be treated as a crime punishable by the law of nations.” Levinson at that time backed a strong League of Nations. He pitched both Outlawry and the League to peace groups including the League of Free Nations Association and the League to Enforce Peace. He organized mass meetings and other efforts, working with Jane Addams among others.
Levinson’s thinking, and consequently his political agenda, evolved during the decade of the search for peace. Charles Clayton Morrison’s book, The Outlawry of War, published with the close guidance of and dedicated to Levinson, crystallized the Outlawrists’ views in 1927. Dewey wrote the Foreword, in which he argued that Outlawry would allow internationalism without political entanglement with Europe, would end the divide between individual conscience and the rule of law (a divide created by the legal status of an enterprise of mass killing), and would complete a process from barbarism to civility that had already put an end to private blood feuds and dueling. Dewey suggested that the legal status of war allowed the threat of war to facilitate the economic exploitation of weaker countries. Dewey, who was early to recognize the impact on world affairs of the combination of “the checkbook and the cruise missile” (the title of a 2004 book by Arundhati Roy), envisioned a truly new world that would be produced by banning war and eliminating the threat of it.
LEGISLATING MORALITY
Morrison’s book argues for Outlawry and against alliances. U.S. Secretaries of State Elihu Root (in office 1905-1909) and William Jennings Bryan (1913-1915) had negotiated bilateral treaties of arbitration and nonaggression with various nations. Such treaties became very popular, as the nations of the world created at least 130 of them between November 11, 1918, and November 11, 1928, the bulk of them in the final four years of that period. A 1931 book by Max Habicht called Post-War Treaties for the Pacific Settlement of International Disputes reprints all of these treaties.
But many in the United States were averse to the sort of alliances created, for example, in 1925 in Locarno, Switzerland. Under these agreements, if Germany were to attack France, then England and Italy would have to attack Germany, whereas if France were to attack Germany, then England and Italy would have to attack France. Aristide Briand made a name for himself as a peace negotiator in Locarno, but the Outlawrists’ criticism of such arrangements as sheer madness looks wiser through the lens of later history. Another such alliance is of course the North Atlantic Treaty Organization (NATO) to which the United States would become party in 1949. Another half dozen such “collective defense arrangements” would be joined by the United States during the 1950s.
The Geneva Protocol of 1924 collapsed when Britain rejected it. Lloyd George called it the opposite of a plan to avoid war. It was, he said, “a plan for making war compulsory.” Morrison agreed that uniting forces against an aggressor was a way to strengthen, not eliminate, the institution of war.
So, what was the Outlawrists’ alternative? World government might work, Morrison wrote, but even if it were truly desirable, it was undoubtedly very far off in the future. Preferable, in the relatively near term, wrote Morrison, would be a world court. This would be a court of law, with the laws written down, known, and agreed to. Rather than alliances and unpredictable adjudications, the Outlawrists favored the rule of the written word.
The most popular criticism of Outlawry was that it intended to simply wish war away by banning it. The most popular criticism of international alliances was that they would create wars to end wars. While NATO and even the United Nations have indeed been used to launch wars (although the European Union has rendered wars within Western Europe unimaginable), the Kellogg Briand-Pact and the United Nations Charter have banned war, and wars have proceeded merrily on their way not noticing. But all of this criticism is overly simplistic. The United Nations is a corrupt approximation of an ideal never yet realized. And Outlawry, despite passage of the Kellogg-Briand Pact, has never been fully tried.
Outlawry, in Morrison’s outline of it, requires that a world court ruling on a body of world law be substituted for war as a means of settling disputes. The international code of law (never produced by the Outlawrists) would, wrote Morrison, need to stipulate which disputes were international and under its jurisdiction and which types of disputes were domestic. The International Criminal Court (ICC), finally created in 2002 and having taken jurisdiction over the crime of aggression in 2010, begins to approach this idea, but the United States is not a member, and yet the court is under the thumb of the United States and the other permanent members of the U.N. Security Council. As things stand, the ICC will not prosecute aggression until 2017 at the earliest, and even then not against non-members such as the United States or in cases opposed by the U.N. Security Council. In fact, any war approved by the United Nations will, by the ICC’s definition, not be aggression at all. The critics of the World Court as a creature of the League of Nations would, if brought forward in time, no doubt have a similar critique of the ICC as a creature of the United Nations.
Where the argument for Outlawry gets a little hairy is in its refusal to consider any distinction between aggressive and defensive war, while nonetheless countenancing armaments and self-defense. Morrison argues that distinguishing aggressors from defenders is a fool’s errand, as every nation always claims to be fighting in defense, and an initial attack may have been provoked by the other side. (In 2001 and 2003 the United States attacked the distant, unarmed, impoverished nations of Afghanistan and Iraq and claimed to be acting in self-defense.) Morrison believes that self-defense will almost certainly not be needed, in the future of outlawed war, because war just won’t happen. But were it to happen, self-defense clearly must be envisioned in Morrison’s scheme as something that does not resemble war. For, otherwise, how can the world court of Outlawry determine which nation(s)’ leaders to put on trial?
Ultimately, outlawing war is a process of moral development. Changing the law and establishing a court to enforce it are means toward changing people’s conceptions of what is morally acceptable. Viewed in this way, the work of the 1920s that brought about the Kellogg-Briand Pact can be seen as a partial success to be built upon, whether or not any court will ever be able to both prosecute war making and avoid the distinction between aggression and defense.
Morrison argued that Outlawry was so clear and so popular that no statesman would dare oppose it. He urged popularizing the peace movement, taking it out of the hands of experts. And he was right about that. He was right about the United States and about the entire world. Nobody opposed banning war. Though we still have wars, most people do not want them. Wars may be Tyrannical Ruler Nature, or Corporate Profiteer Nature, but they are the furthest thing from Human Nature.
Morrison’s book includes a draft treaty by Levinson. Although Morrison points out its simplicity relative to other attempts at peace, the draft is longwinded and repetitive in comparison with the final Kellogg-Briand Pact. This draft includes roughly the same language that ended up in the Pact, but it also includes language regarding the creation of a court.
It is the Outlawrists’ analysis of what such a treaty would do that provides the real moral education, an education that has clearly reached only some of those it needs to reach. By banning war as an institution, Outlawrists hoped, first of all, to open the world’s eyes to war’s status as an institution. There was a dispute over whether war was legal or extralegal: Was it legally sanctioned or merely accepted like the weather? In either case, it was something that could be outlawed, but the evidence favored considering war to have been legal. “Society is not organized for peace,” wrote Morrison; “it is actively organized for war.”
The war system has a recognized and protected status in the social order, and there exists no peace system or institution which society recognizes and protects. This fact constitutes an awful moral abyss in our civilization for the modern conscience to contemplate. Peace talk when war is impending is hazardous for the talker, and in war time it is criminal. War talk in peace time, which is infinitely more wicked, runs
