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sovereigns have rights in the law of nations. I have also tried to ¬ll in one
of the crucial gaps that arises from orthodox theorists™ decision to con-
centrate on the development of European public order in virtual isolation
from the rest of the world. At the same time that the ˜Westphalian system™
of equal and mutually independent territorially sovereign states was tak-
ing shape, quite different colonial and imperial systems were being estab-
lished beyond Europe, predicated above all on the division of sovereign
prerogatives across territorial boundaries and the assertion of the rights
of individuals, especially to property. We therefore ought to reject the
view of Hedley Bull, to take just one recent example, that ˜[t]he idea
of international society which Grotius propounded was given concrete
expression in the Peace of Westphalia™.1 It is the colonial and imperial
systems beyond Europe that have the closest af¬nity with Grotian ideas
about the law of nations and, if we are to talk about a ˜Grotian conception
of international society™ at all, we should rather be concerned with the
distinctly non-Westphalian structure of political and legal order in the
extra-European world.
My analysis of Grotian theory and the practices of colonialism and
imperialism has already indicated some important ways in which this
pattern of political and legal order differed from the one that developed
within the European states-system. The fundamental normative princi-
ple of the Westphalian system was that each state should recognize the
1 Hedley Bull, ˜The Importance of Grotius in the Study of International Relations™, in Bull,
Benedict Kingsbury and Adam Roberts (eds.), Hugo Grotius and International Relations
(Oxford: Clarendon Press, 1992), p. 75.

97
98 Beyond the anarchical society

territorial sovereignty of the others, and therefore that states should re-
spect each other™s equality and independence. The logic of this norm
implied that the institutions that maintained order in the society of states
had to be extremely decentralized and voluntaristic, both of which crite-
ria were ful¬lled by the balance of power, diplomacy and positive inter-
national law. The fundamental normative principle of the colonial and
imperial systems beyond Europe, by contrast, was that sovereignty should
be divided across national and territorial borders as required to develop
commerce and to promote what Europeans and Americans saw as good
government. One might say that instead of cuius regio eius religio, it oper-
ated according to the principle of cuius regio meas religio. This arrangement
was inevitably more centralized and more hierarchical than the West-
phalian system, and its institutions differed accordingly: paramountcy (in
the British Empire), federal union (in the United States) and the asser-
tion of a universally applicable code of natural law substantially replaced
the balance of power, diplomacy and legal positivism.
Although I have criticized Bull for his misinterpretation of Grotius
and his acceptance of an oversimpli¬ed historical perspective on mod-
ern world politics, I broadly agree with his general understanding of the
concept of social order, particularly his view that the concept does not
just speak to any and every regularity in international affairs but more
speci¬cally to ˜a pattern that leads to a particular result, an arrangement
of social life such that it promotes certain goals or values™.2 Consequently,
it is important to set the divergences that I have identi¬ed between the
norms and institutions of the European and extra-European systems into
the context of the different goals or values that each pattern of order
pursued, and that is my main purpose in this chapter. Within Europe,
the leading purpose of international order was to promote peaceful co-
existence in a multicultural world through the toleration of other political
systems, cultures and ways of life. Its basic principle of respecting dynas-
tic rulers™ rights to govern their domestic possessions in their own way,
which gradually changed into the principle that each nation had a right to
self-determination, was rooted in the beliefs that different cultures were
equally valuable and should be given space to ¬‚ourish; and that the best
way to ensure peace in the society of states was to encourage its members
to eschew violence for religious, cultural or ideological reasons.
Beyond Europe, however, international order was dedicated to a quite
different purpose: the promotion of civilization. Simply put, Europeans
and Americans believed that they knew how other governments should be
organized, and actively worked to restructure societies that they regarded
2 Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London: Macmillan,
1977), p. 4.
Two patterns of order 99

as uncivilized so as to encourage economic progress and stamp out the
barbarism, corruption, despotism and incompetence that they believed
to be characteristic of most indigenous regimes. Especially in North
America, this was also connected with the idea that the whole continent
was an uncultivated wilderness, which needed to be civilized through the
establishment of properly organized settlements and through the provi-
sion of republican constitutions for the new states created thereby. In
both cases, and again in contrast to the Westphalian system, statesmen,
diplomats and international lawyers were quite prepared to entertain the
possibility that violent actions and other interventions might have to be
made in order to civilize savage peoples, or to prevent them from retard-
ing the civilization of the wildernesses that they insisted on treating as
their homelands.
Obviously, the order of toleration in the European states-system has
received a great deal of attention from orthodox theorists, and it is un-
necessary for me to supply anything more than the briefest of outlines
here, merely for purposes of comparison. For the reasons I discussed in
chapter 1, however, the colonial and imperial systems outside Europe and
the order of civilization have received much less attention from students
of international politics and international law. Indeed, many orthodox
theorists appear to believe that the extra-European world did not contain
a pattern of international order at all, since it was not based on relations
between equal and independent, territorially sovereign states. I should
acknowledge that this is a long-standing point, as old as the orthodox
theory of order in world politics itself. Many nineteenth-century interna-
tional lawyers, for example, insisted that international law only applied
to the ˜family of civilized nations™, and that the uncivilized world was
simply beyond the scope of international law properly conceived, not so
much because it was unregulated by legal rules, but because it belonged
to the sphere of the constitutional law of whichever state was recognized
by its civilized counterparts as holding the decisive measure of interna-
tional personality.3 Nevertheless, the issue was by no means a settled one.
Serious questions about whether relations between the British govern-
ment and the Indian Native States, or even between the members of the
3 See John Westlake, Chapters on the Principles of International Law (Cambridge University
Press, 1894), ch. 10, and for a more blunt statement of the orthodox position, apart from
the extreme Austinian positivism, see T.J. Lawrence, The Principles of International Law,
3rd edn (Boston: D.C. Heath, 1905). Lawrence did attract criticism for his un-nuanced
interpretation of classical Grotian thinking about international law from scholars with a
better grasp of the complexities of the issue: see Philip Baker, ˜The Doctrine of Legal
Equality of States™, British Year Book of International Law, 4 (1923“4), 7, 8“9. It is worth
adding that this debate is revealingly similar to the current dispute among students of the
European Union about whether their subject is best understood through the theoretical
apparatuses of international relations or comparative politics.
100 Beyond the anarchical society

American States-Union, to take just two examples, should be considered
as topics of international law were still raised by nineteenth-century schol-
ars, notably Henry Sumner Maine. And, although seldom appreciated
today, many eighteenth, nineteenth and even twentieth-century lawyers
and political theorists continued to operate with the classical Grotian
concepts of divisible sovereignty and property, applying them above all
to international politics in the world beyond Europe.
I will begin my discussion of the extra-European order of civilization by
offering some evidence of this persistence of the core Grotian ideas of di-
visible sovereignty and individuals™ rights in the later legal literature, with
a view to correcting the widespread misapprehension that modern theo-
rists were exclusively concerned with analysing relations between equal
and independent territorially sovereign states in the Westphalian system.
Then, I will look more speci¬cally at the concept of civilization, asking
how it was construed by various British and American thinkers, what role
it played in modern international law and how the various institutional
arrangements that I outlined in chapter 3 were dedicated to its pursuit.
In terms of how I will develop my argument in chapter 5, my most impor-
tant contention here is that modern international lawyers were only able
to maintain the coherence of order in world politics as a whole by adopt-
ing a discriminatory attitude towards the relative status of European and
non-European peoples in terms of the degree of civilization each had
attained. Although this proposition was logically distinct from theories of
racial inequality and social evolution, and the two were kept separate by
some thinkers, ideas about peoples™ advancement towards civilization and
their innate racial characteristics nevertheless became closely interwoven
with one another during the later nineteenth century.
Thus, although the two patterns of modern international order had
contrasting purposes and very different normative and institutional ar-
rangements, the potential for this to become a serious contradiction in
international legal thought and diplomacy was defused by restricting each
to its own particular geographical and racial sphere. The key assumption
was that Europeans and whites in general were already civilized, and
that while they should tolerate one another™s idiosyncrasies, they had a
responsibility to correct those of backward non-European or coloured
peoples. This way of demarcating the boundaries of the two patterns of
international order was never perfect, and I will show that even in the
nineteenth century there were some important, and awkward, overlaps
between them. In chapter 5, however, I will examine how the discrim-
inatory distinction between the civilized and uncivilized worlds broke
down completely during the ¬rst half of the twentieth century, leading
to the construction of a global political and legal order, but one with a
Two patterns of order 101

fundamental duality of purpose since it attempts to pursue both of the
goals of toleration and civilization at the same time.


Property and divisible sovereignty in the post-Grotian
law of nations
By about a hundred years after his death, Grotius was widely regarded as
old-fashioned and out of date. Many lawyers continued to pay him lip-
service as the father of their ˜science™, but often that was little more than
politeness; they were well aware that enquiries into the law of nations had
changed dramatically since Grotius™s day. The philosophes, on the other
hand, could seldom even be bothered to be polite. We saw in chapter 2
that Voltaire, who admittedly was slow with a compliment for anyone,
had no time for Grotius, arguing that his works substituted classical al-
lusion for independent thought and ˜didn™t deserve the respect that the
forces of ignorance paid to them™.4 It was certainly true that the style,
method and philosophy of treatises on the law of nations had become
very different from those of Grotius™s time, but what I want to do here
is explore some ways in which Grotius™s substantive propositions about
the content of the law of nations persisted even through this method-
ological and philosophical shift. Scholars continued to offer remarkably
similar views on the public and private rights contained within the law
of nations, albeit on the terms of their own, vastly different, intellectual
environment. What evolved, as I will go on to discuss in due course, was a
theory of the law of nations that echoed Grotius™s substantive opinions on
divisible sovereignty and individuals™ rights, but increasingly expounded
within the context of a new idea of ˜civilization™, and especially a distinc-
tion between the civilized world of the society of states and the uncivilized
world beyond.
As a starting point, let us begin with what is probably the most obvi-
ous similarity between Grotius™s account of the law of nations and later,
more obviously modern, treatises: his theory of how individuals acquire
private property rights through the appropriation of communal property
in the state of nature. Several scholars have remarked on the af¬nities
between Grotius™s thinking here and the subsequent arguments of Locke
and other liberal political theorists, noting especially Grotius™s use of
the American Indians to illustrate a contemporary people that still lived
in the simplistic, natural manner of communal property, and therefore
where the natural right of occupatio might still be exercised by colonial
4 Voltaire, Political Writings, trans. David Williams (Cambridge University Press, 1994),
p. 89.
102 Beyond the anarchical society

settlers in his own time.5 We have seen that, in his account of the law
of nations, Grotius had signi¬cantly amended the earlier canonical the-
ories of Innocent IV with respect to the private and public rights of non-
Christian peoples. He broadly upheld the earlier line that these peoples
had rights, and that there was nothing to prevent them from holding
both public authority and private property, but he extended the scope for
colonial settlement in the extra-European world by developing the idea
of what individuals had to do to acquire property rights through the no-
tion of occupatio, and he worked out a theory of the separability of own-
ership and jurisdiction that permitted the colonial settlement of ˜vacant™
lands even if they were under another, European or non-European, ruler™s
jurisdiction.
Nevertheless, from a colonizer™s point of view, the Roman law concept
of occupatio that Grotius used was ¬‚awed because it was vulnerable to dif-
ferent, and more restrictive, interpretations. As Richard Tuck has recently
demonstrated, scholars who were less favourably inclined to colonialism,
such as Christian Wolff, argued that the American Indians had exercised
their natural rights simply by inhabiting the lands in question, rather than
actively using them at any given time, which inevitably circumscribed the
opportunities for European appropriation.6 Those who wanted to en-
dorse the practice of planting settlements in the New World, like John
Locke or Emerich de Vattel, therefore had to extend Grotius™s argument
yet further, building the idea of occupatio into a theory of appropriation
that stressed the importance of making ˜improvements™ to the land as a
necessary condition for ownership. In Vattel™s account of the law of na-
tions, for example, cultivation became a duty imposed by natural law on
all nations, and one that was explicitly held up as a justi¬cation for the
settlement of North America. Thus, as Tuck remarks, in Vattel™s theory,
˜we have a more or less faithful version of the Grotian arguments, as de-
veloped by Locke, and we can see how [these] themes . . . were still vividly
alive in the middle of the eighteenth century™.7
Nor were they solely of use to the colonizing powers in Europe: as
the American revolutionaries were to demonstrate in the late eighteenth
century, the rights that individuals had obtained through colonial set-
tlement could also be used as a justi¬cation for resistance against the
mother country. An illuminating example of this use of the concept of
appropriation in the context of revolutionary American thought can be
5 Barbara Arneil, John Locke and America: The Defence of English Colonialism (Oxford:
Clarendon Press, 1996), pp. 46“54, and Richard Tuck, Rights of War and Peace: Political
Thought and the International Order from Grotius to Kant (Oxford University Press, 1999),
pp. 102“8.
6 7 Ibid., p. 195.
See Tuck, Rights of War and Peace, pp. 190“1.
Two patterns of order 103

found in Thomas Jefferson™s famous 1774 pamphlet, ˜A Summary View
of the Rights of British America™, the argument of which is closely re-
lated to previous European notions of ownership through occupation.8
Jefferson sought to justify resistance against the British on a number of
grounds, one of the foremost of which was the nature of land ownership
in the colonies. He explained the nature of the American tenurial system
by comparing it with the Saxon colonization of Britain, which was then,
so he claimed, in a similar condition in the sense of being less populated.
In establishing settlements, the Saxons established a land system under
which they ˜held their lands, as they did their personal property, in abso-
lute dominion, disencumbered with any superior, answering nearly to the
nature of those possessions which the Feudalists term Allodial™.9 Jefferson
went further than this purely historical account, to claim the right of ap-
propriation as a right given to men by nature, ˜of departing from the
country in which chance, not choice has placed them, of going in quest
of new habitations, and of there establishing new societies™; indeed, the
Saxons had colonized Britain, so Jefferson claims, ˜under this universal
law™, of which the American settlers had since availed themselves.10 Thus,
Jefferson could offer a theory of the private rights of American colonists

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