Monday, August 31 , 2015, 6:58 am | Fair 66.0º




Brian Burke: About Your Divorce (Letter 90) — Red Button in TurKey and War in Crimea

By Brian Burke, Noozhawk Columnist |

Dear Pinky and Spike:

The Red Button in TurKey and the War in Crimea

This is the last of a digression pondering the similarity of the international activities prior to the beginning of the Crimean War in 1854 and the behavior of families during the course of a mediated divorce.

The second letter left the dispute between the Czar of Russia, Nicholas I, and the Emperor, Napoléon III, as it had been resolved. The English meditator, Stratford Canning, by cunning manipulation of the Ottoman Sultan, Abdülazis I, imposed resolution on the dispute over possession of a Key to the door to the Church of the Nativity in Bethlehem and the assignment of responsibilities for the necessary repair to the cupola of the Church of the Holy Sepulcher.

While manipulated by Canning, the Sultan was probably grateful for this use of power mediation as he was trapped between two international giants ready to fight on the Sultan’s turf over a petty difference in which the Sultan had no direct interest.

If compared to divorce, this is the kind of settlement likely to unwind and come back to bite everyone on the face — especially the mediator.

Who gets the Key to the church? Who gets the garage door opener? These are questions the disputants “should” be able to solve, but they can’t. (From an exterior perspective, it may seem like they can but won’t. This is an unnecessary and dangerous judgment.) To use a biological metaphor, the persistence of an issue that the contestants should be able to solve is a symptom of an underlying lesion, which may: (a) self-resolve, (b) reach a state of equilibrium and persist in the form of chronic, low-level conflict, or (c) escalate to frank warfare.

                                                                        •        •

Slight digression from the digression — like Philip Roth’s Doris, we know it’s summer because so many people are reading War and Peace where the major historical event is the 1812 invasion of Russia by Napoleon’s Grand Armée of least 400,000 soldiers. When the Grand Armée returned to France in early 1813 its number had been reduced to about 10,000 men—1/40th (2.5 percent) of its original strength. Russia had not won a single major battle; how did it happen? Tolstoy repeats in different ways: “There is nothing stronger than these two [warriors]: Patience and time, they will do it all.

                                                                        •        •

I’m not qualified to say that the dynamics of international relations function in a way similar to the interaction of divorcing spouses. I’ve also found that looking at more than a single historical source leads to confusion about the basic facts rather than heightened understanding of their significance. Regardless, I’m just observing similarities and reporting facts that would be relevant if family mediation principles had been used in the attempt to prevent war.

                                                                        •        •

Stratford Canning accomplished his mission to settle the question of “who gets the Key” in 17 days. The French and English invaded Russia in September 1854; the unwinding of the mediated settlement was spectacular.

Had Canning used basic divorce mediation principles, he would have started with these premises:

» The parties have better solutions to their problems than anything someone else can suggest or impose.

» Since 95 percent of divorces require no trial, there is a strong prior presumption that any particular case is very likely to settle.

» Divorces take more time than the parties anticipate.

» A viable settlement is not possible if either party perceives that his or her present sense of identity is under threat.

These axioms lead to principles of practice the mediator can use to help the parties reach a mutually acceptable resolution, which is what he’s been hired to do. The first principle is the default: Don’t just do something; stand there. It’s a less eloquent version of Tolstoy’s “patience and time, they will do it all.”

So what would have happened if Canning had been able to establish stasis, leaving the question of possession of the Key unresolved — even if it meant an ongoing low-level conflict? Counter-factual history is not in favor, so I won’t speculate about what would have happened over time, but I will observe some simple facts about the participants to the dispute.

                                                                        •        •

Recall that one of the targets of the French Revolution was the Catholic Church and clericalism; rationalism was its divinity and the secularization of society was one of its goals. The contemporary controversy in France over the wearing of the hijab is a consequence of the French Revolution that persists more than two hundred years after the fact.

Napoléon III, the nephew of the first Napoléon, was elected for a single four-year term as president of the Second Republic in 1850. When he was unable to convince the Assembly to eliminate the term limit in 1852, he engineered what was, in effect, a coup and established himself as the Emperor Napoléon III.

Napoléon III had an aggressive and progressive domestic agenda, but for the purposes of this note the characterization of him as a usurper in need of all the support he could get is fair. The Catholic Church, possessed of Patience and Time, was able to give it to him.

One seemingly simple and cheap way to repay the Church’s support was assertion of the French right, under a 1740 treaty with the Ottoman Empire, to possess the Key to the door to the Church of the Nativity in Bethlehem. During the century following the treaty, the benefits it conferred to the “Latin monks” in Palestine were abrogated in favor of the Orthodox monks. According the A.W. Kinglake, the Treaty of 1740 was probably purchased from the Sultan and his corrupt court.

Napoleon III needed Catholic support. France had a prima facie claim to the Key of a church in the Middle East that had not been used and would not be used to keep anyone out of the church. How hard could this be?

According to Lakewood, the derogation of the Treaty’s terms to favor Orthodox Christians was the result of three factors: (a) The Orthodox Catholics placed greater importance on the pilgrimage to the Holy Law than the Latins; (b) The involvement of Russian encouraging concessions to the Greek monks by the Sultan, and (c) Lack of French protest.

The principles of International Law are often ad hoc, and it’s reasonable to look at a couple of Anglo-American equitable principles, which are quaintly expressed in the California Civil Code as: “The law helps the vigilant before those who sleep on their rights.” (CC 3527), and “Acquiescence to error takes away the right of objecting to it.” (CC 3516).

Those are the biographical and historical facts and legal considerations that define the position of Napoléon III.

                                                                        •        •

Kinglake describes Nicholas I in 1852 as having earned a reputation for being trustworthy and essentially European in personal values and international outlook. He seemed to have given up early designs on the destruction of the Ottoman Empire for the benefit of Russia, and his efforts to stay aligned with the English were prolonged and apparently sincere.

The Bethlehem Key went to an issue of the Czar’s personal identity. While secure as the Czar of Russia, he was also the leader of Christian Orthodoxy. To the Russian people the second role may have been more important than the first. Although they were western Europeans, the French were taking away the Key to the Church of the Nativity from the Orthodox monks who were entitled to the Czar’s protection.

Nicholas II couldn’t let that happen without failing his sacred duty as the leader and Protector of Orthodox Christians. Being the protector of the faith of millions of people was part of an enormous sense of personal identity, but to the Czar his role as Protector was as real and personal as that of a person who is an American, a physician, a spouse, a parent, and an alumnus of the Santa Barbara Middle School, Princeton, and Harvard Medical School.

When a person’s sense of identity is threatened, the first response is anger. A czar could get very angry and a lot of people would be there to tell him that his rage was justified and appropriate — even necessary and essential. The French wear gray hats in this version of the story, but to Nicholas and his court, the Sultan, who had waffled in response to the French demand, was also to blame. Never in living memory had Christians been denied access to religious shrines inside the Ottoman Empire. Nevertheless, the Russian court reasoned, once the Sultan “had given away the Key, what would he do next?”

Orthodox Christians needed a protectorate and Nicholas was the man for the job. More pernicious was the rekindling of old notions about the partition of the Ottoman Empire. Should the Czar be “required” to enter TurKey to exercise his duties as a Protector, he would be there when the Ottoman Empire was ready to be divided up.

                                                                        •        •

Canning’s forced settlement was a failure. Would it have been better if he had been able to accomplish equilibrium — without resolving the issue of the Key — leading to chronic low-level conflict like East and West Germany, North and South Korea, and, for awhile, North and South Vietnam?

                                                                        •        •

If equilibrium could be sustained without war until March 1855, the identity crisis of Nicholas I would have been resolved. He died on March 2, 1855, to be succeeded by his son Alexander II — the most successful Russian reformer since Peter the Great.

Napoléon III left the international scene when captured during the Franco-Prussian War. On his eventual release he went to England where he lived in exile until he died in 1873.

                                                                        •        •

If international relations is at all like divorce mediation, Canning fell into the trap of using his position and power to force the solution to a false and silly issue the parties could eventually solve for themselves. His settlement didn’t address the real issues so it had no chance of survival, and eventual settlement of the fundamental issues was made even more difficult and unlikely because the persistence of the conflict around the false issue was no longer available as an indicator of (or Key to) the case’s “ripeness for settlement.”

Your friend,
Bucky

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.




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