Cooperation between adversaries

Adversaries cooperate too. Therein lies the possibility of getting beyond merely not fighting.

A ladder as a thinking aid

To describe orders between adversaries, the author of this page uses a simple heuristic, the ladder of global order. It is a thinking aid, not a scientific model.

Level 3: positive peace, a cooperative and just order
Level 2: negative peace, no organised violence, the legal minimum
Level 1: limited, hybrid conflict below the thresholds of open violence
Level 0: total war
below it the abyss: systemic collapse and irreversible destruction

The ladder was conceived for states, but its structure recurs on a small scale. Two shareholders who now speak to each other only through lawyers also live in negative peace: they do not harm each other openly and they keep to the rules, but they no longer act together.

Between states, it is above all international law that is meant to prevent the descent, with the prohibition of the use of force (Article 2(4) UN Charter), international humanitarian law and international criminal law. cooperation.law asks about the other direction, the ascent from level 2 to level 3: how do actors who do not trust each other get beyond the legal minimum to real cooperation?

Three degrees

On this website, cooperation means that the goals of others help shape one’s own. Between adversaries this happens at first only in a weak form. It helps to distinguish three degrees.

Mutual restraint. Each side does the other less harm than it could, as long as the other does the same. Even here the other’s goal, to survive or to save face, limits one’s own.
Fighting by shared rules. The parties remain adversaries, but they contend by rules that both recognise: in competition, in litigation, in collective bargaining, even in war. The rules belong to neither side alone.
Acting together towards a third thing. The adversaries do something together that both need: establish a fact, avert a danger, agree on a procedure.

The first two degrees hold level 2. The third is where the way up begins.

Cooperation in the trenches

An early and well-studied answer comes from the trench warfare of the Western Front in the First World War. In The Evolution of Cooperation (1984), drawing on the sociologist Tony Ashworth’s study, Robert Axelrod described how a “live and let live” system emerged there. Opposing units facing each other in the same trenches for months did not fire while food was being handed out on the other side. They aimed visibly wide, to show that they could hit but chose not to.

The best-known example is the Christmas truce of 1914. On several sections of the front the guns fell silent; soldiers from both sides met between the lines and recovered their dead.

Axelrod explains this in game-theoretical terms: whoever deals with the same opponent again and again can answer restraint with restraint. On Axelrod’s account the system broke down when commanders ordered raids on the enemy trenches, which could be verified and left no room for tacit reciprocity.

The lesson is twofold. Cooperation between adversaries grows out of repeated encounters and legible signals, and it is fragile. In the trenches it mostly stayed at the first degree: the soldiers spared each other. They acted together only for a few hours, when they recovered their dead side by side.

Fighting by rules

At the second degree, law achieves the most. Anyone who litigates cooperates with their opponent without calling it that. Both parties must make their statements of fact completely and truthfully (section 138(1) German Code of Civil Procedure, ZPO). At every stage of the proceedings the court is to seek an amicable settlement (section 278(1) ZPO). Hegel put the core of this relationship in one sentence: “be a person and respect others as persons” (Groundlines § 36). Even the opponent in court remains a legal person.

Trade unions and employers face each other as adversaries and yet jointly set the working conditions of whole industries (Article 9(3) German Basic Law, Collective Agreements Act). As long as a collective agreement is in force, industrial action over the matters it governs is excluded. This peace obligation is mutual restraint in legal form.

Competitors cooperate when they do research together, set standards or form a consortium to take on a contract that none of them could handle alone. Business studies calls this co-opetition. Competition law draws the line: the cooperation must not abolish the competition on which both depend (Competition and cooperation).

Even in war there are rules that states agreed on beforehand. International humanitarian law protects the wounded, prisoners and civilians, and neutral intermediaries such as the International Committee of the Red Cross act between the sides, for instance in exchanges of prisoners.

Trust, contact, shared facts

What arose spontaneously in the trenches, states later established deliberately. Three forms are particularly important.

Confidence-building measures make the other side’s behaviour predictable. The Helsinki Final Act of the CSCE (1975), for example, provided for advance notification of major military manoeuvres. Whoever announces what they will do relieves the other of the fear of a surprise attack.

Points of contact ensure that the parties can reach each other in a crisis. The “hotline” between Washington and Moscow was set up in 1963. In 2013 and 2016 the OSCE participating States agreed confidence-building measures for cyberspace that include national points of contact.

Joint fact-finding is perhaps the most important step. Those who cannot agree on what happened cannot agree on what to do. When the Russian fleet fired on British fishing boats at the Dogger Bank in 1904, an international commission of inquiry under the Hague Convention of 1899 established the course of events, and war was avoided.

This is where the link to mediation lies. There too, jointly establishing the facts is often the step that decides whether the parties become partners again.

What turns adversaries into partners

Social psychology has studied the conditions under which adversaries become partners. Two findings have shaped the research in particular.

In 1954, Muzafer Sherif divided boys at a summer camp in Oklahoma into two groups and had them compete until they met each other with hostility. Shared meals and mere contact changed little. The hostility only subsided when both groups had to solve tasks that neither could manage alone, such as jointly towing a stalled lorry. Sherif called such tasks superordinate goals. The study’s methods were later criticised, but its core finding has stood.

In the same year, Gordon Allport described when contact reduces prejudice between groups: when the participants have equal status, pursue common goals, cooperate rather than compete in doing so, and when institutions, laws or customs support the contact. An analysis of more than 500 studies confirmed that contact reduces prejudice, most clearly where Allport’s conditions are met (Pettigrew & Tropp 2006).

Both findings fit what this website calls the shared third. Adversaries who look only at each other remain adversaries. Adversaries who look together at a task can stop being adversaries. Allport’s last condition is a legal one: the frame that institutions set helps decide whether contact connects.

Peace through law

In Peace through Law (1944), Hans Kelsen proposed securing peace between states through compulsory international adjudication. The idea behind it: law does not abolish conflict, but it transfers conflict into procedure.

Law thus secures above all level 2. It cannot compel the ascent to level 3. But it provides the forms in which adversaries can begin to act together: procedures both have agreed to, points of contact, jointly commissioned expert reports, contracts for a limited term.

Online

Online lowers the threshold for talking. A video call is arranged more quickly than a meeting on neutral ground, and a mediation can be conducted across continents. But online also lowers the threshold for escalation. A sharp message is written more quickly than it would be spoken, and a public platform easily turns a dispute between two into a dispute before an audience, in which nobody can give way without losing face. Anyone negotiating with an adversary online therefore does well to hold the conversation in private and in real time, and to put only the result in writing.

An example

Two companies have developed a piece of software together. After an outage at their most important customer, each accuses the other of causing the fault. The statements of claim have already been drafted.

Instead of filing them, the two jointly instruct an independent expert to investigate the outage. The sessions take place live online, and both sides have access to the same logs. The report apportions the causes differently from what either had expected. Because they commissioned the findings together, both can accept them. On that basis they renegotiate and continue working together.

What this means for the law

Civil law provides instruments that serve cooperation between adversaries. An expert determination (Schiedsgutachten) allows a third party to establish facts with binding effect; the courts apply sections 317 to 319 German Civil Code (BGB) to it by analogy. Mediation creates a protected space in which adversaries can talk without jeopardising their position. Escalation clauses ensure that talking comes before litigation.

What these instruments have in common is that they create something shared before there is trust: a fact both can rely on, or a procedure both have agreed to.

Literature

Allport, G. W. (1954): The Nature of Prejudice. Cambridge, Mass.
Ashworth, T. (1980): Trench Warfare 1914–1918. The Live and Let Live System. London.
Axelrod, R. (1984): The Evolution of Cooperation. New York.
Kelsen, H. (1944): Peace through Law. Chapel Hill.
Pettigrew, T. F. & Tropp, L. R. (2006): A Meta-Analytic Test of Intergroup Contact Theory. Journal of Personality and Social Psychology 90.
Sherif, M. et al. (1961): Intergroup Conflict and Cooperation. The Robbers Cave Experiment. Norman, Okla.