Yosef Malka
The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty by Natasha Wheatley, Princeton University Press, 2023, 424 pages, $45
Most people assume that the country we call the “United States” has never died. When it abandoned the original Articles of Confederation, expanded from the 13 colonies to dominate the continent, plunged into civil war—these were all moments of constitutional rupture, putting to death previous legal regimes. But, the logic goes, through all these moments, some immortal “America” lived on. Nationalism helped sustain this form of identity that served to connect disparate legal orders. For a long time, legal theorists trying to understand what law is actually assumed that law flowed from national identity, and that international politics was the play of immortal states whose internal legal structures emanated from distinct national consciousnesses.
Natasha Wheatley’s monumental new book, The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty, describes how legal theorists were forced to abandon this picture of the state. Emerging from the ashes of the Habsburg Empire after its destruction in the First World War, thinkers like Hans Kelsen proposed that states were no more than the stories they told about themselves in order to dress up and legitimize what was underneath: a web of laws. As they watched an empire crumble into smaller, increasingly exclusionary nation-states like Hungary, Poland, and Czechoslovakia, Kelsen began to ground his understanding of law not in nationhood but in logic. Laws flowed not from the national characteristics of a people but from a logical “ground norm” which conferred authority on other laws in the style of a pyramid.
The ground norm could be anything—including deference to a certain nationality—because Kelsen sought a way of understanding law more than a way of defending a certain type of political regime. But by applying this theory to the international realm in a world where states were rapidly dying and being born, he realized that there could be no ground norm for law within the state itself, since the state was mortal and contingent. Instead, the ground norm could only be found in international law. While Kelsen’s stated goal was methodological clarity—his legacy is the “pure theory” of law—Wheatley shows how this portrait of international law carried irrepressible affinities for a more multicultural world where law and citizenship would not be depend on membership in a nation but on international norms that allowed for the coexistence of multiple nationalities, much as the Habsburg Empire had done in central Europe. Asserting the primacy of international law did not put an end to the construction of eternal state identities, however. In order to gain membership on the international stage, states have continued calling upon the mythic and historical arguments that have always buttressed those in power.
Like people, states needed a way to assimilate and bundle up all the disparate moments of perception and change they experienced into a “personality”. Human beings, these ideas implied, shared many characteristics with states: both maintain boundaries, both exert power and are prey to it, both seek recognition from others. And important for Wheatley, both persist through time through illusions of unity and continuity that allow them to form relationships and craft legacies—and, in the case of states, to sign treaties and take on intergenerational debt. But immortality is simply a useful fiction: like human beings, states die.
Hapsburg theorists experiencing the end of empire — in some cases, clinging to the empire — realized that prevailing theorists’ bias for the nation-state as the foundation of legal theory was made possible only by the fact that they were citizens of supposedly eternal states. In France, England, and Germany, unitary nation-states were an obvious point of departure for theories of law. But all it took to change legal theory forever was for theorists to face a world where the lives of states became precarious.
Kelsen and his collaborators faced down the possibility of state birth and death, and their response was to dethrone the state from its place as the master concept of legal theory and turn to international law. How could law flow from the state, rather than the international order, Kelsen asked, if states could perish at any moment? By placing the “ground norm” of legal order above the state itself and unifying the international and national realms, Kelsen ultimately attempted to save the Habsburg Empire; as a federalized, multinational state, they believed, it was far better for minority groups than states that made national consciousness the basis of law.
Wheatley blurs the line between premodern and modern. Kelsen’s hyper-rational vision of international law, she claims, attempted to rework a medieval form of empire that allowed for a plurality of legal jurisdictions in order to breathe sovereign life into the new states created at the Paris Peace Conference in 1919.
Sovereignty’s relationship with time and eternity also survived this episode, and serves as another example of the persistence of the premodern. Wheatley sees a common thread between Hungarian parliamentarians in search of independence who argued that their sovereignty preceded the composition of the Hapsburg Empire, and that they were thus entitled to sovereignty in the present, and decolonial theorists in the second half of the twentieth century who attempted to gain power by arguing that imperial conquest and control had simply been an “interruption” of ancient sovereignty. The eternity of rights is a mark of their legitimacy, Wheatley suggests. Those striving to attain sovereignty try to construct mythic histories and usable narratives to root their rights in the past and capture some of time’s power. These arguments served a practical purpose: they “were a way of repackaging change as return—a structurally conservative appeal to law’s preference for precedent and its distrust of novelty.”
Wheatley is right to point out, along with others such as Wendy Brown, that “juridical agelessness…remains a crucial enabling fiction for our systems of law” (5). But we should question whether there are alternatives to a system that requires such fictions, and ask ourselves what a more democratic jurisprudence might look like. While recovering historical rights remains important, any legal order that awards sovereignty on the basis of the eternity of one’s rights will risk encouraging exclusionary projects of national self-construction. Presenting decolonization as a process of “recovering” ancient sovereignty created a trap that allowed larger powers to burden new states with obligations and ignore the fact that they were often materially fragile and powerless. New states could admit to their newness and miss out on the legitimating force of history, or construct a history and saddle themselves with burdens for which they were not prepared.
Wheatley’s work employs what she has called an anthropological method. She attempts to understand the imaginative constructions deployed by legal theorists and lawyers in order to access deeper truths about legal order—its biases, preoccupations and insecurities. In an article on non-state legal personality in the interwar period, she revealed how a series of metaphors like fetuses, slaves and ghosts were deployed to conceptualize new legal entities such as minorities, mandate territories and individuals in ways that ultimately reinforced the power of the unitary, western nation-state.
Wheatley accomplishes all of this in captivating prose. Young Emperor Charles’s 1918 constitutional plan for turning the Hapsburg Empire into a national federationor example, is “a paper plane sent into the hurricane of history” (232). Her own style reflects the subject matter: Wheatley is keen to explore legal philosophy as just one more discipline transformed by the “kreises” [intellectual circles] of modernist Vienna. Like logical positivism, Freudian psychoanalysis, and Austrian economics, jurisprudence was also shaped by the fin-de-siecle and its modernist currents. Kelsen, in fact, was a participant in Freud’s weekly discussion group and presented a paper in which he applied Freud’s theory of totemism to the state in order to claim that it was a mythical relic meant to symbolize our collective unity and social obligations.
Law constructs histories and teleologies without admitting as much. In The Lives and Deaths of States, Wheatley reveals how legal orders are built on assumptions about the temporality of states and their growth and development. Great Powers were states that wore the trappings of eternity. The mandates system, for example, was built on the assumption that the polities under the guardianship of western states would eventually be capable of sovereignty, but until then were delegating it to the western powers. A limitation on the sovereignty of new international entities was built on a philosophy of history with France and England as its telos.
The book yields a startling and disenchanted picture of international law. It is not helpful to contrast international law with “reality,” and note the multitude of discrepancies. In the words of international lawyer and historian of legal theory Marti Koskenniemi, we should focus on “the imaginative efforts that have enabled lawyers simultaneously to construct and seek to understand and control the social world of international change” (282). Law’s role in the international sphere is not merely to reflect a set of power relations, because international institutions and their rules are barely functional, unequally applied, and have very little force to back them. Instead, international law and legal theory plays a creative role. Learning from Wheatley’s book requires getting past the initial implausibility of such an idealistic, logically formal theory and recognize that these qualities become a paradoxical source of power.
We have never let go of the cult of the nation-state. International law sought to emancipate us from its grip by creating a sphere for claims over and against states. But membership in a nation-state has remained the crucial prerequisite for human rights, and asserting sovereignty still requires the construction of a mythical and timeless state personalities. We remain unable to see global power imbalances that transcend borders or imagine forms of union and federation that could rectify them.
Wheatley’s narrative recovers a world where international law was not a dead letter but a blueprint for a multinational and pluralistic world. More than a century after the creation of the League of Nations, international law remains a placeholder for some set of institutions we don’t yet have. If we fail to grasp its double character — hollow and yet idealistic — we will either lapse into complete cynicism about the fate of an unequal twenty-first century system of states or grow complacent with the current state of affairs, unable to imagine the international bodies we desperately need to manage conflict and ensure a more fair distribution of the world’s resources.