League or Union? Three Tests

Man is not the enemy of man but through the medium of a false system of Government. -- Paine.

The fatal tendency of mankind to leave off thinking about a thing when it is no longer doubtful is the cause of half their errors. -- Mill.

We may now turn from these general considerations to more particular reasons why we must organize our democracies as a union instead of a league, to the reasons why leagues are undemocratic and unions democratic, why leagues can not work and unions can, why leagues can not be trusted to enforce law and unions can. In other words, we shall now submit our choice to the super-state test, the practical test and the acid test.

1. The Super-State Test

Why Leagues Are Undemocratic

Suppose we organize our democracies as a league. This league would have obvious advantages over the League of Nations. Yet because it was a league this organization of democracies would be a perversion of democracy. Its equality would still be the equality of states. It would accord one vote each to 4,000,000 Swiss, 40,000,000 French, 130,000,000 Americans, -- flouting the most elementary democratic principle to this extreme degree for the sake of the state. It would require for any important action unanimous agreement among its state members; democracy proceeds by majority agreement among men.

Even were all our democracies equal in population, to organize them as a league would still be to encourage dictatorship among them. A league by giving an equal vote to the government of each nation in it allows the government least responsible and responsive to its people to manoeuvre best.

The more democratic a people is the more it respects the minority and requires a government to explain policies to the people before committing them, and the more important the issue the more vigilant is its public opinion. But the more these conditions obtain the more handicapped the government is in defending the interests of its citizen in a league. The league system thus places a premium on whatever strengthens the government as regards its own people and a penalty on whatever strengthens the citizen's power to restrain his government.

In a democracy patriotism calls on all good citizens to defend the inalienable rights of the individual. In a league it calls on them to sacrifice their own rights in order to strengthen the government and preserve the state. National solidarity thus replaces respect of the minority or individual as the ideal. The idea spreads that the salvation of the nation depends on a party, having once gained power, maintaining its power by suppressing all other parties and all freedom of speech and press so that the government may be stable and strong in its dealing with the rest of mankind; and the race is on toward the totalitarian state. Those who want the proof of experience need only look about them.

Why Unions Are Democratic

It is not on these grounds, however, that the League of Nations has usually been attacked as undemocratic. The great cry against it has been that membership involves sacrificing a democracy's independence, that it forms a super-state. This cry is invariably raised against every proposal for inter-state government, whether league or union.

Where Senator Borah urged against the League of Nations that it would sacrifice the national sovereignty of the American Union, Patrick Henry opposed the Constitution of the American Union as sacrificing the state rights of Virginia. Both meant that inter-state government sacrifices the citizen's individual freedom. Even the backers of inter-state organization usually seem to accept this view; they concede the sacrifice but plead that it is needed for the general good.

This reflects profound confusion over what occurs when democratic government, whether national or inter-state, is formed. We have already noted how this confusion rises partly from the assumption that the freedom of the state and the freedom of its citizens are necessarily identical. It also rises from the assumption that the organization of democratic government involves "sacrifice" of rights by the citizens.

"Sacrifice" is a most misleading word for what we do with our rights when we organize democratic government; the operation is really one of safeguarding or investing these individual rights.

When we hand over money to a bank to have it keep an heirloom in safe deposit for us we do not say we are sacrificing the money and the heirloom for the good of the bank. We say we are safeguarding our heirloom and paying for the service. When we hand over money to a corporation in order to gain more money through ownership of its stock we do not say we are sacrificing our money for the good of the corporation. We say we are investing it for ourselves. Even if we lose we do not call the operation a sacrifice; we call it a bad investment. We sacrifice our money only when we hand it over with no intention of gain.

No more in politics than in business can we get something for nothing. To keep our freedom and to get more of it we must give freedom. It would not seem to need proving that individuals have always needed to give some of their liberty to the state in order to secure the rest of it; every free people has always admitted this.

Nor would it seem to need proving that united action by men, such as the organization or maintenance of government, involves some loss of freedom or power by each individual unit in it, and yet may result in a net gain in freedom or power by each. Where a government is made of, by and for the people every citizen, as Lincoln was fond of saying, is an equal sovereign, and national sovereignty would seem to be composed of the sovereignty its citizens have given it to secure better the rest of their individual sovereignty. In a democracy a state's rights can only be the rights its citizens have individually invested in it.

All this is so evident that when men form a democratic government they say that they make the government for the sake of their own freedom. It is, in fact, because this is so clear that they tend to identify their individual freedom with the freedom of their state, and are thus led into the great mistake of assuming that any loss of the nation's sovereignty is necessarily a loss to them.

They forget that, for the individual citizen to gain rights, the state must lose rights, just as a bank must reduce its charges if the heirloom is to be guarded more cheaply, or a corporation must not merely pile up power in the form of surplus if stockholders are to get dividends on their investment in it. If, for example, the citizen is to gain the right to buy and sell freely in a larger market, his state must lose the right to levy a tariff.

The object of democratic government is to provide increasing return in individual freedom to the citizens in return for decreasing investment of their freedom, -- for example, more individual security for less taxation and military servitude. Consequently, loss of rights by a government, far from being a thing necessarily to be avoided or deplored, is a thing to be sought whenever the rights of the citizens are thereby really increased.

Investing in Union

When democracies form a union what really happens is this: The citizens of each withdraw certain powers they had invested in their national state and reinvest them, or part of them, in the union state. The operation involves loss of power by their national states but no loss of power by the citizens. They give the union state no more rights than they gave the national state. They simply shift certain rights from one to another.

The reason why there is no loss but merely a shift is that the citizens base their union government on the same unit that each of their national governments is based on, namely, individual man. Each man consequently remains in precisely the same relation to the new government as to the old. When 10 men unite on this basis each equals 1. When 10 men thus unite with 90, or with nine groups of 10, each of the 100 men still equals 1 for all political purposes. If a democracy of 100,000,000 men thus unites with others of, say, 5,000,000 and 10,000,000 and 50,000,000, each of the 165,000,000 citizens of the union still equals what he did before, 1.

It is different when democracies league together. When 100,000,000 men league with 50,000,000 they lose power as regards the field of government they transfer to the league, for whereas each formerly had the power of 1 over policy in this field they now have only the power of one-half, since the league weights 50,000,000 and 100,000,000 alike. Because it thus shifts the unit in shifting the field of government, a league entails loss of power to the citizens of all but the least populous of the democracies in it.

As for the common illusion that citizens also lose when democracies unite, two things contribute to it: (A) One of the possible relations of 1 unit to 10 units is l/lOth, and of 1 to 100,000,000 units, 1/100,000,000th, and so the greater the number the less important each man appears to be. (B) Since 100,000,000 is more than 10, and 10 is more than 1 the greater the number of citizens the more important the state appears to become. But the action of a democracy whatever its population, is determined in final test by 1, any 1 of the citizens, for it is determined by a majority, and 1 can make a majority. If 10 men are divided S to S and 1 changes sides he carries with him the power of all 10, for he makes a majority of 6 to 4. Raise the number of voters to 100,000,000 and the majority that determines action is not 60,000,000 to 40,000,000 but 50,000,001 to 49,999,999. No matter what the population of a democratic state or union, the citizen's relation to the government and his power to decide its action remain precisely the same.

Far from losing, the citizen gains power by union. While his power to decide action remains unchanged, the power of the union whose action he decides becomes much greater as the population increases. If a man must depend on himself alone for his security he must be on guard 24 hours daily. When he unites with five other men democratically for mutual security he needs stand guard only four hours. He gets 24 hours security for an investment of four hours. He gets six times more freedom, six times more defensive power. The more men with whom he unites the more freedom and power he has for less investment of them. In union therefore the progression from 1 to l/lOth to l/lOO,OOO,OOOth is a progression downward, not in power and freedom for the citizen, but in the amount of it he needs to invest in government; and the progression from 1 to 10 to 100,000,000 is a progression upward, not in the absolute power of the state over the citizens, but in the power it places at the service of each.

When the citizens of several democracies form a union they create a new state but, as we have said, this creates no new rights or powers for the state as State. If they have invested a total of, say, 15 rights in each national government, and they shift five of these rights to the union and leave the others untouched, the total rights of Government remain precisely what they were, 15. The citizens divide them between two governments, instead of centering them in one, but lose none of their own power over Government.

On the contrary they gain power and Government loses power as regards the citizen. By dividing the rights of Government between two governments the citizen leaves each of them incomplete. The national state loses supreme right to the union state, but the latter is not the complete State the former was, for the union's supreme right is limited by all the rights that remain reserved entirely to its member states. By this division and by the fact that both governments equally and independently originate in him, the citizen gains the power of balancing two governments to his own advantage, of shifting rights or appealing from one to the other as circumstances may suggest. The citizen of a complete national state has no such check-and-balance power over Government. He is in the exposed position of one with all his eggs in one basket, all his investments in one company.

How a union extends the individual's effective freedom from the State, -- whether the national, the union, or the foreign state, -- may be seen by considering the state rights that he completely transfers to the union. These usually are:

  1. The right to grant citizenship.
  2. The right to make war and peace, to deal by force or treaty with foreign states.
  3. The right to regulate inter-state and foreign trade.
  4. The right to control the value of money.
  5. The right to control postal and other means of communication.

(The union also has the right to tax individuals and enforce its laws on individuals, but these rights are not transferred to it from the national state, for the latter retains these rights equally. These are really enabling rights required by both governments to govern effectively in their fields. They are inherent in democracy's choice of individual man as the unit.)

When the citizens of, say, fifteen democracies withdraw from each of them the above five rights and reinvest these in a union they create within the much larger area of their common state the conditions which had prevailed in each of its component parts, namely, one citizenship, one defense force, one free trade area, one money, one stamp. While leaving each citizen legally where he was as regards the outside world in these five respects, they greatly reduce the area of that outside world by removing from it fourteen sovereign states. In reducing fifteen state sovereignties to one in these fields they reduce enormously the amount of actual interference from the State suffered by the inhabitants of this whole area -- and, it is worth noting, by the outside world. too. Without taking any right from any citizen of any state anywhere on earth they thus free each citizen to exercise his existing rights on a far greater scale -- in fourteen states which before gave these rights to their citizens, but not to him.

Today's Super-State: the Nation

The term super-state must be read in terms of power of the state, and since this can be understood in several ways super-state can easily be misunderstood. This term can really have terror for democrats only when it means greater power for the State over the citizens. When it merely means greater power for the democratic state over their foes, whether Nature, chaos, or aggressive absolutist states, they must welcome the super-state, for then it means more power for each democrat.

Yet many shy at any inter-state organization simply because it must be greater in size than any member. They assume this means greater governmental power over themselves, as if territory meant tyranny. Tyranny is tyranny, whatever the geographic scale on which it is practiced, but the wider this scale the less intolerable men generally seem to find the same degree of tyranny. The states that gave us the word tyrant were among the smallest, not the largest, in antiquity. The tyranny that seems to irritate men most is petty personal tyranny. Though tyranny in a great state may sometimes be petty, the tyranny of a small state must be petty.

It is not size that the individual really fears in the state, but power over himself, interference with his liberties, meddling in his life. He resents his travel being vexed by more and more frontiers and frontier restrictions, his savings wiped out by monetary magic, his market cut off by a tariff, his source of supply ended by a quota. He resents having higher taxes to pay, being forced to depend increasingly on the state, having to turn to its soup-line to live, being exposed to more military service. He resents, in short, being afflicted with more and more government. It is the snooper state, the trooper state, that men really fear when they shy at the epithet, super-state, and that super-state today is the nation-state.

Nationalism has shown that it can even eliminate many of the normal advantages of size and, by pitting such great democracies as the American, British and French against each other, raise governmental meddling to monumental proportions and armaments to appalling figures. Nationalism has proved in Germany how far it can outdo the absolutism of the past. And the nation-state has only begun in recent years to show itself, we have only hints of what it has in store. 1

Bureaucracy and centralization and taxes growing, growing, growing; the state's power over the citizen reaching out, reaching in, reaching all round him, taking livelihood first money next and freedom all the time until it troops him off to war, -- if the nation-state everywhere today is not the super-state, what super-state then need be feared?

The dustbins clogged with superfluous government and unnecessary generals, the war clouds gone, tariffs down and taxes trifling, the individual freed to roam and trade in half the world, needing neither to carry passport or change money, the security and freedom of each extended in every way and magnified a hundredfold, and the same equal opportunity assured each whether born in the largest or smallest nation in the union -- it is union of the free that ends the snooper trooper super-state.

2. The Practical Test

It may perhaps be asked, what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted; to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution? ... But the usefulness of the concession ... is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success.... This renders a full display of the principal defects of the confederation necessary, in order to show, that - the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended; otherwise than by an alteration in the first principles and main pillars of the fabric. -- Hamilton in The Federalist, XV.

Why Leagues Can Not Work

We come to the practical test of everything: Will it work, can it work? Men have shown time and again that they prefer undemocratic, even tyrannical government to ineffective, futile government; indeed, it is to escape this latter that they turn to dictatorship. There would seem no need to prove, after all the evidence of history (of which Geneva's record is only the last chapter), that leagues do not work, can not work. Yet though there is widespread agreement that leagues have not worked, there is still widespread faith that the league system can work.

Our civilization, we have seen, requires constant and rapid political adjustment to be made to meet change. The league system does not allow this adjusting to be done in time. Because each state must act in a league through its state government, public opinion must be strong enough in each state to move the whole government before important league action is possible. Because public opinion can not act directly on league delegates but only indirectly through the governments that name them, and because the delegates do not depend directly on the voters, much more pressure is needed to get action in a league than in a union.

Moreover, public opinion in a union can exert pressure directly over the whole union area, and a majority leader always risks seeing the minority leader carry the fight into his own district and defeat him. But a league divides its public opinion into state compartments, and the delegate of one sovereign government can not go campaigning in another state to have its sovereign government thrown out or its delegate changed.

Again, since a league holds the state sacrosanct and is formed to preserve the state, the first concern of each state government in it must be state, not league affairs.

Even could a league avoid the difficulty of having to act through government delegates, its action would remain slow and doubtful because of the unanimity rule. At best it is extremely hard to get unanimous agreement on any important matter. It requires a technique, and a degree of tact, understanding, and persuasive power that Geneva experience shows is extremely rare even among the world's ablest and most experienced politicians and statesmen.

The worse the emergency the more swiftly there must be action, but the more a league then requires unanimity for action and the harder it is to get unanimity.

The units of a league, unlike those of a union, are not mobile but rigidly fixed to earth. Voters in a union being men can move from one region to another if political controversy gets too dangerous for them, but the voters in a league being states can not change neighbors. Consequently the men who decide how the state's vote is to be cast must not only consider the issue on its general merits but ponder even more how their vote is liable to affect their relations with a neighbor, especially a more powerful neighbor. All this makes for hesitation, vacillation, inaction.

There seems no escaping the unanimity rule in important matters so long as the unit of organization is the state. The choice of this unit means that the supreme object of government is the preservation of the state's sovereignty. One must then admit that each state government is more competent than any outside government to decide what is essential for its own sovereignty.

An organization that gives each state one vote and lets the majority of states rule the minority is repugnant both to democracies and autocracies. It lets a minority of men over-ride the majority. That defeats democracy even more than does the unanimity rule, for though the latter allows a minority to block the majority, it does let any minority take positive control. As for the absolutists, majority rule in a league puts other states or the league above their state, and that is incompatible with the absolutist principle that nothing can be higher than the state.

The unanimity rule may save the absolutist, but not the democrat. Absolutism thrives on disorder and chaos, whether caused by action or inaction. Democracy needs law and order to survive, it can not get them without practical governmental means of timely action, and the unanimity rule allows it no such means. For it saves individual freedom from bad law only to expose it to the danger of no law, or law so weak and ambiguous that it can not be relied on, or law made too late to do any good.

Then there is the difficulty of ratification. In a league one must persuade not only all the delegates but the governments behind them. After one has persuaded a delegate his government may drop him, or after he has persuaded his government it may be overthrown -- perhaps on this very issue, perhaps on something quite unrelated to it. Even if the delegate remains at the league he may be unable to persuade the new government. While the league statesman is bringing one government in line another may break loose -- for time is passing and conditions changing. When all sorts of delicate adjustments have made agreement finally seem possible, conditions may have changed so that this delicate balance has to be readjusted to meet new facts: One must start this heartbreaking work again. If the treaty does reach signature it must then be ratified by all the governments whose unanimity was practically required in negotiating it, and this may take years. The failure of only one or a few states to ratify their delegate's signature has crippled or killed many a treaty.

None of this is theory, it is all the history of the League of Nations, of the League of Friendship among the Thirteen American States, of the international conference method.

Why Unions Can Act Swiftly

Because it takes man for unit a union can put any important proposal directly before all its principals simultaneously, as in an election or plebiscite. Even if a league could assemble in conference the whole executive and legislative branches of each government instead of a small delegation, it would not be equaling the direct action possible in a union. It would still be dealing with agents, not with the sources of power, the men and women, the citizens, who elect the state executives and legislatures.

When a union proceeds indirectly, through agents or representatives of its units, it can still act more rapidly and easily than a league. In a league no agent ever represents more than one unit. In a union every agent must represent many units. His power is always delegated to him by several hundred or thousand of the union's units. A league inevitably makes the delegate a puppet depending on the instructions of his government; a union inevitably keeps its representatives from being rigidly tied to instructions and makes them freer to respond quickly to new facts or arguments.

The representative in a union may be advised by different units in his district to do this or that on a given issue; the advice may be contradictory; he must use his own judgment and strike a balance between the conflicting instructions he thus gets -- and guess what all the silent units in his district want him to do. Presumably he will try to follow the wishes of the majority of units in his district, but he is free to decide (under penalty of being defeated at the next election) what these wishes are. He is free, too, to vote against the wishes of the articulate majority in his district, presumably in the belief that the inarticulate are with him, or that time will justify him, or that he can persuade a majority at the next election that he was right. The delegate to a league can not possibly do this; he would be recalled at once by his government. Because a union acts by majority it can act much more quickly than a league.

Once there is agreement in a union to act, action can follow at once. There is no need in it to wait for its units to ratify the decision of their agents; the vote of these representatives suffices for law to take effect. Here again union has a tremendous advantage over a league.

Finally, the greater the emergency in a union the greater is the popular pressure for action -- that is, the greater is the pressure of the units on their agents -- and the faster the union machinery moves. The difficulty and danger in a union are that it can and may act too swiftly. Where the problem in a league is to get up enough steam to turn the wheels, in a union it is to control the speed, to arrange safety valves, governors, brakes, such as the American Union has in the powers reserved to the people and the states, the two-house Congress, the presidential veto, the Supreme Court, and the time required to amend the Constitution.

3. The Acid Test

The important truth ... is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory so in practice it is subversive of the order and the ends of civil polity, by substituting violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy. -- Hamilton in The Federalist, XX.

Why Leagues Can Not Enforce Law

It is not enough for a government to be able to make laws in time, it must also be able to insure their effective execution. This brings us to the core of the problem of political organization, whether state or inter-state, the acid test of any government. Law depends on confidence that it will be executed. No system of political law has yet gained that confidence without providing for execution of law by force against those who refuse to accept it.

To be sound any government or system of law must be built to meet the danger of an attempt being made to upset it, and to meet it in a way inspiring confidence that its law-enforcing machinery can and will overwhelm the lawbreaker. To do this the system must be designed to give the greatest possible guarantees that, the more dangerous the violation is, the stronger the position of the law-enforcer will be, and the weaker the position of the lawbreaker.

Nowhere is the question of the unit in government more important than here. If the unit is the state, then the law can be enforced only by states against states; if the unit is man, the law can be enforced only by men against individual men. To quote Hamilton, the "penalty, whatever it may be, can only be inflicted in two ways -- by the agency of the courts and ministers of justice or by military force; by the coercion of the magistracy or by the coercion of arms. The first kind can evidently apply only to men; the last kind must of necessity be employed against bodies politic or communities or States." The effect of taking the state as unit is to weaken the law-enforcing machinery and strengthen the position of the lawbreaker. Here are some of the reasons why:

Suppose we form a league of democracies and one of them, say with a population of 20,000,000, elects by 60 per cent majority a government that proceeds to violate its league obligations. If the league law is to be enforced, it must be enforced against a group so powerful and well organized as to give the enforcer pause. This group is not simply 12,000,000 strong, as it may seem at first glance, but 20,000,000 strong, because its government has control of the state's whole war power and because the league law must be enforced against the state as a unit. Whether the coercion is by war, blockade, or non-military sanctions, it can not possibly be restricted to the 12,000,000, it must punish just as much the 8,000,000 who presumably sought to prevent the violation. This fact, on top of the patriotic ideology responsible for the democracies having organized a league instead of a union, must encourage the 8,000,000 to join the 12,000,000 in resisting the law.

Here we have the essential unsoundness of the enforcement machinery of a league. This system begins by making sure that its weakest lawbreaker will be far stronger than any gang or mob of men -- the strongest lawbreaker that a union faces -- for a league lawbreaker must be, at least, an organized nation of men. Then the league system proceeds to strengthen its lawbreaker by itself outraging justice. Worse, it is incapable of sparing the innocent when it would punish the guilty. Still worse, it is bound to punish the innocent common people more than the responsible leaders. Its blockade strikes the ruler only by starving the half-starved into revolt, its bullets kill few statesmen. While it is putting the whole nation behind the offending government, this stupidity and injustice is demoralizing and weakening those upon whom it must depend to coerce the offender. To remember the Ethiopian experience is to see how serious is this defect in a league.

When Lawbreakers Are Immortal

Again, the league system requires enforcement by immortals against immortals. Its unit is the nation, and nations are immortal, compared to individual men. Because of this a league in coercing a state of 20,000,000 population must really coerce a state that is more than 20,000,000 strong, for the state disposes of all the power past generations have stored in it and is fortified by its generations to come, by its aspirations for and obligations to them.

To enforce law one must find the offender guilty. It is one thing for the immortal state to brand as a criminal one of its millions of mortals, and quite another for a few mortal statesmen to attach the stigma of guilt to an immortal nation. It is an appalling blunder, a monstrous thing.

"I do not know the method of drawing up an indictment against a whole people," Burke declared in his plea for conciliation with America.

All this would be true even were a nation mortal, and the fact that a people does not die makes Burke's statement only truer. What could be worse folly than to encourage men (as a league does by its subordination of individuals to their state) to put their pride in their nation, to identify their individual self-respect with their nation's status in the world -- and to condemn then their nation as criminal? This system, which visits on the children the sins of the fathers, seems designed to rouse and maintain a spirit of bitter resistance to league law both among the fathers and the children; it strikes at what every self-respecting individual must hold dear, the name he inherits, has made for himself, and would pass on. The effect of Geneva's verdict against the Italian government in uniting Italians behind that government, stimulating them to sacrifice and invent, spurring them in the field and at home to much greater effort than most people expected should suffice to show how any system that would enforce law against immortal nations tends to defeat itself.

There remain the after-effects. Whether a league fails or succeeds in coercing its guilty nation, the condemned people is not likely to rest until it has forced its judges to recant, to absolve even the guilty among it in order to save their innocent compatriots, dead, living and unborn. One can not better organize enduring bad blood, feud on a colossal scale than by trying to establish peace and justice, law and order through the coercive machinery of a league.

To make matters worse, a league's unit is not only immortal but immobile. An individual man who has been found guilty can hope to escape the disgrace by moving elsewhere, changing his name, beginning anew, or his family can. Not so the nation. It is fixed. The individual Englishman can change from one condition of life to another and another but the English as a unit must face the world forever as an island people. The Italians as a nation cannot escape from the problem Gibraltar and Suez pose, though the farmer whose gates to the highway are similarly held by another can always, at worst, move away. The immobility of a league's units breeds and nourishes unnecessary conflict and makes its enforcement machinery stiff and rigid. It also makes it harder for the nations that must adjoin forever the accused nation to condemn it, or for it to accept such disgrace from its neighbors. 2

The neighboring nations must remember, too, that condemning the accused endangers them more than other league members; on the neighbors falls the main burden of coercion in a league, their trade suffers most from economic sanctions and they are the most exposed to the acts of desperation or vengeance of the condemned. These neighbors may be as weak compared to the lawbreaker as Switzerland and Austria compared to Italy, may have no material interest in enforcing the law against this particular offense, may hope to profit considerably from not enforcing it. Their failure to enforce the law may strengthen the offender as greatly as did the action of Switzerland and Austria in keeping open Italy's communications with Germany. This shows how the immobility of a league's units undermines its power to enforce law.

Where Trial Precedes Arrest

People often talk as if the League of Nations could enforce the law in about the same way their own government does. The difference in unit, however, makes the procedure of the two radically and inevitably different. One can lock up a man pending trial, but not a nation -- one can not imprison a nation at all. When a policeman sees a man, knife in hand, creeping up behind another man he doesn't stop to consider whether perhaps no crime but only a practical joke is intended. He doesn't wait till the blow falls, the blood spurts, the victim appeals to him. He jumps in at once and arrests the man on suspicion. When the Italian government openly prepared for nine months to invade Ethiopia and the League of Nations did nothing to stop it except try to reconcile the two, many criticized the League for not acting like a policeman. But one can not arrest a nation on suspicion.

Even had a league the force to do this it would lack the will. Coercion in a league means war or risk of war. One can get few if any members of a league to agree to risk war on mere suspicion of aggression. To move public opinion to that degree one must arrange that the crime, if committed, will seem as flagrant and black as possible. To do this one must first convince the public that all means of peacefully preventing the crime have been exhausted.

If, as in the case of Italy, the suspected government not only protests its peaceful intentions but agrees to arbitrate, what can a league do but take it at its word? If the league does not, it itself spoils the possibility of conciliation, assures the suspected government stronger support at home and sacrifices the league's chances of rousing public opinion among its members to support coercion. It thus strengthens the potential offender while weakening the enforcer.

If the league takes the suspected government at its word, shows the utmost trust in its good faith, leans backward to be just and patient, then the crime, if committed, appears more heinous and may rouse enough indignation to make effective coercion possible. But this means waiting till the crime has been committed. It also means making eventual reconciliation and peace among these immortal immobile nations all the harder, for it makes the crime and stigma worse. It means that the league is really a partner in the crimes it would repress, responsible for their being worse than they would have been otherwise. What must one say of a system of law whose possibility of repressing crime depends on its success in making crime worse?

Moreover, what law and order would any nation enjoy if the police could not arrest even a flagrant offender before they had convicted him in court? Yet this is just what any league must do.

After the Italian government had invaded Ethiopia the League's Council and Assembly met, heard Italy's defense, and decided that the Italian government had resorted to war. Only then could the League begin action. Yet how can any organization of sovereign states allow even its highest-ranking official to act against an aggressor as the lowest-ranking policeman does? How can Sovereign States let him use their armed force against a state before they have formally agreed in each given case to such grave and dangerous action? In a league the trial must come before, not after, the arrest.

The Fallacy of Bloodless Sanctions

All this forces a league to begin enforcement gently and slowly, to turn then to stronger measures, and to encourage the aggressor thereby to commit worse crimes.

At best every nation is very strongly and naturally reluctant to participate in the bloodshed which decision to apply military sanctions risks involving. This reluctance is made all the stronger by the hopes of success that non-military measures seem to hold. On paper one can make an attractive case for such measures. One can argue -- as was argued in the Italian test -- that sufficient agreement can be obtained on economic sanctions to make sure that the aggressor will be brought down eventually without the coercers themselves shedding any blood. It was also argued in the Italian test that the aggressor, seeing that such wide agreement against him is bound to ruin him in the end, will not wait till his ruin is consummated but will give up long before.

This, however, is never likely to work out in a league better or differently than in the Italian test. A case can be made not only for gradually increasing pressure, but also for staking all on a bold policy, -- and the merits of this aggressive policy are bound to appeal most to the aggressive-minded, and therefore to the aggressor, just as the merits of passive action appeal most to the pacific. Where desire to win by economic sanctions leads the coercers to see the possibilities of victory through the aggressor reading the handwriting on the wall, the same process of wishful thinking leads the aggressor to concentrate on the possibilities of nullifying these sanctions by economies, inventions, quick military triumph. He becomes too engrossed in this to see the handwriting on the wall. And so the war continues week in, week out, the league appears to be doing nothing effective even to stop the crime or aid the victim, public opinion is outraged by the spectacle, it demands that the killing be stopped and refuses to keep coolly and patiently content with slow-moving sanctions in the face of continued slaughter. The cry for something more effective is bound to rise, just as the demand for the oil sanction rose soon after the other sanctions were applied to Italy.

But what is the effect of this threat of stronger measures? It encourages the victim to continue an otherwise hopeless war. It encourages the aggressor to redouble his attack and resort to more frightful warfare -- just as Italy turned to poison gas as Geneva turned toward the oil embargo -- in the hope of winning the war before the sanction takes effect.

Judge, Sheriff, Criminal -- All in One

These examples by no means exhaust the difficulties and absurdities into which a league falls through having the state as its unit. Another result is that each member is at once judge, juryman, and sheriff. Worse, as I helped point out when the Italian government, while undergoing sanctions, took part in the League's hearing on Germany's violation of the Locarno treaty, the league system "allows a nation to fill simultaneously the roles of condemned lawbreaker in one case and judge and sheriff in another." This weakness, the dispatch continued, was "exemplified by the first international meeting to be held in the new League palace, that of the Locarno powers on the afternoon of April 10, 1936. In it the Foreign Ministers of Britain and France, who that very morning had debated before the Committee of Thirteen in the old League building what to do about Italy, whom the Council found guilty of committing the worst crime in the League's calendar, debated with Italy what to do about Germany, whom the Council, with Italy as one of the judges, found guilty of committing its next worst crime." 3

This may help make clear why a league can have no effective central or executive authority. There can be no sheriff in a community where every man is equally sheriff. The example should make clearer, too, why projects to endow a league with a permanent league police force for the coercion of members are doomed to failure. It is not the international character of such a force that makes it impossible -- look at the French Foreign Legion -- but the fact that a league army's real unit is not man but the nation.

When a league does decide to enforce its law it must then improvise its instrument, whether non-military or military. It "must at the last minute organize an army out of a mob of armies of sovereigns so jealous of their sovereignty that they are unable to organize a league force beforehand." 4 We have already noted why a league can not provide even the advance military planning needed for confidence in its enforcement machinery. For similar reasons it can not make concrete advance plans to enforce its law by non-military means.

The result is that a league can not inspire confidence among its law-abiding members nor respect and fear among the aggressively inclined. This encourages its members to arm, and whether they arm for defense or aggression they make matters worse by putting the enforcement problem on a still more enormous scale.

Since no league, no matter how strong its paper guarantees to enforce its laws, can possibly remove the fatal defects inherent in itself, it can not possibly succeed in getting its members to trust it enough to disarm and avoid chaos. As long as the state must depend, in a vital emergency, on its own arms it must also protect strategic industries and prepare against blockade by artificially maintaining its agricultural production. So long as it must do this it can not afford to renounce control over such essential weapons as its currency and trade. Practically, there is no more possibility of monetary stability or free trade than there is of disarmament, security, or peace in any inter-state government requiring coercion of states. Through and through the league system is untrustworthy.

Why Unions Can Enforce Law

To be sound, a system of law, we have said, must be built to meet the danger of some attempt being made to upset it, and to meet it in a way inspiring confidence that its law- enforcing machinery will overwhelm the lawbreaker. To do this it must be so devised that, the more dangerous the violation, the stronger the position of the law-enforcer will be and the weaker that of the lawbreaker.

A union pins any violation of its law on the weakest possible political unit, a single mortal, and arrays against him the organized centralized power of millions of these units -- the union state. Suppose we have fifteen democracies of 20,000,000 population each. If they league together the theoretical ratio of law-enforcing power to law-defying power is at best 280,000,000 to 20,000,000, or 14 to 1. If they unite the ratio is 299,999,999 to 1. This shows how overwhelmingly the change of unit from state to man weakens the lawbreaker and strengthens the law-enforcer.

For law (whether treaty or statute) to be broken some individual man has to break it. A union by pinning the responsibility for the violation on this individual and on him alone tends to deprive him of all support. Members of his family or gang may help him, but they are not to be compared in power with a government which controls the force of an organized nation and can appeal to patriotic sentiments to justify its treaty violation. Union law does not by its very operation drive the innocent to support the lawbreaker as does league law; instead it tends to isolate him even from those most likely to support him. His family seldom resists his arrest.

No group, not even the family, is stigmatized legally in a union by the guilt of one member, let alone punished simply because of relation to him. The criminal's family may suffer some social disgrace, but the family can move away, change its name, begin afresh. Or it may find protection in the fact that many other unrelated men have the same family name. The name of each nation in a league is unique, and so there is no escape from that name and any blot on it stands out more, lasts longer, and is harder to bear.

There have been many celebrated murderers, but how often is one of their descendants identified as one -- as, say, the grandson of Dr. So-and-so who was executed for poisoning a patient? The children of criminals often attract attention during trials, but how long does it last? They are soon mercifully lost or forgotten among the millions of men.

In a union there is, then, no enduring disgrace attached to the group to which a lawbreaker belongs, nothing to entangle all its members willy-nilly in the crime and turn them, as in a league, against the law in order to right this injustice or save their self-respect. By its condemnation a union, unlike a league, does not inevitably turn against it even the condemned criminal, for, unlike an "aggressor nation," he can hope to live down the stain on his name, change it if it is uncommon, move away.

The union system, moreover, gives those it arrests much stronger guarantees of justice and much greater hope for acquittal than does a league. It is therefore easier for the innocent to accept arrest unresistingly. As for the guilty, it is noteworthy that a union's guarantees to each individual that its overwhelming power will not be used unjustly against him helps to weaken him at the critical time when he is about to break the law or is breaking it. The Bill of Rights serves to isolate the criminal and deprive him of misplaced sympathy by assuring all other men that their combined power will not be used wrongly against the weakest man, that the innocent individual will not be punished, that punishment will fall on the guilty or on no one.

These guarantees to the individual, together with the individual's inherent weakness, mortality and mobility, allow a union to act against offenders much more quickly than can a league. They allow it to stop crime in the bud, to arrest on prima facie evidence of criminal intent. The number and weakness of its units not only permit a union to have the powerful central authority a league can not possibly have -- and to maintain law and order normally with a tiny fraction of the power at its disposal. It can have, say, one policeman to 1,000 potential lawbreakers and yet be able in an emergency quickly to outnumber or outpower the lawbreaker. The nature of a union's unit, moreover, permits and requires specialized functions for the enforcement of law -- this union unit being a soldier, that union unit a policeman, another a judge, another a juryman, still another a prosecutor. It thereby escapes the grotesque absurdity into which a league is led by its unit; in a union no condemned criminal can judge for it the crimes of others while continuing his own.

The union system of law enforcement does not work perfectly. Sometimes the guilty escape, sometimes the innocent are punished, sometimes the union may even suffer revolt civil war. But its principle is sound and the system does work well: it insures general respect for and enforcement of law by insuring that at the critical moment -- the moment when the law is flagrantly broken -- the enforcer will be at his strongest and the violator will be at his weakest. And it does this in direct ratio to the importance of the violation. It does insure the citizen more security against burglary than petty theft, and still greater security against murder than against burglary, and still greater security against war than against murder.

How Union Eliminates Inter-State War

It may be objected that the enforcement of law against thieves and murderers is normally left to each state in a union, that such examples do not apply to conflicts between states in the union, or between one or more states and the union itself. The examples were used, however, to illustrate the idea of varying degree of crime and security.

It is true that in a union, as in a league, conflicts may rise between member states in their corporate capacity, and between them and the union. A union may refer such disputes to its supreme court, but refusal to accept the court's decision faces it with a league's problem of enforcing law against a state. There remain, however, great differences in favor of union.

In a league such conflicts and problems are the only ones possible; in a union they are abnormal. The state's position in a union differs radically, as we have seen, from its position in a league. The transfer to the union of some of the state's most important rights (which it most jealously retains in a league) tends to remove many of the worst sources of dispute and war among states. It leaves the state no longer an economic entity, the regulation of its trade with other states inside and outside the union is transferred, to the union government, which enforces its inter-state commerce laws not against the states but against individuals in them. Above all, the fact that its citizens have transferred from state to union the power to make war and peace eliminates the chief danger of inter-state disputes resulting in war. The state government, loses not only its motives for war, but also the means of waging it successfully.

The knife edge is removed from disputes between states in a union because the citizens of each state are also citizens of the union, have the same control over both, and inevitably rate higher the citizenship that opens the wider field to them, lets them move freely from state to state, and gives them their standing in the world. When a man is equally sovereign in two governments as he is in a union, disputes between these two agents of his tend to make him an arbiter instead of a partisan.

History is even more reassuring than reason in these regards. For example, there were many disputes -- including eleven territorial ones -- among the Thirteen American States during their league period. War threatened to result from some of these disputes, and this danger was one of the reasons that led them to shift from league to union. All these disputes lost in explosiveness after union, none of them threatened war thereafter. Supreme Court decisions settled them without the theoretical danger of a state defying the Court ever actually arising.

There is no example in the history of the American Union of a state refusing to accept the Court's decision in an inter-state dispute, of seriously threatening to use force against another state. A state that contemplated such action in the American Union could not gamble on being left to fight it out with the other state as could Italy with Ethiopia, and Japan with China in the League of Nations. Each state government knows that, should it resort to force, it would change its conflict from one with another state to one with the government of the United States, which is required by the Constitution to "protect each of them against invasion" and "domestic violence," which has enough armed power at hand to overwhelm at once the strongest single state and which can draw immediately, directly and without limit on the Union's whole potential power. The Union, moreover, can aim its coercive power at the Governor and other responsible members of such a state government as individual offenders. It can act against them personally on the ground that they, and not the people, are to blame, and that as American citizens who are waging war against the Union they are committing treason.

The only memorable conflicts in American Union history in which states figured as parties were both, significantly, conflicts not with other states, as in the American league period, but with the Union government. There was South Carolina's nullification of the Tariff Act; President Jackson's blunt warning that he would uphold the Union law with force against such treason 5 sufficed to maintain the law. Then there was the attempt of the eleven Southern States to secede which the Union overcame by force in the Civil War.

This last, however, was not, strictly speaking, a test of the Union's ability to enforce its laws but a test of its ability to maintain itself. The fact that the American Union has suffered one civil war in 150 years can not be held against the union system, for secession and civil war can occur and have more often occurred in other systems of government. The American Civil War must be cited, if at all, in favor of the union system. It shows what tremendous resistance that system can successfully overcome. What is more important, it shows too how swiftly, completely and solidly a union can make peace, even in the exceptional case where it must use its coercive power against a state.

Theory and practice, which alike condemn a league, alike attest that a union works. Both testify that this system is trustworthy, sound. We can not go right if we organize our democracies as a league. If we go wrong in organizing them as a union of ourselves we shall be the first to fail with union.


  1. This entire section was written in 1934.
  2. This was written four years before the Scandinavian countries and China abstained from voting when the League of Nations "dropped" Russia in 1939 for aggression against Finland.
  3. The New York Times, Apr. 19, 1936.
  4. The New York Times, Dec. 29, 1935.
  5. See Jackson's Proclamation to the People of South Carolina, "The dictates of a high duty oblige me solemnly to announce that you can not succeed. The laws of the United States must be executed.... Disunion by armed force is treason. Are you ready to incur its guilt?"

Contents -- Chapter VI -- Chapter IX