text:
Martin Shaw
Democracy and peace in the global revolution
Draft for Tarak Barkawi and Mark Laffey, eds., Making Global Spaces, Lynne Rienner Critical Security Studies series, Boulder 2000
A historical framework : state relations in the national and international era
Since the 1980s, there has been, as James Rosenau (1990) proclaimed, a new turbulence in world politics. Fundamental processes of change have affected both the internal politics and external relations of nation-states. Although these processes have been complex and contradictory, two major trends have been widely welcomed by liberal and democratic opinion: democratisation within states, and the pacification of relations between them. Even before but especially since 1989, the number of formally democratic - or at least democratising - states has increased rapidly on any criterion. At the same time, inter-state war - at least between central states in the international system - has become increasingly unlikely.
In this new situation, some political and international scholars have proclaimed a specific kind of deep connection between these two trends. Democratic states, it is argued, do not fight each other. Levy (1988: 88) has even claimed this tendency as the nearest thing to an empirical law which political science has yet produced. In this contribution, I do not enter into a close critical discussion of this literature. This is not because I doubt either the credibility or the desirability of these trends, or indeed the plausibility of some kind of connection between them. It is because, however, numerous critics (see the survey in MacMillan, 1996), have already shown that the debate about the democratic peace, as it has come to be called, has posed these issues in very partial ways.
The democratic peace literature made an interesting move beyond realist international theory, in bringing the domestic politics of states back into the international equation. It represented, however, distinctly limited progress, since while linking these hitherto separated spheres it preserved their structural distinctiveness as the basis of analysis. In this sense it failed to address the very blurring of these analytical categories, which Rosenau (with his idea of post-international relations) and many global theorists had begun to suggest. In restricting the relations of democracy and peace to the correlation of domestic structures and foreign policy, democratic peace arguments bypassed much more profound attempts to restructure the categories of international relations, which were developing in the discipline. They largely ignored the question of how to grasp the relations of democracy and peace as aspects of the global changes of our times. This question that has been raised in various ways by many different contributions, all the way from the longstanding debate about interdependence in international relations, begun by Robert Keohane and James Nye (1977), to David Helds (1992, 1995) conceptualisation of cosmopolitan democracy.
The more interesting issue is therefore how to develop a more holistic conception of contemporary worldwide social and political change, in which the relations of democracy and peace can be understood. One direction from which this may be attempted is that of historical-sociological understanding, reflected in the serious attention paid in international relations to the work of social theorists such as Theda Skocpol (1979), Anthony Giddens (1985) and Michael Mann (1993). In this essay, I do not have space to discuss the general meaning (or problems) of this approach, which I have done elsewhere (Shaw, 1994, 1999c). Instead, I first suggest its desirability by first outlining the pitfalls of ahistorical and non-sociological modes of analysis. Second, I enter into a substantive discussion of what a historical and sociological approach to the question of democracy and peace might look like, offering a schema which raises some of the questions with which the new debate on the democratic peace might be concerned. Third, I examine the meaning of this historical and sociological approach to democracy and peace in the global transformation of the present period.
How not to analyse democracy and peace
It is an obvious but important starting-point to remember that democracy and peace are not timeless but historical social concepts. Indeed war itself - the negation of peace - is a historical product. Although some seek to explain war as a product of instinctive aggression, as organised violence it presupposes socially-controlled use, and originates in definite historical forms. Similarly, although there is reason to suppose that war and democracy might be opposites - war is clearly the negation of a democratic relationship between two parties - war has always been compatible, historically, with forms of democratic relationship within one of the organised parties to war (Shaw, 1997a). Indeed the Western way of war is generally held to have originated in the same time and place as Western democracy: in classical Athens, citizens were also warriors.
The democracy with which we are concerned today is, of course, very different from that of Athens. It is taken for granted that democracy involves an open representative system based on elections through universal suffrage, with entrenched freedom of expression and association, within a nation-state. This is indeed the dominant model of the Western bloc of states, approximated in a number of other states worldwide, and rapidly becoming (since the end of the Cold War) the norm to which most states pay lip-service, as well as the object of American as well as general Western policy throughout the world (Robinson, 199?).
Even if, however, we agree some such definition of modern democracy, it tells us relatively little about the nature and changing role of democracy in the emerging twenty-first century world, including its relation to peace. Democracy has always been both an institutional form and a social movement - often even a revolutionary movement. In the contemporary world, while democracy is becoming normal, it is also contested - notably between those who wish to use democratic forms to maintain largely authoritarian elite rule, and those wish to enlarge popular freedoms and control. Democracy is part of the great changes of our times and as such is often partial and compromised as well as insecure and unstable.
Todays wars are also very different, not only from those of classical Greece, but also from those of the recent historical past. We may define warfare as organised violence between two parties in which each seeks to compel the other to submit to its will. We may operationalise this (as most have done since the Correlates of War project: see Small and Singer, 1982) to count conflicts in which there are a thousand or more battle-deaths. But even with such a definitions it is by no means clear that we can find a normal model of contemporary warfare, since any such model, like that of democracy, is challenged by contemporary developments.
Warfare has undergone such huge transformations in modern times, and taken so many diverse forms, that even the standard modern form it is difficult to agree. The distinctive form is sometimes taken to be Clausewitzian (van Crefeld, 1991; Kaldor, 1997), but I have argued that, given the conjunction of total mobilisation with total destruction in the warfare of the industrial era, it is better understood from a sociological perspective as total war (Shaw, 1988). All agree, however, that the very idea of modern war is under great pressure. New forms of war are emerging, seen either as post-Clausewitzian (Kaldor, 1997 and 1998) or in terms of degenerate forms of total war (Shaw, 1999b).
In these circumstances, it is even less clear that we know what we mean by peace. Many defined Cold War, despite its perpetual war-preparation and proxy wars, as a form of peace. While clearly non-warlike relations have been consolidated between the former Cold War adversaries, and war appears to be in the process of abolition between the major states or groups of states, the worldwide extent of warfare (let alone war-preparation broadly defined) is still alarming. Are we really to understand the post-Cold War order as peaceful - except when the growing lawlessness within the states of the Balkans, Caucasus or central Africa actually takes the form of fighting?
Finally, at the heart of these uncertainties about democracy, peace and war lies the conundrum of the modern state. We may agree some version of Webers general definition of states as organisations claiming monopolies of violence in given territories (Mann, 1993: 55, offers an improved, suitably qualified variation of this). We may even agree that modern states have increasingly taken the form of nation-states. This does not mean, however, that we can adequately define contemporary states as national institutions. On the contrary, the national character of states has been undergoing a critical transformation.
The classic modern embedding of national forms of state, in the nineteenth and early twentieth centuries, was within imperial relations. More recently, nation-states have been embedded in the bloc relations of the Cold War. Todays unprecedented number of nation-states is implicated, however, in a new constellation: the emergent power relations of the global order. Many so-called nation-states are hardly able to guarantee the internal pacification which Giddens (1985), following Weber, saw as the hallmarks of the modern nation-state, let alone the external projection of violence which he saw as the corrollary. Today even the most powerful national centres - including the sole remaining superpower - are actually embedded in pan-Western and emergent global structures of state power (Shaw, 1997b).
What these uncertainties tell us is that democracy, war and peace, and state or nation-state, are all concepts which need to be grasped historically, in the context of successive changes in social and political relations in general. If our own time is agreed to be one of considerable flux - indeed I shall argue more strongly that it is one of historic transition - then this is precisely the wrong time to try to fix the terms of debate about democracy and peace in terms of concepts of democratic nation-states and inter-state war inherited even from the recent past.
In particular, we should avoid three major traps of contemporary social science, all of which seem to be implicated in the democratic peace debate. Two of these are problems of the social sciences as a whole: the methodological nationalism (Scholte, 1996), according to which national states and societies are regarded as the units of social analysis; and the corresponding idea that generalisations in social science should be established principally through the comparative method which examines variations across national cases. Both of these ideas embed the idea that national units are the given structures of modern social order.
The corollary of these ideas is the third trap, the favourite notion of international relations theory: the idea that the world is primarily structured into distinct domestic and international spheres. By assuming the separation of these spheres, we can then proceed to correlate the tendencies within them, as has been done in democratic peace analysis. But the notion that this is frontier to be penetrated belongs to a particular historical epoch. This period, in which the world can be defined in national and international terms, is drawing to a close. Before we can develop a historical account of democracy and peace, we need to overcome these inherited flaws of modern social science in general and international relations in particular.
A historical framework : state relations in the national and international era
In this paper I can only summarise the general framework in which I propose we may understand the relations of democracy, war and peace. The core of my argument is that we can grasp these issues by locating them within the developing social relations of state power (which I call for short, state relations) throughout modernity. My argument, which I am developing more fully elsewhere (Shaw, 1999), is that the history of the modern period has been the structured critically by the emergence, transformation and eventual decline of particular social relations and forms of state, which are most generally characterised as national-and-international.
My core assumption is that the pivotal historical changes within this modern era are not, as Marxists have proposed, changes in the mode of production as such, important as these have been, but changes in these state relations. In this era, in which typically state power has been fragmented between many major centres, it has been janus-faced (Skocpol, 1979), pointing both inwards towards society and outwards towards other states. Following Skocpol, Giddens (1985) and Mann (1993), I take for granted that the capacity of particular states to mobilise power is developed simultaneously in relation to society and in relation to other centres of state power.
However the central issues in state relations have been two-way. State relations are not only about the control of state over society - its capacity for surveillance or mobilisation of social relations in general. They are also, in contrast, about the ability of society outside the state - individuals, groups and society as a whole - to survey, limit and ultimately control the state. The question of democracy has been, in this way, one side of the political dynamics of the entire modern, or national-international, era.
I now need to introduce another key concept: state forms. In the modern period, states have tended increasingly to be centred socially on nations, so the forms of the state have been, in general, simultaneously national (relations between state and nation or groups within it) and international (relations between centres of state power). In this context, democracy has been defined primarily in relation to the nation-state (Held, 1995).
The fragmentation of state power within modern society has meant that the key to state relations has been war between major state centres, which has increasingly shaped the relations of state to society. Inherently linked to the states growing capacity for surveillance and mobilisation of society, war has been a central dynamic in the development of modern state relations. The democratic side of these relations has also been bound up in war: as a result of war-mobilisation, society often becomes aroused for political change, and in return for it, democratic states often offer or are forced to concede extensions of democratic rights.
This is particular true with total war, which we can identify (following Kaldors 1982 definition) as the dominant mode of warfare in which war as a social activity has been organised in the twentieth century. In this mode, warfare has come to be the organising principle not just of state power but of economy and social relations in general. Thus I have suggested (Shaw, 1988) that the prime sources of change in twentieth-century society have been the contradictions of the way in which the expanded mode of warfare has impacted on society. And whereas Giddens (1985) tended to write out revolution from developed modernity, I argued that definite revolutionary processes could be identified within the dialectics of war (Shaw, 1989).
If democracy has been a key question within all these political dynamics of the national-international era, and particularly within the dialectics of war, it has not conformed, to a single pattern, but has been constantly transformed and re-posed by each successive historical shift. In Table 1, I try to suggest (in a schematic way) the perameters of these changes, and the corresponding changing relations of democracy with war and peace, which are explored in this discussion.
A major problem for the hypothesis of pacific democracy lies in its articulation with dominant paradigms in international relations theory. If democratic governance explains at all the absence of war in interstate relations within what international relations generally characterises as a Westphalian state-system, it can clearly be at best only a very partial explanation of war and its absence. That is to say, it can only explain the contrasting patterns of inter-state relations among democratic and non-democratic states. It cannot explain particular cases of relatively pacific or warlike relations within these groups.
In particular, the question of democracy can tell us very little about relations between states in the early period of the Westphalian system, since no state could be called democratic at that time. And yet Westphalia is generally supposed to have inaugurated a period of relative peace in interstate relations in Europe, compared to the period of general war on much of the continent which preceded it. Ironically, some of the earliest democratic movements (e.g.the radical movements in the English Civil War of the 1640s) had been implicated in that period of war.
The early post-Westphalia period, roughly up to the American and French revolutions at the end of the eighteenth century, is best characterised as a pre-national and pre-democratic era. Although elements of modern nationality and democracy began to develop together in the core of the emerging world order of European empires in this period, states were generally monarchical and increasingly imperial. They also still had very limited mobilisation-capacity - either in political or economic terms - by later standards. Wars, mostly relating to colonies, were generally limited compared to those of the subsequent and even the preceding periods.
Democracy was very much a subordinate theme in these developments, although by the late eighteenth century it was part of a larger movement towards the growth of a distinctively modern, rational, secular, scientific world. In this movement, the possibility of new constitutional orders was linked to world peace in the most enlightened thought (e.g. Kant, 1796). However, the emergence of democracy as a revolutionary movement and a form of government was hardly a peaceful process. The classic modern revolutions, of 1776 and 1789, proclaimed universal liberal principles in order to create a modern basis for nation and empire. Because of their double threat (internal and interstate) to the old world order, they unleashed counter-revolutionary wars which spread across the European world order.
This was not a historical accident, but something intrinsic (as Skocpol, 1979, argued) to the character of revolution within an interstate system. Moreover, as Clausewitzs observed (1831), a new form of war was quite clearly linked to developments within these early modern revolutions. In his trinitarian definition of war, therefore, the people represented its quintessentially violent character (generals were linked to statecraft, governments to policy). Since then, military thinkers like Howard (1983) have seen the democratic aspect of modern war - the people in arms - as a source of its prospensity to total violence.
Clearly the early revolutionary states were hardly stable constitutional democracies by contemporary criteria, so it might be supposed that democratic peace theorists could breathe a sigh of relief. They would be mistaken, however, to see this point as of limited significance. The forms of democracy have been harnessed to authoritarian, militarist and ultimately undemocratic purposes throughout subsequent history. Indeed, the tension between pacific and warlike tendencies remains pivotal to the modern history of democracy.
Only by severely restricting the nature of the linkage between democracy and peace as well as the relevance of cases can a one-sided account be sustained. French revolutionary nationalism turned, with Napoléon, into an imperial venture in which democratic tendencies were extinguished. Even relatively democratic settler colonists in North America, Australasia and Africa were distinguished by their often brutal - even genocidal - military campaigns against indigenous peoples (Mann, 1996).
In the high inter-imperial period at the end of the nineteenth century, the development of parliamentary democracy went hand-in-hand with that of imperialism and militarism. It is a questionable historical logic which legitimates the case of Western democratic defenders (Britain, France, the United States) against German imperialist and militarist aggressors in the Great War. A more balanced judgement would surely recognise the real democratic elements alongside the imperialism in each states war-making, even while recognising the differences between them. German social democracy was notoriously mobilised to support the Kaiser, just as its British and French sister-parties supported their governments.
To make this case is not to ignore the important anti-militarist tendencies of democratic movements, particularly liberal- and socialist-internationalist. It is to argue that democracy often had double-edged significance for peace. The triumph of the Western allies in the Great War led to democratic revolutions in Russia, Germany and Italy as well as other states. But within these newly democratised nation-states, democracy was neither stable nor pacific. In Russia, the counter-revolutionary mobilisation by neighbouring states - similar to that after 1789, and whose backers included Western democracies - led to a civil war in which the revolutionary democracy of the soviets was quickly extinguished. In Germany and Italy, the new, unstable post-war democratic conditions spawned the Fascist and National-Socialist movements, which glorified militarism.
Fascist movements are perhaps the archetype of the aggressive, anti-democratic militarism, the supreme negative confirmation of the democratic peace hypothesis. We should not forget, then, their exploitation of democratic forms and legitimacy in the seizure of power. Nor should we see the Western democracies as exponents of purely defensive war-making. Only by a historical sleight of hand could we dismiss (for example) the counter-revolutionary violence with which the democratic European empires (France, Holland, even Britain) tried to retain their colonial possessions in and after 1945, as defensive.
The point of this polemic is that throughout the emergence, consolidation, heyday and decline of the European nation-state-empires, military violence and culture were structural conditions of democracy. There may be some truth in the idea that the most aggressive empires were least democratic, and that the most democratic were less aggressive. But no safe generalisations can separate democracy and militarism throughout this era. Only a profoundly limited theory and methodology would seek to simplify their complicated linkages in this way.
Moreover in the great crisis of the inter-imperial system, from the First to the Second World War, democracy took on a new significance in state relations. As the great imperial powers moved towards renewed and intensified total war, with much more total control over society, interstate conflict became much more highly ideologised. Nazi Germany, Italy and the Soviet Union were controlled by regimes with (counter-) revolutionary ideologies which denounced parliamentary democracy. Under these conditions, the democratic states mobilised their own populations by intensifying their democratic ideology. Through this process the meaning of democracy came to be understood, first in Britain and then throughout much of the West outside the United States, in terms of socio-economic as well as political rights. There was democratic reform - a social-democratic extension of democracy - as democratic claims became more central to the total-war confrontation and mobilisation.
The democracies were successful in the Second World War, not alone - since they were allied to the Soviet Union - and probably less because they were democratic (although that was a factor) than because, with the American economy behind them, they possessed by far the more powerful war-machine. The claim that this was a victory for democracy was meaningful however, since the most extreme anti-democratic model, fascism, was fundamentally defeated and discredited. But even more apparent was that this was a victory for two states, the United States and Soviet Union, above all others and that the secondary victors, such as Britain and France, were subordinate through military and financial dependence if not, as in the case of Japan and Germany, through defeat.
The significance of the embedding of democracy in the Western military alliance became clear in the evolution of this situation into a clear-cut opposition between the two Cold War blocs. The bloc-order was a major evolution beyond the classic state relations of the old national-international world order, since it boiled down the rivalries of numerous major centres of state power to two superpowers and their dependent blocs. It was also a major evolution in that, within the Western bloc at least, alliance spawned integration among nation-states, and the bloc became an increasingly inderdependent single conglomerate of state power (Shaw, 1997b).
State relations underwent fundamental changes. In the Cold War, military mobilisation diminished rapidly and was no longer so extensive (or total) because of the nuclear transformation of warfare increasingly made the mass army redundant. Mobilisation, so far as it still occurred, was no longer simply national, because of the bloc-system. In these circumstances, while states became horizontally more integrated, they became vertically less integrated. States no longer needed to control economy and society in the same way as they had done in the era of total war.
With shrinking state sectors - even the powerful military-industrial complex mobilised a smaller section of the economy and workforce over the decades - came the revival of liberal market economics. Within increasingly integrated Western bloc state-structures, with global reach - and in Europe, a particularly tight form of integration - new state relations developed which provided the framework for the increasingly worldwide, globalised economy of the late twentieth century.
The relations of war and democracy in the Cold War flowed from these realities of bloc-competition. Democracy became a line of division and an ideology of the Cold War. The Soviet Union extinguished the transitional democracies of eastern Europe in order the better to control its satellites - as so-called peoples democracies. The United States developed the Western alliances as a bloc of parliamentary democratic states, notably imposing new democratic constitutions in western Germany and Japan, although some non-democratic states (Turkey, Portugal and Greece) were welcomed as members of the North Atlantic Treaty Organisation (NATO) so long as their regimes were anti-Communist.
Not surprisingly, democracies in this era did not fight each other. But this was hardly because they were democracies. Rather, they did not fight and were democracies for a common set of reasons: their mutual subordination to the major victor of the war (America) and their common rivalry with the Soviet bloc. As the Cold War period lasted for over forty years, Western-bloc integration developed apace, encompassing many sorts of economic and political as well as military institutionalisation, so that war between the component nation-states became less and less likely. Again, while democracy was a factor in institutionalising this integration, it was hardly the principal independent reason for it.
An ambiguous relationship between democracy, peace and war runs through the Cold War West. Democracy was undoubtedly a mobilising principle in the rivalry with the Soviet bloc. But as such, it was hardly an unambiguously peaceful ideology, since it threatened to lead to nuclear war, including the threat of aggressive first use. Nor, as Cold War ideology, was it consistently practised even in the Western heartlands. On the contrary, the Cold War was a justification for secret, even authoritarian state institutions and practices, from the McCarthyism of the early years through the continuing machinations of Western security services and the secrecy surrounding nuclear weapons developments.
Even within the Western bloc, as we have noted, openly authoritarian states remained welcome, if generally marginal members. Outside the bloc, in the so-called Third World, Western states and especially the American superpower frequently - indeed generally - backed authoritarian, corrupt and military rulers, including apartheid South Africa, against democratic movements. This cannot, moreover, be represented as a peaceful process. Not only did the internal repression practised by Western-backed states frequently cross the line into civil war. The United States in particular also intervened directly or indirectly by military means to install, support or restore authoritarian rule. European democracies used military power to oppose colonial liberation movements. Western client states - such as Israel - launched numerous wars.
During the Cold War period, therefore, democratic states were hardly unambiguously peaceful in orientation. Moreover, the military conflict with the Soviet Union constrained the quality of democratic culture and institutions within the West, just as it restricted support for democratic movements in the Third World - and even within the Soviet bloc, since the West could hardly give effective support to democratic resistance if that would threaten inter-bloc war.
The Cold War period was a pre-global, transitional period in world order in which there was a major change in state relations. The replacement of the inter-imperial world order, in which a number of major independent centres of state power functioned increasingly more or less as bordered power containers, by a bloc-order, was a very fundamental change. The democratic structures and ideology of the dominant Western bloc-state undoubtedly conditioned the post-Cold War evolution of state relations in more global and democratic directions. However, during the Cold War, democratic movements within both the Soviet bloc and the Third World - and even social movements for democratic change within the West - often came up against the limits of the democratic Western state.
Democracy in the global revolution
The end of the twentieth century has seen the emergence of several narratives of transition. Most pervasive in the late 1980s was the idea of postmodernity, according to which all historically given forms were in unprecedented flux and relativity. At the end of the decade, and the beginning of the 1990s, this was succeeded (although obviously postmodernist ideas continued to hold much sway) by the idea of a post-Cold War world. By the mid-1990s, this had given way in turn to the idea of globalisation as the dominant narrative. The changing influence of these narratives reflected moments in historical development: the widely diffused cultural sense of oncoming transformation in the 1980s, the dominance of political-military change in and immediately after the tumultuous events of 1989-91, and the pre-eminence of economic and communications changes most recently, as the political dust began to settle.
What is notable about these narratives is that they have tended to emphasise different processes of change (cultural, political-military, economic-communications), and that while the first two are defined in essentially negative terms (post-), only globalisation proposes a new content (the global). On examination, moreover, this content dissolves into largely technical changes (time and space relations), with once again a dominant negative motif (undermining of the nation-state).
It is argued here, in contrast, that the global is not to be understood in this way, and that the current transition should be understood as a fundamental change which encompasses all the processes identified - cultural, political-military and economic-communications. Global means something different from simply world or worldwide, let alone international: globality (this term for the global is defined by Albrow, 1996) is about a fundamental unification or commonality of human social relations. The global transition is a revolutionary change, not just in the loose sense of major transition, but in a specific sense of a fundamental change in state relations.
Clearly, the meaning of global change which I am proposing here is very different from that commonly indicated by globalisation. It differs in three major ways. First, it represents a change in which conscious, purposeful human action plays an important role, rather than the relatively mechanical process indicated by the term globalisation. Second, it is defined very much by political relations, which determine the context of economic and cultural change. Third, it is a set of radical and relatively sharp changes, rather than simply a gradual process. Furthermore, the global revolution differs from previous revolutionary transformations. It is not merely a more or less simultaneous international movement across a number of different nation-states. Rather, it involves a transformation of world order from the national-international order of the last two centuries to an specifically global order.
The global revolution is essentially a development from two major processes of the Cold War era, which I defined above as the final stage of national-international order and which contained many pre-global aspects. First, it is a further transformation of state relations and forms of the Western bloc-state, in the development of distinctively global relations and forms of state power. Second, it is a continuation of the democratic revolution, overcoming many of the constraints which were imposed on it from the Cold War period. These two trends come together to the extent that global state forms are defined in democratic terms, while democratic change increasingly shows a global dimension.
Recognition of the depth of the global revolution is limited because, in this unprecedented worldwide political transformation just as in any revolutionary change, there are many continuities (notably the national and international forms of state power). There are also many conflicts: the change is like every previous revolutionary transformation an uneven, contradictory and contested set of processes, meeting new obstacles which arise from remnants of the old relations and forms. It is also, at the beginning of the twenty-first century, very much an unfinished revolution.
The transformation of state relations and forms in general centres on the processes whereby the Western state-bloc, harnessing the globally legitimate institutions of the United Nations system as well as the wide range of more specifically Western international institutions, has established itself as the effective centre of worldwide state power. Secondary centres of power, notably the successors of the former rival Soviet bloc and the growingly powerful Chinese state, are increasingly but still problematically integrated into a larger, Western-centred conglomerate of state power. Tertiary centres, the major states of all continents and regions, are also increasingly, but very unevenly integrated. Some states remain largely on the margins: the extreme cases such as Iraq, Libya, Iran, North Korea and Serbia which have come into conflict with the West are defined as rogue states, although even in these cases, there is some acceptance of international authority - at least in principle.
This transformation has generated a new name for globally legitimate authority, the international community, which is applied to the various manifestations of global and Western state power. These, of course, are shifting and variable - polymorphous crystallisations of the global state rather in the way that Mann (1993) saw national power as fluid in form. There are two apparently contradictory sides to this legitimation of global state power. On the one hand, there is the assertion of Western and especially American power; the confirmation of the NATO as the dominant international military structure; and the preference of Western leaders for ad hoc alliances such as contact groups rather than strong, enhanced permanent international institutions with clear legitimacy. On the other hand, there is the de facto as well as de jure embedding of Western and even American policy - despite the backwoodsmen in Congress - in wider international coalitions, the clear necessity of the United Nations as a legitimate institutional framework for Western power, and the real development of that framework.
Alongside this development of the global state is the unprecedented worldwide democratic revolution. The paradox of this revolution is that, of course, in form it is only partly global, and very largely national and international. As the Soviet bloc and then the Soviet Union itself unravelled from the late 1980s, and especially in the decisive period from the East German, Czechoslovak and Romanian revolutions of late 1989 to the collapse of the Soviet Union in 1991, many states and republics were reconstituted on a democratic and national basis.
While the disintegrative tendency was clear, so was the integrative tendency. The new states which emerged from the Soviet collapse were mostly not - although some were and others tried to be - nation-states in the sense of effective, autonomous centres of military power. The more advanced and geographically Western of them, especially in east-central Europe, sought immediate membership of the European Union and NATO. Most, including even Russia itself, embraced key elements of Western ideology, worldwide political economy, international institutions and leadership.
Above all, almost without exception they embraced democracy. The democratic transition varied hugely from those states in which there were democratic revolutionary movements, to the many in which the old nomenklatura embraced democratic forms in order to restructure their power. However real or unreal the substance, democratic change was both for people and rulers alike - but often for very different reasons - a means of admission to and recognition by the new Western-dominated global world order.
The post-Cold War democratic revolution has not been confined to the former Soviet bloc. An early signal of it was the 1980s transformation of the majority of Latin American states from authoritarian and military to parliamentary-democratic rule. In the 1990s it has embraced large numbers of states in Africa and Asia. It includes such notable national changes as the ending of apartheid and the establishment of multi-racial democracy in South Africa. The Middle East is the major world-region least touched by this movement, although interestingly the Palestinian authority has been a forerunner of change towards elected authority, and post-revolutionary Iran also has genuine electoral processes.
In all regions democratic change has been linked to an increased if often critical orientation, by popular movements as well as governments, to international institutions and the Western-defined global order. Some major states, above all China, have to date resisted formal democratisation. Nearly all states are involved to a greater or lesser extent, however, in closely-linked global tendencies: no states have been immune to the social changes behind democratisation. It is not easy to envisage, therefore, the long-term exclusion of many states from at least limited or token involvement in democratic reform. There is very considerable momentum behind continuing democratic change, which state elites will find it increasingly hard to resist.
Democratisation is linked to global change particularly because of the new policies of the Western bloc and especially the United States. In the 1980s, after decades of supporting undemocratic regimes and promoting wars in the struggle with their Soviet rivals, Western leaders finally proclaimed democracy and peace to be appropriate worldwide. (Even in the early 1980s, under Reagan and Thatcher, the West was still willing to support or condone authoritarian, anti-democratic regimes and forces so long as they were anti-Soviet - although European governments were not always prepared to go along with these policies.) The conversion of the United States to promoting polyarchy (Robinson, 1996) was, therefore, a recognition that popular pressures for democratic change were inevitable in many regions, and an attempt to manage them.
In the 1990s, especially under Clinton, the West has adopted an increasingly clear rhetorical stance of support for democratic change, pulling the rug from under old dictators rather as Gorbachev did from under the Stalinist rulers of some east-central European states. While the United States, especially, often retains close relations with those authoritarian rulers who manage to cling to power, it is usually clear that this is a pragmatic stance which does not pre-empt support for change, as was demonstrated in the Indonesian upheaval of 1998. The European Union, moreover, has reinforced this trend by putting relatively clear democratic conditions on new entrants from east-central Europe.
Related to these trends have been two more clearly globalist democratic developments. On the one hand, democratic social movements for social justice, environmental reform and democracy have emerged, and a global civil society has been increasingly recognised by interstate international institutions. The idea of international community, while primarily understood in interstate terms, has also been broadened increasingly to include such civil society organisations. On the other hand, formal global-democratic institutions have become something more than a dream. The European Parliament has provided the first working model of an elected transnational parliamentary body. This has encouraged the idea of a formally based cosmopolitan democracy (as advocated, for example, by Held, 1992).
Democracy in the new relations of war and peace
Following realist (or, for that matter, Marxist) assumptions, we might have expected the Western bloc to disintegrate once the discipline of the Cold War had gone. The post-Cold War years have indeed been ones of heightened economic competition - not only between national economies but between emerging regional economic blocs in Europe, North America and Pacific Asia. Military rivalry has been limited, however, to the disputes between the United States and Britain and France over NATO policy in the Balkans, and with Japan over burden-sharing in the Pacific. These are hardly omens of fundamental new military rivalries between nation-states - or between imperialisms.
In the global era, established liberal-democratic states do not fight each other. But once again, it obvious that this is not simply because they are democracies, but because they are embedded in the raft of common Western and global state institutions. Indeed it is not just liberal democracies which do not fight each other: the major non-Western states (Russia, China, India, Brazil, etc.), whether democratic or not, are not likely to fight with the dominant Western powers.
Outside the Western core of global state power, however, national centres are more weakly integrated with its institutional structures, and regional institutions which might inhibit local conflicts are much weaker than they are in the core. In the Cold War era, interstate rivalries between major regional powers - such as between Russia and China, India and Pakistan and China, Indonesia and Malaysia, Iran and Iraq, Israel and the Arab states - led to wars and border incidents. While the integrative tendencies in the emerging global polity, including the democratisation trends, may increasingly inhibit wars, it clearly remains possible that such interstate rivalries will generate new wars.
It is clear that democratisation in itself is not a guarantee of war-avoidance in such conficts. Israel, the only internally democratic state in the Middle East, has also been the most belligerent; Indian democracy has been quite compatible with bellicosity towards Pakistan. Democratic as well as military governments may see war, so long as it can be kept limited and relatively cost-free, as a means of boosting popularity. Thus Yeltsins Russia sought a military solution in the breakaway republic of Chechnya, despite the lessons of the late-Soviet failure in Afghanistan. Only in defeat did Russias weak democracy penalise the regime for the new disaster, and then not decisively.
Manipulating democracy is the new trade of the old nomenklatura throughout the Soviet bloc, and especially in the successor states of the Soviet Union itself. In the Caucasus and central Asia, from Armenia and Azerbaijan to Georgia, Moldova and Tadjikistan, ruling elites - mostly but not exclusively staffed from the old regime - have won elections while, and through, waging war against neighbouring states or internal minorities. In contemporary democratising states, authoritarian-inclined regimes are likely to use electoral and military processes simultaneously to produce and reproduce their power.
Thus in the new nation-states of Serbia (and the rump federal Yugoslavia which it dominates) and Croatia governing elites have used democracy to legitimate war and genocide, and war and genocide to legitimate their national authority and electoral success. In both cases, of course, democratisation has been far from complete: particularly in Serbia, electoral rigging has been blatant, while in both states the freedom of opposition parties and media has been drastically restricted. Formal democracy has not seriously impeded war-making, nor war-making weakened electoral legitimation.
Indeed Kaldor (1998) explains how democratic forms have become part of the genocidal process of the new wars of the global era. Whether waged by recognised states or by breakaway centres of power, electoral legitimation is actually part of the process of genocide. Knowing that in the global era democratic legitimation is the path to international recognition, power-mobilisers seek to create ethnically homogenous territories in which they use identity politics and intimidation to ensure electoral majorities for their rule. Minorities or even majorities who do not fit with the rule which they seek to impose are expelled from their houses and land, villages and towns. While intimidation and low-grade violence often account for much of the process, physical abuse and even large-scale killing are also essential ingredients. After the expulsions - so-called ethnic cleansing - elections or referenda confirm the new majoritys exclusive right to the territory.
The acquisition of territory by ethnic exclusion has been supported by democratic means in earlier periods, as Michael Manns contribution to this collection shows. Hitlers accession to power on his racist programme was backed by a substantial electoral base. More recently, Israels expulsion of the majority of the Palestinian population was legitimated by elections held among an overwhelmingly Jewish electorate: the remaining Arab population was too numerically weak and politically cowed to pose a serious problem to the states legitimacy.
In contemporary state-making and annexation, electoral legitimation via universal suffrage has become almost compulsory - no longer an option of convenience for nationalists. Excluded groups cannot be simply disenfranchised. Unless very small minorities in the population, they must, at least, be confined to territories outside the electoral base - on the model of the bantustans in apartheid South Africa. Often they cannot even be tolerated as powerless minorities. Hence the process of homogenisation has frequently been taken to the point at which these groups are virtually wiped from the territory to be annexed. Up to 90 per cent of non-Serbs may have been forced from Serbian-occupied territories in Bosnia in the early 1990s. Abkhazian separatists in Georgia, claiming to represent the less than one fifth of the regions population who were ethnically Abkhaz, managed to expel the majority in their quest for an ethnically homogenous state.
The contemporary global revolution, while universalising democracy, has therefore generated a counter-revolution which utilises democratic forms. Democracy even becomes a cloak for its antithesis, genocide. Global democratic norms actually generate incentives to those who seek to gain power through war to perpetrate it in a genocidal manner. As interstate war has declined, the dominant forms of warfare have become genocidal, directed - like the Nazi war against the Jews - against unarmed civilian populations. But whereas the Nazi campaign was a sub-text of the interstate war across Europe, in contemporary wars genocide is often the principal form of violence, civilians the prime victims. In the Second World War, civilian victims were still an overall minority. In contemporary wars, they are the vast majority. Thus are democratic principles cruelly inverted in the new wars.
Where ethnic exclusion and genocide take place, they are rarely reversed even through globally-legitimate international interventions. Intervention usually occurs (if at all) after the main phases of war and genocide, not at a point when prevention is possible. Thus large-scale intervention in Bosnia did not take place until 1995, after three years of cleansing. Serious intervention was avoided in Rwanda even though it was obvious that a relatively small force could have stemmed the mass killings. After the event, United Nations-sponsored (in Bosnia, NATO-organised) forces eventually arrived in both cases, supporting in principle the processes of return of victims and bringing criminals to international justice. All of this was of course far too little and too late, as President Clinton and Secretary-General Annans acknowledged in their apologies to the Rwandan people and government for international inaction. But a similar pattern was still followed in Kosovo in 1998.
Western states - as well as the United Nations Security Council in which less democratic states like Russia and undemocratic states like China have major voices - are often more concerned with the forms of democracy rather than the content. For example, although the Serbian genocide in Bosnia implicated virtually the entire Serbian elite and all forms of state institution, Dayton legitimated Republika Srpska, the Serbian entity produced by the genocide. The West then supported moderate Serbian nationalists, led by Biljana Plavsic, former deputy of the indicted war criminal Radovan Karadzic. She was prepared to cooperate with the international community. The West thus condoned and legitimated this acceptable Serbian nationalism by its ethnically-cleansed electorate (only to find in late 1998 that this same electorate ungratefully turned out the Wests client in favour of an unreconstructed nationalist).
Such cases emphasise more than ever the ambiguities in the relationships between democracy, war and peace. The global revolution is doubly unfinished. First, democratic change is only very partially accomplished. In some major states, it has either not developed very far or has been blocked. Even at the beginning of the 1989-91 revolutionary period, democratic change was defeated through military repression in China. Democratic reform in the Soviet Union was pursued hesitantly by Gorbachev, who fatally failed to secure Union-wide electoral legitimation for his reforms. The fragmentation of the Union led by Yeltsin resulted largely in a seizure of power by a new set of semi-authoritarian republican elites, who were mostly wise enough to wrap themselves in the forms of democracy while conceding minimal parliamentary control. Even in central Europe, where there was more content to parliamentary democracy than in the former Soviet Union or former Yugoslavia, some authoritarian trends remained. A balance-sheet of 1989-91 in the former Communist states must conclude that it was a very partial and uneven advance for democratic reform.
Elsewhere in the world, there are similar problems in democratic change. Essentially, there are three specific limitations. Many authoritarian states have still hardly seen significant reform. In many - if not most - of those where reforms have taken place, electoral systems are not underpinned by real institutional or cultural embedding of democracy, so that authoritarianism can often be maintained or recreated in democratic guise. Finally, in most states, although civil society has been strengthened, it remains weak compared to in the established democracies, so that it is a poor counterweight to state power.
The second way in which the global revolution remains unfinished is the weak development of globally legitimate authority and institutional frameworks. The United Nations has recovered some of its standing, which was highly compromised during the Cold War, but it is poorly developed as a global authority system. The West, and especially the United States, which remains the real centre of power, refuses to invest resources or authority in legitimate global institutions. There is a deep structural contradiction in a global order which rests not just on national and international forms in general, but so disproportionately on a particular nation-state. United States superiority sustains the deeply embedded national ideology which sees American interests as the arbiter of global change.
The rest of the West, even the rapidly-developing European Union, remains incapable of articulating globalist strategies, institutions and ideologies in a way which can spur the development of a more coherent and legitimate global order. (Although at the end of the 1990s, the world economic crisis and the new ascendancy of social democratic parties in Europe were raising the profile of this agenda a little.) The legitimacy of the Western-United Nations bloc among non-Western elites, and even more populations, is highly variable and problematic. This is not just because of the continuing authoritarianism and nationalism in many states, but also because globally dominant interests and actually existing global institutions offer so very little to most of the worlds people.
In particular, the renewed global institutions remain far too accommodating to states and parties which launch wars. They largely failed to manage the outbreak of new, genocidal wars in the 1990s, and have managed the aftermath in ways which have offered little to victimised populations. The development of international legal institutions, especially the International Tribunal for Yugoslavia and Rwanda and the proposed permanent International Criminal Court, has been important, but slow and uncertain. (The United States has scandalously refused to cede even minimal authority to the proposed court.) Although there is some evidence that the numbers of wars in Europe and the former Soviet area is declining, with the stalemating of post-Cold War conflicts (Smith, 1998), the progress of global order so far offers little hope of any fundamental advance in the control of violence.
The unfinished character of the global revolution is part of the explanation for the problems more commonly associated with globalisation in the literature. The growing integration of the world economy, especially in sectors like finance and communications, poses new problems of management and regulation which are only partially amenable to the control of national state apparatuses, and which the Western state-bloc and its institutions are too slowly tackling. The failure to recognise that a partially global economy requires correspondingly strong global institutions is another sign of the inability of Western elites to provide leadership to worldwide change, despite their pivotal position in the emergent global order. Instability in the world economy is another factor in the instability of state relations and forms in the new era.
This analysis suggests that the global revolution will only be consolidated when a stronger, more coherent new structure of state relations and forms replaces those of the national-international order which is disintegrating. Further major upheavals are inevitable before the global revolution can be consolidated in anything like a stable order, in which conflict is managed institutionally rather than erupting in widespread violence. In this sense, the contradictory relations of democracy and war are likely to continue to mark the history of the early twenty-first century.
On the one hand, there are forces in global state institutions and civil society which are pushing towards the creation of a genuine, stable democracy both within national units and in expanded global state institutions. On the other, there are powerful forces in national states and societies which will continue to use war to counter this democratic revolution, and who will abuse democratic forms to create and legitimate their power. On the evidence to date, the dominant Western state-bloc and its American centre will continue to vacillate between these contending forces, often much more concerned with their own local interests than with global principles. The demonstration that there is a causal link between democratic government within states and peaceful relations between them may support the reorientation of Western - especially American - foreign policy towards the belated promotion of democracy, but it neatly returns the primary responsibility for a peaceful world order to local state elites. In an era when Western leaders are more willing to talk global and democratic than to commit real resources and effort to the construction of global democratic institutions, this may be a reassuring doctrine.
This is a situation in which the equation of democracy and peace is more a historic promise, which we are beginning to realise through global movements and institutions, than a settled pattern which we can identify with established democratic nation-states and their inter-relations. The given historic pattern, indeed, which continues to this day, is one in which democracy has been implicated too often in war, violence and even genocide. Overcoming this legacy, rather than complacently affirming the superiority of Western democratic states, is the real challenge.
Crefeld, Martin van. 1991. The Transformation of War. New York: New Press.
Clausewitz, Karl von. 1831. On War. Edited by Peter Paret and Michael Howard, Princeton: Princeton University Press, 197?
Giddens, Anthony. 1985. The Nation-State and Violence. Cambridge: Polity Press.
Held, David. 1992. "From City-State to Cosmopolitan Governance." Political Studies.
Held, David. 1995. Democracy and Global Order. Cambridge: Polity Press.
Howard, Michael. 1983. The Causes of Wars. London: Temple Smith.
Kaldor, Mary. 1982. "Warfare and Capitalism" in E.P. Thompson, et al, Exterminism and Cold War. London: Verso.
Kaldor, Mary, 1997. "Introduction" in Mary Kaldor and Basker Vashee, eds. New Wars. London: Cassell, 3-33.
Kaldor, Mary. 1998. Organised Warfare in a Global Era. Cambridge: Polity Press.
Kant, Emmanuel. 1796. On Perpetual Peace. Reprinted in Kants Political Writings Cambridge: Cambridge University Press, 1991.
Keohane, Robert and Nye, Joseph S. 1977. Power and Interdependence: World Politics in Transition. Boston: Little Brown.
Levy, Jack. 1988. "Domestic Politics and War" in Robert I. Rotberg and Theodore K. Rabb, eds. The Origin and Prevention of Major War. Cambridge: Cambridge University Press.
MacMillan, John. 1996. Democracies dont fight: a case of the wrong research agenda, Review of International Studies 22: 275-99.
Mann, Michael. 1993. The Sources of Social Power. Vol. II. Cambridge: Cambridge University Press.
Mann, Michael. 1996. "Authoritarian and Liberal Militarism: A Contribution from Historical Sociology" in Steve Smith, Ken Booth and Marysia Zalewski, eds. International Theory: Positivism and Beyond. Cambridge: Cambridge University Press.
Robinson, Wiliam. 1996. Promoting Polyarchy: Globalization, US Intervention and Hegemony. Cambridge: Cambridge University Press.
Rosenau, James N. 1990. Turbulence in World Politics. Princeton: Princeton University Press.
Scholte, Jan Aart. 1996. "Globalization~: beyond the buzzword" in Gillian Youngs and Elaine Kaufman, eds. Globalization. London: Macmillan.
Shaw, Martin. 1988. Dialectics of War: An Essay on the Social Theory of War and Peace. London: Pluto Press.
Shaw, Martin. 1989. ìWar and the Nation-State' in David Held and John B. Thompson, eds, Social Theory of Modern Societies: Anthony Giddens and his Critics. Cambridge: Cambridge University Press
Shaw, Martin. 1997a. "Post-military democracy" in Anthony McGrew, ed, Democracy and Global Transformation. Milton Keynes: Open University Press
Shaw, Martin. 1997b. "The State of Globalization", Review of International Political Economy, 4, 3, 497-513
Shaw, Martin. 1999a. "Historical Sociology and Global Transformation" in Ronen Palan, ed, New Theories of the Global Political Economy. London: Routledge.
Shaw, Martin. 1999b. "War and Globality" in Ho-Won ed, Peace and Conflict. New York: Dartmouth.
Shaw, Martin. 2000. The Global State in the Unfinished Global Revolution. Cambridge: Cambridge University Press.
Skocpol, Theda. 1979. States and Social Revolutions: A Comparative Analysis of France, Russia and China. Cambridge: Cambridge University Press.
Smith, Dan. 1998. "Europes Suspended Conflicts." War Report, 58, February-March, 11-16.
Small and Singer, 1982. Resort to Arms: International and Civil Wars, 1860-1980. London: Sage.
Table 1.
War and democracy in the national-international era and the global transition
|world order period
of warfare
for war
for peace
|pre-national era 1648-1793
|Westphalian European state-system
|limited, mainly colonial, wars
|limited mobilisation capacity
|pre-national monarchical and imperial
|democratic movements revolutionary
|new constitutional orders?
|early national-international era 1793-1870
|early inter-imperial
|revolutionary and counter-revolutionary
national/ imperial
|political mobilisation, but weak economic and social control
|revolutionary national, pre-democratic imperial state
|popular nationalism feeds war
mobilisation; settlers attack indigenous
|origins of liberal-democratic internationalism
|high national-international era 1870-1914
|high inter-imperial
|pre-total war - infrastructures created (industrialisation, mobilisation) - limited wars
|becoming bordered power-containers: growing economic and social control
|nation-state-empires: semi-democratic core, colonial peripheries
|growing democracy as infrastructure for nationalist-imperialist mobilisation
|socialist internationalism
|crisis of national-international order 1914-45
|politicised inter-imperial
|total war, including guerilla war: society as target of war, genocidal - world wars
|statist, emerging total control of economy and society
|politicised nation-state- empires: democratic vs. totalitarian
|used to seize power and launch war (totalitarians); war-mobilisation (democracies)
|victory of democratic allies creates stable democratic order in West
|pre-global transitional era
|Cold War bloc-system
|nuclear arms race and worldwide conflict; wars of national liberation, new inter-state and civil wars
|greater horizontal integration, vertical disintegration - slow loosening of state control
|bloc-states: Western democratic and Communist; Third World nation-states, democratic and authoritarian
|Cold War mobilisation; democracies back Third World wars; settler nationalists resist liberation
|Western bloc internally pacified, but Communist bloc fragments into wars
|global revolution and early global age 1989-
|emergent global order
|genocidal wars of state disintegration;Western-UN global state vs. rogue states and genocidal nationalists
|increasing interstate integration and regulation, decline of traditional welfarism and planning
|emergent global democratic UN- legitimated dominance of Western bloc
|more stable among new democracies slowly integrated into pacified West
|democratic forms harnessed by nationalist nomenklatura, even genocidists
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William Butler Yeats
Through not-surprising inattention, I missed that yesterday was Yeats' birthday. My thanks to Susan T. Landry for the reminder and the poem she shared. In another life, century and state-of-mind, I was a student in Modern Poetry 101. It was there that I met Yeats and there that I was taught the only way to appreciate poetry was to know precisely what the poet meant in every word, phrase, pause, line break and nuance. It should have been called Deconstruction 101 and it nearly ruined poetry for me and me for it. I suspect the baffling process of snipping, with finely-pointed embroidery scissors, all the stitches out of art quilts made of words contributed to a once long-held belief that my brain was not quite equal to the task of participating.
Then, in a new century and with luck the leprechauns would envy, my heart was yanked back to Yeats and others previously unknown. Catapulted into the midst of an ongoing banquet hosted with patience and generosity by poets around the world, I learned that I could appreciate Yeats in my unscholarly fashion and not be wrong. I met a friend, a mentor who invited me to love the words I loved for how they spoke to, how they moved me, as I remained often clueless about the intent or the back story.
Being a day behind the celebrating of Mr. Yeats is a forgivable omission. Surely there are poets born on June 14. We may not know their names; we don't need to. We can thank them in their anonymity for all the ways they make our lives richer, for the fact they may overlook our possibly uninformed personal and emotional responses to their work. Happy Birthday, poets.

subset: commoncrawl


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Late summer means fires to Californians and this year is no exception. Fire season is generally considered to be between August and December. Of course, wildfires don't always adhere to this time frame but the combination of dry conditions and Santa Ana winds are prevalent in September and October.
Fire Hits
Two years ago on an October morning, Mr. Boomer and I had just awakened and were on our first cup of java (so in other words, not really awake) when we heard a knock on the door. We had lived in our "new" home for about six weeks and had met only a couple of neighbors. It was one of those neighbors letting us know there was an evacuation order as she headed for safety.
We turned on the TV and found out that our community was on fire north and west of us. We woke up our son, grabbed important papers (okay, we grabbed the safe but that's where the important papers reside), pets and clothing for a day or so and headed down to another son's home where they graciously hosted us for three days. Fortunately, our home and my office (also in the evacuation zone) were spared but over 350 homes just in our neighborhood were lost.
1. Emergency alert registration. Reverse 911 had been used to notify residents when evacuation orders were given for their area. However, we didn't receive a call. Why? Because we don't have a land line AND hadn't registerd our cell phones with the city's alert system. We registered our cell numbers after the disaster and then again earlier this year when we got new numbers.
2. Prepare. Although we knew there was fire only a few miles away and it was extremely windy the previous night we did not take action. Next time, I will gather important papers, photos and supplies in a central area by the door or in the car. We had enough time to gather things this time but might not if there's a next time. Also, I would take more clothing and supplies than we think we need. I never envisioned we'd be gone three days that morning we drove away from our home.
3. Gratitude. This experience made me grateful in so many ways. Grateful for our neighbor who thought about the new people next door and let us know to leave. Grateful that our home, my office and the homes of so many friends were all spared from the fire. Grateful for the generosity of my son and daughter-in-law for opening their home to us and our pets without a second thought.
Mr. Boomer and I hope to not have to repeat this experience, but in the face of the same type or another natural diaster we feel more prepared. Are you ready for a natural disaster be it hurricane, tornado, flood or fire?
Photo by Jon Sullivan
Content © Bucksomeboomer 2009. All Rights Reserved.
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Patent Infringement in Germany – a Comprehensive Guide
Curious about patent infringement proceedings in Germany? Don't know where to sue your competitor? German courts decide more than half of all patent infringement cases in Europe and more than 10 times the cases compared to the UK. Do you want to know why?
This is a very extensive guide on patent infringement proceedings in Germany – both for the plaintiff and the defendant. Here is a brief outline of the article for better navigation:
- Patent Litigation Statistics in Europe
- The Plaintiff Before the Complaint
- The Defendant Before the Complaint
- The Plaintiff After the Complaint
- The Defendant After the Complaint
- Does it Help to Have a Lot of Patent Claims
- Patent Prosecution History Estoppel
- Tailormade Scope of Patent Claims for Patent Litigation
- Conclusion
Patent Litigation Statistics in Europe
In this section, I will dive into some interesting statistics on patent infringement in Europe. The full details of this section have been published in an article of the magazine The Patent Lawyer in the March/April 2015 issue, which I had co-authored with Dr. Thomas Kuehnen, presiding judge of the patent infringement chamber of the Higher Regional Court of Duesseldorf, which is the most busy court for patent infringement in Europe (Kuehnen/Claessen "The enforcement of patents in the EU", The Patent Lawyer, March/April 2015, p. 15; also Kühnen/Claessen, GRUR 2013, 592). Our office is only around 25 km away from this important court.
Out of about 2,000 patent infringement cases, more than 1,200 cases are handled by German courts. For comparison, Great Britain has around 50 yearly cases and France, as the second most important country, has a little less than 300 cases per year. And there are actually 14 countries in the EU where there are no patent infringement cases at all.
What makes Germany so interesting for plaintiffs? First of all, the first instance ruling is typically delivered within a year. The second instance takes only one more year. And if people choose to try the third instance, the Federal Court of Justice in Karlsruhe, it will typically take another 3 years on average. All three instances in 5 years are very quick in comparison with the other EU countries. Another reason may be the comparatively low cost. The losing party has to refund the costs of the winning party and these costs are capped by law. The typical cost risk for the first instance for lawyer fees of both sides and court fees together is about 60.000 to 100.000 EUR, depending on the value of the case.
As for the first instance, the Regional Court of Duesseldorf handles around 500 cases per year. The courts in Mannheim is at around 265, the court in Hamburg is handling around 180 cases and the court in Munich handles around 150 cases. Other important courts are Nuremberg, Berlin, and Frankfurt. These numbers are dated 2011.
One interesting fact is the birfurcated system in Germany. The patentability is handled by the Federal Patent Court in nullity actions or by the German Patent and Trademark Office.
The Plaintiff Before the Complaint
You found out that a competitor is selling or producing your patented product in Germany? In this section, you find out what you can do as a plaintiff to maximize your chances in a patent infringement case in Germany.
So you start of course by collecting evidence. The biggest difference between Germany on the one hand and the UK and France and the US is that you have limited discovery abilities. If you have a method or process claim, you can ask a court for preliminary injunction with an aim to inspect the process or the method of a potential infringer. But you cannot do that by yourself or by your attorneys. You have to send an independent court expert and you have to give the court expert some homework on what exactly to look for. So for example: to press buttons on different machines, or to look at the recipes, or to have a USB stick inserted into computers and copying the relevant files for the method or process. So the possibilities are quite limited and you have to make sure that you are aware of this. In some instances, you can use discovery evidence from other countries and litigation proceedings. If you have already done some discovery in, let's say, the UK or in France, or in the US, you can in some cases use that evidence in Germany as well.
Typically, first you want to send a cease and desist letter. You do that to avoid a cost risk. You have to know that in Germany the loser pays all costs. So if you lose your case, then you have to pay the attorney and court fees, also of the other party. So to limit that risk, you should file a cease and desist letter first because even if you win, and the potential infringer says in court "well they didn't warn me – if they had warned me I would have immediately stopped", then you get a positive decision by the court but you have to bear all the costs of the procedure. To avoid that you would send a cease and desist letter.
You may want to set a quite short timeframe, like one week, which probably the shortest fair period that you can use. Sometimes I also use two weeks, to be fairer. But one week is probably the shortest in patent cases because patent cases are quite complicated cases.
So if you want to stop somebody immediately you can do something that is particular to Germany. You can file a request for preliminary injunction. Typically that is used with designs or trademarks, but that works for patents as well. Sometimes these requests are granted. You have to understand that a preliminary injunction means that you file a request with a court and within sometimes one day, two days or three days, the court decides, that the potential infringer has to stop selling, producing, or offering the product in Germany immediately. So that is a quite a sword that you can use, a weapon. And if you are wrong, you have to pay a lot of damages. So you have to really be careful whether you want to use this weapon. Also, it's difficult to convince the courts, since patent cases are quite complicated, and also the validity of the patent is not always clear. Some courts are granting preliminary injunctions. So you can try. You cannot be sure that you get this granted at least not without oral proceedings, hearing the other party.
Then preparing the complaint is quite similar to other legislation. When I became a patent attorney some time ago, I did an internship with the judges in Dusseldorf – the patent judges. And I found out how they deal with patent infringement cases. How they assess patent infringement. And one tool they use is the following. They mark the claim with colors – the features in the claim with colors. Then they get a figure, depiction, or an image of the infringing product, and mark the corresponding features in the infringing product with the corresponding color of the claim, to understand, whether something is infringing or not. So if you can provide this marked up claim with the corresponding depiction to the judges with the complaint, that probably helps your case, because you can use the colors as you would like the judges to use the colors. So you can basically mark the features in the infringing product the way you would like the judges to interpret the claim. I have an example in the video.
Then, last but not least it's important to know where you want to file your complaint. Each state in Germany has defined one or two courts, where you can file patent infringement complaints. And I already mentioned that only a couple of courts have a lot of experience, for example, Dusseldorf, Munich, Mannheim, and Hamburg. The other courts do not really have a lot of patent infringement cases. On the other hand, you have to know that the larger and more important courts, as I've mentioned, also have a quite quick turnaround. Typically you'll get your first instance ruling within one year. And a second instance ruling within another year.
The Defendant Before the Complaint
An example: you are launching a new pharmaceutical product in Germany and there is a patent that you are aware of that is very similar to your product. Then you might want to take precautionary measure to increase your chances of success in potential patent litigation in Germany.
What do you have to fear as a potential defendant in a patent litigation case in Germany? Of course, there can be a complaint but also more importantly in Germany, it is possible to get a preliminary injunction for plaintiffs on a very short notice. So, a plaintiff can request a preliminary injunction with a court and the court might decide within one, two, or three days to issue a preliminary injunction and you would have to stop offering, producing, or selling your product immediately. Then there is – of course- the chance that you get a cease and desist letter.
One strategy can be that you search for prior art and see whether you can invalidate the patent. In a first step, you do not really have to file any invalidation proceedings with the Bundespatentgericht, the Federal Patent Court, or file your arguments later in the patent litigation case. Rather you can basically make a draft for a cancellation action against the patent and you can send this draft to the patent owner and ask them for a free right to use the patent in exchange that you do not attack the patent with the enclosed draft. If you have good prior art and good arguments, the patentee might start discussing with you. The patentee, of course, wants to keep the patent to be able to go after other infringers. They might give you the right to use the patent and not file any complaint against you. This strategy, of course, has its weaknesses. If you are asking the patentee, then you are basically telling the patentee that you are possibly infringing their patent. So, you have to be very sure. It has to be a quite clear case that you can invalidate the patent. Otherwise, it would not be really useful to use this strategy.
What can you do to counteract the preliminary injunction? You can file a protective letter ("Schutzschrift") with the relevant courts and the electronic registry for protective letters in Germany. In this protective letter, you would outline your arguments against patent infringement. So, basically non-infringement arguments and invalidity arguments against the patent – just enough to make the court think twice before issuing a preliminary injunction. Keep it to the point. Keep it concise. Keep it under 20 pages if possible. I have discussed with a couple of judges that they do not really like too many pages. So, if you can keep your protective letter short, it is probably a wise decision.
If you are aware of a patent that you could be infringing, then file a protective letter with the respective courts before launching a product or at the latest at the launch date.
Then finally, think about instructions to the people at the doors of your premises. In Germany, it is also possible to have some limited way of discovery, a discovery process, where an independent court expert can appear at the doors of your offices or manufacturing locations or research facilities and they can request to look at your product or especially your process and methods that you are using. The people at the door might not be well prepared to handle this kind of situation. So, before launching a new product, you might want to make a one-page information, not more, for the people that are guarding your doors of the different locations, where you basically state in case that there is an independent expert from the courts what they would have to do. For example, let them ask for their permit, the permission by the court that they can search your facilities. If they do not have that permit, then they would have to go back to the court and ask for that permission to enter the premises. Then you can ask them for two hours time to wait until you have an attorney on site. Then, of course, you want to ask the doorman, the person at the door, to seat the independent expert in the waiting room until the attorney is there and watch the independent expert. There may be other very useful instruction. Just send us a quick email for more information.
The Plaintiff After Filing the Complaint
First, I want to give you an overview of the overall procedure. There will be a first short hearing which will last only about five to 10 minutes and in this first hearing, the requests of the parties and especially the defendant will be heard and the dates will be set for the response of the defendant and the replication of the plaintiff and then, of course, the date for the main hearing will be set. So, in this first hearing, do not expect too much. It will just be five minutes where the judge basically just asks the parties for their requests and where the judge will set the different time limits and the dates.
So, what can you do before a court in German patent infringement cases? Maybe some general remarks. The judges really do not like to read more than about 20 pages. So try to be concise, try to be brief. Do not use font size below 10 points, preferably a little larger. Do not use single space lines. Give the lines a little room to breathe. Do not set the margins to two millimeters – leave some margins. That is especially important because the judges like to make notes on the margin. So leave them some room for them to make notes in your submissions.
Then you would have to file translations for anything that is not German, so that is important because otherwise the material cannot be used or may not be used.
And then there is another specialty in Germany. As you may know, the costs for the attorneys and for the court are set by the value of the case. They are defined by the Attorney Remuneration Act (Rechtsanwaltsvergütungsgesetz) and so, if your client asks you to be less expensive, then, of course, you could just use a very low value of the case. But that has backfired a couple of times in the past. So judges have said that "You Shall Not Lie", especially judge Thomas Kuehnen. In Dusseldorf, there were several decisions that there named "You Shall Not Lie". So do not use a value of the case that is much lower than it should be. Otherwise, the judges will just set the value of the case maybe to a much, much higher value.
So, how does the main hearing go? In the main hearing, the presiding judge will give you the preliminary opinion of the court, and he will also lay out the points that are of interest to the court. In your pleadings, stick to these points. That is my suggestion. Because otherwise, you are boring the court. The court wants an answer to exactly these points, so be kind to the court and focus on these points. If you really think there is one or two other important arguments, then go ahead and also argue these points. But be sure that you watch the judges whether they appreciate these additional points that you are making. The main hearing will last probably one to three hours and maybe some experts or witnesses are called.
One thing you have to know that there can be literal infringement and infringement under the doctrine of equivalence. So if you are the plaintiff, then you want literal infringement. Try to find good arguments for literal infringement. Otherwise, it might be easier for the defendant to evade a favorable decision for the plaintiff.
One other point that is important in Germany: the judges in patent infringement cases do not really judge about the patentability of the patent, the validity. So they will decide on infringement. The validity of the patent will be decided by the Federal Patent Court. So in some cases, the judges will stay the proceedings if there are parallel revocation proceedings. And sometimes they do not. So that would be good luck for you as a plaintiff.
The Defendant After Filing of the Complaint
In the previous section, I gave you some general remarks and tips about the overall procedure and the hearings and the different deadlines. So if you want to know more about that and tips, general tips about patent infringement in Germany, then go to the previous section.
What can you do as a defendant? First of all, you can ask for the security of costs for non-EU plaintiffs. That can be very efficient. If the plaintiff cannot deliver this security, then the whole case is moot. You can also immediately acknowledge all claims of the plaintiff if the plaintiff did not warn you or send a cease and desist letter. Then the costs of the whole proceedings will be shifted to the plaintiff.
Of course, you can challenge the validity of the patent with opposition proceedings or a revocation action ("Nichtigkeitsklage") before the Federal Patent Court. That can be very efficient. The German system is bifurcated. So sometimes, the infringement court will stay the proceedings until there is a decision in the revocation action.
One other strategy is about making the judges limit the scope of the claims to the basically the drawing or the example given in the patent. You have to know that some judges are coloring the features in the claim and also in a depiction of the infringing good. They may be marking the features in the infringing good with corresponding colors. You can get a drawing from the patent, where the features are shown and color them in the corresponding colors of the colors that you used in the claim for the various features. Sometimes the court will use these drawings to interpret the claims. And then, naturally, sometimes the interpretation of the claims will be very narrow. So that can help you as well.
One other defense that I want to mention is the so-called Formstein defense. If you are working within the prior art, you cannot literally infringe a patent. That has been decided by the Federal Court of Justice in Germany a long time ago. So if you find yourself working within the prior art – you find a good piece of prior art that exactly describes what you're doing – then maybe you can defend yourself with the Formstein defense.
Then another strategy is to find good arguments to move the argument from literal infringement to infringement under the doctrine of equivalence. That way you will have a lot more room for arguments to avoid a favorable decision for the plaintiff.
Does it Help to Have a Lot of Patent Claims
A lot of patent claims generally do not help, except maybe during prosecution. In this section, I will look into three different stages in the lifecycle of a patent: prosecution, validity challenges and enforcement. I looked at over 13.000 opposition cases and will present the first findings from this analysis.
In my opinion, the only stage where a lot of patent claims may help is the prosecution. The European Patent Office sometimes objects to a certain combination of features in claims that are supposedly not clearly and unambiguously disclosed in the application as a combination. Due to multiple dependencies in claims, you could just draft claims for all possible features and then have the perfect ground for combining any feature with any other feature. However, as you see later, a lot of claims can also have drawbacks.
Let's look at the opposition stage. I have looked at over 13.000 random opposition cases at the EPO and analyzed them with regard to many parameters, such as the number of claims, length of claims, country of the representative, priority country, and about 100 more parameters. I will talk about other parameters in future videos. As for the number of claims, I found the following:
Oppositions are rejected in 17% of all cases, if the number of claims is 21 or more, whereas the opposition is rejected in 25% of all cases if the number of claims is 2 to 10. On the other hand, the patent is maintained in amended form in 38% of all cases, if the number of claims is 21 or more, whereas the patent is maintained in amended form in 29% of all cases, where the number of claims is 2 to 10.
As you may know from your experience, opponents may allow maintenance in amended form, if their own products would not fall into the scope of the amended claims. Many claims offer more choice to amend the patent in opposition proceedings.
And in litigation? Well, the single most important claims are the independent claims, as they determine the scope of the patent. The dependent claims can also play a role, but are sometimes even a hindrance for the patentee, since the independent claims are sometimes used to interpret the independent claims. In my personal view, a valid patent with only a small number of claims is the best.
Patent Prosecution History Estoppel
In this section I explain
- What is prosecution history estoppel?
- What was the case law until June 2016?
- What is the new case law in Germany?
Wikipedia has a very concise and nice definition of prosecution history estoppel: prosecution history estoppel, also known as file-wrapper estoppel, is a term used to indicate that a person who has filed a patent application, and then makes narrowing amendments to the application to accommodate the patent law, may be precluded from invoking the doctrine of equivalents to broaden the scope of their claims to cover subject matter ceded by the amendments. That means that if an applicant has limited the claims from fastening means to screws in prosecution, the applicant will not be able to invoke the doctrine of equivalents to also cover nails. This seems to be the current position in the US.
So what was the case law in Germany until June 2016? In 2002 the Federal Court of Justice in Germany issued a decision called Kunststoffrohrteil (X ZR 43/01), which basically stated that anything that happened before the grant in the granting procedure cannot be used to determine the scope of the claims during litigation.
However, in June 2016, the Federal Court of Justice in Germany took a slightly different approach in their Pemetrexed decision (X ZR 29/15). In this particular case, the court decided that under the doctrine of equivalents the claim cannot cover alternatives to a feature in the claim if these alternatives are mentioned in the description but have not been included in the claim. In the particular case, the applicant had limited a broader term "antifolate" to the specific compound disodium pemetrexed, because the examiner was of the opinion that the broader term was not supported by the examples and could not be generalized for the specific amounts.
So be careful when drafting patent applications for Germany or Europe to offer a variety of more specific alternatives as a replacement for broader terms. Also, try to keep this decision in mind when prosecuting your patent application in Germany or Europe.
Tailormade Scope of Patent Claims for Patent Litigation
Wouldn't it be great to have an individually tailored scope of patent claims for each single patent enforcement against competitors? In Germany, this is not impossible. This is how it is done:
This strategy only works for product claims within the first 10 years of the lifecycle of a patent. You file a German patent application with a very broad claim 1 and as many different features in the claims and description as possible. You do not request examination until the latest possible date 7 years after filing. Then you keep the patent application pending as long as you can without being granted or rejected.
In Germany, you can derive a utility model from any product claim of a pending German patent application. If you see a competitor to copy your technology in their own products, you make a test purchase of the product and see, what exact features of your claims are infringed. Then you derive a utility model with a claim 1 including all disclosed features that you identified that are infringed. This claim covers the infringing product but is very narrow. Therefore, it will be very difficult for the infringer to invalidate such a claim with the prior art.
I hope that this compresensive article gave you a good overview of patent infringment proceedings and patent litigation in Germany. If you have any any more specific needs, feel free to contact us any time via email or phone (+49-211-159249-0).
I wish you success for whatever you do!
Rolf Claessen


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Doubt me? Think I am prevaricating or exaggerating? Well, check out this little tidbit on the dynamic duo's Earth Day plans:
"On a day when many Americans will be reflecting upon how they can reduce their impact on the environment, President Barack Obama and Vice President Joe Biden will board separate jets in Washington on Earth Day morning to fly 250 miles up the east coast to New York, where they will land at separate airports to attend separate events within a few miles of each other."
In what has to be the epitome of arrogance and self-importance for these clods who have spent a lifetime suckling at the public teat, foraging for their daily crust at the public trough. Now they shamelessly flaunt their incredible privilege in some specious observance of a new-age festival to the Gods of Spring, Mother Earth, and all of their golden-haired Eloi, sycophants frolicking in the sunshine and eating the fruit produced by we hard-toiling, subterranean Morlocks. As the article mentions, it inconveniences those who ply the routes of commerce and attempt to wring some precious farthings from an economy already brought to its knees by these oblivious, sawdust-headed, know-nothings:
"The parallel visits of Air Force One (a 747/VC-25 aircraft) and Air Force Two (a 757/C-32A aircraft) will delay dozens, if not hundreds of commercial flights at Kennedy and LaGuardia and other nearby airports as no-fly zones are implemented. Jets will be forced to circle and burn more fuel as they wait for the VIPs to come and go. Their security contingents consisting of dozens of cars, SUVs and helicopters will burn even more. Throw in thousands of commuters' cars and delivery trucks sitting idle in traffic as law enforcement closes large swaths of the city and you have yourself a very Earth-unfriendly day."
As if this alone hasn't been a hand full of sand poured down your jock strap, Slow Joe adds a few sand crabs in their for good measure:
"Thursday's dual jaunt seems especially egregious considering the frivolous nature of Biden's visit, in particular: He'll be yukking it up with Whoopi and Barbara as a guest on The View. Not sure what he'll be talking about, but you can be certain that whatever he has to say could be done just as effectively using a video camera and satellite hookup from the White House."
Of course, there's the old saw about Biden and Obama both being on the same plane and it taking a hit, leaving our nation with a gaping hole in its leadership..
..and, speaking of gaping holes, where is Nancy Pelosi these days, anyway?
Come to think of it, Clinton wasn't all that empathetic either. Do you remember his getting his locks shorn on Air force One while all of the traffic at LAX was forced to orbit?
Of course, The Pantload and his dummy sidekick will return to D.C. in the afternoon, fouling up the evening commute for all the hard-working denizens of the Big Apple.