Clio the cat, ? July 1997 - 1 May 2016
In 1929 lucien Febvre offered the first systematic reflection on the evolution of the meanings of the term ‘civilization’, from singular ideal, which he dated to the third quarter of the 18th century, to plural fact, which he placed at the close of the Napoleonic epoch. In 1944–45 he devoted his last lecture course to ‘Europe: genesis of a civilization’, and a year later added the word Civilisations to Économies et Sociétés in the title of the Annales journal itself. Just before he died, he penned a sharp note approving a colleague’s dismissal of Valéry’s famous dictum that this civilization had now realized it was mortal: ‘In fact, it is not civilizations that are mortal. The current of civilization persists across passing eclipses . . . Sober deflation of a windbag.’footnote1 A decade later, Fernand Braudel would concur: ‘When Paul Valéry declared “Civilizations, we know you to be mortal”, he was surely exaggerating. The seasons of history cause the flowers and the fruit to fall, but the tree remains. At the very least, it is much harder to kill.’footnote2
How far has Braudel’s confidence—that usage of the term in the singular was no longer of much significance—proved justified? One way of approaching this is to look at a body of thought and practice where ‘civilization’ was historically conspicuous, namely international law. There, we can start by noting what might appear a paradox. The contemporary notion of international law immediately evokes the idea of relations between sovereign states. In the West, these relations are generally held to have developed into something like a formal system for the first time with the Treaty of Westphalia, which in 1648 brought an end to the Thirty Years’ War in Europe. It would seem logical to assume that a developed body of thought about international law would have arisen around this turning-point. In fact, however, to pinpoint its origins we must go back to the 1530s. It was then that its history really started, in the writing of the Spanish theologian Francisco de Vitoria, whose concern was not with relations between the states of Europe, of which Spain was at that time much the most powerful, but with relations between Europeans—preeminently, of course, Spaniards—and the peoples of the newly discovered Americas.
Foundations
Drawing on Roman notions of a ius gentium, or law of nations, Vitoria asked by what right Spain had recently come into possession of the larger part of the Western hemisphere. Was it because these lands were uninhabited, or because the Pope had allocated them to Spain, or because it was a duty to convert pagans to Christianity, if necessary by force? Vitoria rejected all such grounds for conquest of the New World. Did that mean it was therefore contrary to the law of nations? It did not, because when the Spaniards arrived in their lands, the savage inhabitants of the Americas had violated the universal ‘right of communication’—ius communicandi—that was an essential principle of the law of nations. What did such ‘communication’ mean? It meant freedom to travel and freedom to buy and sell, anywhere: in other words, freedom of trade and freedom to persuade, that is, to preach Christian truths to the Indians, as Spaniards called them. If Indians resisted these rights, the Spaniards were justified in defending themselves by force, building fortresses, seizing land and waging war against them in retribution. Should the Indians persist in their misdeeds, they were to be treated as treacherous foes, subject to plunder and enslavement.footnote3 The Conquests were therefore, after all, perfectly legitimate.
The first real building-block of what would, for another two hundred years, still be called the law of nations was thus constructed as a justification of Spanish imperialism. The second, still more influential, building-block came with the writing of Hugo Grotius in the early 17th century. Grotius is mainly remembered, and admired, today for his treatise on ‘The Law of War and Peace’—De iure belli ac pacis—of 1625. But his actual entry into international law, as we now understand it, began with a text that would come to be known as ‘On Booty’—De iure praedae—written twenty years earlier. In this document, Grotius set out a legal justification for the seizure by a captain of the Dutch East India Company, one of his cousins, of a Portuguese ship carrying copper, silk, porcelain and silver to the value of three million guilder, a figure comparable to the total annual revenue of England at the time—an act of plunder on an unprecedented scale, causing a sensation in Europe. In its fifteenth chapter, subsequently published as Mare Liberum, Grotius explained that the high seas should be regarded as a free zone for both states and armed private companies, and his cousin was well within his rights—so providing a legal brief for Dutch commercial imperialism, as Vitoria had for Spanish territorial imperialism.
By the time Grotius came to write his general treatise on the laws of war and peace, two decades later, the Dutch had become interested in colonies on land too, soon seizing parts of Brazil from Portugal, and Grotius now argued that Europeans had the right to wage war on any peoples, even if they were not attacked by them, whose customs they regarded as barbarous, as retribution for their crimes against nature. This was ius gladii—the right of the sword, or of punishment. He wrote: ‘Kings, and those who are invested with a power equal to kings, have a right to exact punishments not only for injuries committed against themselves, or their Subjects, but likewise, for those which do not peculiarly concern them, but are, in any persons whatsoever, grievous violations of the Law of Nature or Nations.’footnote4 In other words, Grotius offered licence to attack, conquer and kill whosoever stood in the way of European expansion.
To these two cornerstones of early modern international law, ius communicandi and ius gladii, were added two more justifications for colonization of the world beyond Europe. Thomas Hobbes proposed an argument from demography: there were too many people at home, and so few people overseas that European settlers in hunter-gatherer lands had the right, not to ‘exterminate those they find there; but constrain them to inhabit closer together, and not range a great deal of ground, to snatch what they find’footnote5—a straightforward programme for the reservations into which the native inhabitants of North America would eventually be driven. Obviously, if lands could simply be deemed unoccupied, even this would be unnecessary. To that widely held view, John Locke added the further argument that if there were local inhabitants on the spot, but they failed to make the best use of the land available to them, then Europeans had every legal right to deprive them of it, since they would fulfill God’s purpose for it by increasing the productivity of the soil.footnote6 With this, the repertoire of justifications for European imperial expansion was, by the end of the 17th century, complete; the rights of communication, of punishment, of occupation and of production all warranted seizure of the rest of the planet.
Limited to the civilized
By the 18th century, relations between states within Europe had become the foreground of writings on the law of nations, and there were voices of the Enlightenment—Diderot, Smith, Kant among them—questioning the morality of colonial seizures of lands beyond Europe, though none actually proposed reversing them. Characteristically, far the most influential of the new treatises, Le Droit des gens, was by the Swiss thinker Emer de Vattel. In it, Vattel coolly remarked: ‘The earth belongs to all mankind and was designed to furnish them with subsistence: if each nation had from the beginning resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not therefore deviate from the views of nature in confining the Indians within narrower limits.’footnote7
Continuous in this respect with its predecessors, Vattel’s work nevertheless marked a discursive turning-point, towards a more secular version of the divinely decreed laws of nature justifying earlier versions of the law of nations. Without in any way disappearing, religion ceased to be the first-order warrant for the colonization of the rest of the world. That position passed, henceforward, to another term. Vattel’s treatise was published in 1758. Just one year earlier, in 1757, appeared the first traceable use of the noun civilization—still absent from the relevant volume of Encyclopédie that had come out in 1753—in a text by Mirabeau’s father. Within a few years, Adam Ferguson introduced it, independently, in Scotland.
The success of Vattel’s work, principally concerned with relations between European states, but covering their relations with the rest of the world, was inseparable from its timing. It appeared in the midst of the first global conflict, the Seven Years’ War pitting France against Britain, fought out not only in Europe, but in North America, the Caribbean, the Indian Ocean and South-East Asia—in its turn, a dress-rehearsal for the titanic struggles within Europe, with their extensions across the world, unleashed by the French Revolution. By the time these came to an end with the victory of the combined anciens régimes over Napoleon in 1815, three significant changes to what had once been the law of nations had occurred. In 1789, criticizing the ambiguity of the formula—wasn’t jus gentium a misnomer for jus inter gentes?—Bentham coined the term ‘international law’, which gradually took hold in the next century. By then, the normative dividing line between Europe and the rest of the world had become ‘civilization’, rather than primarily the Christian religion, although the latter remained a vital attribute of the former.
Lastly, in the second decade of the 19th century, where Vattel had in keeping with the diplomatic conventions of the time assumed the nominal equality of sovereign states, the Congress of Vienna for the first time introduced a formal hierarchy of states within Europe, a distinction of rank between five ‘Great Powers’—the so-called Pentarchy of England, Russia, Austria, Prussia and France—which were accorded special privileges and settled the map of the continent, and every other state. This was an innovation designed to seal the unity of the counter-revolutionary coalition that had defeated Napoleon and restored monarchies throughout Europe. But it was one which outlasted the Restoration period itself. By the 1880s, the leading Scottish jurist James Lorimer could remark that the equality of states ‘may now, I think, safely be said to have been repudiated by history’, not to speak of reason, as a ‘more transparent fiction than the equality of all individuals’.footnote8
Together with these changes came the emergence, alongside classical diplomacy, of international law as a profession. Its first major statement came from a former American ambassador to Prussia, Henry Wheaton, whose Elements of International Law, published in 1836, was widely translated abroad—in French, German, Italian, Spanish, by the 1860s Chinese—and set the benchmark for definition of the discipline. Citing Grotius, Leibniz, Montesquieu and others, Wheaton explained that with few exceptions ‘the public law of nations has always been, and still is, limited to the civilized and Christian people of Europe or to those of European origin’—for it was ‘the progress of civilization, founded on Christianity’ which had generated it.footnote9 By the time the first Institut de Droit International came into being, in Brussels in 1873, an association with religion was no longer required: civilization sufficed.
Classifications
This was the standard that divided the world, in a period that saw the intrusion of European imperialism, no longer into lands of weak opponents—hunter-gatherers or states without fire-arms, as in the Americas, which had occasioned the writings of Vitoria or Grotius, Locke or Vattel—but into major Asian empires and other developed states, more capable of defending themselves. This expansionist surge had already begun during the Napoleonic Wars themselves, when the British seized much of Mughal and Maratha India, and the French occupied Ottoman Egypt. But after 1815 it notably escalated, bringing the Opium Wars to China, naval penetration of Japan, conquest of Burma, Indochina and most of what is now Indonesia, not to speak of the whole littoral of North Africa, repeated invasions of Afghanistan and more.
How were these states to be classified and handled? Did they enjoy the same rights as the European powers? Tacitly, the Congress of Vienna had given its answer: barred from the Concert of Powers to which its proceedings gave birth was the Ottoman Empire, where the Concert would ultimately come to grief. That exclusion could still be referred to matters of faith. In place of this, there developed in subsequent decades the doctrine of ‘the standard of civilization’. Only those states that could be regarded as civilized in European eyes were entitled to be treated on an equal footing with the powers of Europe. Just as there was now an accepted hierarchy within the comity of European nations, so the uncivilized world too was divided into different categories. Lorimer produced the most systematic theorization of this new doctrine, which became an accepted feature of writing about international law at the time. Three types of state failed to meet the standard of civilization. There were criminal—what today would be called outlaw or rogue—states, like the Paris Commune or fanatical Muslim societies: if Russia were to fall prey to Nihilism, it would join their ranks. There were states that did not defy civilized European norms in the same way, but—‘semi-barbarous’—did not embody them either, like China or Japan. There were also states either senile or imbecile, that could not be treated as responsible agents at all—what today would be called ‘failed states’. None of these categories formed part of international society proper, and the first and third required armed suppression by it—‘Communism and Nihilism are forbidden by the Law of Nations’, Lorimer explained. But diplomatic relations could be maintained with the second group, the semi-barbarous, provided that European powers acquired extra-territorial rights within them.footnote10
Lorimer was writing on the eve of the Conference at Berlin in 1884 that settled the fate of Africa, as the Congress of Vienna had once the fate of Europe, with a vast division of colonial spoils among the assembled European states. Of these, the largest single mass of booty was acquired by the country where the emergent discipline of international law had its seat, in the form of a private company controlled by the King of Belgium. In Brussels, the Institut de Droit International celebrated the acquisition, its journal declaring in 1895 that under Leopold’s rule there was ‘a full body of legislation whose application protects the indigenous people against all forms of oppression and exploitation’.footnote11 Estimates vary of the number of deaths for which its reign in the Congo was responsible: some as high as 8 to 10 million inhabitants killed.
By the turn of the century, five Asian states—China, Japan, Persia, Siam and Turkey—had graduated from semi-barbarous status to admittance to the first Hague Peace Conference, called by the Russian Czar in 1899, along with nineteen European countries, the United States and Mexico. Did that signify a new equality of position? At the second Hague Conference of 1907, called this time by Theodore Roosevelt, participation was enlarged to include the republics of South and Central America and the monarchies of Ethiopia and Afghanistan. The key proposal before the conference was the creation of an International Court of Arbitration. Who was to be represented on this? The United States and the major European powers took it for granted that they would appoint permanent members of it, other states merely rotating in temporary posts around them. To their astonishment and indignation, Brazil, in the person of the distinguished anti-slavery thinker and statesman Rui Barbosa, attacked the Anglo-German-American scheme stipulating this, declaring that it spelt ‘a justice whose nature would be characterized by a juridical distinction of values between the States’, ensuring that ‘the Powers would then no longer be formidable only by the weight of their armies and their fleets. They would also have the superiority of right in the international magistracy, by arrogating unto themselves a privileged position in the institutions to which we pretend to entrust the meting out of justice to the nations.’footnote12
Staunchly upholding the principle of the juridical equality of all sovereign states, Barbosa rallied support from what one European observer called the ‘ochlocracy of smaller states’—the classical Greek term for government by the mob—to insist that the future International Court must give equal, not hierarchical, representation to the states summoned to it. Naturally, the Great Powers refused to concede this, and the Conference broke up without a result. The futility of its nominal goal of helping to secure international peace became plain seven years later, with the outbreak of the First World War.
The principle of hierarchy
At the end of the War, the victor powers England, France, Italy and the United States called the Versailles Conference to dictate terms of peace to Germany, redraw the map of Eastern Europe, divide up the Ottoman empire and—not least—create a new international body devoted to ‘collective security’, to ensure establishment of durable peace and justice between states, in the shape of the League of Nations. At Versailles, the United States not only made sure that Rui Barbosa was excluded from the Brazilian delegation, but that the Monroe doctrine—Washington’s open presumption of dominion over Latin America—was actually incorporated into the Covenant of the League as an instrument of peace. A Permanent Court of International Justice was set up in the Hague, its Article 38 continuing to invoke ‘the general principles of law recognized by civilized nations’. Among those who drafted its Statutes was the author of a 600-page defence of the admirable record of Belgian administration in the Congo.
The us Senate eventually declined American entry into the League, but the design of the new organization faithfully reflected the requirements of the victor powers, since its Executive Council—the predecessor of today’s un Security Council—was controlled by the other four great powers on the winning side of the War, Britain, France, Italy and Japan, who were given exclusive permanent membership of it, on the model of the American scheme at the 1907 Hague Conference. In the face of this blatant imposition of a hierarchical order on the League, Argentina refused to take part in it from the start, and a few years later Brazil—when its demand that a Latin American country be given a permanent seat in the council was rejected—withdrew. By the end of the thirties, no less than eight other Latin American countries, large and small, had pulled out of it. Undeterred, the leading textbook of the period on international law, still widely used today, credited to Lassa Oppenheim and Hersch Lauterpacht, noted with satisfaction that ‘the Great Powers are the leaders of the Family of Nations and every advance of the Law of Nations during the past has been the result of their political hegemony’, which had now finally received, for the first time, in the Council of the League a formal ‘legal basis and expression’.footnote13
Lauterpacht, whose attainments are widely held to have been unsurpassed by any international lawyer of the last century, remains a touchstone of liberal jurisprudence in this one. He had no time for complaints that powers like the us or uk misbehaved when it suited them. ‘Are we actually confronted’, he asked of American foreign policy, ‘with examples of clearly immoral conduct which will make the ordinary citizen blush?’ The detachment of Panama from Colombia might have been illegal, but could it be termed immoral? Or was it not rather ‘a case in which a State, in the absence of an international legislator, has been called upon to act as a legislator for the wider good of the international community. The issue was whether a beneficent and civilizing enterprise should be delayed or obstructed by a State which happened to be in possession of the territory in question.’ Britain’s bombardment of Copenhagen, capital of a peaceably neutral Denmark, in 1807 and destruction of its fleet? If ‘the very existence of Great Britain was at stake’, such a sudden attack ‘would not have been inconsistent either with international law or with international morality’, for ‘law and morals may legitimately be made to yield to the good of the international community’ (synonymous with the defeat of France).footnote14
Lauterpacht would leave it to others to show ‘the reasonableness and straightforwardness’ of his country’s dealings with humanity at large, adhering to principles without which ‘it would cease to be part of the civilized world’. But he could ‘submit confidently that a survey of the foreign policy of modern states will show that the immorality of international conduct is something in the nature of a myth’—a ‘fiction’. Such a verdict was not panglossian. The necessary jurisprudence had some gaps, which needed to made good. But that was no reason for pessimism: ‘international law should be regarded as incomplete and in a state of transition to the finite and attainable ideal of a society of States under the binding rule of law as recognized and practised by civilized communities within their borders.’footnote15 The ultimate, perfectly feasible goal of international law was the emergence of a supra-national Federation of the World devoted to peace. Lauterpacht’s equally high-minded colleague Alfred Zimmern, another intellectual pillar of the League, was more realistic, confessing in an unguarded moment that international law was little more than ‘a decorous name for the convenience of the Chancelleries’, which was most useful when it ‘embodied a harmonious marriage between law and force’.footnote16
Words and swords
Such was the position in the inter-war period. Out of the Second World War came a new dispensation. With much of the continent in ruins, or in debt, the primacy of Europe was gone. When the United Nations was founded at San Francisco in 1945, the principle of hierarchy inherited from the League was preserved in the new Security Council, whose permanent members were given still greater powers than their predecessors in the Executive Council of old, since they now possessed rights of veto. But Western monopoly of this privilege was broken: the ussr and China were now permanent members, alongside the United States and a diminished Britain and France, and as decolonization accelerated over the next two decades, the General Assembly became a forum for resolutions and demands increasingly uncomfortable to the hegemon and its allies.
Surveying the scene in 1950, in his commanding retrospect The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, Carl Schmitt observed that in the 19th century: ‘The concept of international law was a specifically European international law. This was self-evident on the European continent, especially in Germany. This was also true of such worldwide, universal concepts as humanity, civilization and progress, which determined the general concepts and theory and vocabulary of diplomats. The whole picture remained Eurocentric to the core, since by “humanity” was understood, above all, European humanity, civilization was self-evidently only European civilization, and progress was the linear development of this civilization’. But, Schmitt went on, after 1945 ‘Europe was no longer the sacred centre of the earth’ and belief in ‘civilization and progress had sunk to a mere ideological façade’. ‘Today’, he announced, ‘the former Eurocentric order of international law is perishing. With it the old nomos of the earth, born of the fairytale-like, unexpected discovery of a New World, an unrepeatable historical event, is vanishing.’footnote17 International law had never been truly international. What had claimed to be universal was merely particular. What spoke in the name of humanity was empire.
After 1945, as Schmitt saw, international law ceased to be a creature of Europe. But Europe, of course, did not disappear. It simply became subsumed in another of its own overseas extensions, the United States, leaving open the question: how far has international law since 1945 remained a creature, no longer of Europe, but of the West, with at its head the American superpower? Any answer to this question refers back to another. Setting aside its historical origins, what is the juridical nature of international law as such? For its first theorists in 16th and 17th century Europe, the answer was clear. The law of nations was grounded in natural law, that is a set of decrees ordained by God, not to be questioned by any mortal. In other words, the Christian deity was the guarantee of the objectivity of their legal propositions.
By the 19th century, the increasing secularization of European culture gradually undermined the credibility of this religious basis for international law. In its place emerged the claim that natural law still held good, but no longer as divine commandments, rather as the expressions of a universal human nature, which all rational human beings could and should acknowledge. This idea, however, was soon made vulnerable in its turn by the development of anthropology and comparative sociology as disciplines, which demonstrated the enormous variety of human customs and beliefs across history and the world, contradicting any such easy universality. But if neither the deity nor human nature could offer any secure basis for international law, how should it then be conceived?
An answer to this question could only be sought in a prior one: what was the nature of law itself? There, the greatest political thinker of the 17th—or perhaps any—century, Thomas Hobbes, had given a clear-cut answer in the Latin version of his masterpiece Leviathan, which appeared in 1668: sed auctoritas non veritas facit legem—not truth, but authority makes the law, or as he put it elsewhere: ‘Covenants, without the Sword, are but Words’.footnote18 This would over time become known as the ‘command theory of law’. That theory was the work, two centuries later, of John Austin, a clear-minded friend and follower of Bentham, who admired Hobbes above all other thinkers, and in concurring that ‘every law is a command’ saw what this meant for international law. His conclusion was: ‘The so-called law of nations consists of opinions or sentiments current among nations generally. It therefore is not law properly so called . . . [for] a law set by general opinion imports the following consequences—that the party who will enforce it against any future transgressor is never determinate and assignable.’footnote19
Crucial words: never determinate and assignable. Why was that so? Austin went on: ‘It follows that the law obtaining between nations is not positive law; for every positive law is set by a given sovereign to a person or persons in a state of subjection to the author’—but since in a world of sovereign states ‘no supreme government is in a state of subjection to another’, it followed that the law of nations ‘is not armed with a sanction, and does not impose a duty, in the proper acceptation of these expressions. For a sanction properly so called is an evil annexed to a command’.footnote20 In other words, in the absence of any determinable authority capable of either adjudicating or enforcing it, international law ceases to be law and becomes no more than opinion.
This was, and is, a conclusion deeply shocking to the liberal outlook of the overwhelming majority of today’s international jurists and lawyers. What is often forgotten is that it was shared by the greatest liberal philosopher of the 19th century, John Stuart Mill himself, who reviewed and approved Austin’s lectures on jurisprudence twice. Answering attacks on the foreign policy of the short-lived French Republic in 1849, which had offered assistance to an insurgent Poland, he wrote: ‘What is the law of nations? Something, which to call a law at all, is a misapplication of the term. The law of nations is simply the custom of nations’. Were these, Mill asked, ‘the only kind of customs which, in an age of progress, are to be subject to no improvement? Are they alone to continue fixed, while all around them is changeable?’ On the contrary, he concluded robustly, in a spirit of which Marx would have approved: ‘A legislature can repeal laws, but there is no Congress of nations to set aside international customs, and no common force by which to make the decisions of such a Congress binding. The improvement of international morality can only take place by a series of violations of existing rules . . . [where] there is only a custom, the sole way of altering that is to act in opposition to it.’footnote21
Doubly indeterminate
Mill was writing in a spirit of revolutionary solidarity, at a time when international law was little more than a pious phrase invoked by governments to justify whatever actions happened to suit them—it had no institutional dimension, and international lawyers did not yet exist. In the early 1880s Salisbury could still tell Parliament bluntly: ‘International law has not any existence in the sense in which the term law is usually understood. It depends generally upon the prejudices of writers of textbooks. It can be enforced by no tribunal.’footnote22 A century later, however, institutionalization was in full flow; there was the United Nations Charter, an International Court of Justice, a body of professional lawyers and an expanding academic discipline. From the 1940s onwards, a considerable literature—Hans Kelsen and Herbert Hart the most distinguished names—sought to refute Austin by pointing out all those dimensions of law, municipal or international, that cannot be described as commands.footnote23 In vain, since no writer has ever been able to show that these can exempt law of a sovereign authority capable of enforcing it on penalty of infraction, as—not an exhaustive, but—always a necessary condition of its existence as law. All else is, as Austin put it, mere metaphor.
In the inter-war conjuncture it was once again Carl Schmitt, the antithesis of a liberal thinker, who pointed out the continuing validity of Austin’s case. In a series of scathing demolitions of the pretensions of the League of Nations and its International Court, Schmitt demonstrated that the impartial rule of law they purported to uphold was invariably indeterminate, just as Austin had predicted it must be. And doubly so: indeterminate as to its content—as in the completely open-ended reparations imposed on Germany at Versailles, which could be adjusted by the victor powers onto the vanquished as they sought fit, pitching it into a veritable Abgrund der Unbestimmtheit;footnote24 and indeterminate—‘unassignable’, as Austin put it—as to its execution, which simply depended on the decision of the powers in command of the League of Nations and its Court. The doctrine of ‘non-intervention’ with which England and France ensured the victory of fascism in Spain offered another classic case of such indeterminacy, in the most eloquent illustration of Talleyrand’s famous dictum that ‘non-intervention is a metaphysical term that means more or less the same thing as intervention’. Ctd....
The last working-class hero in England.
Kira the cat, ? ? 2010 - 3 August 2018
Jasper the Ruffian cat ? ? ? - 4 November 2021
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