<<

. 2
( 29 .)



>>

presented in it, I would have to list practically everyone with whom I have
had any sustained engagement in my undergraduate, postgraduate and
professional careers. You know who you are, and you have my heartfelt
gratitude for all the advice and suggestions you have given me. That said,
there is a smaller group of people who have been especially important to
the development of my work, and I would like to offer them more direct
thanks here.
My biggest intellectual debt is to Justin Rosenberg, who supervised
the Ph.D. thesis on which this book is based. Justin was an invaluable
source of expertise and encouragement while I was writing the thesis,
and he has been a model of thorough and imaginative scholarship as
I have tried to take the next step to presenting my ideas to a wider pub-
lic. Close behind him in their importance are Andrew Hurrell and Fred
Halliday. Andrew engaged my interest in international relations theory
while I was an undergraduate, and his thoughtful, learned questioning
has been a constant stimulus ever since. Fred probably has more respon-
sibility than anyone else for my decision to pursue an academic career;
his charismatic approach to the study of international relations gave me
both a sense of vocation and an abiding affection for everything that the
London School of Economics (LSE) has traditionally represented. As
well as Justin and Fred, I have bene¬ted hugely from the other mem-
bers of the International Relations Department at the LSE, particularly
Michael Banks, Mark Hoffmann and Peter Wilson, but it is no disrespect
to them if I say that I probably learnt even more from my fellow Ph.D.
students. I had the good fortune to ¬nd myself in a vibrant and friendly
community of scholars, which gave me an experience to cherish and had
a profound impact on my work: my particular thanks go to the members
of the Modernity workshop, my colleagues at Millennium and above all
to Eivind Hovden, not just for helping me to develop my thoughts on


xiii
xiv Acknowledgements

international relations, but also for keeping me cheerful during the often
lonely business of writing a thesis.
Completing the Ph.D., though, was really only half the battle. Since
then I have received a great deal of help from numerous scholars, and I
would like to thank them for their comments, criticisms and encourage-
ment. As I moved into my ¬rst proper job, I was lucky enough to ¬nd
myself at SOAS, surrounded by the same kind of intelligent and con-
vivial community that I had just left at the LSE: Kathryn Dean, Sudipta
Kaviraj, Charles Tripp, Tom Young, and most of all Stephen Hopgood
have been excellent friends and colleagues. I am extremely grateful to my
Ph.D. examiners, Andrew Linklater and James Mayall, for their penetrat-
ing analysis of my thesis, and to the readers of the initial manuscript that I
sent in to Cambridge University Press. I think, and I hope they will agree,
that their excellent suggestions have led to real improvements in both the
content and presentation of my argument. Considerable thanks are also
due to Margot Light, who encouraged me to submit my thesis to this
series and has been wonderfully sympathetic and helpful as I have slowly
gone about the nerve-wracking task of turning a Ph.D. that I knew no-one
would ever read into a more public statement of my position. Finally, I
am no less grateful to the several experts who have taken the time to read
parts of the manuscript and have saved me from numerous errors, among
whom Peter Borschberg and Nicholas Onuf have my special thanks for
their extraordinary intellectual generosity and perception. Of course, it
would be asking too much of anyone to spot all the mistakes that I have
made, and I take responsibility for the remaining ones that have made
their way into print.
Although these intellectual debts are considerable, they pale besides
the constant and loving support of my family. Since 1999, I have been in
the enviable position of having two families, one in Georgia and one in
London, and consider myself doubly blessed. My wife, Molly, has shown
me unstinting tenderness and compassion, and her gentle strength has
sustained me during the writing of this book. I have always drawn upon my
sister Harriet™s unconditional love. But most of all it is my parents, Gillian
and David, who have given me the rare opportunity to follow my vocation,
as well as a perfect foundation from which to pursue it. I am profoundly
moved by their generosity of spirit, and it is but a small recompense to
dedicate this book to them.
Introduction




This book is about the patterns of political and legal order that have char-
acterized international relations since the seventeenth century. On seeing
that opening statement, one might well expect a large part of the book to
be devoted to explaining how the modern world came to be organized as
a ˜Westphalian system™, or to the closely related idea that modern states
collectively form an ˜international society™ that preserves their mutual
independence and maintains a degree of peaceful coexistence in their re-
lations with one another. It would also be perfectly reasonable to expect
my analysis to go on to ask whether or not this society of states can provide
for justice in the world today; or how international relations are presently
being transformed as a result of the emergence of a quite different kind
of ˜post-Westphalian™ order that is founded on new normative principles
and embodied in new international legal rules and institutions.
But these are well-trodden paths and I do not intend to go down them
again, other than to say where I think they are misleading. We already
have a shelf full of excellent books on the international society of sovereign
states, of which one of the best contemporary works, certainly one of the
most lucid, is Hedley Bull™s hugely in¬‚uential account of The Anarchical
Society.1 I will pay a considerable amount of attention to how Bull™s argu-
ment was put together, but it would hardly be worthwhile just to repeat
what he has already said about order in the modern society of states, even
with the addition of a few extra historical, philosophical or sociological
¬‚ourishes to give his vision of the anarchical society a little more depth.
Nor will I look to build upon the extensive literature that has been de-
voted to identifying what justice means in an international context, or the
more recent, but already sizeable, body of scholarship on the idea that a
new kind of world order is developing.2 In my view, this work operates

1 Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London: Macmillan,
1977).
2 On contemporary thinking about justice and international society, see David Mapel and
Terry Nardin (eds.), International Society: Diverse Ethical Perspectives (Princeton University
Press, 1998). It would be premature to identify coherent schools of thought on the idea of

1
2 Beyond the anarchical society

within excessively restricted parameters because it unthinkingly accepts
conventional assumptions about the modern pattern of international po-
litical and legal order. Far too many ˜critical™ enquiries into contemporary
world politics are conducted by asking questions about what is, or should
be, happening to the same old society of states. It hardly needs saying, for
instance, that the increasingly popular idea of a post-Westphalian order
does not make much sense unless one begins from the proposition that
the modern pattern of international order was itself Westphalian. Very
few analyses of contemporary world politics have managed to break free
from this conventional way of thinking about international relations in
the past, and that signi¬cantly limits their capacity to think about the
present and the future in a genuinely original way.
My intention is to explore these issues by taking a less travelled road,
one indeed that has practically disappeared from the map in the last ¬fty
years or so and is now in an alarming state of disrepair. My starting
point will be the account of the law of nations that was developed in the
early seventeenth century by the Dutch lawyer, Hugo Grotius. In view of
my claim that we need to liberate ourselves from conventional wisdoms
about modern international relations, that might seem like an odd place
to begin, because scholars today usually see Grotius as one of the prin-
cipal authors of the utterly conventional idea of a society of equal and
independent, territorially sovereign states. Grotius, the argument goes,
lived precisely at the time when this pattern of international order was
emerging: his main work, De Jure Belli ac Pacis, was ¬rst published in
1625, little more than twenty years before the modern system began to
take shape with the signing of the Peace of Westphalia in 1648. Commen-
tators have therefore assumed that what is signi¬cant about his work is
its anticipation of the problems that result from the decentralized nature
of the Westphalian system, and that his prominence in the history of in-
ternational legal thought derives from his having been one of the ¬rst to
suggest how the binding force of the law of nations could be preserved in
such an anarchic and pluralistic environment. Other themes in his work
that do not ¬t in with the logic of the states-system are usually explained
away as hang-overs from medieval theory and practice, which had not

an international transformation, but a few prominent and heavily cited works are David
Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance
(Cambridge: Polity Press, 1995); Andrew Linklater, The Transformation of Political
Community (Cambridge: Polity Press, 1998); Gene Lyons and Michael Mastanduno
(eds.), Beyond Westphalia? State Sovereignty and International Intervention (Baltimore:
Johns Hopkins University Press, 1995); and John Gerard Ruggie, Constructing the World
Polity: Essays in International Institutionalization (London: Routledge, 1998). A number of
different approaches are collected in Eivind Hovden and Edward Keene (eds.), The
Globalization of Liberalism (London: Palgrave, 2001).
Introduction 3

yet been decisively rejected in Grotius™s day; or they are interpreted as
well-intentioned but rather idealistic proposals about how the quality of
order in the modern society of states might be improved, if only states
could be persuaded to work together in the common interest of interna-
tional society as a whole, pay more respect to the rights of individuals,
act collectively to enforce international law and so on.3
I think that this point of view overlooks important ways in which the
unorthodox elements of Grotius™s account of the law of nations were rel-
evant to modern world politics, albeit with respect to certain features
of modern international order that for the most part developed outside
the European society of states, and are often ignored or dismissed as
˜anomalies™.4 In particular, I want to highlight two key propositions in
Grotius™s theory about the rights that public authorities and private indi-
viduals possess in the law of nations. The ¬rst is that the sovereign pre-
rogatives of public authorities are divisible from one another, such that it
would be possible for sovereignty to be divided between several institu-
tions within a single political community, or, to put it in a more obviously
international context, it would be possible for a state to acquire some of
the sovereign prerogatives that had originally belonged to another and
exercise them on its behalf. The second proposition is that under certain
conditions individuals have a right in the law of nations to appropriate
unoccupied lands; furthermore, if no established political authority acts
to protect their rights, the individuals themselves may conduct a ˜private
war™ in their defence and would be justi¬ed by the law of nations in so
doing. Neither of these claims can safely be dismissed as nostalgia for
medieval Christendom or as an idealistic proposal for the reform of the
existing society of states. On the contrary, they have a striking proximity
to the practices of colonialism and imperialism that Europeans adopted
in the extra-European world. A proper account of the relationship be-
tween the Grotian theory of the law of nations and modern world politics
should make an analysis of his ideas of divisible sovereignty and private
3 An important contemporary statement is Hedley Bull, ˜The Grotian Conception of
International Society™, in Herbert Butter¬eld and Martin Wight (eds.), Diplomatic Inves-
tigations: Essays on the Theory of International Politics (London: George Allen and Unwin,
1966), pp. 51“73. Of course, this interpretation of Grotius is not originally Bull™s. On the
contrary, it has been around for well over a hundred years, and can be found in almost
any late eighteenth or nineteenth-century textbook on international law: for an example,
chosen more or less at random, see William Manning, Commentaries on International Law
(London: Sweet, 1839), pp. 20“2.
4 For a number of these ˜anomalies™, some of which speak directly to extra-European in-
ternational politics (especially the British Commonwealth and the East India Company),
see Bull, The Anarchical Society, pp. 274“5. Again, this observation does not originate
with Bull. His point echoes Lassa Oppenheim, International Law: A Treatise, 2nd edition,
2 vols. (London: Longmans, 1912), especially vol. I, pp. 111“15.
4 Beyond the anarchical society

appropriation its central themes, and ought to include an examination of
the colonial and imperial systems of governance that represented a dis-
tinctive pattern of modern international political and legal order based
on these principles.5
Admittedly, Grotius™s ideas about the divisibility of sovereignty and
individuals™ rights in the law of nations look rather peculiar in compar-
ison with the conventional understanding of modern international legal
thought, where sovereignty is supposed to be indivisibly packaged up
in territorial bundles, and where individuals are supposed not to have
any international personality at all. That might tempt some to assume
that Grotius™s ideas were almost immediately discarded by later scholars
and practitioners of international affairs, and that my interest in them
is merely archaic; but that assumption would be quite wrong. Over the
last ¬fty years or so, we have lost sight of these notions as part of mod-
ern international legal and political discourse because experts on inter-
national relations seldom read the authors who continued to use them
or pay attention to the contexts in which they were expressed. Few re-
alize, for instance, that even in the late nineteenth century it was still
perfectly reasonable for an extremely prominent and in¬‚uential British
international lawyer to argue that the doctrine that sovereignty is indi-
visible ˜does not belong to international law™, and that ˜sovereignty has
always been regarded as divisible™.6 And, as for individuals™ private rights
to property, the mere fact they were seldom explicitly mentioned in mod-
ern discussions of public international law does not imply that they were
completely absent from the prevailing international legal order. On the
contrary, as one international lawyer put it in the early twentieth century,
the express stipulation of the principle that individuals™ property rights
5 Richard Tuck™s recent book on The Rights of War and Peace: Political Thought and the
International Order from Grotius to Kant (Oxford University Press, 1999) includes an ex-
cellent treatment of Grotian thinking about property and its relationship to colonial-
ism, and see also L.C. Green and Olive Dickason, The Law of Nations and the New
World (Edmonton: University of Alberta Press, 1989). Meanwhile, James Muldoon™s
equally good Empire and Order: The Concept of Empire, 800“1800 (London: Macmillan,
2000) contains several important insights into the political theory of divided sovereignty
(although not so much in the Grotian context) and its relationship to imperial gover-
nance in North America, as does Richard Koebner, Empire (New York: Grosset and
Dunlap, 1965). To the best of my knowledge, though, no-one has put these themes to-
gether to offer a sustained analysis of the general pattern of political and legal order that
developed out of the Grotian theory of the law of nations and the practices of European
colonialism and imperialism. Nor has anyone yet properly analysed how such an en-
quiry would impact upon orthodox theories of order in modern and contemporary world
politics.
6 Henry Sumner Maine, International Law: The Whewell Lectures of 1887, 2nd edition
(London: John Murray, 1915), p. 58, and an 1864 minute for the British government
by the same author, in Adrian Sever (ed.), Documents and Speeches on the Indian Princely
States, 2 vols. (Delhi: B.R. Publishing, 1985), Document 65.
Introduction 5

were inviolable was widely seen as ˜unnecessary by reason of the universal
recognition and adoption™ of the principle among all the members of the
society of states.7
This interpretation of the Grotian theory of the law of nations and
its relationship to the practices of colonialism and imperialism leads to
what are really the central propositions in my argument: that there has
been a long-standing division in the modern world between two differ-
ent patterns of international political and legal order; and that the world
we live in today is a combination of both, and an extremely awkward
and unstable combination at that.8 The main problem with the ortho-
dox account of modern world politics is that it describes only one of
these patterns of international order: the one that was dedicated to the
pursuit of peaceful coexistence between equal and mutually indepen-
dent sovereigns, which developed within the Westphalian system and the
European society of states. I am happy to concede that the detailed anal-
ysis of these arrangements represents a valuable contribution to our un-
derstanding of modern international politics and international law, but it

<<

. 2
( 29 .)



>>