. The laws are silent because the validity of a capable state organization is lacking. And with this observation we return to the starting point of our dissertation: to international war. Indeed: what is war if not a legitimate defense of the States in the face of a threat that no super-state organization can avoid? In that area, the State also fails, and, because it fails, the laws cannot let their voices be heard. And that is why war is lawful. There are wars precisely because there can be no trials; and there can be no processes, because the litigants are not integrated into the same community. Therein lies the tragic impossibility of International Law: that as long as it remains interstate, it can hardly be Law. For this reason, all attempts to forge effective legal regulations among nations tend to start from the creation of an organization that, being superstate, already tends to dissolve the principle of State sovereignty, that is, it has a tendency to create a de facto superstate. As long as a super-state community does not exist, there can be no laws between peoples, and they live in a perpetual iustitium, in a state of continuous, perpetually exceptional alarm.

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The complex nature of Peace

(L) A young D'Ors on the Left in 1938, fighting in the Tercio de Requetes Burgos in the Spanish Civil War  (R) D'Ors with mentor and...