Contemplating the black flag of Islamic State that flies over Fallujah in Iraq and Palmyra in Syria, my mind irresistibly returned to an essay in the New York Review of Books in 2008 that archly observed, “It seems more a matter of rhetoric than reality to claim that the epochal struggle of the 21st century concerns whether ‘consent’ or ‘terror’ will form the basis for legitimate governance. Does anyone truly believe that citizens throughout the world are undecided over whether they would prefer to be governed by consent or terror?”

How far we have come since those words were written. The international order that so confidently expanded the G8 to the G20, that continued the enlargement of the European Union to 28 member states, that brought about the first democratic elections in Iraq and Afghanistan despite harrowing terrorist intimidation, that increased the membership of Nato to include not only former members of the Warsaw Pact but even the Baltic states that had been part of the Soviet Union, and that created the Association of South-East Asian Nations and brought China into the World Trade Organisation is now shuddering and fragmenting.

What has transpired in this short period? The foundations of a global financial system on which international trade and development depend almost collapsed in the biggest economic downturn since the Great Depression, shattering confidence in the stability of that system, and although the leading economies have largely recovered the positions that they held in 2008, there is no assurance that an unpredictable and more total collapse will not confront states whose monetary policies have little room for adjustment.

The US administration’s pivot away from engagement in the Near East and south Asia has brought forth the creation of Islamic State in Syria and Iraq and its metastases elsewhere, as well as the resurgence of the Taliban in Afghanistan. For the first time since Saddam Hussein’s invasion of Kuwait, a member state of the United Nations has been invaded and its territory annexed in contravention of the most basic principles of the UN Charter. The Budapest Memorandum by which the territorial integrity of Ukraine was guaranteed by the US, the UK and Russia has been violated with the same insouciance that characterised the treaty violations of the 1930s. After the P5+1 group of world powers (China, France, Russia, the UK and the US; plus Germany) reached a nuclear agreement with Iran, Iran chose to violate UN Security Council resolutions forbidding the testing of long-range ballistic missiles.

The Arab spring, which seemed to validate the rising tide of democratic governance, has washed away regimes and left in its wake societies that are more riven, more violent and less governable than before, mocking the efforts of western states that sought to place themselves at the forefront of this tide, only to have it ebb and withdraw beneath their shifting feet. A great civil war has begun between the two historic forms of Islam championed by Saudi Arabia and her allies and Iran and its clients, with the consequence that as many as 250,000 people have died in Syria and 4.5 million persons have become refugees.

Europe has experienced as a consequence the largest movement of refugees since 1945. The financial stability of the EU that was so tested by the Great Recession now must compete with the physical stability of the union’s borders as the cause that may undo the most promising constitutional reform of the postwar period. Even Britain, which should be leading the EU away from the unimaginative fantasies of a superstate and towards greater devolution and inclusiveness, is instead contemplating leaving the union altogether, with incalculable consequences for the future of Europe.

Governance in the US has reached such a depth of self-confidence and stature that only 11 per cent of Americans profess any trust in the US Congress, a percentage that is lower than that of the number of people in the country who believe that the 9/11 attacks were orchestrated by their government. An otherwise mild-mannered and sober US president has felt compelled to resort to executive orders rather than statutory action from Congress and has, in effect, nullified the enforcement of much federal immigration law. And the leading Republican candidate for the presidency, Donald Trump, is a bombastic bully who would be, if elected, the only person ever to have achieved the presidency without having served a single hour in public service.

***

It wasn’t supposed to be like this. In 1990, I had just entered the US government to serve as the state department’s counsellor on international law. It was a heady time: the sudden withering away of the Soviet state, the peaceful unification of Germany and the three-part brace of East-West agreements – the Moscow and Copenhagen Declarations and the Charter of Paris – all promised that the liberal democracy and free markets to which those agreements committed their signatories had triumphed. It was generally expected that this triumph would, in Henry Kissinger’s words, “automatically create a just, peaceful and inclusive world”. It was a time, as Czesław Miłosz put it, “when everything was fine . . . and the Earth was ready . . . to consume and rejoice without creeds and utopias”. The cruel dialectic among states and ideologies that had churned out history had ceased; promoting prosperity, democracy and human rights would eclipse concerns about violence and conflict.

Writing in these pages in the aftermath of the Paris attacks, the philosopher John Gray criticised the assumption that liberal, democratic values were self-reinforcing and would automatically win the allegiance of peoples everywhere. Gray’s essay concerned the nature of the state and, most pointedly, its principal duty to protect its citizens, a duty that seemed to many in 2008 little more than a police function. Yet no constitutional order can withstand a failure to protect its citizens: either the public will turn on its state and demand a constitutional change, or outside forces will exploit the state’s weakness and subordinate that state to their will. It is surprising, however, how little attention there was to such matters in 2008 and still less in 1990, when the environment of the 20th-century state irreversibly and profoundly changed.

The assumption that Gray attacked depended in part on the unquestioned structure of the international order of states. In Europe, the sense that the EU would steadily bend the constitutional order of its constituent countries was but a fractal of the larger 20th-century assumption that Westphalian sovereignty, which had spread throughout the world following decolonisation and the absorption of China into the international system, had created the foundations for a 21st-century peace and ever-increasing prosperity. Now, Henry Kissinger has concluded, “The state itself is under threat.”

And all this time, what was I doing? In Miłosz’s words,

Surrounded by the books

Of prophets and theologians

Of philosophers, poets,

[I] searched for an answer,

Scowling, grimacing,

Waking up at night, muttering at dawn.

What oppressed me so much

Was a bit shameful,

Talking of it aloud

Would show neither tact nor prudence.

It might even seem an outrage.

For I had come to believe that most of our assumptions about the state, its past and its future were deforming our understanding and I was increasingly apprehensive. What were some of those assumptions?

● That the state system – the international order – determined the constitutional order of the states of which it was composed and that, since Westphalia, this has been more or less fixed as the nation state.

● That the security of the state depended on the security of the larger system and if the latter were infused with the ideals of the triumphant liberal democracies, the security of the democracies and of the system as a whole was assured.

● That the threat to the state lay primarily in the unrealised domain of its ideals and thus the requirements of citizenship chiefly consisted in asserting rights against the state, the consequence of which would be an increasingly benevolent domestic environment.

● That the remaining, unresolved international conflicts were largely regional in nature and posed no fundamental challenge to the international order.

● That the great challenges before that global order – climate change, inequality and poverty – largely enhanced the momentum towards international cohesion, without which these challenges could not be met.

To see why these generally unquestioned assumptions are mistaken, and to appreciate the consequences of these mistakes, we must examine the fundamental cosmology of the state, the history of the European, classical idea that re-emerged during the Renaissance as a neoclassical ideal. The origin narrative with which we have lived for so long continues to cloud our appreciation of the nature of the state and the dynamics that govern its unfolding evolution.

The creation myth of the modern state goes something like this: after a brutal period of sectarian conflict that culminated in the Thirty Years War of 1618-48, the exhausted participants, meeting in two separate conferences, produced the Peace of Westphalia. The centrepiece of these treaties was the provision cuius regio, eius religio (“He who rules, his religion shall prevail”). The consequence of this attempt to cut the Gordian knot of sectarianism that had bound the once unified Roman Catholic Church to a series of sporadic, non-contiguous but enduring and punishing conflicts was the territorialisation of sovereignty. Whereas the sovereignty of the medieval ruler had been personified in a prince, sovereignty was now to reside in a defined area determined by the prince’s control and, as a result of this authority, the sectarian coloration of its people. Protestants and Catholics were allowed to migrate to states with sympathetic rulers.

The myth asserts that a balance of power was brought into the relations among European states with a multiplicity of states, no one of which could dominate the others, and each in pursuit of its own political and cultural values. Thus, the myth concludes, was born the nation state.

***

Like many an ancient pedigree, this one has served to legitimate the nation state with a spurious lineage. In reality, the crucial diplomatic innovation – cuius regio, eius religio – is first found in the Peace of Augsburg, a century before Westphalia. The significance of this is that while the Peace of Augsburg did territorialise states and, taken with another agreement four years later – the Peace of Cateau-Cambrésis, which ended the decades-long conflict between the Hapsburgs and the Valois – provided Europe with a novel constitutional order that superseded feudalism, that order was certainly not the nation state. The subjects of the princes who ruled the first modern states were not categorised by nationality but by religion.

Beginning a pattern that has continued to the present day, a series of conflicts were brought to a close by a grand peace conference – in effect, a constitutional convention for the society of states – that legitimated a particular constitutional order by giving it recognition in a peace treaty. So it was at Augsburg, at Westphalia, at Utrecht, at Vienna and at Versailles. Each time, an epochal war was ended by an international constitutional convention. Each time, a new constitutional order challenged the prevailing order ratified in the previous conference. And each time, the more strategically dynamic new order prevailed in conflict and thus prevailed in law.

This rendering of the evolution of the modern state is crucial because if we unthinkingly assume that the only constitutional order we have known since feudalism is the nation state, we will be dead to the idea that our present constitutional order is being replaced and that the wars into which we are now entering will have a constitutional impact, challenging and reframing the international order.

We do indeed live in industrial nation states but that is a constitutional order that arose in the US and Germany in the latter half of the 19th century, one that superseded the imperial state nations that had dominated Europe and the world from the end of

the 18th century. The concept of a legitimating balance of power was enshrined in the text of the Treaty of Utrecht in 1713 that brought the well-tempered order of territorial states to pre-eminence (and not at Westphalia).

The importance of this is that it takes a system composed of territorial states – run by aristocracies, fielding highly professionalised armies, engaged in careful and limited cabinet wars – to maintain a balance of power. The state system that superseded territorial states, which was recognised at the Congress of Vienna, introduced a new operating apparatus, the Concert of Europe; this, in turn, depended on the collaboration of imperial state nations (the first states, by the way, to unite nationalism

and the state).

These taxonomies are of far more than simple historical interest. They show that certain kinds of arrangements by which an international order is maintained depend on the nature of the constitutional order of the states that the international system comprises. It is as idle to ask that our contemporary system of states operate on the principles of earlier constitutional orders as it is, for example, to propose that we bring back “trial by battle”, the resolution of a political conflict by a single battle to replace the complicated and destructive strategies with which modern states wage war.

Moreover, appreciating this periodicity in the evolution of states allows us to identify the fundamental dynamic of state change, which lies in the relationship between legitimacy and power – that is, between law and strategy. Sometimes, the impetus for change comes from the constitutional side of this equation. This was the case when the French Revolution made impossible the war-fighting of the territorial state that it destroyed and thus ushered in the strategic innovations of mass conscription and the Napoleonic campaign.

The impetus can come from the other direction, as when the introduction of French artillery destroyed the viability of the rich, weak, walled cities of Italy. It was the French invasion that inspired Machiavelli’s passionate call for a neoclassical state to withstand the powerful monarchs who had taken the Italian plain. The phenomenon is not a linear one: rather, there is a constant two-way relationship between innovations in the constitutional make-up of societies and in the strategies by which war is fought.

Thus the watermark of any particular constitutional order is its claim to legitimacy and its ability to sustain its power militarily. The nation state’s claim to legitimacy resided in its promise to improve the material well-being of its citizens. David Lloyd George and Franklin D Roosevelt said this, but so did Vladimir Lenin and Adolf Hitler, for they were all leaders of the same fundamental sort of state.

The constitutional order of the industrial nation state brought us the mass voting franchise that included not only propertyless males but females as well, old-age pensions and unemployment compensation, free mass education, the public funding of science, state-owned enterprises such as airlines, railways, telecommunications and other national industries, and also total warfare – that is, warfare against civilian national peoples. Because we have lived for a century in nation states, we even use the words “nation” and “state” interchangeably but this is a solecism. Many nations – the Kurds, the Palestinians, the Cherokee – do not have states. And the current constitutional order of the industrial nation state is not as favourable to nationalism as the emerging constitutional order that is challenging it.

At present, the constitutional order of the industrial nation state faces a number of threats to its claim for legitimacy. These include a global system of communications that will increasingly prevent any nation state from managing its own culture, penetrating every society and enabling social networking that bypasses national cultural institutions; a global system of trade and especially finance that prevents any state from controlling its national economy and that is bringing a heightened vulnerability to the financial security and stability of every state, increasing the power of markets to assess and even determine the viability of each society; a global system of international human rights that pre-empts the laws of each national society and has been the basis for armed attacks on states that posed no particular threat to any other state but had viciously and unlawfully attacked their own peoples; transnational crises, such as Aids and Sars, climate change and the development of global, non-national terrorist networks from whose threats no state can hide, nor can it arrest by its own efforts; and finally the commodification of weapons of mass destruction whose essential components are sold on a clandestine market or simply downloaded off the internet, such as the information by which benign viruses can be made into deadly human pathogens.

None of these dangers is unknown. What is missing is not information but a recognition that these are threats not just to a particular state but to the state itself and thus to the contemporary international order that is built out of those states. Ironically, each of these five threats is a result of the strategic innovations by which the liberal democracies won the Long War of the 20th century, a conflict that began in 1914 and lasted until 1990.

Like earlier epochal wars – the wars of the Hapsburgs and the Valois, the Thirty Years War, the wars of Louis XIV, the Napoleonic Wars – the Long War of the 20th century was composed of various conflicts that to the participants seemed to be separate struggles. The First World War, the Bolshevik Revolution, the Spanish Civil War, the Second World War, the wars in Korea and Vietnam and the Cold War can be seen in retrospect, whatever their individual causes, to have implicated the legitimacy of the industrial nation state. Would the legitimate form of the constitutional order that replaced the imperial state nations of the 19th century be fascist, or communist, or parliamentary? We have answered that question. But in so doing, the strategic innovations by which the answer was given – the development of nuclear weapons, the creation of a relatively stable system of relatively free trade, the invention of electronic communications and information systems, the establishment of an international law of human rights and the outlawing of conquest, and the pursuit of wealth without heed of the environmental and cultural consequences of that technologically supercharged pursuit – now have brought new questions that call into doubt the legitimating basis of the state. What industrial nation state today can say that it is capable of delivering to its citizens the security, prosperity and the decent physical and cultural environment that they demand?

I have written elsewhere and at some length about my conception of how the constitutional order is already changing and I have deplored the lack of imagination or even interest in the emerging market state that is deforming our politics and paralysing our military and diplomatic strategies.

Except for a few thinkers, however – Rowan Williams, the former archbishop of Canterbury, Robert Cooper, the distinguished British diplomat, and recently Henry Kissinger – there has been little reflective interest in these conjectures, though to be fair they have been widely commented on and often flatteringly. So I will not tax the readers of the New Statesman with a rehash of my theories about the emerging constitutional order of the market state. Instead, let me turn to how one country, the US, and its quite brilliant young president have tried to cope with these challenges in the absence of a new conceptualisation.

***

First, Barack Obama built his successful campaign in the Democratic primaries against Hillary Clinton in 2008 on what he would not have done – the armed intervention that removed Saddam Hussein from power in Iraq. Countless times, as a candidate and as president, Obama said that he would have focused on eliminating al-Qaeda instead of getting bogged down in Iraq. More than 4,400 American soldiers would not have been killed and many thousands would not have been wounded; several hundred thousand Iraqis would not have suffered from the incompetent occupation and its aftermath. Iran’s regional influence would be substantially smaller and Islamic State would never have seized territory in Mesopotamia. Not insignificantly, the US taxpayer would have saved trillions of dollars.

It is, however, a common mistake in the analysis of public policy – so common that it even has a name: “Parmenides fallacy” – to compare the present state of affairs with the status quo ante as a way of evaluating the success or failure of a policy. The fallacy lies in the fact that time doesn’t stand still and while we may not know what would have happened in the absence of a particular policy, we can be certain that things would not have stayed the same.

If Saddam Hussein were still in power, it is most unlikely that the world community would have been able to maintain sanctions against his regime for 12 years beyond the point when cracks had already appeared in the viability of the policy and the enthusiasm of the sanctioning states. According to Iraqi scientists, Saddam Hussein would have pursued his quest for nuclear weapons even more ardently. It is inconceivable that Iran would not have followed suit, or would have been willing to enter into the negotiations that produced the recent agreement to freeze and roll back its nuclear weapons programme. Had there been no invasion of Iraq, it is highly unlikely that the Libyan dictator Muammar al-Gaddafi would have abandoned his quest for nuclear weapons and it is scarcely improbable that the continuing attacks on Israel would have been far more lethal.

Perhaps it was the paralysis that the absence of attractive options in the Near East created – caught as we were between removing the Syrian dictator only to deliver much of that country to Islamic State, and eradicating this state of terror only to strengthen our principal antagonist in the region, the theocratic state of Iran – that caused the president to attempt to position the US as the triangulator of the burgeoning conflict between Sunni and Shia states. In an interview in 2014, he described his vision of a new geopolitical balance of power in the region. “It would be profoundly in the interest of citizens throughout the region if . . . you could see an equilibrium developing between Sunni, or predominantly Sunni, Gulf states and Iran . . . If you can start unwinding some of [the distrust among the states of the region], that creates a new equilibrium. And so I think each individual piece of the puzzle is meant to paint a picture in which conflicts and competition still exist in the region but that it is contained.”

What Obama did not foresee was the emergence of Islamic State, which, among other factors, will make his hope of working “with functioning states” such as Iran and Saudi Arabia immensely more difficult. He must regret saying: “I think there is a distinction between the capacity and reach of a Bin Laden and a network that is actively planning major terrorist plots against the homeland versus jihadists who are engaged in various local power struggles and disputes, often sectarian . . . How we think about terrorism has to be defined and specific enough that it doesn’t lead us to think that any horrible actions that take place around the world that are motivated in part by an extremist Islamic ideology are a direct threat to us or something that we have to wade into.”

In reality, a functioning state of terror such as Islamic State is far more threatening than a proto-state such as al-Qaeda, because it can marshal greater resources and deploy them with secure internal lines of communication. One fears that the president got it utterly wrong when he said, “Failed states, conflict, refugees, displacement – all that stuff has an impact on our long-term security. But how we approach those problems and the resources that we direct toward those problems is not going to be exactly the same as how we think about a transnational network of operatives who want to blow up the World Trade Center. We have to be able to distinguish between these problems analytically, so that we’re not . . . using a battalion when what we should be doing is partnering with the local government to train their police force more effectively, improve their intelligence capacities.”

These were popular sentiments in 2014 and widely held in the US and the UK. But they ignored the centrality of the state and how a hostile state can disrupt the politics and even the legitimacy of other states. It failed to appreciate that the wars on terror were not simply a congeries of conflicts with various terrorists.

After the San Bernardino killings in December 2015, Obama acknowledged in a televised address to the nation that the US was at war, a concession he must have made with some reluctance. As a constitutional matter – a matter of law – he could hardly have continued to rely on the 2001 Authorisation for Use of Military Force (AUMF) as the legal basis for action against Islamic State, much less sought a new AUMF, and held otherwise but many in his administration have been quite averse to conceding not just that terrorists can wage war but that warfare is morphing into terror and we are poorly prepared to fight that kind of war.

Like its mortal enemy the Islamic Republic of Iran, Islamic State represents a challenge to the legitimacy of the current state system. Whether these revolutionary states will be able to threaten that system depends on whether or not they will be sufficiently dynamic strategically to undermine the legitimacy of the liberal democracies that dominate the international order. That, in turn, depends on whether these challengers can link their ideals to the form of the emerging market state and whether the leading members of the existing international order can adapt constitutionally in ways that allow them to protect their citizens.

President Obama ended his address by saying, “Let’s not forget that freedom is more powerful than fear.” What he probably should have added is that freedom, to be more powerful than terror, must be successfully protected.

Philip Bobbitt is the author of “The Shield of Achilles: War, Peace and the Course of History” and “Terror and Consent: the Wars for the 21st Century” (both published by Penguin)