<<

. 20
( 29 .)



>>

the early twentieth century. Nevertheless, it would be vastly overstating
the continuity between Grotius™s position and those held by eighteenth
or nineteenth-century scholars to treat these arguments as evidence for
a sustained Grotian tradition. Although similar concepts were still being
used, they were located in a wider intellectual context that was quite
different from that which animated Grotius™s theory of the law of nations.
The philosophical orientation and practical context of international law
had changed radically from Grotius™s day, and this development goes
right to the heart of how the difference between the European and extra-
European patterns of order was understood. To understand it, we need
to appreciate how the vast majority of international lawyers came to hold
the belief that a distinction needed to be made between the pursuit of
toleration and civilization in modern world politics.
The idea that order in modern world politics possessed two distinct
purposes, and consequently was divided between two different norma-
tive and institutional systems, was not a major feature of Grotius™s work
on the law of nations, if it could even be said to have ¬gured in his ar-
gument at all. In the ¬rst place, as I noted in chapter 2, Grotius did not
really think about international relations in purposive terms at all. He
was interested in the rights and duties that actors did hold, rather than
those which ought to be vested in them in order to realize the best possi-
ble political or legal system. His attitude was that legal rights should be
respected, but he did not try to de¬ne a particular distribution of rights
that ought to be established in order to create a more tolerant or a more
civilized world. Secondly, for the most part Grotius did not make any
radical distinctions between order within and beyond Europe, or even
Christendom. Apart from his description of the American Indians as liv-
ing in a condition that was still characterized by natural simplicity and
community of property, he tended to regard the rights and duties of extra-
European and non-Christian peoples in much the same way. In principle,
110 Beyond the anarchical society

there was nothing to prevent the American Indians from setting up an
institution of dominium among themselves, in which case they would have
exactly the same rights over their property as Europeans enjoyed, while
the division of sovereignty applied just as much to European rulers, exem-
pli¬ed by Philip II™s relationship to the Dutch, as it did to non-European
rulers like the king of Johore. There are very few references in Grotius™s
work to the idea that Christendom might have had systematically different
legal arrangements from the non-Christian world, and often they relate
to issues like postliminium that have little relevance to the subsequent
development of colonialism and imperialism beyond Europe.28
Most eighteenth-century international lawyers and political theorists
parted company with Grotius in these respects. They increasingly be-
lieved that enquiries into the law of nations ought not only to say what
that law was, but also to discern some moral purpose that either validated
the existing order or provided an ideal that indicated how it should be
reformed.29 For example, the struggle between the French revolutionar-
ies and the defenders of the old regime revolved around this issue, and
the counter-revolutionary perspective on European public order which
ultimately won out was based on the thesis that the principle of ˜internal
freedom™ was desirable because of its ability to sustain the purposes of
peace and tolerance in international affairs. Moreover, although Grotius
had seen the law of nations as an all-embracing code, eighteenth-century
lawyers could not avoid the increasingly obvious fact that international
relations were beginning to operate in systematically different ways in the
European and extra-European worlds. As Robert Plumer Ward argued,
for example, it was impossible to ignore that ˜what is commonly called
the Law of Nations falls very far short of universality . . . the Law is not the
Law of all nations, but only of particular classes of them . . . there may be
a different Law of Nations for different parts of the globe™.30
There were two main ways of dealing with the problem that Ward had
identi¬ed. The ¬rst response was simply to ignore what was happening in
the extra-European world. Even though there were plenty of treaties be-
tween European and non-European rulers, for the most part the new legal
28 Even as Martin Wight proposed that Grotius held a ˜dualistic™ or ˜concentric conception
of international society™, he quali¬ed his claim by making precisely this observation:
Systems of States (Leicester University Press, 1977), p. 128.
29 An excellent study of this feature of modern international legal discourse is Martti
Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument
(Helsinki: Finnish Lawyers™ Publishing Co., 1989), especially pp. 106“17, and see also
David Kennedy, ˜Primitive Legal Scholarship™, Harvard International Law Journal, 27
(1986), 1“98.
30 Robert Plumer Ward, An Enquiry into the Foundation and History of the Law of Nations in
Europe, 2 vols. (London: Butterworth, 1795), vol. I, p. xiii, emphases in original.
Two patterns of order 111

historians chose not to include them in their treatises, and gradually de-
veloped an account of the law of nations that was entirely derived from the
treaties agreed within the European states-system.31 The beauty of this
strategy was that it effectively wiped the slate clean, liberating European
rulers from treaties they had made that had often been signed under
conditions of parity or even inferiority with non-European rulers. It thus
left them free to enjoy to the full the bene¬ts of their growing military
and commercial domination over non-Europeans.32 The second response
was to posit some kind of qualitative difference between European and
non-European peoples or geographical conditions to explain the diver-
gence in international relations. Montesquieu, for example, produced an
extended series of re¬‚ections on the effects of climate and other natu-
ral phenomena to the social development of peoples.33 Much the same
line of thinking can be discerned in Thomas Jefferson™s famous remark
that America™s ˜geographical peculiarities may call for a different code of
natural law to govern relations with other nations from that which the
conditions of Europe have given rise to there™.34
Generally speaking, in both of these approaches, lawyers and political
theorists tended to think about order in world politics in terms of a radical
distinction between civilized and uncivilized societies. At the risk of some
oversimpli¬cation, they developed an approach that treated the principles
of appropriation and divisible sovereignty as especially closely related to
the particular legal code that governed relations between civilized and
uncivilized peoples, ful¬lling a morally desirable purpose by enabling the
former to bring civilization to those parts of the world that did not yet
enjoy its bene¬ts. I have already touched on the importance of the idea of
civilization, and its cognate notions such as ˜manifest destiny™, to extra-
European international politics, and I have also pointed to the pivotal role
that these ideas played in the further development of Grotian ideas about
divisible sovereignty and individuals™ rights by theorists who wanted to
view the international legal order in more purposive terms than Grotius
himself had done. What I want to do now is offer a more detailed analysis
of precisely how this concept operated and what its content was: what
31 See Charles Alexandrowicz, ˜Empirical and Doctrinal Positivism in International Law™,
British Year Book of International Law, 47 (1974“5), 286“9.
32 See Charles Alexandrowicz, An Introduction to the History of the Law of Nations in the
East Indies (Oxford: Clarendon Press, 1967). I have to admit that I feel Alexandrowicz
overstated the case for this point, and that on the whole Europeans were better at
manipulating the early treaties than he believed.
33 Baron de Montesquieu, The Spirit of the Laws, trans. Thomas Nugent (New York: Harper,
1966).
34 Cited in Albert K. Weinberg, Manifest Destiny: A Study of Nationalist Expansionism in
American History (Baltimore: Johns Hopkins University Press, 1935), p. 29.
112 Beyond the anarchical society

exactly did people mean when they talked about bringing ˜civilization™ to
the world beyond Europe?
A good starting point for answering this question can be found in the
work of John Stuart Mill, an individual who neatly combined both roles of
a colonial administrator and an expert commentator on international law.
Mill identi¬ed four main characteristics that de¬ned a civilized people, as
opposed to a savage or barbaric one. Civilization implied, he said, ˜a dense
population . . . dwelling in ¬xed habitations, and largely collected together
in towns and villages™; a highly developed level of agriculture, commerce
and manufacturing industry; ˜human beings acting together for common
purposes in large bodies, and enjoying the pleasures of social intercourse™;
and a state of affairs ˜where the arrangements of society, for protecting
the persons and property of its members, are suf¬ciently perfect to main-
tain peace among them™.35 These were all attributes that savage peoples
lacked, to greater or lesser degrees. This conception of civilization has
two main dimensions: it speaks to material development, in the sense
of economic and technological progress; and it has a moral dimension,
in the sense that a civilized society would be based on an educated and
re¬ned population, and good government based on fair and effective
political, administrative and judicial systems.36 Although the concept of
civilization was so ubiquitous in nineteenth-century scholarship that it
is dif¬cult to make a general survey about how its meaning was under-
stood, Mill™s point of view was clearly widely shared. American ideas
about ˜manifest destiny™, for example, had almost identical connotations,
being concerned with, in Robert Johannsen™s summary, ˜the movement
of Americans to new and permanent homes in the far reaches of the
35 John Stuart Mill, ˜Civilization™, in Mill, Collected Works, Volume 18: Essays on Politics
and Society (London: Routledge, 1977), p. 120. It is worth noting that Mill did not
necessarily understand this concept in unambiguously positive terms. For a start, he
tried to de¬ne it in a technical way, not to distinguish between good and bad societies,
but to identify what made a ˜wealthy and powerful nation™ different from ˜savages and
barbarians™ (ibid., p. 119). He recognized that the term was popularly used to denote
general moral goodness, a position with which he had some sympathy, but he was careful
to observe that one might easily see civilization as incapable of providing, or even hinder-
ing, the attainment of other socially desirable goals; he thought that it led, for example,
to the rise of mass in¬‚uence in politics and culture, ˜and the weight and importance of
an individual, as compared with the mass, sink into greater and greater insigni¬cance™
(ibid., p. 126).
36 The point about the dual, material and moral aspects of the concept of civilization is
nicely captured by Fernand Braudel, A History of Civilizations, trans. Richard Mayne
(London: Penguin, 1994), p. 5, although Braudel™s point about the mid-eighteenth-
century origins of the concept in France could clearly be taken further back, espe-
cially for the English-speaking world: see, for example, Thomas Patterson, Inventing
Western Civilization (New York: Monthly Review Press, 1997), and Jane H. Ohlmeyer,
˜ “Civilizinge of those Rude Parts”: Colonization within Britain and Ireland, 1580s to
1640s™, in Nicholas Canny (ed.), The Oxford History of the British Empire, Volume 1: The
Origins of Empire (Oxford University Press, 1998), pp. 124“47.
Two patterns of order 113

continent, the advances in the economic and political environment that
seemed to add up to progress, the humanitarian reform efforts to sweep
away the obstacles to perfection™, alongside more uniquely American in-
terests in religious salvation and the growing republic™s status vis-` -vis
a
37
the longer-established European powers.
In both its material and moral senses the idea of civilization had a very
close association with the practices of dividing sovereignty and asserting
individuals™ property rights that characterized the extra-European colo-
nial and imperial systems. The reformation of indigenous property sys-
tems in the East Indies and American practices like homesteading were
both directly associated with the spread of civilization. Not only were
these intended to stimulate the improvement of uncultivated or poorly
cultivated land, and hence promote economic growth, but they were
also intended to act as a check on arbitrary and despotic government,
as Thomas Stamford Raf¬‚es™s comments on ˜intermediate renters™ indi-
cate. As with many aspects of the language of civilization, this was most
overt in America, where, as John Dix, a New York senator, made clear
in 1848, the logic of westward expansion meant that ˜aboriginal races,
which occupy and overrun a portion of California and New Mexico must
there, as everywhere else, give way before the advancing wave of civi-
lization, either to be overwhelmed by it, or be driven upon perpetually
contracting areas™.38 The division of sovereignty was also integral. The
basic point of paramountcy in India, as well as maintaining the security
of the empire itself, was to provide a rationale under which Europeans
could intervene in the domestic affairs of the Native States to ensure the
provision of good government and to promote commerce as the basis
for economic and technological progress. In America, even though the
division of sovereignty within the federal Union was less hierarchical, its
explicit purpose was to provide the necessary coordination involved in
projects like the building of canals and railroads that were generally re-
garded as crucial elements of the project of civilization.39 The concept
also validated American practices beyond the colonization of the West that
more closely resembled European imperialist assertions of paramountcy.
As one commentator put it, ˜interference in the affairs of populations not
wholly barbaric, which have made some progress in state organization,
but which manifest incapacity to solve the problem of political civiliza-
tion with any degree of completeness, is a justi¬able policy. No one can
37 Robert Johannsen, ˜The Meaning of Manifest Destiny™, in Sam W. Haynes and Christo-
pher Morris (eds.), Manifest Destiny and Empire: American Antebellum Expansion (College
Station: Texas A&M University Press, 1997), p. 15.
38 Cited in Thomas R. Hietala, ˜ “This Splendid Juggernaut”: Westward a Nation and its
People™, in Haynes and Morris (eds.), Manifest Destiny, p. 53.
39 See ibid., p. 62.
114 Beyond the anarchical society

question that it is in the interest of the world™s civilization that law and
order and the true liberty consistent therewith shall reign everywhere
upon the globe.™40
As well as its dual application between material and moral phenomena,
another crucial feature of political and legal thinking about civilization
was the distinction between it as an event, especially as a state of affairs
already achieved, and civilization as an ongoing process towards a target
that, in many accounts, was seen as an ideal never to be fully realized.41
In practical terms, for the most part (although not entirely, as we will see
in a moment) this translated into the idea that civilization had already
been attained by European states and by the American States-Union.
A consistent theme in textbooks on international law from the middle of
the nineteenth century on was the distinction between the family of civi-
lized nations, which was seen as roughly synonymous with the society of
states who had achieved recognition as fully independent sovereigns, and
the uncivilized world beyond, of territories and peoples that had not yet
achieved such recognition. The orthodox principles of international law,
especially the principle of national self-determination and the doctrine of
the equality and independence of states, applied only to those peoples that
were already recognized as civilized; with respect to other peoples, civi-
lized states had a responsibility, in so far as they could discharge it with-
out damaging their own prosperity and domestic liberty, to facilitate the
former™s advancement. As the international lawyer James Lorimer put it:

The moment that the power to help a retrograde race forward towards the goal of
human life consciously exists in a civilised nation, that civilised nation is bound to
exert its power; and in the exercise of its power, it is entitled to assume an attitude
of guardianship, and to put wholly aside the proximate will of the retrograde
race. Its own civilization having resulted from the exercise of a will which it
regards as rational, real, and ultimate, at least when contrasted with the irrational,
phenomenal, and proximate will of the inferior race, it is entitled to assume that
it vindicates the ultimate will of the inferior race “ the will, that is to say, at which
the inferior race must arrive when it reaches the stage of civilization to which the
higher race has attained.42

It is worth noting that the boundaries of the civilized world were
never precisely de¬ned, and were not exactly the same as the society
of states. On the one hand, it kept on shifting over the course of the
40 Cited in Weinberg, Manifest Destiny, p. 429.
41 A classic statement of this distinction is Arthur de Gobineau, The Inequality of Human
Races, trans. Adrian Collins (New York: Howard Fertig, 1967), p. 77, and see also
Patterson, Inventing Western Civilization, p. 42.
42 James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of
Separate Political Communities, 2 vols. (Aalen: Scientia Verlag Aalen, 1980; reprint of the
1883 Edinburgh edition), vol. I, pp. 227“8.
Two patterns of order 115

nineteenth and early twentieth centuries as new states, such as Turkey,
China, Japan, Persia and Siam, gradually acquired recognition as mem-
bers of the family of civilized nations.43 Another odd anomaly was that
not all civilized peoples were fully sovereign because some of them, such
as the members of the German confederation, still laboured under the

<<

. 20
( 29 .)



>>