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in the law of nations that validated their rejection of British attempts to
attach new taxes and encumbrances to their allodial tenures: a kind of
private war that Grotius would probably not have endorsed, but which
was nonetheless broadly consistent with his position. Of course, this the-
sis was not only handy for attacking the British. It continued to provide
a convenient rationale for the mistreatment of the American Indians that
persisted through the nineteenth century.11
The importance of individuals™ property rights within the modern law
of nations has seldom been appreciated because of the widespread as-
sumption that a cardinal feature of modern international law is that inter-
national personality is restricted exclusively to states. The whole question
of whether or not individuals have rights and duties in international law is
thus supposed to have been suppressed by a grand ˜conspiracy of silence™
between states.12 In terms of the full range of what are now called ˜human
rights™, there is some truth to that claim, but with respect to their property
individuals were always much better off in the modern law of nations,
8 In Thomas Jefferson, Papers of Thomas Jefferson (Princeton University Press, 1950), vol. I,
pp. 121“37. For a good commentary, see Eugene C. Hargrove, ˜Anglo-American Land
Use Attitudes™, Environmental Ethics, 2 (1980), 121“48.
9 10 Ibid., p. 122.
Jefferson, Papers, vol. I, p. 132.
11 For an exemplary statement of the nineteenth-century conventional wisdom on Indians™
property rights, see Johnson v. McIntosh, in United States Reports, Wheaton 8 (New York:
Donaldson, 1823), especially pp. 573“4, 588ff. and 603.
12 Bull, The Anarchical Society, p. 83.
104 Beyond the anarchical society

to the delight of colonial settlers and, for the most part, the chagrin of
indigenous peoples. Even here, though, there is a tendency to treat indi-
viduals™ property rights as if they did not exist in modern international
law, because there were no hard-and-fast treaties or agreements among
states to render it as such. The de¬nition and protection of individuals™
property rights, it is often assumed, was simply a matter for municipal law,
which only became an issue in the international realm under the rubric
of the private international law doctrine on ˜con¬‚ict of laws™.13 And it is
taken to be symptomatic of Grotius™s medieval archaism that he did not
grasp the distinctions between municipal and international, natural and
positive, or public and private, that are so central to modern international
society, but believed that individuals™ natural rights to property were as
much part of the law of nations as were the sovereign rights of public
authorities.
The point, however, is that his belief in the importance of individuals™
property rights has always been there in modern international law. It was
explicitly made part of the law of nations in the works of Grotius, Locke
and Vattel, who could treat it in that way because they were all comfortable
with the notion that natural law constituted at least a part of the work-
ing law of nations of their time. As the invocation of natural law became
less fashionable in the nineteenth century, so these explicit discussions
of private property largely disappeared from textbooks on international
public law. But we should not leap to the conclusion that because lawyers
largely stopped talking about the subject, their silence amounted to a de-
nial of individuals™ rights. On the contrary, by the time of the ¬rst Hague
Conference of 1899 the principle that individuals™ private property rights
should be respected was regarded as so self-evident that there was no need
to work out a formal convention to that effect: as Konstantin Katzarov
puts it, the recognition and protection of individuals™ private property
rights, their inviolable nature and their distinctness from state territorial
jurisdiction was seen as one of the ˜¬rmly established norms of public
international law™, at least until it began be undermined around the time
of the ¬rst world war when the victorious powers™ demand for repara-
tions led them to engage in the seizure and sale of the property of citizens
from the defeated states.14 Moreover, within private international law the
basic principle of the inviolability of individuals™ rights to property was
not merely accepted but was treated as an axiom of how relations between
European states should be conducted. Private international lawyers be-
lieved that it constituted, to all intents and purposes a ˜common law™ for
13 Konstantin Katzarov, The Theory of Nationalisation (The Hague: Martinus Nijhoff,
1964), pp. 284ff.
14 Ibid., p. 287.
Two patterns of order 105

the civilized world, where similar municipal codes governing property
had been consistently developed.15
The relevance for the modern law of nations of Grotius™s views on
private rights to property is fairly easy to see. His conception of divisible
sovereignty, however, might well seem to be much more archaic. It recalls
the complex hierarchies of overlapping jurisdictions that, from the con-
ventional point of view, were symptomatic of medieval Christendom, and
precisely the opposite of the modern world where political authority is
believed to come in neat territorial packages labelled ˜sovereignty™. Once
again, though, orthodox theorists wear blinkers with respect to an array
of theoretical writings that continued to treat sovereignty as divisible. For
a start, plenty of seventeenth-century scholars agreed with Grotius, and
disagreed with Bodin, on the question of the divisibility of sovereignty.
The imperial constitution, the territorial sovereignty of the states and the
reserved rights of the emperor made it hard for lawyers to ignore the
fact that, whatever the attractions of the Bodinian theory in principle,
sovereignty was divided in practice.16 And not all of them took seriously
Bodin™s (and Hobbes™s) warnings of the dire peril that this meant for
the commonwealth. As Leibniz rather bluntly pointed out, ˜I . . . know
that no people in civilized Europe is ruled by the laws that [Hobbes] has
proposed™, and, while he admitted that dissensions might arise from a
division in the sovereign power, he did not think the risks were too great:
˜experience has shown that men usually hold to some middle road, so as
not to commit everything to hazard by their obstinacy™.17
It is no exaggeration to say that in the seventeenth century it was
the more speculatively metaphysical system-builders who believed in the
principle of the indivisibility of sovereignty, while the more pragmatic
and constitutionally minded experts on the law of nations were the ones
who upheld the empirically veri¬able doctrine that sovereignty was di-
visible. In the eighteenth century, especially with growing demands for
a rationalization of society precisely in accordance with philosophical
15 A.V. Dicey, A Digest of the Law of England with Reference to the Con¬‚ict of Laws (London:
Stevens, 1896), pp. 15, 24 and 29. See also L. von Bar, The Theory and Practice of Private
International Law, 2nd edn, trans. G.R. Gillespie (Edinburgh: William Green, 1892),
pp. 5“6, and, as I mentioned in the introduction, Alexander Fachiri, ˜Expropriation and
International Law™, British Year Book of International Law, 6 (1925), 159“71. An excellent
recent discussion, especially on the later development of this theory, is L.C. Green,
˜The Common Law and Native Systems of Law™, in Robert Wilson (ed.), International
and Comparative Law of the Commonwealth (Durham: Duke University Press, 1968),
pp. 81“107.
16 Julian Franklin, ˜Sovereignty and the Mixed Constitution: Jean Bodin and his Critics™,
in J.H. Burns (ed.), The Cambridge History of Political Thought, 1450“1700 (Cambridge
University Press, 1991), pp. 298“328.
17 Gottfried Wilhelm Leibniz, The Political Writings of Leibniz, ed. and trans. Patrick Riley
(Cambridge University Press, 1972), pp. 118“19.
106 Beyond the anarchical society

visions of natural law, the theory of divisible sovereignty was inevitably
pushed slightly to the margins. But, like the concept of property, it never
went away completely. There could be few more rationalist philosophers
than the American revolutionaries, for example, but even they made
extensive use of the idea of divided sovereignty to justify their actions.
They pointed out that the long-established colonial system of govern-
ment had widely distributed public authority rights across an extremely
decentralized system of proprietors, chartered settlement agencies and
partially self-governing local townships, rendering British attempts at
consolidation unjust usurpations of colonial liberties.18 Indeed, in its
combination of a theory of individual property rights based on appro-
priation with a theory of divided sovereignty, the political theory of the
American revolution could almost be seen as a practical demonstra-
tion of the enduring force of Grotian principles in the modern world,
albeit wrapped up in the more radical philosophical climate of the mid-
eighteenth century. And, to the extent that there is a link in that respect,
it is hardly surprising that conventional histories and theories of moder-
nity have always found it dif¬cult to place America in their conceptual
schemes.
The theory of divisible sovereignty survived well beyond the eighteenth
century, and not just in America. Soon after the French Revolutionary
wars, indeed, a new term was coined to describe similar arrangements
in Europe: ˜if one state depends on another state in the exercise of one
or more of the various rights that essentially inhere in sovereignty, but is
free with respect to the others, it is called dependent or semi-sovereign
(mi-souverain)™.19 In fact, the majority of nineteenth-century textbooks on
international law follow a nearly identical pattern to Grotius™s own argu-
ment, beginning with a general assertion of the indivisibility of sovereignty,
to which is added the resulting doctrine of the equality and independence
of sovereign states, but then offering a host of examples to illustrate the
continuing importance of the practice of dividing sovereignty in the mod-
ern world. Here, in fact, the nineteenth-century lawyers were often explic-
itly critical of those earlier theorists, such as Vattel, whom they criticized
18 Although the most celebrated documents (like the Declaration of Independence) make
great play of monarchical tyranny and the usurpation, really the revolutionaries were
much more anxious to contest the Whiggish doctrine of absolute (British) parliamentary
supremacy, by pointing to the traditionally decentralized nature of authority in the empire
and colonial system of government. See Bernard Bailyn, The Ideological Origins of the
American Revolution (Cambridge, MA: Belknap Press, 1967), especially pp. 202“16, and
James Muldoon, Empire and Order: The Concept of Empire, 800“1800 (London: Routledge,
2000).
19 Jean Loius Kluber, Droit des Gens Modernes de L™Europe, 2 vols. (Stuttgart: Cotta, 1819),
¨
vol. I, p. 46. Kluber also noted some earlier expressions referring to ˜quasi-regna™ and
¨
˜second-order states™.
Two patterns of order 107

for making too strong an assertion of the indivisibility of sovereignty,
and made instead a clear distinction between sovereignty and national-
ity that suggested the two terms were not at all synonymous.20 Practical
instances of divided sovereignty were usually discussed under two main
headings. First, lawyers dealt with unions of sovereign states, ranging
from the loose German confederation, where the individual states were
deemed to have retained a measure of international personality, to the
more centralized structure of the American States-Union, where most
lawyers believed that all international personality had been vested in the
federal government. Secondly, they discussed the status of dependencies
and protectorates: independent states that had, through whatever means,
accepted an inferior relationship towards another state, such that the latter
acted as the former™s guardian in international affairs, and often exercised
considerable control over the protectorate™s capacity for independent re-
lations with third parties. The classic examples of this kind of polity,
within the European political system at least, were Poland and the Ionian
Islands.21
In short, to persist in the belief that modern international lawyers
were all committed to a Bodinian or Hobbesian conception of indivisible
sovereignty is to ignore the evidence of what they actually wrote. Ad-
mittedly, the Bodinian and Hobbesian thesis about the singularity of
sovereignty was given a powerful and in¬‚uential restatement in the mid-
dle of the nineteenth century through John Austin™s famous ˜positive™
theory of law. Austin loathed the idea of divisible sovereignty, although
even the venom he poured on to it does indicate the continuing popu-
larity of the concept, and he insisted that the whole doctrine of divis-
ibility, with its cognate ideas of semi- or demi-sovereign entities, was
˜absurd™, ˜nominal™ and ˜illusive™.22 But Austin did not have everything
his own way. In response to his rather abstract approach, later nineteenth-
century scholars like Henry Sumner Maine developed an equally, or even
more, popular theory of ˜historical jurisprudence™, effectively replaying
the same debates that had been carried on between Bodin, Hobbes and
20 Travers Twiss, The Law of Nations Considered as Independent Political Communities: On the
Rights and Duties of Nations in Time of Peace (Oxford University Press, 1861), p. 23.
21 For fairly representative examples, see Henry Wheaton, Elements of International
Law, 6th edn, revised by William Beach Lawrence (London: Sampson Low, 1857),
pp. 45ff.; Robert Phillimore, Commentaries upon International Law, 2nd edn, 2 vols.
(London: Butterworths, 1871), vol. I, pp. 93ff.; William Edward Hall, A Treatise on
International Law, 2nd edn (Oxford: Clarendon Press, 1884), pp. 27ff.; and George
B. Davis, The Elements of International Law with an Account of its Origins, Sources and
Historical Development, 2nd edn (New York and London: Harper and Brothers, 1900),
pp. 34ff.
22 John Austin, Lectures on Jurisprudence, or The Philosophy of Positive Law, 4th edn (London:
John Murray, 1879), pp. 257 and 260.
108 Beyond the anarchical society

the constitutionalist historians of the seventeenth century.23 Maine, like
Bodin™s critics a couple of hundred years earlier, weighed in with the
obvious practical objection to Austin: the division of sovereignty might
not work in your theoretical scheme, but it seems to work perfectly well
in practice.
It is necessary to the Austinian theory that the all-powerful portion of the commu-
nity which makes laws should not be divisible, that it should not share its power
with anybody else, and Austin himself speaks with some contempt of the semi-
sovereign or demi-sovereign states which are recognized by the classical writers
on international law. But this indivisibility of sovereignty, though it belongs to
Austin™s system, does not belong to international law. The powers of sovereigns
are a bundle or collection of powers, and they may be separated one from an-
other. Thus a ruler may administer civil and criminal justice, may make laws for
his subject and for his territory, may exercise power over life and death, and may
levy taxes and dues, but nevertheless he may be debarred from making war and
peace, and from having foreign relations with any authority outside his territory.24
That, he added, was the precise position in which the Indian Native States
now found themselves.
Nor was Maine alone in this view. John Westlake agreed that ˜sovereignty
is partible™, and took the idea of ˜semi-sovereignty™ to be a useful and valid
concept, although he was more reticent than Maine about the interna-
tional status of the Indian Native States.25 Arthur Berriedale Keith, yet
another prominent British international lawyer of the period, began his
analysis of the circumstances of the British Dominions with the observa-
tion ˜that sovereignty can be divided, and that in any country both internal
and external sovereignty may be shared by various authorities™.26 Even as
late as 1940, Hersch Lauterpacht was still arguing that: ˜from the point of
view of international law, sovereignty is a delegated bundle of rights. It is
a power which is derived from a higher source [the normative framework
of the international legal order itself ] and therefore divisible, modi¬able
and elastic. This is so although international law has suffered for a long
time from the theory of the indivisibility of sovereignty.™27 In fact, the
only puzzle in Lauterpacht™s statement is his apparent belief that the
23 For an analysis of Maine™s approach, see Paul Vinogradoff, Outlines of Historical Jurispru-
dence, 2 vols. (London: Oxford University Press, 1920).
24 Henry Sumner Maine, International Law: The Whewell Lectures of 1887, 2nd edn (London:
John Murray, 1915), p. 58.
25 Westlake, Chapters on the Principles of International Law, p. 87.
26 Arthur Berriedale Keith, The Sovereignty of the British Dominions (London: Macmillan,
1929), p. 1.
27 Hersch Lauterpacht, ˜Sovereignty and Federation in International Law™, in Lauterpacht,
International Law: The Collected Papers of Hersch Lauterpacht, ed. E. Lauterpacht, 4 vols.
(Cambridge University Press, 1970), vol. III, p. 8, and for another discussion, see vol. I,
pp. 370“7.
Two patterns of order 109

theory of the indivisibility of sovereignty had previously dominated inter-
national law. This may well be one of the ¬rst examples of the widespread
underestimation that later twentieth-century international legal scholars
have consistently made of the ¬‚exibility and complexity of seventeenth,
eighteenth and nineteenth-century thinking about sovereignty and semi-
sovereignty.


The concept of civilization and modern international
legal order
International lawyers, in short, continued to use the classical Grotian
concepts of property and divisible sovereignty right through into at least

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