Читать книгу Imperfect Cosmopolis - Georg Cavallar - Страница 7
ОглавлениеTraditionally, authors like Vitoria, Grotius, Pufendorf, Wolff or Vattel have casually been assigned to the camp of the cosmopolitans. Quoting Patrick Henry and Sir James Mackintosh, Henry Wheaton, for instance, called them ‘illustrious authors’, ‘friends of human nature’, ‘kind instructors of human errors and frailties’, ‘impartial witnesses’ who developed the principles of international morality, writers ‘with enlarged views of the welfare of nations’.1
Many recent interpreters have seen, and usually condemned, these writers as accomplices of European colonialism and exploitation. In one way or another, the theory runs, they provided the ideological basis of conquest, and were thus implicated in one of the most appalling crimes of modern history. Robert Williams is a rather outspoken representative of this approach. He endorses three related claims: the West has tried to impose its vision of truth on other cultures since the Middle Ages, mistakenly believing in its own superiority and the corresponding inferiority of others. Secondly, the West has used (international) law as an effective instrument of empire, genocide and exploitation. Finally, Williams claims that Francisco de Vitoria was a kind of founding father of this discourse: ‘Vitoria’s Law of Nations provided Western legal discourse with its first secularly oriented, systematized elaboration of the superior rights of civilized Europeans to invade and conquer normatively divergent peoples.’2 According to Williams, Vitoria offered an apology of and ideology for Spanish colonial practice, endorsing Eurocentric norms. ‘While the normative foundation of Vitoria’s Law of Nations was constructed according to a secularized, as opposed to an ecclesiastically dictated, vision of reason, it was a vision no less totalizing and hierarchical in its outlook than the medieval response to radical difference.’3 Vitoria is modern in the sense that his thinking is more secularized, but the frame of thought has remained unchanged: it is still (or even more) totalizing, hierarchical, Western, repressive and exclusive.
In an influential essay originally published in 1996, Antony Anghie expounds four theses. First, he asserts that international law was created because of the Spanish–Indian encounter rather than preceding it. Secondly, pretended universalism is a mere fake: Vitoria is said to have been biased in favour of the Christians, thus creating a Catch-22 for the Amerindians (whatever they did, their wars were unjust). According to the third thesis, the international lawyers since Vitoria were accomplices of colonial exploitation and created an imperialist international legal theory whose allegedly universal language ‘was devised specifically to ensure [the natives’] disempowerment and disenfranchisement’.4 Finally, Vitoria paved the way for later legal constructions of the allegedly uncivilized other.
Once the initial determination had been made and accepted that the colonial world was not sovereign, the discipline could then create for itself, and present as inevitable and natural, the grand redeeming project of bringing the marginalized into the realm of sovereignty, civilizing the uncivilized and developing the juridical techniques and institutions necessary for this great mission. Within this framework, the history of the colonial world would comprise simply the history of the civilizing mission.5
Anghie’s thesis of a Western civilizing ‘project’ or ‘mission’ looks like a retrospective construction. The connections between Vitoria and nineteenth-century international law are suggested rather than demonstrated.
Brett Bowden draws on Williams and Anghie’s article. His claims are similar: international law was an accomplice of imperialism and implicated in the ‘Western imperial project’. The ‘standard of civilization’ was the ‘legal mechanism’ which admitted communities, peoples or states into the international society – in fact, usually excluded them. Part of this mechanism has been the construction of a non-European, exotic, uncivilized and barbaric ‘other’ – from the Middle Ages to the wars on terrorism of George W. Bush.6
In a 1995 article, Paul Keal partly follows a similar approach, referring to Western ‘universalising discourse’ and ‘cultural imperialism’,7 but is more considerate with the international lawyers. He is rather dependent on what Lindley, Todorov and others write about them instead of listening to what these lawyers themselves had to say. Keal’s criticism of nineteenth-century international legal theory is justified, but tends to project their thinking back to earlier periods. In his recent book (2003), Keal is even more nuanced, though he still refers to ‘cultural imperialism’. Following Lindley’s seminal 1926 study and its distinctions as a heuristic device, Keal differentiates among three groups of writers. The first group includes international lawyers ‘who recognised sovereignty in non-European peoples’, among others Vitoria, Gentili and Pufendorf. Authors like Grotius, Vattel or Philimore only granted ‘limited or conditional sovereignty’ to non-Europeans (the second group). Finally, the major representatives of nineteenth- and early twentieth-century international legal theory such as John Westlake or William Edward Hall simply denied that non-Europeans enjoyed sovereign rights.8 Keal concludes that ‘the earlier writers were more willing to concede rights to non-Europeans’. Things got worse in the nineteenth century, when rights were systematically denied. In particular, this was the case whenever peoples were regarded as ‘uncivilised’. Keal’s overall assessment is not only more nuanced, but also more lenient towards some writers. ‘Not all international law was either a universalising discourse or a form of cultural imperialism. Parts of it applied only to particular non-European entities and did not involve the imposition of European cultural values.’9
Unlike commentators such as Robert Williams, Antony Anghie or Brett Bowden, and like Paul Keal, I argue for a nuanced assessment. I emphasize the complexity of the history of international legal theory, which suggests that we cannot conveniently pigeonhole divergent authors under a heading such as ‘Western totalizing discourse’. Very often, false continuities are constructed, for instance, between the eighteenth and the nineteenth centuries. Against Keal, I argue that there is no linear development from a more cosmopolitan to a narrow Eurocentric international legal theory. Sometimes it seems that the influence of this theory on politics and international legal practice is overestimated. Some contemporary critics seem to have chosen the wrong authors and ignored the ambiguity of texts. I claim that several international lawyers endorsed, or tried hard to arrive at, some form of moral/ ethical, legal and/or intellectual cosmopolitanism.10
Francisco de Vitoria: Christian mission and thin justice
Francisco de Vitoria (1486–1546) is the author who has probably attracted the most divergent assessments. Williams claimed that Vitoria’s law of nations ‘justified the extension of Western power over the American Indians as an imperative of the European’s vision of truth’.11 Others, especially Catholic, Spanish and Latin American authors, have been more lenient, sometimes even enthusiastic. They see Vitoria’s idea of an international community at the heart of his innovative theory. Antonio Gómez Robledo appreciates Vitoria as the prophet of contemporary ius cogens norms and legal cosmopolitanism. Roberto Irigoyen claims that popular sovereignty, equality, the liberty of the peoples or communities, and international solidarity are the cornerstones of Vitoria’s theory.12
Not all Spanish authors are enthusiastic (and often uncritical) fans of Vitoria. Seeing parallels between Sepúlveda and Vitoria, José Antonio Maravall seems to have been one of the first who argued that Vitoria provided an ideology of colonialism and early capitalist interests.13 At the same time, Vitoria has been appreciated outside Spain (and the Catholic world). James Brown Scott, for instance, praised Vitoria as the founding father of international law: ‘The corner-stone of Vitoria’s system was equality of states, applicable not merely to the states of Christendom and of Europe but also to the barbarian principalities in the Western World of Columbus.’ According to Scott, there are no traces of Eurocentric bias, just an all-embracing cosmopolitan attitude. ‘The international community is not a superimposed state; it is coextensive with humanity – no longer merely with Christianity.’14 And finally, there are those who offer mild criticism, aiming at some middle ground between enthusiasm and condemnation. Fernández-Santamaria appreciates Vitoria’s postulate of an international order, but holds that his universe is still Christian, denying the Amerindian communities true equality.15
Who is right? Is Vitoria the cosmopolitan founder of modern international law, or just a biased Eurocentric accomplice of Western colonialism? Or is this the wrong question? Should we embark on the famous search for the ‘third way’? The main problem with Vitoria is that his key lecture ‘On the American Indians’ falls into two sections which seem to be incompatible with each other. In the first part, he claims that the Spaniards had no right to invade and conquer the territories of the ‘barbarians’.16 In the second part, Vitoria argues that the Spaniards had several ‘just titles’ to do so. A favourable interpretation of Vitoria shows that he succeeded at least in part to develop a concept of thin justice as impartiality, forming an uneasy relationship with his Christian, thick conception of the good.
In the second part of his lecture, Vitoria developed four substantial arguments in favour of Spanish invasion: 1) the right of humanitarian intervention, 2) the right of hospitality, 3) the right to missionize, and 4) the argument based on the mental incapacity of the natives. The first two titles were conditional. Intervention was justified if acts of human rights violations such as cannibalism had actually occurred and if Spanish intervention was limited to the goal of helping the victims. Hospitality rights implied that Spaniards were not violent or unjust when visiting the natives. As Vitoria puts it, the Spaniards were allowed to visit the natives, so long as it was done without trickery or fraud and without inventing excuses to make war on them. But on these grounds, if the barbarians allowed the Spaniards to carry on their business in peace among them, the Spaniards could make out no more just a case for seizing their goods than they could for seizing those of other Christians.17
Vitoria’s title based on the mental incapacity of the natives has received most attention in recent years. Here we have to keep in mind that Vitoria’s reasoning is merely hypothetical. He asserts that he mentions this title merely ‘for the sake of the argument’. In addition, he reminds us that even if we should wish to endorse the title, it is (again) a conditional one, as everything would have to be done ‘for the benefit and good of the barbarians, and not merely for the profit of the Spaniards. But it is in this latter restriction that the whole pitfall to souls and salvation is found to lie.’18 Vitoria admits that some natives ‘seem to us insensate and slowwitted’, even ‘foolish’. However, he quickly adds that this can be attributed to their ‘evil and barbarous education’. Vitoria engages in a balancing act, arguing that they are ‘like us’, that is, human beings, but also different at the same time. The differences are seen as a matter of degree rather than kind, and explained by reference to contingent historical factors such as education. ‘Even amongst ourselves we see many peasants (rustici) who are little different from brute animals.’19
Vitoria’s main aim is to evangelize the natives and bring salvation to the unbelievers, and this implied that gross injustices were avoided in the first place. His framework is theological, based on a thick, Christian definition of the good life. In this respect it is wrong to assume – with Robert Williams – that Vitoria’s thinking is secularized. Vitoria writes about the Native Americans that ‘belief in Christ and baptism is necessary for their own salvation’.20 The Spanish obligation to missionize is central. The right of ambassadors is closely connected with the right to preach Christianity. But Vitoria sees that a thin conception of justice is the necessary condition of a successful mission. The natives should get a real chance to ‘listen to peaceful persuasion about religion’, which in turn requires that ‘the Christian faith is set before the barbarians in a probable fashion, that is with provable and rational arguments and accompanied by manners both decent and observant of the law of nature, such as are themselves a great argument for the truth of the faith’, and this should be done ‘not once or in a perfunctory way, but diligently and observantly’.21 Spanish injustices make any genuine Christian mission impossible. Vitoria claims that Spanish behaviour or manners must conform to the standards of the law of nature. A thick conception of the good is part and parcel of a more fundamental thin concept of justice.
There is a tension in Vitoria’s third section on the ‘just titles’ of the Spaniards. It revolves around two conflicting propositions: if the Spaniards had injured the Amerindians, the latter were entitled to expel them. The Amerindians had waged a just war. On the other hand, if the Spaniards had not injured them, they were entitled to defend themselves and their natural right of hospitality. They could wage a just war.
Vitoria writes: ‘Since these travels of the Spaniards are (as we may for the moment assume) neither harmful nor detrimental to the barbarians, they are lawful.’22 The decisive part of the sentence is the one in brackets. May we really assume this? The resolution of the above dilemma rests on our judgment of the situation; moral principles do not help here. Throughout the third section, Vitoria points out that some of the just titles enumerated are only ‘possible’, that they ‘might’ or ‘could’ be legitimate. It is important to bear in mind that Vitoria is very careful in his assessment. He does not state bluntly that the titles are inapplicable, but comes close to it: it ‘appears’ that this is the case and, if so, then ‘the barbarians gave no just cause for war’, with the consequence that ‘the whole Indian expedition and trade would cease, to the great loss of the Spaniards’. Vitoria’s conclusion is that the Spaniards should do what cannot be wrong, that is, using the right of hospitality as specified and trading with the natives as equal partners, who ‘have a surplus of many things which the Spaniards might exchange for things which they lack’.23 Vitoria does not feel sure about all of his arguments, and concludes that trade and hospitality, based on reciprocity and fair exchange, are the best remedies in the given situation.
Why was Vitoria not more outspoken? Perhaps Vitoria found it imprudent to condemn the policy of the emperor in a public lecture. On 10 November 1539, after Vitoria had delivered his second lecture on the Native Americans, de Soto, the prior of his convent, received a letter from Emperor Charles V, demanding that the theologians hand in all material on the Indian question and stop writing or lecturing on it.24 However, Vitoria was very outspoken in a letter to Miguel de Arcos, and revealed his personal attitude. Commenting on the conquest of Peru by Pizarro (1533), Vitora writes in a very emotional way that he is shocked by the events, and that the news of the massacre at Cajamarca and the execution of the Inca Atahuallpa ‘freezes the blood in [his] veins’. He points at the difficulties he encounters when speaking his mind: the conquistadores or peruleros, if criticized, ‘lose their temper’ and accuse Vitoria of heresy or of condemning the emperor and his policy. Vitoria’s arguments are rather straightforward. As the Peruvians had apparently never injured the Spaniards, they did not ‘give them the least grounds for making war on them’. The conquest was ‘butchery’, the natives were ‘most certainly innocents in this war’, and Spanish conduct, apparently motivated by greed, amounted to ‘sheer robbery’. Twice Vitoria compares the plundering of Peruvian towns with the pillaging of Spanish cities.25 Vitoria’s arguments are based on traditional just-war doctrine and basic features of thin justice such as reciprocity and impartiality.
With his postulate or ideal of an international society, Vitoria hints at legal cosmopolitanism, and his concept of human rights suggests a form of moral cosmopolitanism that is not fully developed.26 However, his theory has its limitations. In his lectures, Vitoria never explicitly denies the right of the Spanish crown to conquer Mexico or Peru. Perhaps he wants to show that the emperor’s ‘sovereignty’ could and should go together with the Amerindians’ right to keep ownership of the land or dominium.27 Secondly, as Sankar Muthu argues, Vitoria’s egalitarian understanding of humans was too insubstantial to bear much moral weight. What is missing is an understanding of humans as cultural agents who have developed, in the course of history, diverse and incommensurable ways of life, none of which is in any way inferior. Vitoria never questions the European standard of civilized life. The cultural values and practices of Christian societies are taken for granted and are the infallible yardstick.28
Hugo Grotius: profit and power politics rather than principles
As in the case of Vitoria, we have a wide spectrum of possible interpretations. At the one extreme, authors imply or claim that Grotius was a cosmopolitan who refused to use the law of nations as an ideological instrument to justify European conquest. At the other end of the spectrum, Grotius is condemned as biased and inadequate, because his theory ‘did not in any way restrict the endeavour of subjugating the non-European nations to European authority. Grotius’ system could afford a pretext for every desired act of violence.’29 One group of more recent publications (which are usually in German) stresses the systematic quality of Grotius’ writings, and is rather lenient. The other group, including members of the Cambridge School of Political Thought, is more contextual, critical, and debunks Grotius. Martine Julia van Ittersum’s book is a splendid example.30
Several aspects of Grotian international legal theory suggest that he is cosmopolitan. He appeals to the Stoic and Ciceronian concept of a moral community of humankind (humani generis societas).31 Grotius’ claim that war is just if waged against those who actively persecute Christians because of their faith can hardly be called biased. As a norm, it is of course in need of interpretation and application, and here abuse and prejudice may creep in. But it can be accommodated with the principle of self-defence, and the norm is counterbalanced by the prohibition of waging war against those who are unwilling to accept Christianity.32 Vitoria had presented the outlines of an international moral community, and Grotius repeatedly referred to him, stressing that the Spaniard was right. The natives of the East Indies ‘enjoyed public and private ownership’ like the natives of the Americas. Taking their property or natural rights away was ‘an act of thievery and rapine no less than it would be if perpetrated against Christians’.33 Grotius explicitly rejects special rights of the Europeans: the argument of papal donation, that of Christianizing the unbelievers, and the duty to civilize the barbarians. The first title was rejected by Vitoria and other Spanish authors who followed him, with exceptions such as Solórzano. The right to missionize and convert was usually endorsed. It was debated when and to what extent coercion was acceptable. Grotius weakens the scholastic emphasis on religious issues. Along these lines, and in contrast to Gentili and other Protestant authors of the time, he asserts that ‘alliances and treaties with infidels’ or non-Christians are binding. We have to keep in mind that there are not two spheres of law in Grotius’ system, one for Christian, European communities and another one for non-Christians.34
At the same time, Grotius does not simply replace privileges based on Christianity with those based on civilization, as many other more secularized authors after him would do. He is quick to reject another argument in favour of European conquest, the ‘excuse of introducing civilization into barbaric regions’.35 Grotius’ argument can be divided into three propositions. The first one is of course the rhetoric of human rights pertaining to all. The second one, again echoing Vitoria, points to the fact that the natives are ‘neither insane nor irrational’. The third is psychological: Europeans use civilization as a pretext, their real motivation is greed. He buttresses the first proposition with a rejection of consequentialist thinking. The civilization argument implies that one group of persons imposes on another their own thick conception of the good, pretending or really believing that it is for their welfare and happiness. Consequentialist thinking of this sort, however – popularized in the phrase that ‘the end justifies the means’ – is potentially incompatible with natural rights theory. ‘[T]hose who have the use of their reason ought to have the free choice of what is advantageous or not advantageous, unless another has acquired a certain right over them.’36 The qualification in the relative clause seems to leave a loophole for European conquest, but Grotius sees only children (and in another passage the mentally handicapped) as an exception.
The evidence that Grotius was not impartial and cosmopolitan revolves around three issues: the political purpose of his writings; his theory of punishment; and his doctrine of property. In a meticulous study, Martine van Ittersum has shown that Grotius was a lobbyist and ideologue of Dutch colonialism, writing De Jure Praede (1604–6) on behalf of the United Dutch East India Company (VOC or Vereenighde Oostindische Compagnie). The book aimed at vindicating the VOC’s privateering campaign in the East Indies. Grotius used the language of natural law and rights to achieve this pragmatic, political goal.37 Politics and profit triumphed over principles. When Grotius argued that treaties with non-Christians were binding, and the latter enjoyed true dominion, he had the Sultan of Johore as a strategic partner of the Dutch in mind. When he famously pleaded for the freedom of the seas, he followed an explicit request of the VOC directors, and so on.38 Grotius did not refrain from bending facts, applying principles selectively, and condoning unfair contracts. In the words of Richard Tuck, De Jure Praede is ‘a major apology for the whole Dutch commercial expansion into the Indies’.39
What about his major feat, De Jure Belli ac Pacis (1625), a work written when Grotius was no longer a lobbyist for the VOC? Did he turn from politics and profit to principles then? There can be no doubt that De Jure Belli is more systematic and more scholarly, and less of a piece of propaganda. However, even here we find traces of a clear European bias, and arguments that justify European expansion. It is just that the relevant passages are buried under masses of learned, sophisticated, ornate and seemingly innocuous expositions. De Jure Belli ac Pacis shares with De Jure Praede the same starting point, namely the domestic analogy: ‘That power is called sovereign (summa) whose actions are not subject to the legal control of another, so that they cannot be rendered void by the operation of another human will.’40 This power can be the state (civitas), but an individual enjoys the same power and rights, provided it has not transferred them to a civil society. Both natural individuals and states have the right to use force, the right to punish, and thus the right to make war. In a second move, Grotius assigns the same status to private trading companies – such as the VOC. War itself is seen as a kind of lawsuit, the administering of justice by force.
In contrast to Vitoria and other Second Scholastics, Grotius holds that natural individuals may punish persons over whom they do not possess rights if they (allegedly) grievously violate ‘the law of nature or nations’. In particular, this applies to cannibals, inhospitable communities, those who ‘are inhuman to their parents’, and pirates. In a key passage, Grotius sides with Pope Innocent IV (1243–54), who had argued that as the ‘vicar of Jesus Christ’, the Pope had power ‘not only over Christians but also over infidels’.41
Thus far we follow the opinion of Innocent, and others who say that war may be waged upon those who sin against nature. The contrary view is held by Vitoria, Vázquez, Azor, Molina and others, who in justification of war seem to demand that he who undertakes it should have suffered injury either in his person or his state, or that he should have jurisdiction over him who is attacked. For they claim that the power of punishing is the proper effect of civil jurisdiction, while we hold that it is also derived from the law of nature.42
It goes without saying that this imprecise and sweeping provision generously legitimated a large variety of European colonial practices. In addition, there seems to be an inconsistency in Grotius’ work: in other passages, he advocates free choice and a qualified form of pluralism, a result of taking scepticism into account.43
Finally, Grotius’ theory of property clearly favours European agricultural societies. Grotius himself notes the colonial context, and the colonial debates in the wake of the Spanish conquista, with participants such as Vitoria, de Soto, Cano, Covarruvias, Molina and Gentili.44 Grotius presents an embryonic form of the agricultural argument, popularized by Locke and Vattel later on: ‘[I]f within the territory of a people there is any deserted and unproductive soil, this also ought to be granted to foreigners if they ask for it.’ Grotius distinguishes between dominium and occupatio. Dominion and jurisdiction still reside with the native population. However, settlers have a perfect natural right to occupy (as long as occupation is effective), which means that the consent of the natives is immaterial.45
Grotius’ key aim in De Jure Belli ac Pacis, it seems, was to show a way to establish peace among the Christians in Europe. His sphere of natural law is global in scope, but there is an inner, Christian circle, with Grotius hoping that Christian states would form a federation or league (foedus) ‘against the enemies of Christianity’.46 Given the naive and often anachronistic hagiography of past centuries – Grotius as the founder of the modern law of nations, as the champion of native rights, as the theorist of the modern states system, as the founding father of the ‘Grotian tradition’ in international relations, as ‘the tutelary deity of the Peace Palace at The Hague’ (Richard Tuck) – the current debunking is just and proper.47 Nevertheless, we should keep in mind that Grotius undoubtedly made important contributions in other disciplines and areas: for instance, in theology, contract theory, moral theory or the theory of natural rights.
Samuel Pufendorf: criticizing the rights of conquest
Samuel Pufendorf (1632–94) has also been included among those European authors who justified colonialism.48 If we take a closer look at his major work, The Law of Nature and Nations (1672), however, we get a very different picture. It is true that his theory is more state-centered, moving away from the idea of a moral community of humankind, and favouring states (rather than individuals) and their interests instead. But Pufendorf is fair enough to include non-European communities, even if they should not meet modern European standards of statehood. Like Gentili before him, Pufendorf mentions the Chinese as a people that avoids contacts with foreigners, and is justified in doing so.49 In another passage, he explicitly rejects Vitoria’s reasoning in favour of Spanish perfect hospitality rights. Pufendorf dismisses Vitoria’s first just title of ‘natural partnership and communication’. The perfect right of ownership trumps the imperfect right to visit and live in foreign countries. The property-holder simply has ‘the final decision on the question, whether he wishes to share with others the use of his property’.50 Pufendorf adds the pragmatic consideration that any unrestricted influx of immigrants who might stay for an unlimited period of time may have detrimental effects on the native community. In the language of natural law, this inflow could conflict with the community’s duty of self-preservation. Secondly, there is no natural, enforceable right to trade. Again, the natives have to grant permission and may renounce it ‘if the well-being of the state demands it’. Thirdly, Pufendorf rejects Vitoria’s claim that a unilateral grant of rights is unjust. Pufendorf asserts that rights do not have to be symmetrical in this respect. In matters of imperfect obligations, a property-holder can be ‘more liberal to one than to another’. This gave the Japanese, for instance, the right to admit Dutch traders, but refuse admission of other Europeans. Here and in other instances, Pufendorf applies the domestic analogy. In this case, he argues that the relationship between communities can be compared with the owner of a garden who grants exclusive privileges to one of her/his neighbours.
Pufendorf also refuses to accept Grotius’ incipient agricultural argument (the claim that native nomads do not really own their land because they failed to enclose and farm it permanently). He stresses the factor of agreement rather than natural rights. Rejecting Grotius’ subtle distinction between (European) effective occupation and (native) dominion, Pufendorf asserts that if no individual owner can be detected, the land ‘should not at once be regarded as unoccupied, and free to be taken by any man as his own, but it will be understood to belong to the whole people’.51
Pufendorf explicitly refers to the Amerindians when he criticizes Francis Bacon’s claim that Europeans have a right of humanitarian intervention to stop acts of cannibalism and human sacrifice. Like Bacon, most authors before Pufendorf took this right for granted. In Pufendorf’s account, state or community rights trump those of the global moral community. (He might argue that they serve the latter, albeit indirectly). There is clear indication of a paradigm shift. State sovereignty entails a strict duty of non-intervention. Foreign states may only intervene if their own citizens are victimized, provided that they have come as ‘innocent guests, or driven by storms’. Pufendorf distinguishes between foreign visitors who come to visit ‘as enemies and robbers’, and those who behave peaceably or are in need of help. An explicit reference to European colonialism is missing, but perhaps implied: ‘For only in the last case does a right of war lie with those whose citizens are treated with such cruelty, not in the others.’52 In sum, there are no special rights for Europeans. Pufendorf rejects the Aristotelian doctrine of natural slavery as implausible and conflicting with natural equality, and any titles of conquest based on civilization.53
Christian Wolff: the first culturally sensitive international legal theory
The innovative international legal theory of Christian Wolff (1679–1754) has rarely been appreciated. Brett Bowden is a case in point. He asserts that Wolff’s belief in European civilization is biased: the first step is the familiar distinction between civilized and barbarous nations. Next there is the assertion that ‘nations ought to be civilized’.54
From this assessment, it was just a short leap to the assumption that it was the task of the civilized to assist with the training of the uncivilized in their aspiring to the realms of the ‘civilized world’, should their minds be so pliable and adept at accepting such conditioning.55
This phrasing creates the impression that Wolff was one of the accomplices of colonialism. The opposite is true. Like Gentili or Pufendorf before him, Wolff defends Chinese isolationist policy. The Chinese have a perfect right to restrict or altogether refrain from international trade and commerce ‘for the purpose of preserving their own interests’. Wolff interprets Chinese intentions, claiming that the government was interested in perfecting the state, which is of course compatible with the duty of self-perfection. Wolff does not stress the right of self-preservation or self-defence, but points out instead that the Chinese are entitled to keep their morals ‘pure and uncorrupted’.56 If Chinese policy is perfectly lawful, Wolff nevertheless hints at the possibility that it may be imprudent, an argument elaborated on by political economists like David Hume and Adam Smith (see Chapter 3 below). Foreign commerce ‘makes a nation rich, consequently powerful’.57 Nations which refrain from it, Wolff suggests, might gradually lose their power, actually China’s fate in the nineteenth century.
Like Pufendorf, Wolff rejects any exclusive rights for Europeans. The right of each nation to decide on foreign commerce effectively abandons Vitoria’s first title. Nations may persuade, but must never force or compel others to embrace their religion. Unlike Vitoria and Francisco de Suárez, Wolff makes sure that no back doors are left open. If other nations reject ‘the true worship of God . . . that must be endured’. Probably again referring to Chinese practice, Wolff holds that states may expel missionaries, prohibit their entrance and ban their books.58 Wolff’s system of natural law allows for a clear distinction between rights and religion. He holds that, given religious pluralism in the world, the true religion is notoriously difficult to define. In cases of doubt, the rights of nations as specified in ius gentium are of primary importance, as religions are juridically equal.59 Wolff does not edorse relativism; his juridical framework implies religious neutrality or impartiality. Finally and in agreement with some previous authors like Vitoria, Wolff accepts the true ownership of natives, employing hypothetical thinking to arrive at the golden rule and the idea of impartiality. Thus,
no nation ought to do to another what it does not wish to be done to itself. Indeed, if it is allowable for one nation to occupy lands inhabited by another nation, because they have been hitherto unknown to it, by the same reasoning it will be allowable also for the second nation to occupy the lands of the first, or for any other foreign nation to do so.60
European policy of conquest, though not explicitly mentioned, is rejected with the simple, but convincing argument that it cannot be universalized.
This kind of impartial thinking has been employed by authors before Wolff. It usually boiled down to the tricky question of whether there was a loophole left for European prerogatives to sneak in (such as the right to preach Christianity). Here, Wolff does not allow for compromises. He is culturally sensitive, not imposing European standards of statehood and sovereignty on native communities. Admittedly, ‘groups of men dwelling together in certain limits but without civil sovereignty’ are not nations but, like nomads, they have ‘jointly acquired ownership’ and must not be subject to civil sovereignty without their consent, ‘even if at the time those who inhabit the territory are not using those lands’.61 The basic units of ius gentium are families, not states.
Finally and most importantly, there are no special rights for civilized peoples (gentes) against barbarians, who may not be expelled at will.62 In a footnote based on natural-law thinking that combines the notions of natural liberty, consent, culture, and injury, and contrasts them with advantage and usefulness, Wolff, while accepting the distinction between civilized and uncivilized nations, refuses to establish rights for the former to ‘subject to the civil sovereignty separate families dwelling in a certain territory or staying there’.63 States do have duties towards others, but they are imperfect, so that
no right arises to deprive another of his natural liberty without his consent or to restrict it for his benefit as much as the purpose of the state demands; for where you desire to promote the perfection of another, you have no right to compel him to allow that to be done by you.
There is a clear criticism of Locke’s agricultural argument: ‘no right is created for you in regard to that which belongs to another, because he does not use and enjoy his own property as much as he could.’ Wolff blends three different types of arguments in the passage. First, there is the familiar language of natural law and natural rights: ‘liberty’ must not be taken from legal persons who are ‘unwilling’; free consent is required by those who are affected; nobody injures anyone just by his/her mere existence. And ‘as long as your neighbours do not injure you, no definite right arises in your favour against them’. Secondly, Wolff uses the domestic analogy to show that dispossessing ‘barbarous and uncultivated nations’ contradicts our common sense. Thirdly, Wolff rejects the (European) concept of usefulness as a basis of rights: ‘And how, I ask, can you show that for the sake of your advantage or that of another nation families may be made subject to sovereignty without their consent, when from that which is useful to you no right arises?’64 Finally, and most importantly, Wolff hints at a new social and cultural theory which denies that agricultural or commercial societies are morally superior to nomadic forms of life.
Wolff’s international legal theory has usually either been ignored, rejected or ridiculed. He was misunderstood even by his followers in the eighteenth century, by Michael Hanov (1695–1773) and by Hermann Friedrich Kahrel (1719–87). Some recent authors, especially Francis Cheneval, see him as a brilliant and innovative international lawyer and as one of the founding figures of modern political cosmopolitanism (see also Chapters 4 and 5).65 In contrast to authors like Grotius and Vattel, Wolff has a systematic legal theory. For instance, he criticizes Grotius who simply juxtaposed the natural and the positive law of nations, asserting that the latter is based on the will of nations (in case of doubt, on the will of European nations). Wolff, by contrast, wants to bridge the hiatus between natural and positive law with the concept of voluntary law (ius gentium voluntarium), which is positive, but has to meet basic normative standards (and thus cannot simply be a matter of state will).66
Wolff’s theory is not flawless. He does not distinguish (as Kant would later do) between deontology and teleology. The norms of the civitas maxima, the democratic global commonwealth, are derived from ‘what has been approved by the more civilized nations’.67 But on the whole, his achievement is impressive. As far as European relations to non-Europeans are concerned, Wolff’s system of ius gentium, together with Kant’s, marks the triumph of epistemological cosmopolitanism. His moral cosmopolitanism is based on universalist ethics where every human being counts. He combines this approach with a cultural theory that is sensitive to cultural difference, non-European practices and beliefs. Thus he anticipates Denis Diderot’s concept of natives as cultural beings (and not as ‘noble savages’) with a different, albeit not inferior, way of life, and contemporary forms of cultural cosmopolitanism.68
Emer de Vattel: the agricultural argument
Traditionally, Emer de Vattel (1714–67) has been seen as Wolff’s pupil, who famously rejected his postulate of a civitas maxima. Wolff and Vattel do not have much in common, also – and particularly – in terms of the rights of non-Europeans. Here, it makes more sense to emphasize similarities and parallels between John Locke and Vattel.
Probably elaborating on Grotius, Locke developed the agricultural argument fully in his Two Treatises of Government (1689). His labour theory of property was fully compatible with, and explicitly justified, European expansion at the expense of native nomadic populations. Historically, the argument applied only to a small portion of the land acquired by Europeans. However, Locke was highly selective in his use of available literature. The overall result was, as Barbara Arneil convincingly argues, the ‘defence of England’s colonial policy in the New World’ and the ‘dispossession of the aboriginal peoples of their land’.69
Like most natural lawyers before him, Vattel endorses the idea of an original community of ownership, for instance, when he claims that ‘the earth belongs to mankind in general’. He states that discovery establishes merely ius ad occupationem, a rudimentary and inceptive title contingent upon follow-up effective occupation. ‘Hence the Law of Nations will only recognize the ownership and sovereignty of a Nation over unoccupied lands when the Nation is in actual occupation of them, when it forms a settlement upon them, or makes some actual use of them.’70 Vattel supplements this theory of effective occupation with the argument of better use. ‘[N]ature . . . destines the earth for the needs of all mankind, and only confers upon individual nations the right to appropriate territory so far as they can make use of it.71 Humans may only legitimately claim as much territory as they actually need and use. These humans belong to agricultural and commerical societies. Vattel distinguishes among three types of nomads. First, there are the ‘ancient Germans’ and ‘modern Tartars’, who plunder, pillage and injure others and should therefore be ‘exterminated like wild beasts of prey’. The second group of nomads, including the Native Americans, is more peaceful. However, their territory can be settled without injustice, provided sufficient land is left to them. Finally, there are the Arabs who do not use the soil efficiently, but may do it their way as long as cases of ‘urgent necessity’ of territory do not arise.72
The argument of better use is closely following Locke’s agricultural argument. Vattel’s reasoning includes the following steps. The cultivation of the soil is an obligation of natural law. There is an additional utilitarian calculation involved. Population increases make an intensive use of the soil necessary. Pastoral and hunting ways of living are no longer deemed feasible, and have to give way to an agricultural form of existence, which is economically superior. This utilitarian calculus is supported by the emphasis on effective occupation mentioned above: nomads do not occupy their hunting grounds in a strict sense, as they roam over rather than inhabit them. Vattel calls this ‘uncertain occupancy’. Actual occupation, that is settlement and use, are decisive.73 Vattel concludes: ‘[W]hile the conquest of the civilized Empires of Peru and Mexico was a notorious usurpation, the establishment of various colonies upon the continent of North America might, if done within just limits, have been entirely lawful.’74 The emphasis on the status of the Peruvian and Mexican empires as civilized supports the familiar distinction between civilized and savage peoples. The group of civilized nations is no longer exclusively European. Vattel can be defended with his insistence on the idea of impartial justice, specified in the phrase ‘if done within just limits’. In addition, sufficient land has to be left to the natives. As we have seen, however, it is up to the sovereign state to decide where to draw this line, and given the human propensity to abuse power, an assumption Vattel himself subscribes to, there was little reason to assume that the Dutch, English or French in North America would meet even this minimal requirement.
Was all this the result of Vattel’s Eurocentric bias? It is more plausible to explain the outcome with the flaws in Vattel’s overall legal theory. His work can be seen as the perfect synthesis of a refined natural law theory and actual state practice. In other words, his theory is both descending and ascending, combines a top-down with a bottom-up procedure, ‘giving to the more acceptable principles of contemporary practice the respectable and fashionable cloak of a universally binding rational rule’.75 Vattel’s theory moves towards legal positivism, with state practice becoming more important. Nations are identified with states; individuals or families do not play any significant role in his system. In these respects, he laid the foundation of classical nineteenth-century international legal theory.
Conclusion
In this chapter, I have tried to show how many interpreters lump very different authors together, assuming that they are bound together by a common ‘colonial project’. This approach is unwarranted. My own interpretation emphasizes each author’s individuality and (limited) originality, and their profound differences in terms of arguments, legal theories and judgements on non-European peoples. The main errors of the authors mentioned in the introduction can be summarized in the following way.
1. The fallacy of another great narrative
Some authors explicitly or implicitly assume a totalizing ‘Western legal discourse’, especially Williams and Anghie. This theory, however, is an illusion, committing the fallacy of constructing a meta-narrative of modern history. What we really get is a complex picture: the small story that is being told here about Vitoria or Wolff is not necessarily part of a bigger one. The fallacy lies in assuming a false continuity and connectedness that is in fact the work of the interpreter’s mind. There are often several types of over-schematization involved: the cliché of a coherent ‘Europe’ or ‘Western civilization’ and a corresponding discourse, the sweeping reference to the category of ‘the other’ and misleading labels like ‘Western imperial project’ or ‘Enlightenment project’ (see also Chapter 1). The narrative itself is totalizing, essentialist and thus epistemologically unconvincing.
2. The construction of false continuities
For instance, Anghie makes fanciful connections between the sixteenth-century theologian Vitoria and the secularized discipline of nineteenth-century international law – when key concepts and approaches were civilization, race, sovereignty, state will and legal positivism, all of them rather alien to Vitoria’s natural-law thinking. There is a sweeping reference to ‘classical international law’ without an attempt to define this term. Bowden offers us some daring jumps: for example, from Allen (1939) to Wolff (1749), then to Hall (1890), with quotations from Ward (1795) in between.76 The complexity and pluralism of the discourses from various, and often very divergent, centuries get lost.
3. The influence of international legal theory is overestimated:
This is suggested by recent studies. McHugh and MacMillan stress the importance of the common law tradition for the English colonies, rather than the impact of international lawyers such as Vitoria, Suaréz, Gentili or Grotius. International legal theory and international legal practice did not always overlap, especially when theories had a philosophical bent. Fisch points out that law in general was indeed an instrument of colonialism, but adds several qualifications. Law ‘also set some limits to European intervention and manipulation’. He warns us not to overestimate the importance of legal mechanisms, let alone of legal writings. ‘One might suppose that, after all, legal policy was not of a decisive political importance: the end of European rule came in all areas within a short period regardless of the particular legal policy of the respective colonial power.’77 Often, indigenous law was used as a means of controlling the natives. It remains to be shown that European legal traditions by their very nature or essence lend themselves to be used as an instrument of oppression. The emancipatory, subversive potential of these traditions, for instance in terms of the concept of equality, should not be underestimated. Sometimes they turned against Europeans. There were unintentional effects, especially in the areas of legal equality and human rights.78
4. The ambiguity of texts
Vitoria’s lecture in particular is deeply ambiguous. It is definitely one-sided to present him as an unequivocal accomplice of European colonialism or imperialism. Even Vattel is a difficult case: texts are often multidimensional and open to divergent interpretations, and if Europeans and US-Americans used Vattel to justify colonialism (with the help of the agricultural argument), we should not forget that Commissioner Lin Tse-hsu quoted Vattel to criticize British pressure and impending intervention in the 1840s. When he took rigid measures to protect the health of China’s population and destroyed British chests of opium, he could have found support for that policy in the doctrines of several European natural lawyers. His scant knowledge of Vattel based on deficient translations apparently convinced him that his course of action was in agreement with norms of the European law of nations.79
At the end of the day, it is obvious that debunking Grotius and Vattel as accomplices of European expansion and colonialism is justified. However, we can also discover strong cosmopolitan traditions in some of the international lawyers. Vitoria’s moral cosmopolitanism is incomplete, but still an impressive feat, whereas Pufendorf’s and Wolff’s moral and legal cosmopolitanisms belong to the impressive intellectual achievements of modern European legal theory.
In his excellent book From Apology to Utopia, published some twenty years ago, Martti Koskenniemi simply did not mention the ‘colonial dimension’ when discussing international lawyers such as Grotius. In his more recent study The Gentle Civilizer of Nations, he devotes a whole chapter to late nineteenth-century European international legal theory and how it constructed the standard of civilization, ways of excluding non-Europeans and methods of justifiying imperialism.80 This indicates a significant shift of emphasis in contemporary scholarship, and one that should be welcomed.
