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As long as the great powers accept the moral duty of changing an unjust status quo even if it means sacrifice to them, just so long will there be peace.

The State in Catholic Thought, by Heinrich A. Rommen, introduction by Bruce Frohnen (Cluny Media, 770 pages)

There is no possible evasion of the general principle that power and wealth are the measure of public responsibility for the common weal. As long as the great powers, in accordance with the moral will to justice and in accordance with the acceptance of the duties of liberality and natural equity, take over the responsibility to preserve peace and to compromise in conflicts of interest, a responsibility which Providence has laid on their shoulders, just so long shall we have peace. As long as the great powers accept the moral duty of changing an unjust status quo even if it means sacrifice to them, just so long will there be peace. A formulation of these moral duties in legal machinery, in international institutions of conciliation and arbitration, will indeed facilitate the exercise of these responsibilities and moral duties, will promote common uniting interests against dissolving particular interests, will be able to crystallize an international public opinion that makes the individual citizen aware of his double allegiance to the national and international common good.

Yes, legal institutions may well do all this, if the first and basic presuppositions are realized. If they are not realized, the legal institutions which have in themselves no supreme authority and which work only by the intervention of the moral will of persons or groups of persons, will collapse just as surely as did the League of Nations as soon as the great states became divided into status quo powers and revisionist powers and when one of the latter, Italy, defied the League. That is, the status quo group which, disunited as it was, did not fully apply the economic sanctions of the Covenant (Italy declaring an oil embargo a casus belli), would not risk military sanctions in order to save something of the League. The League could not be saved after the unpunished conquest of one of its small members (Ethiopia) and the disunity of the great powers.

There are no automatic legal institutions which by their formal perfection realize justice. Through each such institution it is the moral will of the persons that transforms, as moral authority, an abstract demand of justice into concrete realization here and now. In each decision regarding a concrete case of law, two elements are comprised: one is the rule of law, technical and formal, and the evaluation of the concrete facts of the case under the general rule, a rather logical procedure. The other is the moral acceptance by the people or the society which lives under that rule and by the functionaries of the legal institutions of the moral ideas and the moral order which have been vested in the legal forms. Where there exists a great moral and cultural unity and homogeneity, naturally the intrinsic justice of the order as a whole is seldom consciously taken into consideration; it is simply implied.

But it happens also that not so much the mere legality of a decision and of the law applied is in doubt as the legitimacy of the concrete legal order. In other words, the positive law and the demand for intrinsic justice are no longer considered identical; the legal order is condemned as unjust. This may happen on account of the rise of a new class internally or on account of the decay of one great power and the rise of a smaller nation to the standards of a great power; or a colony, a backward country, rises to the standards of a “civilized” nation; or a new idea like national self-determination spreads over a whole continent still organized according to the principle of historical monarchic legitimacy; or new economic developments make the retention of full sovereignty of smaller nations over their economic life a disservice to their own and to the international common good. In all these cases the existing legal order itself is attacked with the demand for a new order. A kind of tragic dilemma develops easily: the one party claiming the principle, pacta sunt servanda; the other asking for a change of these very pacts which constitute the concrete legal order because they have become unjust because the vital circumstances have fundamentally changed. It is quite clear that now the problem is one of natural justice and of equity, and that the only admissible solution is a genuine moral compromise by mutual consent, or a case for arbitration by a commonly acknowledged higher moral authority. This authority, weighing all circumstances, may propose a compromise and not a perfectly just decision because it has to take into consideration the relative power, the relatively just demands, and the chances of acceptance of the arbitration decision.

Since the French Revolution, two political principles have been in dispute: the principle of democratic national self-determination and the principle of historical monarchic legitimacy. In Italy, these principles clashed in the Papal States. Italian national unity, democratic and secular, could be fully attained only by the destruction of the historical rights of the papacy to its states. Under the Catholic Risorgimento a genuine compromise would perhaps have been possible; under the ideology of Mazzini and Cavour, on the other hand, a compromise was impossible; the consequence was war. When, as in the past, international communism as a principle of international organization is opposed to national capitalisms of bourgeoisies, we have again an antagonism of principle which may admit of political compromise but not of a legal decision according to some abstract rule because such a commonly accepted rule is absent in the face of such a mutually exclusive antagonism of principles. It follows that law can supersede power only in so far as the litigants have accepted a universal law binding upon both and upon their dispute. Therefore, the unconditional presupposition of international peace is not legal institutions, but rather the acceptance of a universal moral law and mutual charity, as the popes have again and again repeated. If that presupposition exists, then and only then are the legal institutions of any value. Otherwise they themselves become mere instruments of power politics.

Cardinal Newman, in his Letter to the Duke of Norfolk (p. 220), relates Pius IX’s declaration about the pope’s power to release subjects from the obligation of loyalty and to depose sovereigns. Pius IX asserted that such a right had undoubtedly been exercised in special circumstances. But this right was exercised in the ages of faith when the pope was considered the supreme judge of a united Christendom and when the advantages of this office were recognized by the peoples and the sovereigns; when, further, this right of the pope was acknowledged by public law and by the common consent as a duty to be exercised in the most important interest of states and their rulers. Newman points out the limits of the exercise of this right: the ages of faith (the moral unity and homogeneity of the orbis christianus) and the consequent ability of this community to enforce the right by the common consent of a united Christian people, one in faith.

This common consent, this concert, is usually taken for granted. But it becomes a problem if the moral homogeneity and unity of the people concerning the moral ideas, and the self-consciousness of its distinct existence through which it is integrated to a political unity, are questioned and a contradiction is felt between the eternal idea of justice and its imperfect unjust realization in the concrete conditions of existence. So we come to the conclusion that the consciences of persons, moral ideas and natural law comprehended by persons, are the transformer which realizes the abstract legal rule and gives vigor and validity to the legal institutions. And moral ideas, the consciences of persons, are the more important the less in a given society unity and homogeneity are definite, strong, and ordinarily unquestioned.

Since armed conflict is not a regular, normal, social institution and since its causes are often irrational and complex (really abnormal), legal institutions to avoid war must rest even more than others on moral ideas with appeal to conscience. “State and Church in their demand of positive acceptance of their authority have no more profound and more original power to which they can appeal than that moral conscience innate in human nature.”1 Politics, concerned predominantly with the preservation of the moral will to live together peacefully and to produce and change the legal institutions through which normally the minima of rights and duties of the individual members of a society are protected and enforced, is thus so much a matter of ethics that it cannot be simply replaced by positive law.

Positive law is rather the external visible element which rests upon the invisible moral ideas—foundations are always invisible—and upon the steady common will of a people to produce a more perfect life in living together. In this sense, all forms of government, except tyranny, rest in fact upon a consent of the people. This consent is a moral and legal duty of the people in the interest of the common good. And this consent is an explicit or implied acceptance of moral values to be realized by the state in the order of law and, if compulsion against dissent is deemed necessary in the interest of the common good, to be enforced by legitimate power.

From this it follows that, as long as a plurality of states lives in an order of coordination on the basis of independence, self-determination, and integrity of the members, foreign policy cannot be abolished in favor of abstractly perfect legal institutions through which, so to speak, automatically the will of all is transformed mysteriously into the general will, implicitly just and infallibly true in the concrete case. “In reality the international life continues to rest on the good will of the nations to cooperate, to arrange themselves, to settle disputes through a willing understanding of the interests and mentality of the other party, assisted, if necessary, by the mediative and conciliatory efforts of third powers. The peace depends on moral factors, not on strictly formulated legal rules and on sanctions provided in advance.” Thus, Erich Kaufmann concludes a comprehensive and penetrating study of collective security under the League of Nations.

Collective security embodied in the network of international treaties between two or more states on account of their common interests can work only as long as these treaties correspond to the vital interests and to the moral ideas and rules under which the states actually agree to live. If the vital interests change, if a dispute arises about the application of a moral idea to a concrete case implying evidently the contention that the treaties have become oppressive or, as the Covenant said, “inapplicable” (Art. 19), then a moral conflict will ensue. Collective security itself becomes the object of dispute, the revisionist powers asserting that only a change of the treaties can establish security and the status quo powers complaining that the demand for revision is aggression against the beati possidentes.

Thus, the problem of preserving peace amounts to this: to change peacefully the positive order of treaties, the status quo. And it is here that the acceptance of the moral ideas of justice, liberality, and charity must prevail and that the legal institutions like a court of arbitration or a world court or a Council of a League of Nations with strictly formulated competencies are of minor importance because they cannot work if the real presupposition of their efficiency (the unity in moral ideas and the consciousness of a common good) is actually questioned: in other words, when the question at issue is not the legality of actions and situations under the concrete order of treaties, but the legitimacy and the justice of that concrete order and its actual distribution of power, wealth, influence, competency of leadership. For example, the international system of the Holy Alliance rested on the historical, traditional rights of the princes and the integrity of their territories, not upon the assent of various national groups of their peoples. The defenders of the principle of democratic national self-determination implicitly attacked the actual international system of the Holy Alliance since their principle of legitimacy had to lead to the dissolution of monarchies ruling over different nationalities.

Such a dispute about principles of legitimacy is internally solved by revolutions, more or less sanguinary but still by violence, and in the international scene by wars, unless through mutual understanding and a generous and genuine compromise the doctrinaire rigidity of opposing principles is bent and the status quo is changed. But legal institutions like a supreme court for constitutional law cannot decide about the legitimacy of the Constitution of which it is itself a creation, but only about the legality of an act of the legislature under the Constitution. Consequently, when the latter as the legal order, instituted by the political decision of the nation and expressing its perpetual will to live under this constitutional order, is itself at stake, then a supreme court is eliminated, as the experience of the United States before the outbreak of the Civil War proves. Positive law and legal institutions have their intrinsic limitations.

Republished with gracious permission from Cluny Media.

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The featured image is “The “Little” Tower of Babel (detail) (c. 1564), by Pieter Bruegel the Elder, and is in the public domain, courtesy of Wikimedia Commons.


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