Hans J. Morgenthau and the World State:
Realism and the Legacy of Kelsenian Legal Formalism
Oliver Jütersonke
Centre on Conflict, Development and Peacebuilding (CCDP),
Graduate Institute of International and Development Studies, Geneva
and
Zurich University Centre for Ethics (ZUCE)
This paper will seek to shed light on Hans J. Morgenthau’s reflections on the
attainment of a world state, as elaborated in his textbook Politics Among
Nations and elsewhere. Commentators have long interpreted his musings
about the world state as theoretically incoherent, and at odds with the realist
position for which he is known. However, against the backdrop of Hans
Kelsen’s theory of norms, one of the key pillars in Morgenthau’s heritage as
international legal scholar, his recourse to the vocabulary of the world state
can be understood as the result of the émigré scholar seeking to repackage his
legal formalism for his new academic milieu of Cold War America.
Paper prepared for the British International Studies Association (BISA)
Annual Conference
Manchester, April 2011
This is an early draft – comments are welcome
Please do not quote without permission
[email protected]
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Those studying the work of Hans J. Morgenthau have long been baffled by his
views on world government and the attainment of a world state – views, it
appears, that seem to be strikingly incompatible with the author’s realism. In
a 1965 article in World Politics, James P. Speer II decided that it could only be
“theoretical confusion” that explained why Morgenthau could on the one
hand advocate the ultimate necessity of a world state towards the end of his
textbook Politics Among Nations (1948), while at the same time writing in a
separate paper that world government could not resolve the conflict between
the Soviet Union and the United States by peaceful means (Speer, 1965: 216).
According to Speer,
Morgenthau posits at the international level a super-Hobbesian
predicament, in which the actors on the world scene are motivated by
the lust for power, yet he proposes a gradualist Lockean solution
whereby the international system will move, through a resurrected
diplomacy, out of a precarious equilibrium of balance-of-power
anarchy by a “revaluation of all values” into the “moral and political”
bonds of world community, a process whose capstone will be the
formal-legal institutions of world government (Speer, 1965: 225).
This oscillation between Hobbes and Locke, Speer asserted, must be the result
of Morgenthau’s “commitment to the organismic mystique that comes out of
German Romantic Nationalism”, although he admitted in a footnote that all
his reflections on the intellectual sources of Morgenthau’s theories were
“mere speculation” (Speer, 1965: 225).
Campbell Craig (2003; 2007) agreed with Speer’s organismic mystique
assertion and attempted to continue the line of thought by situating
Morgenthau’s “paradoxical conceptions of the world state” (Craig, 2007: 195)
within the context of the thermonuclear revolution in the late 1950s and early
1960s. Faced with the prospect of world annihilation through nuclear war,
Craig argued, Morgenthau oscillated between description and prescription,
between the observation that the attainment of a world state was unrealistic
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under current conditions, and the belief that world government was the only
thing that might prevent war between the superpowers, a war that, given the
advent of nuclear weapons, could risk the very survival of the human species:
“The possibility of world government was so low and the risks of failure so
high that the world state notion he put forward in Politics Among Nations was
effectively speculation” (Craig, 2007: 199). Paradoxically, according to Speer
and Craig, Morgenthau nonetheless repeatedly argued that the stand-off
between the Soviet Union and the United States could not be resolved by
peaceful means, but only through a hard-nosed, balance-of-power logic and
aggressive militarization. Indeed, Morgenthau sharply criticized President
Eisenhower’s war-averse policies of 1956-59 on a number of occasions.
According to Craig, the thermonuclear revolution had rendered
Morgenthau’s realist understanding of international politics obsolete, leading
him to his “renewed embrace of the world state logic” in an effort to come to
terms with potential nuclear fallout (Craig, 2007: 202). Morgenthau, William
Scheuerman has argued, was very aware of this tension in his thought, but
was unable to undertake the “necessary theoretical synthesis” because “too
much Schmittian intellectual baggage” meant that he “was never able to think
creatively enough about the possibility of a novel global order” (Scheuerman,
2007: 78-79). According to Scheuerman, Morgenthau had been inspired by
Carl Schmitt’s account of the “golden age” of the early modern international
system of the Ius Publicum Europaeum, and this had led him to advocate for a
traditional balance-of-power framework centred on a nostalgic vision of great
power diplomacy. As a result, Morgenthau was left with a Westphalian view
of international politics that was no longer compatible with the
universalizing, liberal democratic worldview espoused by US foreign policy.
His reflections on the attainment of a world state were not only utopian
because of the practical impossibility of its attainment, but were moreover at
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odds with his critique of inter-war international legalism. This legalism, as
Schmitt and Morgenthau had both argued, embodied neutralizing and
depoliticizing dynamics that were instrumentalized by the great powers to
hide their underlying universalist aspirations for ideational supremacy (see
Jütersonke, 2010).
While the likes of Speer, Craig and Scheuerman rightly point to Morgenthau’s
argumentative inconsistencies with regard to his views on world government
and the attainment of a world state, it is not necessary to leave the intellectual
origins of this tension in the realm of speculation, as Speer claimed. Nor can
Craig’s “historical context” of the thermonuclear revolution help us unpack
these origins, even though Craig’s work does well in showing the ways in
which Morgenthau subsequently struggled with an apparent incompatibility
between his own legal-theoretical views and a rapidly changing international
setting. And while Scheuerman is correct in pointing to some of the parallels
between Morgenthau’s ideas and the work of Carl Schmitt, this only tells part
of the story. The crucial piece in this puzzle is Morgenthau’s indebtedness to
Hans Kelsen, with whose work he familiarized himself during his time in
Geneva in the early 1930s. Against the backdrop of Kelsenian legal formalism,
Morgenthau’s reflections on the world state do not seem as bizarre and
incoherent as many in his American audience, largely oblivious to obscure
Central-European legal debates of the 1920s and 30s and unaided by
Morgenthau’s conscious efforts to minimize all reference to this body of
literature, perceived it to be.
The backdrop for talk of the world state by international legal scholars such as
Hans Morgenthau was a determined effort in the inter-war years by the
discipline of International Law to modernize a stale and seemingly outdated
nineteenth century conception of their subject matter. In the wake of the
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horrors of World War I, for which part of the blame, it was commonly
thought in legal circles, had to be assigned to the “positivist” concept of
sovereignty, progressive international lawyers now looked for ways in which
to depoliticize relations among states by advocating a variety of theoretical
positions that privileged legal monism and the primacy of international law
within such a system. The most radical proponents of such positions were
arguably Georges Scelle in French-speaking circles and Hans Kelsen and his
students in German-speaking Europe. And it was in particular Kelsen’s
theoretical framework, as well as similar ideas voiced by Morgenthau’s
mentor, Arthur Baumgarten, that would leave a profound effect on the way
Morgenthau conceived of international law, and of the way he subsequently
also used the terminology of the world state in his American writings, to the
general bafflement of his readers.
In his two-volume opus Précis de droit des gens (1932 and 1934), Scelle referred
back to the work of Hugo Grotius to contradict the common conception,
derived from the work of Samuel von Pufendorf, that the international
community was composed of states constituting free and equal legal persons.
Instead, Scelle argued for the existence of a universal objective law that
encompassed not just Grotius’ Christian civitas maxima, but the entire
community of mankind. Scelle decided to use the term “droit des gens”,
instead of “droit international”, to emphasize that it was possible to conceive of
a global law that regulated the relations among individuals, a legal unit that
was uninterrupted by the existence of states (Schiffer, 1954: 258-261). The
highest form of inter-personal organisation was, for Scelle, the “société
internationale”, which was itself made up of various forms of social groups,
generated through the fact of human solidarity, with the state being simply
one of these forms. This was a monistic conception of law, in that it sought to
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transcend the usual distinction between municipal and international law by
conceiving of a legal order that was above, rather than simply between states.
Kelsen, under the influence of neo-Kantianism, which posited a strict
separation of the “is” and the “ought”, took a somewhat different line to
derive his monistic framework. Foreshadowing his eventual “pure theory of
law”, he began by arguing in his early writings that legal science should be a
purely normative discipline based on the notion of imputation (Zurechnung):
to every (legal) norm is attached a coercive sanction that is the (legal)
consequence of non-compliant behaviour (Kelsen, 1928: 2). An elaboration of
this standpoint led Kelsen to postulate the identity of state and law
(Identitätsthese), and the corollary that the dualistic conceptualization of
considering international and municipal law two be separate normative
systems was logically unsound. Instead, he formulated an “objective”
construction in which national and international law were conceived as
forming a monistic system based on the principle of delegation: every norm
can be ascribed to another norm that is superordinate to it, with the delegated
norm deriving its validity from the latter. The result is the hierarchical
structure of norms (Stufenbaulehre) that Kelsen had borrowed from his
colleague Adolf Julius Merkl, which culminates in the basic norm
(Grundnorm) that represents a hypothetical “fiction” embodying the unity of
the legal system (see Borowski, 2005). Within this legal monism, one is then
left with the non-legal (i.e. moral-political) choice between two
epistemological hypotheses: either one considers state law to be the highest
form of law (the primacy of state law), or one takes international law to
override it (the primacy of international law). In each case, the relationship
between the two is one of delegation.
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This conceptualization, however, did not yet entail a reply to those who
denied that international law was “law” because of a lack of an enforcing
authority, in light of the fact that those generating law in the international
sphere were also those to whom the law was addressed. To overcome this
challenge, and without falling into the trap of advocating a tyrannical,
centralized world state (the so-called “Weltstaatsfalle”), Kelsen referred back to
the work of Kaltenborn von Stachau, who, already in 1847, had tried to find a
coherent framework in which the international legal order was a coercive one
– i.e. that international law was law because its norms were of the structure: if
A (sanction-inducing behaviour), then B (sanction) – but a decentralized
system. The result was a “primitive” type of law, as the sanction was still
based on the principle of self-help, but it was “law” nonetheless, with its
system of sanctions, understood within the framework of the primacy of
international law, comprised of reprisals (under customary law) and war
(Kelsen, 1932; Bernstorff, 2001: 74-81).
Nonetheless, the “objective” construction of a universal legal system working
under the primacy of international law, as advocated by Kelsen and his
students, was soon being criticized on a number of grounds – by those in the
legal community as well as by those (from a legal background or not) that
were populating the new International Relations departments in the
Anglophone world. Hedley Bull would write in the Anarchical Society that
“the idea of international law as a coercive order based on a system of
sanctions which is decentralized is a fiction which, when applied to reality,
strains against the facts” (Bull, 1995 [1977]: 127). And John H. Herz,
Morgenthau’s fellow realist, argued that the overall binding force of a legal
order lay not, as Kelsen (and Morgenthau in La réalité des normes (1934)) both
claimed, in the effectiveness of sanctions, but rather in the “establishment of
legal liability through the constatation of non-norm-conforming conduct”
7
(Herz, 1964: 114). Kelsen’s attempts to convey “an aura of legality to extralegal fact”, Herz charged, only made it “the most sophisticated law theory
which has been developed this [the twentieth] century” (ibid.: 108). Arguably,
however, a more appropriate target for Herz’s critique (himself a student of
Kelsen) would have been Scelle’s conceptualization of a monistic system
based on human solidarity, as the neo-Kantian framework applied by Kelsen
(as well as by the likes of Joseph L. Kunz and Hersch Lauterpacht) tried
precisely to transcend the dichotomy between natural and positive law by
suggesting that international law was a system of norms, beyond states,
founded on the order imposed by a hypothetical basic norm (see Bernstorff,
2001: 102).
Yet asserting that Kelsen’s framework was “unrealistic” natural law was only
one of the critiques voiced. Another came from an American audience that
had become increasingly disenchanted with the legal realism of the 1930s,
which was deemed to lead to the totalitarianism currently unfolding on the
other side of the Atlantic (Jütersonke, 2010: 105-125). Many, in particular from
neo-scholastic movements, came to the conclusion that all this talk of
“objective”, “universal” law amounted to so much German “goose-step
philosophy” (Kennedy, 1941: 151) with a decidedly ideological imprint. The
face that the likes of Kelsen were themselves Jewish émigrés from the
German-speaking parts of Europe made little difference there. It was the
failure of the internationalist experiment of the 1920s, embodied in the League
of Nations, that had led to war, and an increasingly “realist” approach to
international politics had no appetite for “legalism”: neither for theoretical
constructs toying with conceptions of international law as a universal system,
nor with cosmopolitan projects advocating a “world legal organisation”
(Weltrechtsorganisation) (see Kelsen, 1958).
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Morgenthau was made only too acutely aware of these dynamics upon his
arrival in the United States in 1938, and the articles he wrote while at the
University of Kansas City pay tribute to the way he sought to overcome the
gaping chasm between the legal formalist luggage he had brought with him,
and the realities of the US intellectual scene of the 1940s. It was only once he
had obtained tenure at the University of Chicago, and only once he had made
a name for himself with the publication of Scientific Man versus Power Politics
(1946), that he felt comfortable enough to reach back to the legal concepts and
ideas with which he had spent the best part of a decade in Frankfurt, Geneva
and Madrid. And it is only against this setting that one begins to get a sense of
how striking the success of his textbook Politics Among Nations (1948) actually
is, for it constitutes, from cover to cover, a book written by a Kelsenian
formalist – and not by an ardent realist.
International law, Morgenthau told the readers of his textbook, was “a
primitive type of law” because it was decentralized with regard to the three
basic functions of any legal system: legislation, adjudication, and enforcement
(Morgenthau, 1948: 211). As critics of Kelsen’s framework were quick to point
out, however, the logical conclusion to the assertion that international law
was as yet primitive law seemed to be that it was striving to attain increasing
sophistication and comprehensiveness, i.e. that the ultimate aim of such a
system of universal law, understood under the primacy of international law,
was the gradual elimination of the distinction between municipal and
international legal norms, and that hidden behind this system was the
cosmopolitan project of generating a “sovereign” legal order and ultimately a
world state. Morgenthau was well aware of this, and followed Kelsen in
seeking to distinguish between understanding the term “universal” as
implying organizational holism in an actually realized structure of a world
state, and using it to denote the epistemological unity of all legal norms, be
9
they in the domestic or international spheres (see Bernstorff, 2001: 97). Indeed,
Morgenthau’s mentor, Arthur Baumgarten, to whom he dedicated the
published version of his Habilitation manuscript, La réalité des normes (1934),
had similarly argued that it was crucial to “save” the theoretical idea of a
world state from the charge of being utopian by decoupling the
argumentative logic of striving for a holistic system of legal norms from the
political project of making the world community into a unified state
(Baumgarten, 1931). It is against this backdrop that Morgenthau’s line of
argument in Politics Among Nations needs to be interpreted, when he writes
that:
…international peace through the transformation of the present society
of sovereign nations into a world state is unattainable under the moral,
social, and political conditions which prevail in the world in our time.
If the world state is unattainable in our world, yet indispensable for the
survival of that world, it is necessary to create the conditions under
which it will not be impossible from the outset to establish a world
state (Morgenthau, 1948: 419).
Just a few years earlier, Kelsen had similarly argued in his Peace Through Law
(1944: 12; cited in Bernstorff, 2011: 97-98) that:
At present, however, such a World State is not within the scope of
political reality, for it is also incompatible with the “principle of
sovereign equality” upon which, according to the Declaration signed
by the governments of the United States, United Kingdom, the Soviet
Union and China on November 1, 1943, at Moscow, the international
organization to be established after the war shall be based.
For both scholars, the creation of organizations such as the League of Nations
and the United Nations did not constitute a precursor to an eventual world
state, but the establishment of conditions of world community under which
the primacy of international law in a unified system of legal norms could be
effectively pursued. The world state remained a theoretical construct, not a
practical motive for political decision-making.
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It is equally remarkable how Morgenthau continues the passage cited above:
As the prime requisite for the creation of such conditions we suggested
the mitigation and minimization of those political conflicts which in
our time pit the two superpowers against each other and evoke the
spectre of a cataclysmic war. This method of establishing the
preconditions for permanent peace we call peace through
accommodation. Its instrument is diplomacy (Morgenthau, 1948: 419).
Except for the reference to two superpowers and insistence that the
instrument is diplomacy (instead of the adjudication of disputes), these lines
could also have been written by an internationalist of the inter-war era. As has
been highlighted at length elsewhere (Jütersonke, 2010: 37-74), curtailing the
number of “political” conflicts (i.e. those in which a state’s “vital” interests
were at stake) that could not be resolved by means of legal instruments was
precisely what the doctrine of the justiciability of disputes was attempting to
tackle, a doctrine that Morgenthau dealt with at length in his early works. But
in 1948, and beyond, Morgenthau felt that this legal formalist heritage had to
be kept under wraps, and that a call for traditional diplomacy would be more
amenable to an audience trying to make sense of the new dynamics of bipolar
stalemate. For his American readership that was receptive to a “realist theory
of international politics”, that heritage remained largely unnoticed. But it is
only once such intellectual roots are uncovered that Morgenthau’s feat of
successfully juxtaposing his legal scholarship onto the scene of US foreign
policy can be adequately appreciated.
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