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tive states so as to stabilize the fabric of imperial administration.80 In the
1919 Native States Regulations, the independence of the self-governing
territories was shored up, with three restrictions being formally imposed:
the self-governing native states had no control over foreign affairs, and
some internal issues were delegated to the Dutch colonial administra-
tion; the native rulers had to accept Dutch administrative guidance; and
extra-territoriality was introduced for Europeans and Indonesians from
areas under more completely established Dutch administration.81
This particular problem was perhaps even more acute for the British in
India, who faced a situation in the nineteenth century where roughly 600
˜Native States™ remained in existence, and occupied an extremely unclear
legal position with respect to both the British government and the govern-
ment of British India. The East India Company had concluded treaties
with most of the larger or more important of these states, and increas-
ingly relations with the rest were framed against a broad doctrine, based
78 79 Ibid., pp. 139“40 and 147.
Ibid., pp. 76“7.
80 Ibid., p. 150, and see also V.J.H. Houben, ˜Native States in India and Indonesia: The
Nineteenth Century™, Itinerario, 11 (1987), 112.
81 Vandenbsoch, Dutch East Indies, pp. 152“3.
Colonialism, imperialism, international politics 91

in part on customary ideas about Mughal suzerainty and in part on the
force of British arms demonstrated in the Mutiny, that the British called
˜paramountcy™. Although the treaty-based relationships were a more se-
cure footing to which indigenous rulers could appeal, paramountcy was
taken to mean that all foreign relations and military decisions of the Native
States were in the hands of the British. Rather interestingly, the position
of the Native States with respect to the Empire ˜was held to be anal-
ogous to the States of the United States of America, which had also
surrendered certain external powers (e.g. defence and foreign affairs) to
a central government, but which nevertheless retained residual sovereign
powers™.82
Paramountcy was obviously ¬‚exible and, ominously for the rulers of
the Native States, could be de¬ned and rede¬ned by the British more
or less at will. An activist governor-general or viceroy, like Dalhousie or
Curzon, could interpret it as a permission to be extremely interventionist
with regard to the domestic affairs of the Native States, or even to conduct
a policy of annexation. If it is possible to generalize about paramountcy,
however, we might say that there was a profound disagreement between
liberals and conservatives about its use. Many liberals were extremely
concerned about allowing the rulers of Native States to retain what often
amounted to quite full rights of internal sovereignty: ˜Convinced that
western civilisation was superior and inspired by the belief that Britain had
a moral obligation to reform Indian society, the reformers were appalled
to learn that British policy encouraged princely mismanagement. Despite
their anti-imperialist sentiments, they thus advocated the termination of
princely rule and became committed to a policy of annexing the states.™83
Conservatives, on the other hand, were obviously less inclined to castigate
the rulers of the Native States merely on the grounds that they represented
an archaic and illiberal feudalism. Moreover, in a point of view that gained
some reinforcement after the Indian Mutiny, they believed that respecting
the (limited) sovereignty of the Native States would allow them to act as
˜safety valves in order to provide for the security of British rule™.84
There are two interesting points about the of¬cial doctrine of
paramountcy. First, it was legally eclectic. It derived partly from cus-
tom and treaty, but it also depended on natural legal principles: ˜the
paramount power took upon itself the task of suppressing inhuman prac-
tices . . . there existed a universal prohibition throughout the sub-continent
against suti, slavery and infanticide™.85 Perhaps more explicitly than when
dealing with an independent sovereign over whom they did not claim
82 Sever, Indian Princely States, vol. I, p. 26.
83 Ashton, British Policy towards the Princely States, pp. 12“13.
84 85 Sever, Indian Princely States, vol. I, p. 24.
Ibid., p. 14.
92 Beyond the anarchical society

paramountcy, the British were prepared to assert the natural and uni-
versal character of their values, and vigorously imposed them. Secondly,
irrespective of the political disagreement between liberals and conserva-
tives about the application of paramountcy, the doctrine itself had pro-
found implications for conceptualizing sovereignty. The Native States
were not independent, but nevertheless, they retained their sovereignty
in some sense. The core of the position can be seen in the British viceroy™s
comment in 1857, on the controversy surrounding the deposition of the
indigenous ruler of Baroda, the Gaekwar:
He has been acknowledged as sovereign of Baroda, and he is responsible for
exercising his sovereign powers with proper regard to his duties and obliga-
tions alike to the British government and to his subjects. If these obligations
are not ful¬lled, if gross misgovernment be permitted, if substantial justice be
not done to the subjects of the Baroda state, if life and property be not pro-
tected, or if the general welfare of the country and people be persistently ne-
glected, the British Government will assuredly intervene in the manner which in
its judgement may be best calculated to remove these evils and to secure good
government.86

This was the context that Maine, who combined (not insigni¬cantly) the
dual roles of being an expert on international law and on Anglo-Indian
relations, used to illustrate his point about the divisibility of sovereignty
in international law that I mentioned in the Introduction. Maine™s work
in fact provides a nice concluding point for this discussion of British
and Dutch colonial administrations during the nineteenth century. As
well as defending the idea of divisible sovereignty, he also advanced the
point of view, consistently with the idea of occupatio and natural rights
thinking in general, that the main feature of ˜progressive societies™ is a
move ˜from status to contract™, especially with respect to the issue of land
tenure.87 These two principles offer perhaps the best way of thinking
about the enduring legacy of Grotian thinking in international law in
the nineteenth century and, because of the progressiveness that Maine
attached to the move towards contractual relations, an insight into the
intimate relationship between the division of sovereignty, the assertion of
individuals™ property rights and the promotion of ˜civilisation™.88
86 Cited in D.B. Somervell, ˜The Indian States™, British Year Book of International Law, 11
(1930), 59.
87 See Henry Sumner Maine, Ancient Law (London: John Murray, 1861), and Village Com-
munities in the East and West (London: John Murray, 1871), as well as Maine, International
Law: The Whewell Lectures of 1887, 2nd edn (London: John Murray, 1915).
88 For another important nineteenth-century line of argument in this regard, see John Stuart
Mill, ˜A Constitutional View of the India Question™ and ˜Maine on Village Communities™,
both in Collected Works, Volume 30: Writings on India (London: Routledge, 1990), pp. 175“
8 and 215“28 respectively.
Colonialism, imperialism, international politics 93

Divisible sovereignty and private property in practice
The political structures of modern colonial and imperial systems were
founded on that supposedly ˜medieval™ notion: divisible sovereignty. In
North America, sovereignty was always treated as divisible in the pre-
revolutionary colonial system, not least because it was impractical for
a single ruler or parliament to assert its undivided sovereignty over both
Britain and the American colonies; attempts to assert such a right usually
only ended in revolution. And, even after the revolution, the American
political system continued to be founded on the practice of dividing
sovereignty between the states that composed the Union, as well as among
the new states that were eventually created in the western territories.
The division of sovereignty within a confederal or federal system was
extremely ¬‚exible, and allowed the statehood of settlements in the west
to be recognized on equal terms with the other members of the Union
fairly easily. An important reason for this relatively permissive American
attitude towards recognition may well have been that the new states in
this context were mainly founded by white, European settlers, and did
not pose the dilemmas for theories of racial hierarchies in the world that
non-white and non-European political communities presented; certainly,
the white-settler Dominions in the British Empire gained rights of self-
government in a relatively accelerated manner, compared with colonies
such as India.
Divisible sovereignty also characterized the imperial systems that the
Dutch and British created in the East, although here the emphasis was
more on the suzerainty or paramountcy of the imperial power and less
on the collaborative decision-making of the American republic. In part,
this difference arose because the Europeans were plugging themselves
into existing imperial hierarchies, where the principle of suzerainty was
already established, but it also arose from the manipulation of treaty pro-
visions, so as to gain control over commerce and place once-independent
rulers in a position of subordination. Nevertheless, despite their asser-
tions of paramountcy it would be quite wrong to suppose that either the
Dutch or the British ever attempted to impose direct rule, or anything
even approaching absolute, unitary or undivided sovereignty over their
imperial possessions. ˜Indirect rule™ and ˜double government™ were gen-
erally believed to be more cost-effective, more practical and, especially
after the Indian Mutiny, more secure in the long run. One of the signa-
tures of paramountcy and indirect rule, however, was that the indepen-
dence of indigenous ˜semi-sovereign™ rulers was constrained by imperial
and moral considerations. Their sovereignty was acknowledged, but they
were placed under an obligation to obey the paramount power in matters
94 Beyond the anarchical society

of strategic and military security concern. They were also vulnerable to
interventions by the imperial power in order to check the dangers of mis-
government that, in European eyes, arose from placing political authority
in the hands of uncivilized rulers. As politicians and colonial administra-
tors made clear time and again, they would not hesitate to interfere with
a ruler of a Native State if they believed that it was necessary to do so in
order to secure ˜good government™ for his or her subjects.
A second interesting point is that in both American colonialism and
European imperialism a considerable degree of importance was attached
to the rights of individuals. This is obvious for North America, where
colonial settlers enjoyed allodial property rights, and where the concep-
tion of property ownership in identical terms was one of the key elements
of the legal arrangements made for westward expansion in the Northwest
Ordinance. But broadly similar attempts to assert the rights of individu-
als, especially to their persons and property, can be seen at work in the
imperial administrations. Nor was this effort solely directed at the extra-
territorial rights of Europeans; certain groups of indigenous peoples had
their rights of property ownership con¬rmed, for example through the
Permanent Settlement, and all peoples were supposedly protected from
misgovernment and ˜barbarous™ practices by the paramount power. For
all the high-handed and unilateral ways in which imperialists sought to
promote these ideas, it should nevertheless not be ignored that they had
little respect for the ˜conspiracy of silence™ that orthodox theorists believe
to have characterized of¬cial attitudes towards the rights of individuals in
modern world politics. The conspiracy may have held between European
states, but it was repeatedly breached in the world beyond Europe. It is
therefore quite inaccurate to say that participants in modern international
affairs had no conception of human rights, and thought and acted en-
tirely in statist terms. For many, the idea that individuals had, or should
have, rights was so obvious, so axiomatic, that it was unnecessary to make
a formal statement of the point; nevertheless, one of the central themes
of international politics in the extra-European world over a period of
300 years was the vigorous assertion of the rights that individuals pos-
sessed in the law of nations.
Leaving aside for the moment the explicit colonial context of De Jure
Praedae, Grotius himself made very little explicit reference to these prac-
tices in De Jure Belli ac Pacis. As I noted in chapter 2, there is a suggestive
observation on the natural simplicity of the American Indians, and there
are a few direct references to Greek colonialism and Roman imperialism
in his discussions of unequal treaties and appropriation; but there is little
on which to base either the claim that Grotius himself was an imperi-
alist, or that modern imperialism was a distinctively ˜Grotian™ kind of
Colonialism, imperialism, international politics 95

international activity. Nor would it be entirely plausible to suggest that
colonizers and empire-builders were really concerned about the legal en-
vironment in which they conducted themselves. It is surely reasonable
to suppose that many times they did what they wanted to do, whether
appropriating land or acquiring public rights to control trade, and then
looked around for an ex post legal justi¬cation, ¬nding an especially con-
venient one in Grotius. Much the same could be said, though, for the
way in which the European states-system developed around the Bod-
inian conception of absolute sovereignty, and the equality and mutual
independence of its members. European rulers did not originally set out
to build an international society conceived in those terms; it evolved
through their actions, as certain normative principles began to become
more or less regularly codi¬ed and observed thanks to a convenient con-
junction of theory and practice, and especially as lawyers began to discern
a higher moral purpose in the institutions that had grown up around the
self-interested behaviour of absolutist, dynastic monarchs. To the extent
that it makes sense to talk of Bodinian or Hobbesian sovereignty as an
animating principle of order in the European political system, it makes
equal sense to describe the structure of relationships in the colonial and
imperial systems beyond Europe in terms of the Grotian idea of divisible
sovereignty.
It has always been hard for orthodox theorists to appreciate the inter-
national dimensions of these relationships in the extra-European world,
largely because they make the misguided assumption that their unitary
conception of sovereignty has always de¬ned the discipline of interna-
tional politics and international law. They argue that international rela-
tions are relations between mutually independent states, because that is
the only conception they possess as a way of thinking about the mod-
ern world; they lack the more ¬‚exible conceptual vocabulary of Grotius,
and thus are at a loss to know how to describe, say, relations between
the British paramount power and the ˜semi-sovereign™ Native States of
India. What they typically do, then, is simply ignore this way of organizing
international relations, perhaps giving it a breezy acknowledgement but
hastily moving on to the familiar business of international politics in the
European states-system. The inadequacy of their conceptual apparatus
and the narrowness of their historical vision are faults of the orthodox
theory that continually reinforce one another. To grasp the importance
of the alternative elements of modern international politics that I have de-
scribed here may require a certain degree of imagination, but it is hardly
asking for a leap of faith.
In this chapter I have taken on the ambitious task of trying to do in a few
thousand words what orthodox theorists have had two hundred years and
96 Beyond the anarchical society

literally hundreds of books to do: namely, to give an historical account
of the origins, evolution and dynamics of a particular pattern of modern
international relations. I do not presume to think that the account I have
given here is as pared down, as easily understood, or as immediately
familiar and plausible, as the orthodox account of the emergence of the
Westphalian system and the European society of states. But I think it is, at
the very least, a start; after all, the only alternative is to pretend that extra-
European international politics do not exist. In chapter 4, I want to try to
pull together the historical arguments I have presented, and offer a more
analytical discussion of the speci¬c nature of the pattern of political and
legal order that developed in the world beyond Europe, comparing and
contrasting it with the order that evolved in the context of the European
states-system.
4 Two patterns of order in modern world
politics: toleration and civilization




I have contested the orthodox view that order in modern world politics
rests on the conjunction between the Grotian legal concept of interna-
tional society and the historical concept of a states-system. In the ¬rst
place, it is misleading to interpret Hugo Grotius™s work as an anticipation
of what legal order might look like in the emerging society of territorially
sovereign states, since two of its central themes re¬‚ected the quite differ-
ent propositions that sovereignty is divisible and that individuals as well as

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