Author: Phillip Bobbit
Publisher: Anchor (September 9, 2003)
ISBN: 0385721382 available at amazon.com

BOOK I: STATE OF WAR

RELATIONSHIP BETWEEN STRATEGY AND LAW 
Examination of  the idea of a mutually affecting relationship between strategy and constitutional law

Strategy = wars and military innovation; Law= constitutional order and international law

• The relationship according to Weber, was a revolution in military affairs brought forth modern state; or important revolutions in military affairs enabled political revolutions, and adaptations in constitutions.
• Bobbit argues that understanding this relationship will frame debate as nation-state is dying and market-state is evolving
• Security shift from threat-based assessments to vulnerability analysis. No longer retaliating against enemy assets, but now employ various defenses to keep the peace when targets for retaliation are unknown.
• Relationship between cataclysmic and low intensity wars and the constitution of society of market states that will have to fight them. No peace settlement without war, but there can be peacemaking.
• Accepted paradigm of legitimate order;  previously was condition of international disorder would be remedied by development of international law and enforced by appropriate courts.

THE LONG WAR (1917-1990)
The Long War was fought to determine which of 3 new constitutional forms - parliamentary, fascist, communist - would replace imperial states of Europe in 19th Century.

• Fascists: Social Darwinism for States
• Communists: sociological view - change man by manipulating incentives - theoretical could guide practical
• Parliamentary: impartial rule of law, not political power of individual or group, should govern state decisions.

Question of Legitimacy
Legitimacy of government’s set up after WWI and WWII in divided states (p. 42-44)

• Government not above the law (p. 63)
• Truman Doctrine - Policy of US to support free peoples. (p. 47)
• NSC 68 - US policy from 1950 forward. (p. 48) - Resort to war - cannot definitively end fundamental conflict in the realm of ideas.
• Vietnam - Not decisive defeat for US in Long War - revealed tactical weakness of containment. 
• Long War Ended, November 1990 - What Versaille and Yalta did not accomplish, Charter of Paris did. US, USSR, UK, France and Germany agreed to provide parliamentary institutions in all participating states (p. 61)

Consequences Of The Long War
Nuclear weapons, international communications, and the technology of rapid mathematical computation. Each has wrought a dramatic change in the military, cultural and economic challenges that face the nation-state. In each of these spheres, the nation-state faces ever increasing difficulty in maintaining the credibility of its claim to provide public goods for the nation.

The Modern State: Challenge For Legitimacy

• Two Primary Functions of the State
• distribute questions in appropriate ways, and determine what sorts of problems will be decided in what sorts of ways
• to defend that unique pattern of allocation by asserting its territorial and temporal jurisdiction vis-vis other states.
• Legitimating Role of History
  History - the self understanding of society - is what enables the legitimation of constitutional law and strategy because history provides a means of giving an account of the State’s stewardship and whether the State has fulfilled the requirement of its particular constitutional order
  Peace of Westphalia (1648)
  Consequence of constitutional government.
  Peace of Utrecht (1713)
  - view of law as legitimation of acknowledged customary practice
  - of power as objective of treaty
  - territorial states system
  - Ultrecht subordinated traditional legal criteria of inheritance (hereditary, right) and hierarchical allegiance (religious or political) to secure sovereignty over a territory.
  - Prussia - high watermark of territorial state - separating person of ruler from the state that he and the states system of bureaucracy served.
  - Castlereaugh (p 169) Intervention Distinction
  - Great nation acting on own behalf / not alliance acting on one nations behalf.
• Preconditions of Modern Public International Law (Voltaire)
  - Never enslave prisoners
  - Respect ambassadors of their enemies 
  - Acknowledge preemininence and various rights of legitimate rulers
  - Agree on policy of maintaining an equal balance of power between themselves so far as they can.
• Nature of War Changed
  Concept of “Total War” - Pre-1840, Vienna Systems program of strategic constraint. (based on challenges of raising and supporting large army through centralized administration, taxation, conscription and need to constantly train for complex maneuvers). The nation-state brought the strategic style of total war - make the inhabitants of the state suffer so that they long for peace and force their government to demand it.              Napoleon and his army saw it as necessary to destroy the state by threatening the state apparatus with annihilation - crush the morale of army and ruling elites. For the nation-state it is necessary to annihilate the vast resources in men and material that a nation could throw into the field, and crush the moral of the enemy public. A nation-states legitimacy remained as long as it could maintain the welfare of its people.  

  New Constitutional Forms Brought New Responsibilities 
  -  Princely =external security, freedom from domination and interference from foreign powers;
  - Kingly =inherited princely responsibilities and added the promise of internal security
  - Territorial state added the promise of expanding material wealth;
  - State-Nations further added civil and political rights of popular sovereignty.
  - Nation-State - to all these responsibilities the nation-state added the promise of providing economic security and public goods to its people.

  Contrast: State-Nation vs. Nation-State
  a. State-Nation = nation in service of state
  b. Nation-State= state in service of people. (Responsibilities included security, welfare and culture)

CONSEQUENCES OF THE LONG WAR: CURRENT CRISIS OF LEGITIMATION AND THE NATURE OF THE NEW CONSTITUTIONAL ORDER

Different constitutional orders are responsive to different demands for legitimacy. In light of the new constitutional form of the state, Americans desire an appropriate national security paradigm (Wilsonian internationalism was derived from constitutional order of the nation-state).

1. Current Challenges To Nation-State
   No longer can guarantee principal tasks upon which it was founded.
2. Security - Challenge of Nuclear Weapons
   Impossible dilemma facing Nation-State - if a nation does not have nuclear weapons, it cannot guarantee the security of its citizens from foreign attack; but if it acquires such weapons its civilian population will be specifically targeted for annihilation.
3. Welfare -The Price of Globalization
   State seems less and less capable as means by which improvement in welfare of its people can be achieved. World market is no longer structured along national lines but rather in a way that is transnational and thus in many ways operates independently of states. Modern communications changed nation-states ability to guarantee a unified market - changes included reduction on direct controls and taxes on capital movements, the liberalization of long-standing regulatory constraints on financial services, the expansion of relationships with offshore financial harbors, and the disintermediation that accompanied these steps came at a price.                

   No nation-state can protect itself from transnational perils (terrorism, infectious epidemics, ozone depletion)

4. Culture - Effects of Pervasiveness of Communication
   Protect cultural integrity - in case of US ideology of democracy, equality and personal freedom. It has been over promoted and few states can provide the kind of democracy that has been propagandized. (p.225). Also, due to pervasiveness of communications no nation can protect itself from the depiction and presentation of images and ideas.

Bobbit concludes in a forward looking manner. Developments born of strategic conflict can lead to regeneration of state. Every era asks what is state supposed to be doing?

EMERGENCE OF THE MARKET-STATE

Characteristics:Depends on international capital markets and to a less extent, multinational business network to create stability in world economy, in preference to management by national and transnational political bodies.

• Political Institutions are less representative (but more democratic) than nation state (Open Markets Committee of Federal Reserve and electronic referendum are characteristic of market state)
• Assesses its economic success on ability to secure more and better goods and services , like nation-state, but in contrast it does not see the state as more than a minimal provider or redistributor.
• Market state exists to maximize the opportunities enjoyed by all members of society (no longer instrument to serve welfare of the people - (no longer concerned with unemployment)
• Market state pursues its objectives by incentive structures and sometimes draconian penalties to prevent social instability (contrast with process oriented rules and regulations of nation-state)
• Market state is classless and indifferent to race and ethnicity and gender, yardstick for evaluation is quantifiable.
• Feel somewhat less responsibility toward concern for future generations

Challenges:

• Indifference to culture of the market-state results in the publics being less willing to risk their lives and fortunes on behalf of a state that is no longer the champion of their cultural values.
• Public no longer producers. Public becomes entrepreneurs, suppliers in a marketplace competing to maximize everyones options.
• Politics in market state de-emaphsizes programmatic and legalistic aspects.
• Politics becomes more about who is winning and who is losing- power
• Above all, the market state is a mechanism for enhancing opportunities, for creating something - possibilities

Bobbit leaves open what will be created - selfish, materialistic institutions or institutions that value teamwork, harmony and motivate persons to cooperate.

Transition to Market State

• The tranisiton will last over a long period and put into conflict the ideals of the old and new orders. The shift in basis of legitimacy from nation-state to market state will result in 3 paradoxes:
1. More centralized authority, but all governments will be weaker, having lost authority to other institutions, including deregulated corporations which are in but not of the State, NGO’s ( non-governmental organizations such as the Red Cross, the MacArthur Foundation, the Natural Resources Defense Council) which are in but not of the market, and clandestine military networks and terrorist groups, which set up proto-markets in security and function as proto-states at war
2. More public participation, but it will count for less and thus the role of the citizen qua citizen will greately diminish and the role of citizen as spectator will increase
3. Welfare state greatly retrenched but infrastructure security, epidemiological surveillance and environmental protection, all of which are matters of general welfare - will be promoted by state as never before. (all these areas of government activity are ill-suited for effective oversight by the market)
4. Increased opportunity means increased wealth - this it is believed will ameliorate many social ills.(p. 241)

Harrowing Prospects

• Security: mixture of devolution and privatization as day to day burden of defending society form low intensity conflict will be transferred to the booming security business.
• Willingness of corporations to sell sensitive military technology to potentially dangerous foreign states.
• Politics and Representation: More reliance on the plebiscite, the initiative and the referendum - frequent polling by American officeholders to gain guidance w/o putting themselves at risk
• Revulsion at current campaign finance practices, but shift to market state will consider this differently as opportunity costs of probability of success.
• Market state will have greater expectation of better performance by government bodies as costs rise and responsibilities narrow.

Welfare

• May expect a permanent diminishment of welfare state - safety net of public housing, free medical care, aid to dependent children, and unemployment allowances.
• Contracting out of traditional government duties for financial accountability and more efficient practices. Different states will handle this transition to the Market-State form differently.

Questions

1. What of inefficiencies of market? Bobbit states that self regulating market mechanisms will provide checks and balances.
2. Will market mechanisms not create widespread economic injustice to match any efficiency gain?
3. Will response be new regulatory strategies to specific industries, and if so will they become overburdened w/ great legal process and procedure (Same problem as 1880’s, 1930’s, 1970’s)
4. What Are Our Vital Interests and What is America’s Role as a World Power?

Need to craft a new set of rules with our allies that are compatible with our basic understanding of state responsibility. Cannot simply make decisions on an ad hoc basis because legitimacy, not merely power, is the ground of law and gives law its authority.

NEW WORLDVIEW: 5 GENERAL CANDIDATES IN CONSIDERATION

Key issues: Security and determination of “vital interests”; Trade (Free Markets); Democratic Enlargement v. Encouragement, Stability, America’s role as world power.

1. New Nationalism (Anarchic Society)
   every man for himself - dour Mercantilism (sullen paranoia)          

   Holds that most international conflicts and injustices do not concern our survival; we should only be involved in those threats that actually put US at risk. Populist flavor that disdains establishment policies of intervention abroad and free markets at home. Not really isolationalism, but America First - bilateral dialogues with other states and actors. Argues that US Military does not have force levels capable of fighting the expanded military missions (the “two and one half wars” Pentagon claims). Downplay proliferation of weapons of mass destruction because most are not trained on us.

   Strongest argument for this point of view is constitutional law - Are President and Congress authorized to send troops into dangerous situation in which we have no strategic stakes? Currently much of American Security structure is extended to protect other states. They argue that it would be better to exploit current chaos to increase our wealth rather than take on ever-increasing expenses. Advocates “thinking like economists” not “thinking like lawyers”.

    

2. New Internationalism (Multicultural Society)
   “all for one and one for all” (romantic idealism)        

   Relies on structure of collective security - institutionalized cooperation to achieve common goals - with an objective of world peace. Believe US is better leading multilateral institutions than standing alone, and the well being of others should treated as a fundamental goal for Americans. Economic stability is the precursor to international peace.

   Share objectives with nationalist - deter attack on US, maintain US prosperity, reduce vulnerability to nuclear attack. Objectives internationalist hold alone are; ensuring basic needs of all people are met; strengthening US control over multinational corporations; maintaining equal terms of trade for all states, protecting the global environment; determining agreed upon norms of international behavior for resolution of disputes. Full court press against proliferation of WMD.

   NATO, and UN (article 43 to provide armed forces) to provide peacekeeping, G-8 or OSCE (Organization for Security and Cooperation in Europe) would take on new roles such as environmental protection, nonproliferation, counterterrorism. IMF and World Bank would encourage development of Third World and ex-communist states.

   Brzezninski believer international society will sort in to six power centers: America, Europe, East Asia, South Asia, Muslim Crescent and Eurasion Black Hole (former Soviet Union). Conflict among (not between as Samuel Huntington argues) will be economic in nature.

    

3. New Realism
   Arbiter of new balance of power        

   The aim is simply to prevent the primacy of any other state. Determine vital interests in terms of stability of state system - our vital interests are only threatened when a state, or a coalition of states, is powerful enough to successfully destabilize that system.

   Technique, rather than natural advantage or procedural perfection will be ensure vital US interests. Adroitness and coolness of calculation, and dispassion towards the problems of other states - this requires “great men”. (Realist do not believe in “peace and justice” to create unity or “machismo rhetoric” to gain perpetual advantage over others. )

   Disinclined to see every atrocity as a threat to our security. Little interest in the Third World because there is nothing vital to American interests there. Not concerned with problems of transnationalism, the environment, refugee migration, epidemics, famine and terrorism. Transnationalism and the NGO’s that are increasingly effective agents for dealing with these problems, are difficult for the balance of power theorist to include with his frame of reference - accepts only the primacy of the nation-state.

   Imperative to prevent emergence of any state (or alliance of states) that could dominate the Eurasian landmass. (see US as too weak to impose World peace and too strong to passively wait for hostile forces to coalesce against us).

   Greatest threats are Germany and Japan, and the productive countries that surround them in some anxiety. Expand and strengthen NATO, not to extend its missions out of area like Internationalist, but to strengthen German/American Alliance. Japan, with 3rd largest defense, is proximate to highly armed states China and N. Korea. We should keep forces in Korea - maintain alliance with Japan so they do not feel need to move closer to nuclear and military self-reliance.

   Promote economic competition with Asia - prevent anti-Western unity by coalition of East Asia States.

   Intervention should result only to prevent others from achieving a dominant position. (ie. independence of Persian Gulf states is necessary because our economic vitality is linked to flow of oil)

   Nuanced position on proliferation - Accepts some proliferation is inevitable - seeks non-proliferation mainly of delivery systems which are easy to detect and destroy.

   Trade Policy: Recognizes and accepts that American economic position is not as strong as it once was. But will not sacrifice American competitiveness to increase world’s wealth - we must be competitive politically and economically to gain a relatively advantageous position in relationship to other states - there is no such thing as a universal free market - states will not permit it so long as they have political power to engineer favorable terms. We do not want to fall into an inferior trade position. Not focused on comparative advantage products (potato chip) where technology and human capital are readily available to potential competitors. We should focus on value-added products (computer chip) that enable productivity and can only be made more efficient by most sophisticated technology and most competitive firms. Engineer favorable terms through political power. Competitiveness must be won - through retaliatory threats, state-private sector collaboration, regional groupings like NAFTA to mitigate effects of declining US competitiveness.

    

4. New Evangelism
   International Role Model     

   Democratic enlargement - significant change from previous policy of democratic engagement, which only sought to encourage, not establish democratic regimes. No longer sufficient is non-interference in internal affairs - international community now has the right in UN Charter to intervene in internal disputes that threaten international peace and security.

   Conviction that democracies do not go to war with each other. Democracy consists in part in the security of basic human rights for its citizens

   Free markets and democracy are mutually supportive and may even be indispensable to the longevity of either.

   Rejects classic formulation that states have no permanent friends, only permanent interests.

   Sees the world as dynamic (not relatively static like others) - global democratic revolution. By being true to human rights, pluralism, freedom of conscience and democratic governance at home will assist policies. In our role as the sole remaining superpower - with no states as real enemies - it is time for us to assert our values to prevent resurgence of nationalism and authoritarian states.

   Bobbit comments that the New Evangelist is “remarkably insensitive to the will of others.”

    

5. New Leadership
   Denies assumption of other security paradigms that American power is in relative decline.     

   Preserve American Hegemony at the top. Advocate focus on US vital interests and disdain charitable missions abroad.

   Believe American are global and prosperity depends on stable economic markets.

   Wish to strengthen NATO and various collective security schemes, but believe these to be more than a psychological fig leaf for the robust American Assertion of power (contempt for UN)

   Place strong emphasis on bilateral ties and preventing new hegemonies from arising - but focus more on internal issues of great power states and less on relationships among them.

   Promote American values in foreign policy.

   Promote “selective engagement” interventionist policies to achieve global aims of American dominance. (Yes to Gulf War but no on Haiti and Somalia )
   Biggest challenge to this group - while they offer a means to achieve their objectives as opposed to others offering rhetoric the question is can we afford it? The cost of military budgets could drain our economy, weaken out geopolitical position and ability to provide the economic infrastructure to sustain any gains. (We spend 5.4% of GDP currently, as opposed to Japan who spends 1.5%) New Leadership responds economic power alone does not directly translate to political geopolitical influence - it requires economic power plus military power and the will to use it and the legitimacy to do so. Because of our benign history to defeated in WWII we are in a unique position to seek goals of World Power.

Bobbit argues that the options above are really remainders from the Long War, and are not really a new paradigm but competing policies of the nation state. Though he existing Wilsonian worldview - “make the world safe for democracy” has succeeded beyond any expectation, we are now are clinging to a paradigm that has lost its usefuleness.

STRATEGY AND THE MARKET STATE
Collaboration or conflict. Does it have to be either or, or should it be a careful, clever use of both.

1. Mercantile- seeks market share - relative position vis-vis all other states by competitive means.
2. Entrepreneurial - seeks leadership - improve its absolute position while mitigating the competitive values of the market through cooperative means.
3. Managerial - power through hegemony within a regional economic zone - maximize its position both absolutely and relatively by regional, formal means (trading blocs, etc.)

Concerns:

• High Trade Deficit: results from the lowering the costs of goods to consumer through imports
• High Budget Deficits: results from lowering the costs of government to the taxpayer through borrowing
• High National Debt
• Immigration Law: US has most relaxed immigration laws of any major state, which adds to welfare expenses