THE NEED FOR NEW PRINCIPLES

 

The most significant challenge facing the peacemakers, however, was neither instrumental nor political. This was the challenge posed by the loss of customary legitimacy by the ancien régime. In a previous work21 Calabresi and I have suggested that one way to look at the different cultural institutions that societies use to address social issues is in terms of four paradigmatic allocation methods: economic, political, customary, and blind. These four methods function in part to resolve and in part to hide the conflicts in values that arise from contested allocations of resources and from the difficult choices among values that are thus forced on societies. Lottery (or “blind”) systems share with customary systems the virtue of avoiding any overt consideration of the competing merits of different choices.22 Dynastic legitimacy united these two paradigmatic methods, custom and chance, so that, unless the dynastic succession were unclear, societies did not have to expose the values they would have had to compromise in an open competition of preferences to choose a ruler. The civil wars that so often accompanied succession struggles are a testament to the divisions that are exposed when such a clash of values is brought into the open. Talley rand believed that “the usual and almost inevitable consequence of an uncertain right of succession is to cause domestic or foreign wars and often both simultaneously.”23

Succession by dynastic descent is a blind allocation system, a choice by the society not to actually choose. Like men drawing straws to see who will go on a perilous mission, it leaves the selection to fate. There is much to be said for such systems: juries; the Dalai Lama, whose time of death determines the time of the birth of his successor; and the holders of entailed wealth are all chosen in this blind way. If this method, however, is stripped of its reliance on divine intervention—the claim that lot systems, by their very randomness, allow God's will to be done without adulteration—then the blind system can appear irrational and the very mindlessness that originally commended the system discredits it.

What perpetuated the system of dynastic succession beyond the era of the kingly states and into the period of territorial states, which was dominated by rationalism, was the union of blind allocation with another archetypal allocative system, custom. Whether or not monarchies—leadership by a lottery among royals—would be perpetuated into the period of state-nations depended upon whether they could call on resources of legitimacy that were sanctified by custom. Talleyrand here too saw absolutely clearly what was at stake:

I speak of the legitimacy of governments in general, whatsoever be their form, and not only of those of kings, because it applies to all governments. A lawful government, be it monarchical or republican, hereditary or elective, aristocratic or democratic, is always one whose existence, form, and mode of action, have been consolidated and consecrated by a long succession of years, and I should say almost, by a secular prescription. The legitimacy of the sovereign power results from the ancient status of possession, just as, for private individuals, does the right of property.24

 

Denied the union of custom and chance that aided the territorial states, the Congress of Vienna invoked three crucial interlocking norms in order to confer legitimacy upon its undertakings. These norms were the balance of power, the general interest of the society of European states, and the special interests of the prevailing constitutional archetype.