Buehrig, Edward H.

English

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 30 | Issue 4 Article 10Summer 1955The Legal Community of Mankind, by WalterSchifferEdward H. BuehrigIndiana UniversityFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the International Law CommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationBuehrig, Edward H. (1955) "The Legal Community of Mankind, by Walter Schiffer," Indiana Law Journal: Vol. 30: Iss. 4, Article 10.Available at: http://www.repository.law.indiana.edu/ilj/vol30/iss4/10BOOK REVIEWThe LEGAL COMMUNITY OF MANKIND. By Walter Schiffer. NewYork: Columbia University Press, 1954. Pp. 367. $5.50.Very little of a fundamental nature has been written about inter-national organization. The literature, although voluminous, is for themost part hortatory or merely descriptive. This book by Walter Schifferis a notable exception. An analytical critique of the League of Nationsand the closely similar United Nations, it is a major work which willhave to be taken into account by those who endeavor to form significantjudgments about these institutions. The Legal Community of Mankindis published posthumously as Walter Schiffer died in 1949. Born andeducated in Germany and until 1933 a judge in the German judicialadministration, he was a research fellow at the Geneva Research Centerfrom 1937 to 1941, when he came to the United States. He completedwriting the present book while associated with the Institute for Ad-vanced Study.The treatment of the League-for the League rather than its suc-cessor receives the main attention-is not in terms of its constitutionalstructure. The purpose is not to submit the provisions of the Covenantto a legal examination endeavoring to discover still different patterns oforganization and procedure in the hope that ingenuity in these respectsmight be sufficient to meet the challenge of the times. This vein hasalready been thoroughly mined by the authors of the United NationsCharter, with results showing that the point of diminishing returns issoon reached. Schiffer's book is concerned with the assumptions abouthuman relations underlying the League. A welcome turning to funda-mentals, it succeeds in throwing some light on why international organi-zation has not served in the intended way to meet the security needs ofnations.Schiffer is not satisfied with the usual explanation that it was notthe League that failed but rather the member nations, who, failing to live'up to their obligations, neglected to use the machinery for peace providedby the League. This, in Schiffer's view, is begging the question. Heexpresses his own judgment in the form of a paradox, "the League couldbe expected to work only if the conditions did not exist which appearedto make the existence of that organization necessary." (p. 282). Thewhole object of the book is to make plain the meaning of this assertion.INDIANA LAW JOURNALSchiffer considers the League to be a product of the "progressivist"thought of the nineteenth century, which assumed a natural harmonyin human relations, the conditions of which could be discovered by ra-tional men and whose attainment is in actual process of realization. Thelegal community of mankind was believed to rest in natural law, a lawof reason standing outside and above the government made law of states.This conception, of course, is much older than the nineteenth century.In fact, the history of international law, which Schiffer treats with un-usual perception, deals largely with the assertions and counter-assertionsconcerning the position of natural law in its make-up. Picking up thisstrand in Western legal thought in its medieval phase, Schiffer sees inthe church a governmental institution whose object was to actualize thenatural law in human society. But the church only corrupted itself inthe attempt. And this Schiffer believes was an inescapable result be-cause the essential moral character of the natural law cannot be directlytranslated into governmental practice. Schiffer is not cynical. He doesnot reject the quest for justice. He believes, however, in a division oflabor between the moral philosopher and the politician. The ideals ofthe former, while they greatly influence the politician, are after all neverwholly achievable and, insofar as they are approximated, must be ap-proached by political means. And politics is a game, sometimes adangerous one, of power, which, within our domestic communities, gov-ernment and the mundane laws of government keep within tolerablelimits.The progressivists were persuaded that growing rationality andmorality were gradually but surely leading to the realization of harmonyin international affairs. This result would be finally achieved whencertain conditions had been met: (1) the general acceptance of thedemocratic form of government, (2) the attainment of self-determina-tion, and (3) the firm establishment of an unfettered internationaleconomy. Progress was the cardinal tenant of the progressivist creed,and these conditions, it was believed, accorded with the historical trend.When society at length had been freed of the arbitrary hindrances of thepast, the natural harmony of interests would emerge. Then, publicopinion, based on the thought and conscience of the emancipated indi-vidual, would constitute the governing force of the world.Such, the author contends, was the rationale underlying the League.But, if this was a sound view of human relations and a reasonable ex-pectation for the future, why, Schiffer asks, did the progressivists neg-lect to expose national government as an unnecessary evil? And, ifgovernment at the international level was superfluous, why should evenBOOK REVIEWSthe League be regarded as serving any essential purpose? The veryestablishment of the League attested to the inadequacy of the progres-sivist assumptions about human relations, but the League was a weakand contradictory response to the challenge of international politics. Itwas an attempt "to deal with the problems arising from political diver-gencies between the states into which the world was divided, by methodsthe successful functioning of which presupposed an essential unity ofpurpose among the peoples of the world, and therefore the absence ofpolitical discord." (p. 283).Since politics cannot be divested of its mundane qualities, the pro-gressive thinker who saw future international relations divested of theimportunities of politics was under the illusion that• . . peace and order could be guaranteed without any im-portant change of existing conditions. The thinker who heldthis opinion expected that the increased reasonableness of man-kind would guarantee the success of world organization. Sincegenerally he regarded himself as reasonable enough, he hopedthat the others would rise to his level of wisdom. His reason-ableness was based on his satisfaction with his and his particu-lar community's general situation; he, therefore, hoped that theothers eventually would share his viewpoint and that then hewould be able to enjoy peace and security under the same condi-tions which had prevailed before the organization was estab-lished. In order to bring about the ideal situation, it seemedsufficient by teaching and preaching to convince the others ofthe advantages which they would derive from its realization.It appeared possible, therefore, to avoid the material and moralrisks which ordinarily result from the necessity of reachingpolitical decisions and engaging in political activity designed tobring about concrete improvements of political and social condi-tions. Thus, it may be said that the idea that everything couldbe obtained for nothing was an important element of the pat-tern of thought which shaped the League of Nations and theUnited Nations idea. (p. 301).Schiffer has caught in this passage-the concluding one of the book-acharacteristic feature of the nineteenth century outlook of the Westerndemocracies. That much of it survived the first World War and wasreflected in the League of Nations cannot be denied.Much of Schiffer's argument looks in the direction of a world state,and the concluding chapter, a brilliant essay on international politics, ispartly devoted to that subject. His main point is that a world state can-INDIANA LAW JOURNALnot, any more than the League or the United Nations, escape the factthat the maintenance of peace is essentially a political problem involvingclashes of interest and the difficult adjustments which are inescapableif violence is to be avoided. The constitutional framework withinwhich the process takes place is one factor making for war or peace.Schiffer certainly feels that, theoretically at least, a world government ismore promising of results than an organization of independent states.But he is keenly aware of the vast difficulties which would be encoun-tered by any attempt to create a universal state. Could such a goal bereached, he asks, without involving mankind in a general struggle inwhich it may be exposed to the use of the same destructive weaponswhich seem to make the preservation of peace imperative? Moreover,if a world state were successfully created by the liberal-democratic peoplesin the world, how long could it preserve its distinct character under thestrain of ruling the masses of other peoples outside the Western tradi-tion? But, quite independently of the question as to the effect of anyparticular type of constitutional arrangement on the international politi-cal process, Schiffer always returns to his point of main emphasis-thatfinally it is the concrete social, economic, or power adjustment whichmakes the difference between war and peace.In consideration of the improbability of achieving an acceptable andefficacious world state, it is suggested that we look at the existing pat-tern of world organization from a different point of view than that ofSchiffer. Even though we agree with him in holding naive the pro-gressivist philosophy which gave birth to the League and the UnitedNations, can we, after making allowance for the exaggerated expecta-tions of a new era of cooperation and security radically unlike the old,justifiably conclude that the League and United Nations are quite irrele-vant to the times? A less exalted view of these institutions might seethem as a continuation and elaboration of the already established diplo-matic pattern of international politics. As such, they may stir neither theadulation nor the hostility which in their other guise they have so fre-quently evoked, but still they may not lack utility. Schiffer, concernedwith philosophical origins, does not explore this question. Yet he givesa main clue to its answer when he says in passing that he is not suggest-ing that the United Nations can have no importance. On the contrary,"it would be quite possible for a member state or a group of memberstates to use that organization for their particular political purposes,which might include the maintenance of the peace of the world. Butsuch a political use of the organization obviously would not correspondto its ideal purpose." (p. 291). This, of course, is precisely what hasNOTES 557happened. An adequate estimate of the United Nations, therefore,would require an examination of the use being made of it by the freeworld, and particularly the United States, in the East-West conflict.Is it, for example, being turned to better advantage in the struggle ofthe established democracies against the Soviet Union than the Leaguewas against the demands of fascist Germany and Italy? Admittedly, toview the United Nations as a coalition is strangely incongruous whenone considers the original assumption of a legal community of mankindbased, not on the authority of government, but on faith in the ascendancyof rationality and morality. But it is not at all uncommon for politicalinstitutions to take on a form and character different from that en-visioned by its founders.EDwARD H. BUEHRIG** Professor of Government, Indiana University, Bloomington.

The Legal Community of Mankind, by Walter Schiffer

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The Legal Community of Mankind, by Walter Schiffer

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