The International Society Tradition: From Hugo Grotius to Hedley Bull (Palgrave Studies in International Relations) 3030770176, 9783030770174

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PSIR · PALGRAVE STUDIES IN INTERNATIONAL RELATIONS

The International Society Tradition From Hugo Grotius to Hedley Bull

Cornelia Navari

Palgrave Studies in International Relations Series Editors Mai’a K. Davis Cross Northeastern University Boston, MA, USA Benjamin de Carvalho Norwegian Institute of International Affairs Oslo, Norway Shahar Hameiri University of Queensland St. Lucia, QLD, Australia Knud Erik Jørgensen University of Aarhus Aarhus, Denmark Ole Jacob Sending Norwegian Institute of International Affairs Oslo, Norway Ayşe Zarakol University of Cambridge Cambridge, UK

Palgrave Studies in International Relations (the EISA book series), published in association with European International Studies Association, provides scholars with the best theoretically-informed scholarship on the global issues of our time. The series includes cutting-edge monographs and edited collections which bridge schools of thought and cross the boundaries of conventional fields of study. EISA members can access a 50% discount to PSIR, the EISA book series, here http://www.eisa-net.org/sitecore/content/bebruga/mci-registrations/eisa/login/landing.aspx. Mai’a K. Davis Cross is the Edward W. Brooke Professor of Political Science at Northeastern University, USA, and Senior Researcher at the ARENA Centre for European Studies, University of Oslo, Norway. Benjamin de Carvalho is a Senior Research Fellow at the Norwegian Institute of International Affairs (NUPI), Norway. Shahar Hameiri is Associate Professor of International Politics and Associate Director of the Graduate Centre in Governance and International Affairs, School of Political Science and International Studies, University of Queensland, Australia. Knud Erik Jørgensen is Professor of International Relations at Aarhus University, Denmark, and at Yaşar University, Izmir, Turkey. Ole Jacob Sending is the Research Director at the Norwegian Institute of International Affairs (NUPI), Norway. Ayşe Zarakol is Reader in International Relations at the University of Cambridge and a fellow at Emmanuel College, UK. More information about this series at http://www.palgrave.com/gp/series/14619

Cornelia Navari

The International Society Tradition From Hugo Grotius to Hedley Bull

Cornelia Navari University of Buckingham Buckingham, UK

Palgrave Studies in International Relations ISBN 978-3-030-77017-4    ISBN 978-3-030-77018-1 (eBook) https://doi.org/10.1007/978-3-030-77018-1 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: © Tetra Images / Alamy Stock Foto This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Note on Sources

This work was compiled during the COVID-19 pandemic of 2020, when libraries were closed, leaving the author with only her own library and such digital sources as could be accessed from her laptop. The most problematic were the primary sources, especially the original texts. Gratitude is due to the Liberty Fund for making available large selections of Grotius’ On the Law of War and Peace and Pufendorf ’s The Whole Duty of Man, likewise to William and Mary (wm.edu) for digitizing the entire The Law of Nature and Nations, to the Coppet Institute (institutcoppet.org) for reproducing Tocqueville’s 1852 speech to the Academy of Moral and Political Science, and to google.books for reproducing Wheaton’s 1836 edition of The Elements of International Law and Heeren’s 1834 Political System of Europe. On secondary sources, I am indebted to ITHAKA who made the entire JSTOR content available during the COVID lockdown, directly accessible through a google registration. References to books not in my own library and necessarily indirect have been kept to a minimum.

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Contents

1 Introduction: Two Ideas of Tradition  1 2 Grotius the Innovator (1625) 15 3 Hobbes (1588–1679), a Contributor, and Pufendorf (1632–1694), the Master 29 4 The Gottingen Historians, Heeren (1760–1842) and Ranke (1795–1886): The Real Thing 43 5 Eighteenth-Century Scepticism: Rousseau, Kant and Vattel 59 6 The French Revolution: Concert, Progress and Civilization—Gentz, Wheaton and Lorimer 75 7 Civilization as Humanity: The ‘Men of 1873’, John Westlake and the Grotius Society 93 8 The Recovery of Vitoria and Suarez, and the Apprehension of a World Society: Krabbe, Verdross and Leon Duguit105

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Contents

9 The Lawyers and the League: Charles Manning, Hersch Lauterpacht and Georg Schwarzenberger121 10 The British Committee, Hedley Bull (1932–1985) and the Theory of International Society143 11 International Society as a Research Tradition: Vincent, Keene, Wheeler and Buzan, Among Others161 Index181

CHAPTER 1

Introduction: Two Ideas of Tradition

“History is not the study of origins; rather it is the analysis of all the mediations by which the past was turned into our present.” —H. Butterfield, The Whig Interpretation of History, p. 47

The term ‘international society’ became current in the period just before and after the signing of the Versailles Treaty in 1919, when it was associated with the creation of the League of Nations. As used then, it generally signified the signatories to the Treaty and to the body of states that had adhered to the terms of the Covenant. The League was commonly presented as the carapace of a society of states in the process of forming, and its institutionalization was taken to indicate a significant stage in the progress of ‘international society’. It was codified as a general term in the period of disciplinary theory-building that followed the Second World War when it was used to indicate the shared body of institutions, habits and practices characteristically deployed by states and other actors in their international relations. These terms joined an older tradition, dating back to Aquinas and beyond, which posited that humanity belonged to a single societas or social order that transcended their more immediate affiliations, which was universal, which was ascribed to an innate sociability or wanting to live together and which was presented variously as part of God’s scheme for © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1_1

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humanity or alternatively as a plan of Nature. The characterization of this older usage was socialis, pronounced in its classical form as so.kiˈaː.lis, an adjective meaning sociable or social, and pertaining to companionship, to allies and confederates and to marriage. The noun is ‘sociability’. As indicating a union of mankind, it appeared in Cicero’s On the Ends of Good and Evil, where he writes: “Reason…has prompted the individual, starting from friendship and from family affection, to expand his interests, forming social ties first with his fellow-citizens, and later with all mankind” (see Henry 1923). The relationship between these various usages has been the subject of a long and complex debate, which has ramifications for the understanding of the modern concept as well as for the understanding of tradition itself. The most recent is the argument by Tim Dunne (1998) that ‘international society’ is a contemporary concept invented (his term) during the discussions in the British Committee on the Theory of International Politics (BC) that took place between 1961 and 1962 and which involved the question of alternative theories of international relations. His claim was countered by Hidemi Suganami (2000), also knowledgeable about the British Committee, who claimed a much longer heritage and who, had he been mindful, could have pointed to the appearance in the Committee’s discussions of an interwar international lawyer who had called upon a seventeenth-­ century Dutchman who had reformulated a theory of a sixteenth-­ century Spaniard. Another aspect of the debate concerns whether it is possible to link an a-historical, transcendental concept with a modern social science concept. Finally, and not least, throughout the debate lurks the question of how we are to understand the notion of ‘a tradition’. On the first of these questions, that of the relationship between a twentieth-­century social scientific concept and a seventeenth-century ethical notion, this work shall say nothing in general. The answer to this question resides in the particular usage: In the case of Hedley Bull, who could be regarded as having invented the twentieth-century concept, it was with the intention of establishing clear blue water between the two, an effort that failed. What I want to enlarge upon is the latter, the question of tradition and of an international society tradition. When we consider the literature that belongs to the putative international society tradition, we will notice, first, repeated references to the said Dutchman, Hugo de Groot or Hugo Grotius who wrote a path-breaking book on the law of war to demonstrate that there was such a thing. According to Hersch Lauterpacht,

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the international lawyer claimed with inventing a ‘Grotian tradition’ (Lauterpacht 1946), Hugo Grotius initiated a tradition of thinking about the relations of states and indeed of peoples which ran from the time of his immediate successor, the German savant Pufendorf, to the nineteenth-­ century advocates of a humanitarian law of war. In support of Lauterpacht’s ascription, Grotius does in fact appear regularly as a central inspiration for the idea of sociability among different peoples, sovereigns or states. Dunne himself accords a central place to Grotius in the “invention” of international society. Moreover, it seems that it is Grotius’ particular account of sociability that is deemed to require either amplification or correction. When Pufendorf posits that the biblical Fall of Man left humans with the requirement to cooperate, it was intended as an enlargement of Grotius’ classically based sociability and indeed as a correction of it. When the Gottingen historians employ an empirical method to exemplify universal history, it is Grotius’ defence of a posteriori reasoning that they are amplifying. When Vattel wants to root Wolff’s self-serving states in a situation of obligation to other self-serving states, it is Grotius that he calls upon. When the ‘men of 1873’ develop a law of humanitarian warfare, it is Grotius that is their guide. So consistently is Grotius revived that the tendency to cast the relations among states in social terms has been called the ‘Grotian tradition’. Secondly, we shall observe a kind of back and forth movement in these literatures, in which thinkers, using the idea of ‘international society’ or ‘society of states’, are reaching forward to elucidate something new and also reaching backwards to justify or source their new understanding. This back and forth movement points to different aspects, perhaps even different ideas, of a tradition. One is the idea of a pristine tradition as ‘essence’ that is handed on, unchanged and whose purpose is to preserve a truth or method. The other is the idea of ‘reception’ and tradition as ‘selection’. Those who received the ‘Grotian tradition’ selected from it to serve diverse purposes, some of which the historical Grotius would have only dimly recognized.

Two Ideas of Tradition The term tradition comes from trādō meaning “give up or hand over” and in common usage refers to the part of culture that is passed from person to person or generation to generation, often related to the way to celebrate holidays. Historically, it is associated with the medieval craft guilds,

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established to maintain standards, and the method of craft training, in the form of masters and apprentices, by which the ways of the craft were handed from a master to an apprentice/learner. Uniformity was produced by strict controls on design and method, and when the learner had mastered these, he became a ‘Master’. Some members of a guild were chosen to check that other members of the guild were working up to standard. The last remnants of the guild tradition may be found in the modern university in the form of the doctoral training where the thesis is guided by a supervisor who may maintain a close relationship with the candidate throughout his career. In this concept, ‘tradition’ is used generally to describe beliefs and behaviours that are passed from generation to generation, while ‘culture’ is used to describe the characteristics of a certain society at a particular point in time. As something that has been done in the same way for a long time, tradition is often conceived as an impediment to creativity and innovation. Recall T. S. Eliot, 1920, in his essay “Tradition and the Individual Talent”: Yet if the only form of tradition, of handing down, consisted in following the ways of the immediate generation before us in a blind or timid adherence to its successes, “tradition” should positively be discouraged.

In this sense, tradition is often counterpoised to progress and presented as an impediment to progress. Eliot argued, however, that this “is not the only form of tradition”. He pointed to another idea of tradition, which refers to an ideal order or an ideal way of doing things. In this concept, the tradition or trado consists in the transformation of the ideal. In it, ‘tradition’ is conceived as an ‘ideal type’ that has achieved a certain stability. As Eliot presented it, this idealized stability is confronted by the arrival of a new work—new in terms of the tradition. The new work occasions an alteration in the ideal order, in which the whole is altered, more or less, and in which each element making up the tradition is ‘readjusted’ to acquire a slightly new meaning. Actually, the whole tradition takes on a slightly different meaning. Eliot describes the transformation in terms of works of art: The existing monuments form an ideal order among themselves, which is modified by the introduction of the new (the really new) work of art among them. The existing order is complete before the new work arrives; for order to persist after the supervention of novelty, the whole existing order must be,

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if ever so slightly, altered; and so the relations, proportions, values of each work of art toward the whole are readjusted; and this is conformity between the old and the new. (p. 43)

In this understanding, tradition is an idealized construct made up not so much of artefacts or methods as of a set of conventional understandings that have established a propriety. When a “genuinely new” work arrives—a work that departs in some measure from the tradition—the whole existing order has to be revaluated. An example from the political world is the doctrine of socialism constructed in terms of an ethical concept. When socialism was cast in ethical terms, essentially in the context of the early twentieth-century development of the British labour movement, the Marxist tradition was adjusted to accommodate it. In the international society tradition, the terms of the ‘ideal order’ seem continually to have been associated with Grotius’ De Jure Belli ac Pacis (On the Law of War and Peace), which seems to have operated as the ‘ideal type’ and which became the subject of multiple reinterpretations and elaborations. Occasionally, the new work will be so novel that it cannot be accommodated within the old understanding. Operetta could be accommodated within the tradition of opera, but the Hollywood musical diverges so significantly that it could only with difficulty be understood within the same tradition. Instead, the film musical has come to be understood as developing from the nineteenth-century musical revue, which produced the stage musical, which was then turned into film. The Hollywood musical could be understood as bringing forth a new and parallel tradition existing alongside the operatic tradition. An example from the world of armaments and security is the development of nuclear weaponry, which could not be accommodated within the terms of the traditional offensive/defensive distinction and for which a new category was invented to conceptualize its use—that of ‘deterrence’, for which a new tradition was found. In the case of Grotius, his method of argument could not be contained within the tradition of Jesuitical argumentation, and it initiated another way of understanding rules among nations. The best account of this process in historical terms is that suggested by Herbert Butterfield (1931) in The Whig Interpretation of History, where he introduced the idea of mediations. These are the understandings that people in the present have of some relevant aspect of their past, as it relates to a present order. He presented these as “bridges” between different states of affairs that “make the passage from one state of things to another”.

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They are a re-reading of the past in terms of present circumstances. (According to the historian and philosopher R. G. Collingwood (1939, 114), a close associate of Butterfield, all historical knowledge is the “reenactment of a past thought encapsulated in a context of present thought”). The great mediation of concern to Butterfield was the ‘Whig Interpretation’, which produced a radically new understanding of history as progress. He presented the Whig Interpretation as an interpretive ‘event’, initiated by Macaulay’s 1848 The History of England, in which Macaulay presented the ‘Glorious Revolution’ of 1688 as “a vindication of our ancient rights” in which it was “finally decided…whether the popular element…found in English polity, should be destroyed by the monarchical element, or should be suffered to develop itself freely and to become dominant”. It began a way of looking at British history as the unfolding of a progression towards liberal institutions. A mediation in Butterfield’s terms is a complex historical process but at its heart will be a set of observable interactions. First, there will be an agent or group of agents, firmly situated in the present, from which situation they reach back into the past for cultural references to amplify a present meaning, designate a meaning more closely, or even quite literally to invent a new meaning. Mediations are in the hands of historical personages who exist in a historical present and who serve as the bridges between the past and the present. They reach backwards, bringing some relevant aspect of the past forward to serve a present need or enhance a present often somewhat novel understanding. Accordingly, in searching for new or altered meanings, we should be looking for agents who initiated a transformation—for a Michael Doyle of the ‘liberal peace’, for the happy Swiss Emer de Vattel who embedded Grotius in an understanding of the eighteenth-century state as a moral agent or a Bernard Brodie who first put forward the proposition that nuclear weapons could not be used to fight a war and who first related nuclear weapons to a more traditional idea of deterring. Such agents will inevitably have three personas. They will be themselves in a relationship with their own time. Secondly, they will have been ‘received’ by their immediate successors in processes of direct transmission, which will inevitably be a selection, but from a relatively coherent pool—the persona as a direct influence. And thirdly, they will be a collection of historical deposits, acquired from the many references to them, available to those in the future, who reach back to historical personages in support of their own, contemporary arguments.

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This reaching back often takes place in times of political trouble and disputation that has required, or inspired, innovation. Macaulay is observing the European revolutions of 1848 against the background of the excesses of the French Revolution and in the context of the British reform acts of 1830. Grotius is reflecting on the excesses being committed by Christian princes during the Thirty Years’ War, unrestrained by Christian principles. The developments in the Holy Roman Empire of 1648 that called into question its status as an empire prompted Pufendorf’s idea of a confederation among sovereign states. Behind Vattel’s re-introduction of the concept of societas into a growing body of positive international law was an overweening French monarchy against which he sought to create a bastion and which led him to bring forward the idea of sociability. The humanizing of war carried through by the men of 1873 was part of a project to modernize the European political order, and the demand for modernization produced something new. By extension, such a notion of tradition does not and cannot lie in the faithful reproduction of a text. We must take seriously David Armitage’s remark that “the pivotal moments in the formation of modern international thought were often points of retrospective reconstruction” (Armitage 2013, 12). Renee Jeffery’s account of the ‘Grotian tradition’ (Jeffery 2006) records numerous reconstructions of Grotius, several of them pivotal, including Grotius as an early advocate of arbitration, Grotius as an advocate of humanitarianism in war and Grotius as an early theorist of intervention to protect a people being abused by its government. These may go so far as to involve deliberate misunderstandings of past experiences or texts. When Hedley Bull sought to contrast something he identified as solidarism with something else he called pluralism, and when he made Grotius the standard-bearer of the solidarist tradition (Bull 1966), he deliberately played down those aspects of Grotius which did not ‘fit’ with his conceptualization of solidarism. Bull’s idea of Grotius is not the historical Grotius, as William Bain (2020) has demonstrated. In the same manner, the liberal internationalist tradition, with its sub-theme of the liberal peace, has reconstructed a novel Kant as an early theorist of the liberal peace, an assignment that was a deliberate move by Michael Doyle and one that has likewise haunted modern Kant scholarship. Difficulties await the student of Grotius who tries to capture Grotius through the mediation of Bull. What is important about Bull’s Grotius is what he meant to Bull and the conceptual work that Bull was attempting to accomplish, through a particular reading of Grotius.

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The idea of mediations affected Butterfield’s view of origins—he disputed the search for origins and insisted that history was not the study of origins. Rather than origins, he proffered the idea of ‘passages’ and ‘bridges’, and he alerted the historian to the possibility that the relevant passages and bridges might not be immediately apparent—indeed, that they might need searching out. Richard Devetak (2015) has argued that the emergence of histories of the states system by the Italian- and German-­ speaking historians of the seventeenth and eighteenth centuries allowed the modern world to be imagined as “a world of states”. It is one of the “very strange bridges”, Butterfield postulated as making the passage from one state of things to another and that are lost sight of in general historical surveys. He called their discovery “the glory of historical research”. Butterfield replaced the idea of origins with what he called ‘effective mediations’. These were the mediations that led “from something old to something which the historian must regard as new”. Devetak (2015) has argued that the imagined ‘world of states’ was genuinely something new, making it possible for us to postulate, for example, that Pufendorf, who made one of the most important contributions to the history of the state system, could not wholly imagine a world of states. (Or at least we might so theorize, given Pufendorf’s concern with confederations.) Any examination of ‘effective mediations’ is likely to reveal a ‘new’, such as Vattel’s fully sovereign states with obligations to one another. Effective mediations demonstrate innovation, involving some element of break or rupture with what went before and which can arguably count as an ‘origin’. In 1650 Richard Zouche produced his Of Law Between Nations and Questions Concerning the Same, in which the principal agents were no longer emperors or princes or sovereigns, but states—collective entities that appear as subjects of laws. It would be fair to regard this as an ‘origin’ while keeping Zouche firmly within an Oxford common law tradition of jurisprudence and firmly indebted to Gentili for the detail of the common law that he applied, in a novel fashion, to states. In this account of a tradition, breaks, ruptures and innovations always have a ‘back story’ that refers to some context and some intention that explains the rupture or the innovation. (In Zouche’s case, the back story concerns his discovery of Hobbes.) Such back stories accordingly have their part to play in the exposure of a tradition, particularly in the consideration of ‘origins’.

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Back Stories, Passages and Bridges in the International Society Tradition The most important back story in regard to the international society tradition concerns Grotius’ silence with regard to the Spanish jurist Suarez, who might be rightly regarded as preceding him. It is frequently argued that Suarez had already fully enunciated a doctrine of sociability before Grotius, that Grotius was aware of Suarez’s argument and yet ignored it, failing to acknowledge his debt to the eminent Jesuit. Grotius never explains why he ignores Suarez, but it is clearly an intentional omission, since he cites almost everyone else in history, theology and even literature existent at the time that had a view on the laws of war. The back story concerns Grotius’ aim in constructing his laws of war, which was to strive for a universal view, and his method of argument to that end was to site every instance of obedience to a rule of law that he could find, not merely in classical literature but in medieval accounts of pagan as well as Christian usage. He cites the Old Testament frequently and not merely the Israelites; he cites poetry and plays. But of the New Testament there is scarcely a reference, and there is little of metaphysics. He wished actually to avoid a metaphysical foundation and to construct what would later be regarded as a humanist foundation to his laws of war, a foundation based on a universality of practice. Grotius introduced the idea that “conflict cannot be eradicated and could not be dismissed, even in principle, by the most comprehensive metaphysical knowledge possible of how the world is made up” (Schneewind 1993). Such a method of argument is diametrically opposed to that of Suarez, who is firmly within the Jesuit tradition that bases all principles and rules on metaphysical knowledge. Citing Suarez, much less arguing forward from Suarez, would have confused the force of his own argument. Grotius is in fact breaking with the tradition that is represented by Suarez. The passage from Grotius to Pufendorf is via Hobbes, and Pufendorf’s entirely original reading of Hobbes’ state of nature, which Pufendorf used to give a biblical account of Grotius’ classically based understanding of human sociability. Pufendorf seized upon Hobbes to provide the key by which Grotius’ sociability could be understood, among other things, as an actual condition, in the context of the biblical Fall of Man (and Woman), and, at the same time, unlock an understanding of the German constitution at a critical period in its development. At the same time, Grotius provided him with an incomplete structure of natural law principles (those

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of the laws of war) that could be applied to the new sovereigns that were claiming a plenitude of powers and which it was necessary therefore to complete. The passage from Pufendorf to the historian Heeren, who did fully imagine a world of states, is via the Gottingen historians who admired not so much Pufendorf’s natural law argument as the historical exposure of his natural law principles. Pufendorf was a court historian and lecturer in history as well as a Politiker, and the two were related. Pufendorf organized his history of the royal house of Sweden around the adherence of its various royal personages to principles drawn from his juristic writings. His lectures centred on the challenge (for particular sovereigns and their historians) of applying the natural law’s general injunctions to specific historical circumstances, providing a new form of history that was more than a sum of random events. The Gottingen historians applied Pufendorf’s method to the writing of universal histories that would demonstrate in concrete God’s design for humanity and also more local histories organized around sovereignty and state form, the tension between civil and ecclesiastical authority and the challenge of foreign relations. Heeren, trained up in Gottingen historical method, located the central dynamic of the political landscape of Europe from before the French Revolution to the end of the Napoleonic era in the relations of the five Great Powers struggling to determine the constitution of Europe. There was no passage from Heeren and the Gottingen historians to the American jurist Henry Wheaton, who first made civilization the basis of international law. Instead, there was a bridge, in the form of the Swiss jurist Emer de Vattel, suspicious of universal histories and fearful of a French monarchical ascendancy threatening to the small republics of Europe. A child of the Enlightenment, Vattel was trained up in the science of Grotius and Grotius’ ethic of sociability, at a time when Grotius was very unfashionable in the more radical salons of Paris, and he absorbed for his own purposes the almost diametrically opposed science of the philosopher and jurist Christian Wolff, whose natural law was based on the supremacy of the state, combining them in a jurisprudence of thoroughgoing sovereigns, small as well as large, whose self-interest could not be achieved without regarding the self-interest of others. Vattel was arguably the first to place fully sovereign states in a relationship of sociability. Benjamin Franklin received three copies of Vattel’s first English translation as a gift, and it became the guiding diplomatic text of the rising American Republic, another small republic anxious as to its newly gained

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sovereignty. It was transformed by Wheaton into an American text in which states’ rights became the basis of duties of other states to observe those rights, an appealing idea that could be honoured by every state however constructed and which led it to replace Vattel as the basic source book for the practice of international law in most of the diplomatic services of Europe. The transition from a universal society of states to a civilized society of states was the work of the French Revolution and the ‘effective mediation’ in 1830 of August Comte’s ‘law of three stages’ proposing an evolution in human knowledge from myth and religion to metaphysics and science, which became associated with specific societies. The ‘law’ acquired a racial edge after the 1860s in the context of imperialism and the abolition of slavery and was formally transposed into international law in James Lorimer’s 1883 Institutes of International Law, which differentiated the application of international law as between savage, barbarian and civilized nations. It was carried forward into Lassa Oppenheim’s distinction between the family of nations and states outside the family and confirmed as a standard understanding by Georg Schwarzenberger in 1939, reflecting on the rise of the fascisms. The standard-bearer of civilization in modernity was the development of humanitarianism in warfare and carried forward as a project by the Institute of International Law, founded in Brussels in 1873, in which the mark of the civilized society was to agree to and hopefully observe limitations in the use of weapons of war so as to limit human suffering. The lawyer-members of the institute were a civilian professional cadre in the modern sense, who accompanied ministers to the various conferences and who drafted the conventions. The first humanitarian war code was that of Francis Lieber, commissioned by the U.S. secretary of war during the American civil war to devise a code of application to civil war situations and who adapted Grotius’ third book on the jus in bello to the purpose, which became the basis of the codification of the laws of war at the Hague Conferences in 1899. The ascendancy of Grotius as the philosopher of the project was confirmed by the founding of the Grotian Society in London in 1913 to oversee obedience to the laws of war during the First World War. The bridge between the men of 1873 and the founding of the League of Nations was the second Hague Conference of 1907 which achieved the first institutionalization of Peace. The “long steps in this direction” were the convention for the establishment of a permanent international prize court and the formulation and adoption of a draft convention relative to

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the creation of a general judicial arbitration court. The latter was the almost single-handed effort of Roosevelt’s Secretary of State Elihu Root, who was a corresponding member of the Grotian Society and who carried the project through in the context of the League of Nations after the war. In his lecture on the receipt of the Nobel Prize for Peace in 1912, he declared: Towards the creation of such a court the best efforts of those who wish to promote peace should be directed. Further Hague Conferences should be insisted upon. They should be made to recur at regular periods without requiring the special initiative of any country.

The passage between the League of Nations and the British Committee on the theory of international politics was created by the numerous analyses of the workings of the League carried out by political scientists and lawyers in the first decades of the League’s existence. The bridge between them and the British Committee were three legal theorists, reflecting on the experience of the League, who produced the first three analytical theories of international society. Charles Manning’s experience of the League led him to theorize an international society that was a linguistic fact and a social construct; Hersch Lauterpacht’s reflections on the League led him to theorize an international community that had a will of its own and whose will should be obeyed. Georg Schwarzenberger’s experience of the League led him to proffer a theory of international society organized around and by Great Powers. Their legacy is revealed in a contemporary research tradition, a review of which this volume concludes. The overall movement reveals a line of development from a speculative and abstract a priori assumption of an inherent and natural community of mankind to a posteriori historical accounts of a world of states, to a social science theorizing of an actualized international society. These followed one another and influenced one another, allowing us to speak of a tradition. Since this line of development was also accompanied by a definite development in institutions at the international political and social level, it could be argued that the movement in theory followed a development in institutionalization. But this would be misleading. The various theories tended to develop out of their own impetus in the immediate, often dramatic circumstances in which their proponents found themselves—wars, revolutions and political upheavals. If there was a larger development to

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which they belonged, it would be fair to say that they followed the general direction of social theorizing.

References Armitage, David. 2013. Foundations of Modern International Thought. Cambridge: Cambridge University Press. Bain, William. 2020. The Political Theology of International Order. Oxford: Oxford University Press. Bull, Hedley. 1966. The Grotian Conception of International Society. In Diplomatic Investigations, ed. H. Butterfield and M. Wight, 51–73. London: George Allen & Unwin. Butterfield, Herbert. 1931. The Whig Interpretation of History. London: Norton. Collingwood, R.G. 1939. An Autobiography. Oxford: Oxford University Press. Devetak, Richard. 2015. Historiographical Foundations of Modern International Thought: Histories of the European States System from Florence to Göttingen. History of European Ideas 41 (1): 62–77. Dunne, Tim. 1998. Inventing International Society: A History of the English School. Basingstoke: Macmillan. Eliot, T.S. 1920. Tradition and the Individual Talent. In The Sacred Wood, ed. T.S. Eliot, 42–53. London: Methuen. Henry, Margaret. 1923. Cicero and the Great Society. Classical Weekly 17 (9): 67–72. Jeffery, Renee. 2006. Hugo Grotius in International Thought. London: Palgrave Macmillan. Lauterpacht, Hersch. 1946. The Grotian Tradition. British Yearbook of International Law 23: 1–53. Schneewind, J.B. 1993. Kant and Natural Law Ethics. Ethics 104 (1): 53–74. Schwarzenberger, Georg. 1939. The Rule of Law and the Disintegration of the International Society. American Journal of International Law 33 (1): 56–77. Suganami, Hidemi. 2000. A New Narrative, a New Subject? Tim Dunne on the ‘English School’. Cooperation and Conflict 35 (2): 217–226.

CHAPTER 2

Grotius the Innovator (1625)

The “force of the Jus gentium is located in the societas gentium”. —R. Jeffrey, Hugo Grotius in International Thought, p. 128

Grotius became identified with an ‘international society tradition’ in the latter part of the nineteenth century, in association with the movement to humanize warfare. His On the Law of War and Peace, especially Part III on the jus in bello, was seized upon by the humanizers as evidence of a deep reservoir of humanity in the law of war, and it was drawn upon for the contemporary content of that law. The founding of a ‘Grotian Society’ in 1913 to check the progress of humanity in warfare was an acknowledgement of his pre-eminent position as a transcendent thinker concerning the relations of states. How transcendent would be spelled out by Hersch Lauterpacht in an essay on “The Grotian Tradition” for the 1946 British Yearbook of International Law, which claimed him as the founder of a rich tradition of thinking about states in terms of a shared social endeavour. It was questioned almost at once, initially in the context of the Catholic revival occurring at the end of the nineteenth century and the recovery of the Spanish scholastics, Vitoria and Suarez. The ‘Suarezians’ argued that Grotius had not invented international society, that the tradition properly began with Suarez and that Grotius’ account was the inferior account. They were joined by the ‘originalists’, Hedley Bull in the first instance, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1_2

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who attempted to recover the real Grotius in the light of the representations of him by Lauterpacht: Bull agreed with Lauterpacht that Grotius belonged to the tradition but called into question a single view of it (Bull 1966). John Parry’s 2014 “The Grotian Tradition in International Law” questioned the value of traditions altogether and revealed the ‘real’ Grotius as a late medievalist, a political operator and a less than humanizer of war. But the question at issue is not which was the ‘real’ Grotius, or not merely that. Nor is it a question of whether the real Grotius shared the same attitudes to war as the Geneva Committee. It is a question of how a seventeenth-century thinker relates to a tradition identified as such by a twentieth-century jurist. William Bain has called Grotius the “bridge to modernity”, and a bridge has two ends. At one end is the idea of a societas gentium, a society of peoples; at the other end is an ascription to Grotius. The question at issue is how Grotius reworked the idea of a society of peoples, first in relation to his own time and second in such a manner that it could be conceived as ‘modern’ by later thinkers. To these, there is a prior question of how Grotius stands intellectually in relation to his own time. In relation to his own time, Grotius had to be a modernizer in some respects, in order to be connected to the bridge at all. In which respects he was a ‘modernizer’ there is little to doubt and much that is agreed upon. He broke with the Catholic and scholastic understanding of the jus gentium, or law of peoples as God’s commands, instead reposing the jus gentium in God’s reason, a Reason in which humans participated. Unlike the earlier thinkers who believed that the natural law was imposed by a deity, Grotius believed that the natural law came from an essential universal reason, common to all men. He broke with the Calvinist doctrine of predestination, arguing that God had a forgiving nature, marked by his Grace. He broke with the idea that the state should be like the total church and argued for limiting the role of the state to essential doctrine, encouraging toleration. He innovated the idea of the autonomous individual who had rights, according to the famous phrase “there are different Ways of living, some of a worse, and some of a better kind, left to the choice of every individual” (Grotius 2005, Book I, 3, VIII: Campbell 2001, 250). In his Mare Liberum (1609) he formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. On the idea of sociability, central spine of the international society tradition, he followed both Vitoria and Suarez, and Aquinas before them, but he rooted it differently, he argued it differently and he extended it differently.

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Grotius’ concern in On the Laws of War and Peace is mostly with the laws of war and little with those of peace. He wrote as its introduction, “Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes” (Grotius 2005, Preliminary Discourse (PD), xxix). The question he asked himself concerned the basis upon which the laws of war could be understood so as to anchor a sense of obligation to them. Classically as well as theologically trained, he appealed directly to the idea of sociality or sociability (societas in Latin) as the source of law, but he rooted it in a classical and not a theological manner: Now amongst the Things peculiar to Man, is his Desire of Society, that is, a certain Inclination to live with those of his own Kind, not in any Manner whatever, but peaceably, and in a Community regulated according to the best of his Understanding; which Disposition the Stoicks [Stoics] termed Ὀικείωσιν [familial]. Therefore the Saying, that every Creature is led by Nature to seek its own private Advantage, expressed thus universally, must not be granted. (Grotius 2005, PD, viii)

Stoics aside, Grotius inherited the idea of sociability from Aquinas as it was received by the Dominicans. Aquinas had assigned as one of the natural goods to which human beings are inclined “to live in society”. The doctrine of sociability derived primarily from the first book of Aristotle’s Politics upon which Aquinas had written an extensive commentary. Following “the Philosopher”, Aquinas believed that political society (civitas) emerged from the needs and aspirations of human nature itself. Thus understood, it is not a device of human ingenuity (as in the modern social contract theorists) nor an artificial construction designed to make up for human nature’s shortcomings. It is, rather, a prompting of nature itself that sets humans apart from all other natural creatures. The idea was well established as a central doctrine of Thomistic teaching, which was the preserve of the Dominican order. From this inclination to society, Grotius derived his precepts, by reasoning not from natural law directly, as Vitoria and the Spanish Jurists had done, but from the fundamental requirements of human sociability,

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presenting them as jus gentium, understood as a basic law of association. In doing so, he turned Cicero around: instead of Cicero’s comforting idea that ubi societas ubi lex, he reversed the equation and derived the law of people from the ‘society of peoples’, which included pacts, treaties and alliances, arguing in effect that ubi lex ubi societas—that is, “where there is law there is society”. For Grotius, ‘societas gentium’ included and the De Jure Belli designated the wealth of legalized relations existing among princes and public authorities, many of which were the product of intent and design, to be differentiated from the inherent sociability of man. The Preliminary Discourse (PD) lays out Grotius’ justification and method. It begins formally with a challenge to the moral relativism advocated by the ancient sceptic, Carneades (Grotius 2005, PD v–viii), but it was equally a challenge to the essentialism and teleology of Suarez and the Spanish jurists. According to Grotius, “they have all of them said but very little, and most of them in such a Manner, that they have, without any Order, mixed and confounded together those Things that belong severally to the Law Natural, Divine, of Nations, Civil and Canon” (PD xxxviii). Putting aside epistemological argument, moral proof or philosophical systematizing, he orders his sources as Philosophers, Historians, Poets and, in the last Place, Orators, not because they are all equally to be believed but in the degree to which their views accord with one another, as in Aristotle: “But that when many Men of different Times and Places unanimously affirm the same Thing for Truth, this ought to be ascribed to a general Cause; which in the Questions treated of by us, can be no other than either a just Inference drawn from the Principles of Nature, or an universal Consent [of nations]” (PD xli). Grotius intentionally avoided biblical, theological and confessional presuppositions, which he believed tended to generate or exacerbate rather than to resolve conflict. Instead of arguing a priori, he argued a posteriori, appealing to “concrete observation in the manner of the physical sciences…attempting thereby to create a shared outlook based on experience” (Seidler 2018, n.p.). That experience included contemporary pacts, alliances and partnerships, to which direct reference is made in the Preliminary Discourse (see ii) and many instances of which are cited thereafter. His societas gentium includes such treaty relationship between states and princes. I am indebted to Evgeny Roshchin for clarifying this distinction. In his recent argument (2013), he places Grotius’ use of the concept in the context of ancient and early modern discussions of political alliances and partnerships, which were “no less conventional and important than the Stoic universal human

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society”. What Grotius did, and why we may designate him as the father of the international society tradition, was to identify pacts and alliances with the appetite for society and to derive dictates of the jus gentium also from them. The question was from where did the obligatory status of the jus gentium arise? Suarez and the Spanish jurists had derived the jus gentium from natural law directly—as a deposit of the jus natural, reflecting it, which however made its legal and obligatory nature disputable, since the reading of natural law was itself disputable. If, however, it derived not from the natural law directly, but from a societas gentium, which had a palpable expression in the form of pacts and alliances, then it had a force of its own, amenable to judgement—a judgement in terms of the societas gentium and its requirements. Societas gentium, or ‘international society’, could be seen both as the locus of the jus gentium (loosely, international law) and as bestowing upon it an obligatory status, while at the same time allowing for a judgement as to its conformability to the societas from which it derived. In this manner Grotius “attempt[ed] thereby to create a shared outlook possessing theoretical coherence, empirical plausibility, and pragmatic effect” (Seidler 2018, n.p.). It is this triple feint that constitutes the genius of Grotius and for which he deserves the attention bestowed upon him by generations of international lawyers and scholars, including Martin Wight, Hedley Bull and the English School. In his own time, there was little that was revolutionary in the idea of sociability per se. The tag ubi societas ubi lex was part of the common legacy of the classical world and would have been familiar to every schoolman. Nor was the revolutionary aspect of the De Jure Belli Grotius’ method of argument—arguing a posteriori was not unknown. Rather it was his dismissal of the requirement for Christian avowal to root it. The famous phrase is “What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness: that there is no God, or that the affairs of men are of no concern to Him.” Such a concept was frequently rendered in the terms of the Latin tag etsi deus non daretur, which means ‘even if God did not exist’. Grotius posited, in other words, an obligatory status for the jus gentium separate from any of the contesting doctrines of Christianity. Accordingly, he could be seen as breaking the link between the obligatory status of the jus gentium and an understanding of the force of natural law as God’s will. De Jure Belli escaped official censure, but Grotius’ writings expressing similar ideas were put on the Index of forbidden reading in 1626.

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It was not always so. In De Indis, an early work justifying the seizure of a Portuguese vessel in the context of the Dutch war with Spain, he had aligned himself with the voluntarist account of obligation, found in medieval thinkers such as Ockham, which maintained that natural law is binding upon humans in virtue of a divine will that commands it. By the time of De Jure Belli, however, Grotius had accepted the alternative, intellectualist position that natural law binds us by teaching what both humans and God can recognize as necessary for human life: it shows us not what is obligatory because commanded but what is obligatory or permissible “in itself”. In this view, man participates in God’s reason, seen in his very definition of natural law: “a dictate of right reason, which points out that an act has in it a quality of [either] moral deformity or moral necessity…and consequently [my italics], that such an Act is either forbid or commanded by GOD, the Author of Nature” (Grotius 2005, PD x.2, x.1). Grotius’ treatment is often said to anticipate secularism, but it was non-­ denominational rather than secular. In terms of the religious controversies of the early seventeenth century, Grotius shared with many in the government of Holland sympathies with the Arminian view, which moderated the Calvinist view of predestination. Johann van Oldenbarnevelt, the leading Dutch statesman whom he had in 1598 accompanied to France (where he met Henry IV who called Grotius the ‘miracle of Holland’) took an official position of religious toleration in the dispute between Jacobus Arminius’ tolerant Protestants and the Gomarists, orthodox Calvinists led by Franciscus Gomarus. Gomarists were dominant among the ecclesiastics and the populace. Grotius (who acted during the controversy first as Attorney General of Holland and later as a member of the Committee of Counsellors) had been composing, during 1611, a manuscript on the idea that all faiths shared a set of core doctrines—the Meletius—and was eventually asked to draft an edict to express the policy of toleration. The edict put into practice a view that Grotius had been developing in his writings on church and state: that only the basic tenets necessary for undergirding civil order (mainly the existence of God and His providence) should be enforced, while differences on obscure theological doctrines should be left to private conscience. Such a position effectively stripped Church officials of much of their power and some (such as Johannes Althusius) declared Grotius’ ideas diabolical. As the conflict between civil and religious authorities escalated, Oldenbarnevelt proposed that local authorities be given the power to raise troops (the Sharp Resolution of 4 August 1617) in order to maintain civic

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order. Such a measure threatened to undermine the authority of the Captain-General of the republic, Maurice of Nassau, Prince of Orange. In 1618, using his military powers in a coup d’état, he ordered the arrest of the Arminian leaders, including Grotius. Oldenbarnevelt was executed for high treason and Grotius was sentenced to life imprisonment in the fortress of Loevestein. From his imprisonment, Grotius wrote a justification of his position, arguing that the civil authorities should limit themselves to doing nothing which was against God’s word and cease persecuting those they considered in error. In 1621, with the help of his wife and his maidservant, Elsje van Houwening, Grotius escaped the castle in a book chest and fled to Paris, where he remained in exile and established a permanent residency, serving royal houses, including the Dutch, as an itinerant legal counsel. In the Netherlands, he is mainly famous for this daring escape (both the Rijksmuseum in Amsterdam and the Het Prinsenhof museum in Delft claim to have the original book chest). But the three years of his imprisonment determined the course of his writing: from his cell he reached out for a universal view of human affairs and prepared parts of what would become On the Law of War and Peace, and upon arrival in France, he completed his most famous philosophical work, De Veritate Religionis Christiane 1627 (The Truth of the Christian Religion), the most widely read of his works in his time, arguing that the doctrines of Christianity were recognizable through reason as the most consistent and highest expression of the common faith. De jure belli ac pacis libri tres (On the Law of War and Peace: Three books) was first published in 1625, dedicated to Grotius’ current patron, Louis XIII. The Preliminary Discourse declared the central thesis: This Sociability, which we have now described in general, or this Care of maintaining Society in a Manner conformable to the Light of human Understanding, is the Fountain of Right, properly so called; to which belongs the Abstaining from that which is another’s, and the Restitution of what we have of another’s, or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit of Punishment among Men.

The treatise advances a system of principles of natural law that are held to be binding on all people and nations regardless of local custom; that is, it can be applied to those beyond the European littoral, to Russians and

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Chinese, to South American natives as well as to European princes. Moreover, the principles hold for all times. Unlike his religious works that argue from first principles in the classic manner, the method of argument is in the main a posteriori, or by example. This is a deliberate choice on Grotius’ part, as he explains in Book 1, Chapter 1, xiii (Grotius 2005), and may be attributed to the fact that metaphysical arguments had done nothing to mitigate the violence of the religious wars (see Schneewind 1993). It seems that he wanted to sway the authorities by demonstrating that limitation in war was the common practice in fact. In structure, the work is divided into three ‘books’ or parts: • Book I advances his conception of war and of natural justice, arguing that there are some circumstances in which war is justifiable. • Book II identifies three ‘just causes’ for war: self-defence, reparation of injury and punishment. Grotius considers a wide variety of circumstances under which these rights of war attach and when they do not. • Book III takes up the question of what rules govern the conduct of war once it has begun. Influentially, Grotius argued that all parties to war are bound by such rules, whether their cause is just or not. Having decided to argue by example, Grotius’ coverage in each section is encyclopaedic (the original is over 1000 pages; the modern abridged translation in English is 347 pages). He cites from classical sources, plays and poetry as well as history, biblical text (primarily the Old Testament), medieval sources, contemporary histories and literature. The sources are diverse in their recommendations and Grotius does not hesitate to cite directives that go in different directions, giving reasons for why it should be so. He wanted the notion that there were limitations in war to be laid down as a general principle. At the end of each part, his own views come forth in the form of temperamenta, or recommendations to moderation. Temperamenta Belli or Moderation in War became one characterization of his doctrine (e.g. Hedley Bull 1966). The notion that war is justifiable as a first principle is not original to Grotius. In Christian doctrine, Augustine in the fifth century had provided the first modern justification for war: that since Christians are committed to peace, a war to restore peace is justifiable—a position that Aquinas had elaborated in the twelfth century in his just war theory. Nor was the distinction between justice of war and justice in war original, also to be found in Aquinas. What was original to Grotius was to link justice in

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war to a theory of rights. Just war was a war in prosecution of one’s rights; unjust war was to take from another that which was his right. Rights are distinguished as between civil rights and the rights of nations, the first deriving from the compact between citizens and the state, and the second “from the Will of all, or at least many Nations” (Grotius 2005, Book 1, Chapter 1, xiv), hence, the importance of pacts, which demonstrate will. Both sets of rights are natural rights in the degree to which they are authorized by “Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature” (loc. cit.). The basic principles for the jus ad bello Grotius derived from sociality. These were not imposed from above but rather derived from a rational understanding of the requirements of a societas gentium. The demands of sociality included the axiom that promises must be kept, arguably a basic precept of social exchange—the famous phrase pacta sunt servanda is Grotius’ formulation; a second axiom was that harming another requires restitution, also a basic precept of sociality. (These two principles have served as the basis for much of subsequent international law.) The third was punishment, which Grotius argued was also integral to the social condition since what was being punished was derogation from a social rule. In this he, like Hobbes soon after him, distinguished between punishment and revenge, and in Grotius’ case linked just war to the idea of judicial punishment and hence to the performance of a civic act. The most remarked upon doctrine of Grotius in the lexicon of just war, which he determined in the context of the Thirty Years’ War, is the doctrine that ‘legality does not make right’. On the one hand, he formalized the rising notion of the Bellum Legale, the idea that war was a legal act if waged by a sovereign and formally declared. At the same time, he denied that the rising sovereign princes could claim the justice of war simply on the basis of their novel legal rights to make war. Grotius argued, in distinction to his predecessor Gentili, that “the cause must be objectively just and not just only in the mind of a prince about his own cause” (O’Connell 2012, 276). The legal order that was enshrined in the Westphalia agreement of 1648, committing the princes of Europe to refrain from resorting to war in religious causes, was a clear expression of the Grotian principle and is even claimed to owe much to Grotius (Hill 1925, 602). Grotius’ doctrine most called upon in the late twentieth century was that on intervention. Grotius’ ‘default rule’ is that humanitarian intervention is impermissible because established governments have a “certain”

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right to rule. But he sets limits to the default, writing, famously, in Book II, Chapter XXV, “Yet where a Busiris, a Phalaris or a Thracian Diomede provoke their people to despair and resistance by unheard of cruelties, having themselves abandoned all the laws of nature, they lose the rights of independent sovereigns, and can no longer claim the privilege of the law of nations” (Campbell 2001, 247). He warns, however, against the dangers of abuse and says that humanitarian intervention may not be undertaken if the intervener’s own subjects are unduly burdened. Grotius’ treatment of the jus in bello distinguished between the Natural Law and the then observable ‘law of nations’, or customary practice. In general, when undertaken, war ought not to be carried “beyond the Bounds of Justice and Fidelity” (Grotius 2005, PD xxvi). The Natural Law allows us to kill the enemy because the enemy threatens us (op. cit., Book III, 1, II: Campbell 2001, 250). We can also take his property, but only to the extent necessary to our security. These rights are independent of the enemy’s culpability or innocence. This right to use force includes punishment, but only “within the bounds of restoring the equality and repairing the breaches of violated justice”, so we are not entitled to kill or destroy in a manner disproportionate to the offence received (III,1, II: Campbell, 251). Customary practice is not however so restrained. In rapid succession, Grotius lists usages in the present law of nations: that the subjects’ goods and bodies are owed for the Prince’s debts (Grotius 2005, III.2.II, Campbell 267); that all, including women and children, who are found in the enemy’s territories may be killed or hurt (thus there is no principle obligating armies to discriminate between combatants and non-­ combatants) (III.4, VIII–IX: Campbell 286–288); that it is permissible to kill those who surrender (III.4, X–XI–XII: Campbell 287–288); that it is permissible to waste and plunder (III.5.I–IV, Campbell 291–293); and that prisoners of war and their families may be enslaved (III.7.I: Campbell 305). This, however, is customary practice only. Having listed them, Grotius announces his intention to “take away from those who make War almost all the Rights which I seem to have granted them; but which in Reality I have not” (III.10.I). In chapters XI–XXV, Grotius essentially reverses, case by case, the permissions introduced by the consent of states, on the grounds of honour, conscience and the agent’s own search for equity and justice. This way of presenting a matter, often through contradictory principles, would frustrate later legal perfectionists. Lauterpacht, one of his

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greatest advocates, complained about the variety of sources, often with regard to the same question. Grotius quotes the law of nature, the law of nations, divine law, Mosaic law, the law of the Gospel, Roman law, the law of charity, the obligations of charity, the obligations of honour or considerations of charity, so that “we often look in vain for a statement as to what is the law governing the matter”. But Grotius did have a position from which he viewed the various practices that he described. The chapters of Book III on the jus in bellum that reverse the law of nations appear under the title ‘Temperamentu’, the first of which is “The Right of Killing Enemies in a Just War to be Tempered with Moderation and Humanity” and in which he calls up Cicero, the philosopher of moderation, who advised that “wars undertaken to maintain national honor should be conducted upon principles of moderation” (III.11. VI: Campbell 320). Also, in calling up a variety of customs to background an appeal to law, Grotius was establishing a distinction between a natural law derived from reason and a positive law derived from custom, but also rendering each to a degree equal to the other. Nabulsi (1999) suggests, very plausibly, that what Grotius was doing is establishing that all these customs and practices are law and that even in the most brutal practices, a legal order can be discerned. His aim in presenting, as well as attacking, different ideological systems was to clear a path for a society (both domestic and international) governed by certain key values and procedures. The supreme characteristic of this civilized society was law; it was the bedrock upon which all notions of order were constructed (see Koskenniemi 2019). Accordingly, his goal in presenting the various forms of war practice as exhibited in different ethical systems was to demonstrate that the concept of public authority was in practice not dissociable from law—no matter what teleological purposes were served by the particular kingdom, principality or tribe. Grotius’ habit of arguing from practice as well as principle, with easy movement between the two, marked the beginnings of a particular tradition in international law that became known as Eclecticism or ‘eclectic’, in that it was neither purely naturalist nor purely positivist. The American jurist Wheaton who wrote the digest in most use in the European chancelleries in the nineteenth century was referred to as a Grotian and an ‘eclectic’—in the characterization of H. A. Smith (1930), an insistence upon the fundamental principles of natural law balanced by an analysis of practice as an immediate source of positive law, such that “it cannot be classified under the conventional labels of any doctrinal system”. A more recent

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commentator notes that the power of Grotius’ texts lies in the way they resist closure in doctrinal terms and that “[t]heir open-endedness allows for their use for the most varied purposes” (Koskenniemi 2019, 50). In The Free Sea (Mare Liberum, published 1609) Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. Grotius, by claiming ‘free seas’, provided suitable ideological justification for the Dutch breaking up the British trade monopolies through its formidable naval power. England, competing fiercely with the Dutch for domination of world trade, opposed this idea and claimed in John Selden’s Mare clausum (The Closed Sea) “That the Dominion of the British Sea, or That Which Incompasseth the Isle of Great Britain, is, and Ever Hath Been, a Part or Appendant of the Empire of that Island”. His expertise on maritime affairs put him in high demand. Cardinal Richelieu invited him in November 1626 to become actively involved in the establishment of a French East India Company. As a then itinerant ideologue of free seas and a specialist on the trading empire, Grotius sought to further his own career and those of his nearest family members, without damaging the interests of the United Provinces. Through close colleagues and family members, he provided informal advice on Dutch imperial policy to the Dutch company directors and government officials in The Hague. He was rewarded with the appointment of his brother and his son, Pieter de Groot, as company lawyers (ordinaris advocaten) in 1639 and 1644 respectively. They served as his proxies in diplomatic disputes involving the Dutch East India Company, the States-General and the Portuguese ambassador in 1644, when Pieter and Willem de Groot wrote a defence of the company’s claims to the cinnamon-producing areas of Ceylon, liberally citing De Jure Belli ac Pacis. Grotius’ view of empire hardly changed in the course of forty years. In his view, the Dutch had gone to the Indies as merchants, not conquerors, and should regulate themselves according to natural law and the law of nations. In the circumstances, this meant abiding by a universal law that had no foundation in any state law, by-passing local authorities. He may have contributed to what Keene (2002) would later point to: the creation of two political orders, one for Europe and one for the developing empires. But he also constructed the developing commercial order of the time as a transnational legal order guided by natural law and rooted in practice. Officials of the Dutch East and West India Companies could act as legislators and judges without reference to indigenous rulers, other colonial

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powers or even the political authorities back home, guided by a transnational law that they applied in conformability to the purposes of their enterprise. It was in this respect, ironically, that Grotius probably most appealed to later, progressive, jurists: his presentation of the law as rooted in practice and conforming to ‘natural’ requirements. Martti Koskenniemi in “Imagining the Rule of Law” (2019) suggests that the frequent description of Grotius as the ‘father’ of international law results from the way later lawyers (such as Lauterpacht) would appreciate Grotius’ notion, presented in The Law of War and Peace, that when human beings are faced with reconciling “the demands of practice” with abstract ideals of justice, they will “discover a tendency to subordinate themselves to rules”. Grotius used this assumed tendency to explain the trust and confidence with which members of good societies agree to live in peace and expect mutual benefits from cooperating with each other. He did not give explicit institutional form to this ‘sociability’—that would come later. But he laid the foundations for it As a final note, we might observe that Grotius’ contributions to political science are equal to his contributions to the idea of an international society. First, there is the germ of contract thinking. If sociability is the “fountain of all Right” that leads people to establish political institutions, it is also the case that these institutions are manmade; they are the result of human will, of an agreement (PD, viii; Campbell Book II.2, 72–73). This social contract is morally binding in an indirect way. The Law of Nature, via sociability, leads individuals to arrange their affairs by enacting civil laws. These civil laws are then binding on subjects because they agreed to them: hence the claim that “Grotius locates the origin of rights in consent” (Rabkin 1997, 279). Secondly, his notion that individuals are rights holders, and that rights belong to individuals by nature and not by social status, marks the very beginnings of the liberal tradition and made him highly regarded by the main representatives of the Scottish Enlightenment. Jon Miller who contributed the article on Grotius for the Stanford Encyclopedia of Philosophy lists Francis Hutcheson, Adam Smith, David Hume and Thomas Reid as admirers. Hume, who could be understood to offer a sceptical–empirical reworking of traditional natural law theories that maintained much of their practical purport, aligned his own theory of common interest with Grotius’ idea that property and justice came from a common usage and with the latter’s defence of toleration and his

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limitations on the state’s compass, and he inherited directly Grotius’ idea of subjective rights (Haakonssen 1996, 85).

References Bull, Hedley. 1966. The Grotian Conception of International Society. In Diplomatic Investigations, ed. H. Butterfield and M. Wight, 51–73. London: George Allen & Unwin. Campbell, A.C. (1814) 2001. On the Law of War and Peace. Edited by Hugo Grotius, translated from the original Latin and slightly abridged. Kitchener, Ontario: Batoche. http://livros01.livrosgratis.com.br/mc000111.pdf. Grotius, Hugo. (1625) 2005. The Rights of War and Peace (Indianapolis: Liberty Fund). https://oll.libertyfund.org/pages/grotius-­war-­peace. Haakonssen, Knud. 1996. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge: Cambridge University Press. Hill, D.J. 1925. A History of Diplomacy in the International Development of Europe. Vol. 2. London: Longmans, Green and Co. Jeffery, Renee. 2006. Hugo Grotius in International Thought. New York: Palgrave Macmillan. Keene, Edward. 2002. Beyond the Anarchical Society: Grotius, Colonialism and Order in World. Politics: Cambridge University Press. Koskenniemi, Martti. 2019. Imagining the Rule of Law: Rereading the Grotian ‘Tradition’. European Journal of International Law 30 (1): 17–52. Miller, Jon. 2014. Hugo Grotius. In The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/spr2014/entries/grotius/. Nabulsi, Karma. 1999. An ideology of war, not peace: jus in bello and the Grotian tradition of war. Journal of Political Ideologies 1 (1): 13–37. O’Connell, Mary. 2012. Peace and War. In The Oxford Handbook of The History of International Law, ed. B. Fassbender and A. Peters, 272–293. Oxford: Oxford University Press. Parry, John T. 2014. What Is the Grotian Tradition in International Law? University of Pennsylvania Journal of International Law 35 (2): 299–377. Rabkin, Jeremy. 1997. Grotius, Vattel, and Locke: An Older View of Liberalism and Nationality. Review of Politics 59 (2): 293–322. Roshchin, Evgeny. 2013. (Un)Natural and Contractual International Society: A Conceptual Inquiry. European Journal of International Relations (2): 19, 257–279. Schneewind, J.B. 1993. Kant and Natural Law Ethics. Ethics 104: 53–74. Seidler, Michael. 2018. Pufendorf’s Moral and Political Philosophy. The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/spr2018/ entries/pufendorf-­moral/. Smith, H.A. 1930. Review. Law Quarterly Review 49: 307–308.

CHAPTER 3

Hobbes (1588–1679), a Contributor, and Pufendorf (1632–1694), the Master

“The paradoxical upshot of his examination is that humans as such never were, are, or will be in a pure, full, or perfect natural state, since it would be completely barbarous, bellicose, and thus deadly.” —M. Seidler, Pufendorf’s Moral and Political Philosophy

In 1640, with England on the brink of civil war, the Royalist Thomas Hobbes fled to Paris, fearing the reaction of the Long Parliament to his writing. He remained in exile for eleven years. Five years younger than Grotius, they inhabited the place together, on and off, for the last four years of Grotius’ life (he died in 1645). How much the Royalist Englander had in common with the Republican Dutchman is one of the puzzles that philosophers and historians of Natural Law doctrine like to ponder. Rousseau, somewhat scornfully, classed them together: When I hear Grotius praised to the skies and Hobbes covered with execration I see how far sensible men read or understand these two authors. The truth is that their principles are exactly the same: they only differ in their expression. They also differ in their method. Hobbes relies on sophisms, and Grotius on the poets; all the rest is the same. (Rousseau 1979, 147)

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‘All the rest’ is not exactly the same, but there are enough similarities to suggest an influence—at least Grotius is reputed to have thought so. Notably, they shared ideas on the source of the state’s power—the product neither of God’s command nor of a Machiavellian preponderance but of a willing transference of individuals’ powers. It may be going too far to interpret Grotius as a nascent contractarian (in the manner of Richard Tuck 1993, 178–179), but it would be a mistake to deny the appeal he would have to later contract thinkers such as Hobbes. Also Hobbes, like Grotius, could be seen as breaking the link between the inherent qualities of humans and a God-willed natural law—as with Grotius, Hobbes’ humans can reason for themselves. Moreover, Hobbes’ pacts among sovereigns, like those of Grotius, are blest by the Laws of Nature. We have long ceased to think of Hobbes’ state of nature teaching as encouraging lawlessness. Murray Forsyth (1979) has provided such a reading of Hobbes, by drawing on what “right reason” dictates in a state of nature. Forsyth reminds us that Hobbes’ state of nature, modified by the ‘laws of nature’, is full of security-communities, confederations and alliances, forming and reforming as the pressure of a common enemy arises and subsides (Forsyth 1979, 207). These pacts display all the features of a society of states: they involve obligations, based on sound reason (reason considered rightly according to the eighteenth century). Reason “dictates to them [states] the mutual transfer of rights, or the making of pacts, the mutual recognition of equality, the granting protection to the messengers of peace, the submission of controversies to arbiters…” (pp.  208–209)—what the English School would consider institutions of international society. Forsyth detaches Hobbes from the realist tradition in which he is often placed in International Relations literature and puts him firmly “in the classical tradition alongside Pufendorf”, and like him a progenitor of a theory of “international federation” (p. 209). But it is not so much the idea of a moderated state of nature, or any overt similarities with Grotius, that allows us to assign Hobbes a vital part in the international society tradition, as some have suggested (Bull 1977). Rather it is Hobbes state of nature as it was received by Samuel Pufendorf. Pufendorf absorbed Grotius and completed him via the doctrines of Hobbes. In Pufendorf’s hands, Grotius’ sociability and Hobbes’ state of nature became conjoined as historical conditions instead of, arguably, rhetorical devices, and ones that Pufendorf would moderate. Importantly, Hobbes also passed to Pufendorf the idea of the state as an association of

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individual wills—the state in Pufendorf became a direct manifestation of neither God’s will nor his Reason, but rather of human willing. The idea of an association of individual wills allowed, in turn, for the notion of an intermundane agency—in other words, a persona capable of willing and, hence, one able to create obligations.

Samuel Pufendorf From the 1670s to the end of the eighteenth century, Samuel Pufendorf dominated Europe’s humanist circles. His commentaries upon and revisions of the natural law theories of Hobbes and Grotius became the standard treatments and were taught throughout Europe. An important precursor of Enlightenment thought in Germany, his political concepts are also part of the cultural background of the American Revolution. His international law appeared in two major texts The Law of Nature and Nations (1672, eight volumes) eventually translated into nine languages, and a condensed version for teaching purposes called On the Duty of Man and the Citizen (1673). The latter, translated into English as The Whole Duty of Man in 1691, was eventually published in thirteen languages, was the standard treatment on ethics and the law in the universities with an influence well beyond that of the Encyclopaedists and was particularly well received in the new American republic, where he and Grotius were the main sources along with Martens in the reports to Congress on the foreign policy questions of the early republic. (See Document Legislative and Executive of the Congress of the United States from the first session of the first Congress to the second session of the thirty-eighth Congress, Foreign Relations Volume 5.) From Grotius—he derived his international law not from natural law directly but from an equally valid jus gentium, or human law, which he derived, also following Grotius, from the idea of sociability. From What has been said, it appears, that this is a fundamental Law of Nature, That every man ought, as much as in him lies, to preserve and promote Society: That is, the Welfare of Mankind. And since he that designs the End, cannot but be supposed to design those Means without which the End cannot be obtain’d, it follows that all such Actions as tend generally and are absolutely necessary to the Preservation of this Society, are commanded by the Law of Nature. (Pufendorf 1691, I.3.ix)

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Pufendorf followed Grotius directly in assigning to sociability the “Fountain of Right”. He also followed Grotius in deriving restitution, the keeping of promises and the right to punish—the basic principles of international law, from sociability. But he conceived the foundations differently: Pufendorf was a voluntarist in regard to the law of peoples, as opposed to Grotius who had moved from what was commanded by the nature of God’s will, or voluntarism, to what was commanded by God’s reason. By the time of De Jure Belli, Grotius had adopted the intellectualist position as part of his intention to make the law capable of authorization without reference to the biblical text. Pufendorf, by contrast, rested his jus gentium on voluntarism and considered the law of nature (and hence of peoples) a form of heavenly command. In this, he wanted to emphasize God’s supreme and singular omnipotence (exercised through the divine will). In the Lutheran world, the supremacy of God’s will carried with it the cognitive imperviousness of the (created) world to human grasp, and by association, with arbitrariness and contingency. But it also emphasized humans’ individual and collective power over, and thus responsibility for, their own actions and the institutional contexts regulating them. Pufendorf’s society of states rests on human willing, just as the creation of Being rested on God’s willing. His political concern was less the laws of war than the emerging sovereignty principle. Pufendorf’s thought is situated in a definitively post-­ Westphalian Europe, and his writing reflected the emerging post-Westphalian nature of the European order of his time (as much as it would push the Westphalian concept forward). At the time, the Holy Roman Empire, partly as a result of the Munster agreements, was undergoing a change in the political relationships among its quasi-autonomous constituent states (Austria, Bavaria, Palatinate, Saxony, Brandenburg, all in the process of gaining more of the rights of sovereignty), while maintaining a guarded posture towards external, competing powers such as France, England, the United Provinces, Sweden, Denmark, Poland and Spain. The main goal of the post-1648 imperial court was to avoid resurgence of religious warfare on the part of the increasingly powerful (quasi) states that constituted it while warding off the respective French and Ottoman threats on the Empire’s western and eastern borders. In this context, Pufendorf theorized a new sort of political order—a union of sovereign states—and developed a comprehensive theory about the moral relationships of individuals and groups within that order, the authority and duties of states, and the lawful interactions among them.

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To do so, he called upon Hobbes. Powerfully influenced by Hobbes’ secular rationalism, Pufendorf absorbs completely Hobbes’ conception of a state of nature, but in his hands it becomes something different. Unlike in Hobbes, Pufendorf’s state of nature is not singular; it refers to several different conditions and different sets of relationships. One was the state of nature in the sense of the condition of beasts—amoral conditions in as much as animals have no ability to reason between right and wrong. Another quite different natural condition lay in man’s necessary obligations to God (obligations that are ‘natural’ to man). The third was the relevant one from the aspect of a societas gentium in that it was a specifically human condition. This third state of nature was a “state of humanity” (in contrast to both the amoral state of beasts and the natural obligations towards God), in that it is Man after the Fall. In other words, it is the less than perfect condition from which fallen humanity actually emerges. Using their de facto traits and capacities in this post-Eden state of nature, humans moralize themselves through social interaction, gradually articulating a normative sphere of rights and duties. These are only formally imposed by their creator; they are human creations, natural but also changeable. In its initial or ‘natural’ form, this pre-cultural and pre-civil state is presented by Pufendorf as purely mythical and hypothetical in that no humans can exist as recognizable humans without their fellows. Complete non-­ cooperation and complete hostility are each impossible, he argues, since no one would survive, and the only reason to consider such scenarios is as heuristic devices highlighting the conditions that humans actually inhabit. Pufendorf credits Hobbes with a correct understanding of a perfect state of nature, but also discounts it in the actuality of human history. He argues to the contrary that the historical state is actually a state of ‘peace’ (men living in communities: Pufendorf 1710, II.2.7)—albeit an imperfect, unstable and insecure peace (II.2.12). This unstable peace is the source, not of hostilities, but rather a lifelong subjection to moral law and obligation (however poorly understood), and their need—Pufendorf thought— for some sort of civil subjugation. In other words, insofar as they manage to survive and thrive at all, humans do so through incompletely realized forms of social cooperation that must (in a variety of ways) be constantly maintained and improved. Pufendorf uses the deadliness of Hobbes’ state of nature to argue the requirement for a Grotian sociability. The actual civil condition in Pufendorf’s account is one of individuals, associations and monarchs, each seeking their own ends. Individuals and

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monarchs are imperfect beings, not quite the solipsists of Hobbes, but sufficiently imperfect to render the natural condition of peace feeble and insecure, and if nothing comes to the aid of this feeble peace, it can do very little for the preservation of mankind. Enter the state, not a natural association or one that directly reflects God’s purpose, but as in Hobbes rather an artefact, a human-willed association, which is rationally undertaken for the purpose of securing and institutionalizing the natural condition of peace. The state emerges in Pufendorf as an association based on a union of individual wills. But, unlike in Hobbes, where the impulse to conjoin comes from the ever-present possibility of war, in Pufendorf it comes from the requirement of sociability that, willing the association, also wills the laws of commerce, of peaceful engagement, of diplomacy, of the regulation of war. The outer face of the state is no less a social condition, deriving from the same impulses that led to the institutionalization of the state. It is no accident that Pufendorf should have been so widely received in revolutionary America, as an early theorist of peaceful federation. The law of nature provides the basic constitution for both civil and international society: “the most common rule [regula]” of actions, called the right (ius) or law (lex) of nature, enjoins that humans “must, inasmuch as [they] can, cultivate and maintain towards others a peaceable sociality that is consistent with the native character and end of humankind in general” (Pufendorf 1710, II.3.1 and 15; Pufendorf 1994, 148, 152). This law of nature comes from a divine superior: Pufendorf puts aside theories that rest right and law on an intrinsic morality of actions, on an absolute value of persons, on common agreement among humans or even on long-­ term utility (Pufendorf 1710, II.3.4, 7–8, 10). At the same time, this divine superior is taken to enjoin that which human reason can discover for itself to be in humans’ interest (Pufendorf 1710 II.3.19). For practical purposes, it is what is concluded by men/women observing directly “man’s nature, condition, and inclinations,…other things external to man, especially those capable of benefitting or harming him in some way…and the kinds of assistance and restraint he needs” (Pufendorf 1710, II.3.14; Pufendorf 1994, 151; Carr and Seidler 1996). The observation of a natural order commanded by God commands in turn “that we enter into some such consensual arrangements, since without them, sociality would be hampered and humans remain in the natural state”.

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At the heart of sociality is the sovereign state. Before Pufendorf, ministers and advisors spoke little of sovereignty and more of autonomy. The Peace of Westphalia recognized not the sovereignty of the members of the Holy Roman Empire but their autonomy, notably in making alliances with outsiders and maintaining some diplomatic relations with them, without endangering the empire. Seizing upon Hobbes’ idea that the state is an artificial person, Pufendorf goes further than Westphalia and further than Hobbes. He endows the state with individuality and with personality—an ethical personality, apart from the people who occupy it and apart even from the ruler. There are single moral entities, like individuals, and composite entities like associations; and he assigned to the state a composite moral identity. “Such entities may be endowed with rights and duties that none of the individuals comprising them could claim in their own right” (Boucher 2001, 567, who points to eminent domain as an example). The state is an entity with rights and duties, which belong to it as a state. But there is more: having rights and duties they also have the will or ability to claim their rights and perform their duties, independent of (or at least alongside) the wills of their members. If the prime right of the state is to protect itself from depredation, internal as well as external, the prime duty of the state in relation to other states is covered by the doctrines of sociability. Pufendorf coined the term ‘system of states’ in De Systematibus Civitatus, an essay of 1675, to illustrate the tendency to sociability—he defined it as several states that are connected as to seem to constitute one body but whose members retain sovereignty. A system of states is a society of sovereigns understood as composite moral entities with wills that can undertake obligations. Pufendorf makes the point clear: to belong to a ‘system of states’, one must first become a state as a composite moral entity; otherwise, the entity cannot exercise a will of its own and cannot enjoy either duties or rights. The Holy Roman Empire is a historical example, and hence historical evidence, for the existence of something like a system of states, albeit in a disordered condition. Published under the cover of a pseudonym at Geneva in 1667, “On the Present Condition of the German Empire” (CGE), it caused a sensation. Using the concept of sovereignty, perhaps for the first time as an analytical principle, Pufendorf treats the Empire as a bizarre anomaly in the face of what he comprehends is emerging in the Westphalian settlements and is being confirmed in the increasing centralizations of Britain and France. It is an imperfect union. In it, “barely a

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trace of the monarchical power remained, as can be observed in the leaders of a confederation of states”. “If one disregards the mutual ties between the emperor and the estates, it is already today a federation of allies with unequal rights.” Moreover, there is “the authority of the German estates to enter into alliances not only among themselves but also with foreign powers”. Clearly, it should be characterized as a different kind of society from either a state or an empire; it is a ‘monster’ (one of a kind) because it is neither. The closest analogy that Pufendorf could find was an uneasy, and confused, federation of states. Reflecting on the weaknesses of what was clearly a ‘confederation’ and not a unitary state, Pufendorf writes in CGE, “If confederations of states are to attain a certain stability nonetheless, the allied states must have the same system of government, the balance of power between them must be nearly equal, the union should provide the same benefit to all, and, finally, the association should have been formed only after careful consideration and according to well-refined principles.” Examples of this sort of ‘union of free states’ that he had at his disposal were rather limited—they included “[t]he league between Rome and the Latins, before the latter were forced into a state of subservience by Rome,…likewise, Agamemnon’s generalship in the Greek army during the Trojan War [which] was based on a military alliance”. Had Pufendorf lived several centuries later, he might have considered NATO a better example or the union of democratic states recommended by Clarence Streit in Union Now. He recommends that the Holy Roman Empire in essence convert itself into an alliance of formal equals, forming a union that can protect itself against the depredations of its neighbours. In the full work (Pufendorf 1710) he refines his notion of a state system, rendering it plural. There are ordinary treaties and alliances, and loose systems, arising from custom, language and shared borders, both of whose regula is natural law. Both differ from state systems, ‘close’ systems, produced by either a unification of sovereignties or agreement by pact, regulated by in effect treaty law. The latter type was his major concern, given his recommendations concerning the Holy Roman Empire (HRE), and he made detailed observations concerning the institutions of a proper confederation, including Diet and voting, accounts of failures and the conditions of their being brought together, notably when “individual states wish to preserve their autonomy and yet had not sufficient strength to repel their common enemies” (Forsyth 1981 provides an admirable account). The basis of an obligation in a confederation is consent enshrined

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in a perpetual pact, which creates perfect obligations. Ordinary treaties and alliances may involve promises but “do not give rise to a system”. There are, thus, three types of ‘international system’ in Pufendorf’s state systems theory: the alliance or league, generally changeable, that may or may not create obligations, the loose system made up of contiguous states sharing borders that has some durability and extensive rule-based obligations and, finally, the ‘close system’ in which a portion of sovereignty is rendered up. The idea of multiple systems of states has appeared in the modern literature in the form of regional pacts, most of which would qualify as ‘loose systems’ in Pufendorf’s sense (see Stivachtis 2013; Buranelli 2019). Comparing ordinary treaties or ‘leagues’ with close systems, Pufendorf distinguishes their characteristics in the following manner: [E]ach people of the league agrees to a certain mutual performances, yet in such a way that they are on no account willing to make the exercise of that part of the sovereignty from which these performances flow dependent upon the consent of their associates, nor to limit in any degree their complete and unlimited power to conduct the affairs of their state.…The case is entirely different with the treaties that appear in systems, the purpose of which is that distinct states may intertwine for all time the prime interests of their safety, and on that score make the exercise of certain parts of the supreme sovereignty depend upon the mutual consent of their associates. (Cited in Forsyth 1981, 82)

The European Union as a regional society of states of a particularly close form (see Manners and Diez) conforms to Pufendorf’s idea of a close system. But Pufendorf treated all pacts as the palpable evidence of a requirement of sociability. So important did he rank pacts as a fundamental aspect of the societas gentium that he considered the unilateral breaking of a pact, and especially a confederal pact, as a justifiable cause of war. Pufendorf buttressed his theoretical observations with discussion of actual historical pacts, leagues and alliances, which he used to exemplify his basic philosophical concepts. Five chapters in the full work are devoted to the topic of promises and pacts: on their nature, subject matter, types, conditionality, and the sorts of individual and collective agents capable of generating consent-based obligations by promising or agreeing with one another. Pufendorf’s notion of sovereignty was still limited in relation to its late nineteenth consolidation and his international law treats the capacities and powers of a variety of actors. Among those capable of generating

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consent-based obligations are companies and joint enterprises, as well as the variety of public powers in post-Westphalian Europe—bishops, electors and so on. Traders and other private agents were subject to such laws as well as monarchs and states. The content of Pufendorf’s international law was conventional—drawn from previous authorities and rationalized according to his doctrine of sociability. Its import lay in its comprehensive treatment. (Pufendorf’s On the Whole Duty of Man served as the main international law digest before that of Vattel.) Chapter XVI, “War and Peace”, on the various consensually created adventitious human institutions, exemplifies the treatment; it laid down propositions concerning the limits of trickery, of violence against the unarmed, and the share that rulers of states should take in the injuries done by their citizens, or by those who had recently taken refuge among them. The origins of specific practices may be historical, responding to circumstance, but they are perfect in the sense of specific and compellable and they create perfect rights (i.e. justified expectations of exact performance) in others (Pufendorf 1710, I.7.7). Pufendorf’s theory of the state as a product of will in enjoyment of particular rights and duties, together with his reflections on confederations and pacts, began to draw a distinction between natural law, civil law and ‘treaty law’. These had somewhat different characters. Pufendorf’s Natural Law arose from the requirement of sociability and had both absolute and ‘hypothetical’ or conditional forms; the first being such dictates as the ban on needless war, while the second and more extensive would involve historical enactments such as the rules regarding the exchange of ambassadors. Both, as requirements of sociability, establish absolute rights and duties. There was then ‘voluntary’ or positive law created by legislation within the state or by agreements between states—the former being civil law and the latter being treaty law, or in Pufendorf’s term, the ‘law of nations’. This was not law proper, at least not in itself. It had to be rationalized against the absolute standard of the law of nature. Both absolute and hypothetical obligations are historically based. Following Grotius, Pufendorf treats the natural law as rational conclusions drawn by human beings, in his case predominately motivated by a conditionally determined notion of self-interest. Moreover, as his account of the various forms of state system makes clear, the ‘rational conclusions’ arise in different historical epochs and under different historical circumstances. Accordingly, the various systems of states as well as states themselves have strongly historical aspects. Nor was this a mere theoretical observation:

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Pufendorf began his career as a court servant and historian, first to the court of Gustavus Adophus in Sweden and later in Germany to work as court historian for the Elector of Brandenburg; he produced something in the nature of official histories for both, intended to demonstrate the wisdom of each state apparatus in confronting challenging circumstances. If the law of nations consisted, as Pufendorf assumed, of rational conclusions that humans would make of their existential situation, then it “coalesced with what history taught as wise policy” (Koskenniemi 2012, 949). The law of nature may be conceived as God’s command, “but both this status itself and the actual content of the law are matters of empirical observation and inferences from such observation” (p. 948). Those searching for an international society from a historical point of view should refer to his 1665 Introduction to the History of the Principal Kingdoms and States of Europe. Translated frequently, not least in an impressive volume by the American Liberty Fund, it provided a brief political history of each of the European states from Roman times, adding an account of the temper of the people, the main economic activities of the state, and an account of its political relations with neighbours and significant other kingdoms. Such digests were not unknown in the seventeenth century, but the “new moment” in Pufendorf as historian was the emphasis on contemporary history and, in those sections, an assessment of individual states and their external relations in terms of the normative concept of state interest rooted in his theory. Deriving from his notion of sovereignty as the product of a collective will, and the state as a moral entity existing apart from the ruler, Pufendorf could argue that there was a state interest apart from a monarchical interest and that it should take precedence over monarchical or princely interests. He insisted, moreover, that the concept of state interest becomes “the foundation from which one must set out, to judge whether something in State affairs is done well or badly” (Preface to the History’s Introduction). “It (Pufendorf’s historical writing) derived its strength and its persistence from the circumstances that the realms of absolute principle and historical fact, while not reducible to each other were related to each other” (Krieger 1960, 210). These two aspects—the historical account of connections between states and the orientation towards reason of state in its classical meaning—provide the two pillars of Pufendorf’s empirical international society and provided the basis by which later thinkers would begin to imagine a ‘world of states’.

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Meinecke gives this aspect of Pufendorf a prominent place in his history of the development of raison d’état, placing him among its originators. Beginning with the observation that Pufendorf reserved for the Empire the right of self-defence (which Meinecke offers as evidence that an ‘empire’ still had some political reality), he points out that this is a prime expression of a raison d’état, in this case applied to the Empire. Among other expressions of a doctrine of state interest he detected in Pufendorf were “the duty for the ruler to let his own personal life and his private inclinations and interests become wholly and completely swallowed up and incorporated in the interest of the State” for which Meinecke referenced Book VII, 8, 1–3, of the Jus naturae et gentium, and “that agreements between rulers are only binding so long as they do not prove harmful to the interests of their people”, calling on VII, 6, 14 and 9, 5 (Meinecke 1957, 230). Reckoning these notions as limited in comparison to later and grander notions of raison d’état, Meinecke nonetheless accords Pufendorf historiker greatness not only on grounds of objectivity (noting that even when Pufendorf acted in his role as a court historian, he was objective), but on the grounds that in his hands, history had become more than “a crude mass of facts, [but] rather on the contrary, facts that had been selected, ordered, and inspired with a definite and higher principle” (Meinecke 1957, 237). Pufendorf’s contribution to the idea of a society of states is accordingly multiple. On the side of theory, he relocated Grotius’ sociality, which the latter had placed in a universe of practice, on principled and a priori foundations, and he gave it an institutional specificity: Martin Wight would later trace the subsequent spread of the term ‘state system’ as devised by Pufendorf (Wight 1977, 21). Second, he completed Grotius, not just the laws of war, but as Wheaton would remark, ‘all his moral duties’—hence the title, The Whole Duty of Man. Third, his prominence spread the Grotian message and raised Grotius’ profile as the inventor of international law, which he was not until Pufendorf completed him. On the historical side, Pufendorf anticipated the ‘world of states’ and his Introduction to the History of the Principal Kingdoms established the model. Pufendorf’s theory of the state as a creation of human will with interests of its own created agency and gave the state a comprehensible purpose about which a story could be told. In such a story, other states with wills and interests of their own could also participate.

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It was this aspect, alongside his practical observations of contemporary political affairs, that gave his works their pull. Pufendorf maintained a presence not only through his natural law works but through the historical writings, especially the many versions of his Introduction (1682), which was continually revised and appropriated by others to suit the times, until nearly the end of the eighteenth century. His empirically grounded mix of history, philosophy and law fed into the so-called Göttingen School and to the associated discipline of Statistik. It was in respect of its historical aspects even more than in respect of his political theory that he was ‘received’ by the Gottingen historians.

References Boucher, David. 2001. Resurrecting Pufendorf and Capturing the Westphalian Moment. Review of International Studies 27(4), 557–577. Bull, Hedley. 1977. Hobbes and the International Anarchy. Social Research 48 (4): 717–738. Buranelli, Filippo Costa. 2019. Global International Society; Regional International Societies and Regional International organizations: A Dataset of Primary Institutions. In International Organization in the Anarchical Society, ed. T.B. Knudsen and C. Navari. London: Palgrave Macmillan. Carr, Craig L., and Michael J. Seidler. 1996. Pufendorf, Sociality and the Modern State. History of Political Thought 17 (3): 354–378. Forsyth, Murray. 1979. Thomas Hobbes and the External Relations of States. Journal of International Studies 5 (3): 196–209. ———. 1981. Unions of States. Leicester: Leicester University Press. Harvey, Martin. 2006. Grotius and Hobbes. British Journal for the History of Philosophy 14 (1): 27–50. Koskenniemi, Marti. 2012. A History of International Law Histories. In The Oxford Handbook of The History of International Law, ed. B. Fassbender and A. Peters, 943–971. Oxford: Oxford University Press. Krieger, Leonard. 1960. History and Law in the Seventeenth Century: Pufendorf. Journal of the History of Ideas 21 (2): 198–210. Meinecke, Friedrich. 1957. Machiavellism: The Doctrine of Raison D’état and Its Place in Modern History. New Haven: Yale University Press. Pufendorf, Samuel. (1691) 2003. The Whole Duty of Man According to the Law of Nature, translated by Andrew Tooke. Liberty Fund, Indianapolis. https:// oll.libertyfund.org/titles/pufendorf-­t he-­w hole-­d uty-­o f-­m an-­a ccording-­ to-­the-­law-­of-­nature-­1673-­2003. ———. 1710. On the Law of Nature and of Nations (De jure naturae et gentium). Translated by Basil Kennet. http://lawlibrary.wm.edu/wythepedia/library/ PufendorfOfTheLawOfNatureAndNations1710.pdf.

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———. 1994. The Political Writings of Samuel Pufendorf. Edited by C. Claire and translated by M. Seidler. Oxford: Oxford University Press. Rousseau, Jean-Jacque. 1979. Emile: Or On Education. Translated with Notes and an Introduction by Allan Bloom. London: Basic Books. Seidler, Michael. 2015. Pufendorf’s Moral and Political Philosophy. The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/pufendorf-­moral/. Stivachtis, Yannis. 2013. The English School and the Study of Sub-global International Societies. https://www.e-­ir.info/2013/05/08/ the-­english-­and-­the-­study-­of-­sub-­global-­international-­societies. Tuck, Richard. 1993. Philosophy and Government, 1572–1651. Cambridge: Cambridge University Press. Wight, Martin. 1977. Systems of States. Leicester: Leicester University Press.

CHAPTER 4

The Gottingen Historians, Heeren (1760–1842) and Ranke (1795–1886): The Real Thing

“Let our starting point be the fact that in the sixteenth century the freedom of Europe was seen to rest upon the opposition and balance between Spain and France.” —L. Ranke, The Great Powers, p. 30

Lectures on the history and current condition of the main European states, based on pedagogical compendia with similar names, were offered frequently throughout the eighteenth century at many universities, but particularly at Gottingen. The University of Göttingen was the original centre of Geschichtswissenschaft or history as an academic discipline and became a major centre for a globally orientated account of the human race, the presentation of the history of mankind as a whole, and in effect the first anthropology. The school itself was one of the newest universities in Europe, having been founded in 1734 by the Hanoverian Councillor, von Munchhausen, who eventually served under George III and was the first to require the professors to conduct and publish research alongside lecturing. The Gottingen historians operated within the intellectual ferment of the beginnings of the Enlightenment as it was received into the understanding of history. They followed Jean Mabillon on ‘diplomatics’—the

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consideration of the veracity of texts—and Voltaire on the task of the modern historian. Mabillon writes: I do not deny that in fact some documents are false and others interpolated, but all of them should not be dismissed for that reason. Rather, it is necessary to devise and hand down rules for distinguishing genuine manuscripts from those that are false and interpolated….I undertook this task after long familiarity and daily experience with these documents….I compared and weighed them with one another that I might be able to compile a body of knowledge which was not merely scanty and meager, but as accurate and as well-tested as possible in a field which had not been previously investigated. (Gay and Wexler 1972, 165)

Voltaire explained his view of historiography in his article on “History” in Diderot’s Encyclopédie: “One demands of modern historians more details, better ascertained facts, precise dates, more attention to customs, laws, mores, commerce, finance, agriculture, population.” Voltaire’s model history, which he passed to the Gottingen historians, was his Essai sur les mœurs et l’esprit des nations (translated to English as “An Essay on Universal History, the Manners, and Spirit of Nations”). Published in 1756, it was a reaction to Bossuet’s Speech of Universal History, which had presented Judeo-Christians as founders of the most advanced nations. Voltaire did not quarrel directly with Bossuet’s account—he opposed it by example: Alongside the history of Europe from Charlemagne to the age of Louis XIV, he addressed the colonies and the East. The Essai praised ancient China and India for their civilizations and refuted claims that the Ottoman Empire and other Muslim states were despotisms in which individuals had no rights and no property of their own. He liked to point out that European feudalism gave individuals no more rights than a typical person in Turkey or Prussia. Judging Voltaire’s model history to be “very good history”, Peter Gay (1959) cites his “scrupulous concern for truths”, “careful sifting of evidence”, “intelligent selection of what is important”, “keen sense of drama” and “grasp of the fact that a whole civilization is a unit of study”. Pre-eminent among Gottingen’s civilizational historians was August Ludwig von Schlözer, trained at Gottingen and eventually a professor there. In Stockholm as secretary to a German merchant, he wrote his first Essay on the General History of Trade and of Seafaring in the Most Ancient Times (1758, in Swedish, on the Phoenicians) and translated the Nestor

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Chronicle, a fundamental source in the interpretation of the early history of Russia (Göttingen, 1802–1809, 5 vols.). In 1769 he started lecturing on general world history, a topic reserved to the senior professors, finalizing the Main Elements of World History in Excerpts and Context, (2nd ed., Göttingen, 1792–1801, 2 vols.). In it, he developed the structure for a universal history whose time borders have become the common usage: • Urwelt (primaeval world)—from the creation to the Flood • Dunkle Welt (dark world)—from the flood to Moses and the first written sources • Vorwelt (preworld)—up to the Persian Empire • Alte Welt (old world)—up to the fall of the Roman Empire in 476 AD • Mittelalter (Middle Ages)—up to the discovery of America by Christopher Columbus in 1492 • Neue Welt (the new world)— up to the present Besides a concern to relate past events to present circumstances, Schlözer sought to identify the central factors behind civilizational development and decay. In his World History for Children, he proposed five universal factors that conditioned and drove cultural and political development: “Die Lebensart bestimmt, Klima und Nahrungsart erschafft, der Herrscher zwingt, der Priester lehrt, und das Beispiel wesist fort” (The life-style determines, climate and nutrition creates, the sovereign forces, the priest teaches and the example inspires). By lifestyle, Schlözer meant the customs and mores of a people, in respect of which he exchanged ideas about the study of people and society with Adam Kollar in Vienna and helped Kollar to clarify his own approach (Vermeulen 2015, 319). Broadening some of Schlözer’s views, Kollar eventually coined the term ethnology and provided its first definition. Published in Vienna in 1783  in Latin, the title of Kollar’s major work translates as “the science of nations and peoples, or, that study of learned men in which they inquire into the origins, languages, customs, and institutions of various nations, and finally into the fatherland and ancient seats, in order to be able better to judge the nations and peoples in their own times”. His colleague and competitor was Johan Christian Gatterer, another pioneer of ‘universal history’, who developed a modern, hermeneutical approach, in his case close examination of texts. Treating the Bible as a historical text, he estimated the time span from Creation to the birth of

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Christ as 4181 years (the Abriss—Outline—der Chronologie, 1777). He argued that historical events needed to be systematically arranged by describing their causal relationships rather than simply providing a ­chronology of events. Gatterer used the phrase nexus rerum universalis—a ‘universal connection of things in the world’—to signify the task of the historian, as well as the significance of history (see Iggers 2010, 19). Johann Gottfried Eichhorn followed in his wake, applying what was becoming known as ‘the Higher Criticism’, to the Old Testament. As well as a scholar of the Old Testament, he began the discussion of the theory and problems of what became known as hermeneutics. His biblical ­investigations led him to the conclusion that “most of the writings of the Hebrews have passed through several hands”. He took for granted that all the supernatural events related in the Old and New Testaments were explicable on natural principles and sought to judge them from the ­ ­standpoint of the cultures in which they appeared and to account for them by the superstitious beliefs generally in vogue at the time. Although a devout Christian, he did not perceive in the biblical books any religious ideas of much importance in themselves; they interested him primarily as historical documents and for the light they cast on antiquity.  He is ­considered prominent among the scholars who developed hermeneutics. Gottingen was known not only for its universal histories and biblical studies but also for the new discipline of Statistik which—through ­historians Achenwall, Gebauer, Schlözer, Spittler and others—“built on and continued” the “intellectual legacy of Pufendorf” (Seidler 2013). These were institutionally oriented political histories (statistics, from the Italian statista [statesman] and ragion di stato) that focused on the concrete institutions and actual functions of states. Inspired by  the ­ Venetian Relations (the accounts rendered annually by Venice’s envoys from its possessions), it collected information on population, economic relations and the actual resources of various European states. These were intended to guide government—ragion di stato referring to “the knowledge a statesman was required to possess” (Van der Zande 2010, 413). The statistikers’ aim was to provide government with the empirical knowledge it required for the state to survive and prosper—hence their close relationship to cameralism, the German science of public administration. It required a knowledge not only of mutual interests and respective strengths but of effective wealth creation. Statistikers in general took the line of political economy and focused on commerce as the most ­important source of a kingdom’s wealth.

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Besides his world history, Schlözer was a prominent practitioner of Statistik in its political as well as numerical sense. He gave lectures on a range of contemporary issues including Oliver Cromwell, the Dutch revolution, banks, the onset of the French Revolution, luxury and the history of Germans in Romania, bringing historical study into touch with political science and using his research to solve practical questions in the state and in society. His Allgemeine nordische Geschichte (General Northern History, 2 vols. Halle, 1772) was long considered a reference work on Russian history. He was a proponent of John Locke’s concept of the state as a contract and Montesquieu’s notion that behind government successes and failures lay grand causes and forces. Statistics were important to him not only for their informational value for government but also for their historical value. The invention of numerical statistics has been credited to Gottfried Achenwall, professor at Gottingen from 1748. An expert in law as well as in such statistics as the public records of the time provided, he belonged to the school of “moderate mercantilists”—for Achenwall the art of peace meant the axioms of political economy, which “consisted in production and commerce in its widest sense” (Van der Zande 2010, 413). But it is in statistics that he holds his greatest renown. The work by which he is best known is his Staatsverfassung der Europäischen Reiche im Grundrisse (Constitution of the Present Leading European States, 1752), in which he gave a comprehensive view of the constitutions of the various countries, described the condition of their agriculture, manufactures and commerce and frequently supplied statistics in relation to them. Achenwall gave currency to the term Staatswissenschaft (political science), which he ­ ­proposed should mean all the knowledge necessary to statecraft or statesmanship. (His student was Ludwig Timotheus Spittler, who also became a professor in Gottingen and who in 1796 published Geschichte der Dänischen Revolution im Jahr 1660, a book in which he provided an account of Frederick III’s introduction of political absolutism in Denmark.) Statistik in its concern for sources soon found its way into diplomatics. In 1751, Johann Jacob Schmauss published a 700-page history of European treaties, a history from the fourteenth to the eighteenth century, which was organized around a French aspiration for universal hegemony. The documents were selected and organized according to how the other European powers reacted, essentially by upholding a balance of power. He sought further to understand what he took, following Pufendorf, to be a natural law or inclination of sociability among states, theorizing a role for

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instinct. The Neues Systema des Rechts der Natur of 1753 built on Pufendorf’s theory of natural law as based in human will, or voluntarism, but with a role for rationalism. In his theory, the will is directed by the intellect or reason to grasp the divinely based rules of sociality. Schmauss was the major influence on George Friedrich de Martens who was a professor at Gottingen until 1808. From 1790 Martens undertook the publication of the Recueil de Traites, a work which under his influence became the standard collection of accurate international treaties. In 1821, he undertook a revision of his 1796 Introduction to European International Law in French. The concept employed was of the fully rational social contract in which the European states had consciously engaged to complement and mitigate natural law, to clarify its precepts and “limit its rigors” (Koskenniemi 2001, 19). With its focus on the  material resources of the various kingdoms, Statistik came to involve comparisons and, inevitably, profiles of existing European states whose interests had mutual effects and whose postures were affected by the postures of significant others—what came to be known as the balance of power. Arnold Heeren brought this form to a high art. Described as “belonging to the last generation of Statistikers” (Van der Zande 412), he defined a European system in terms of a reciprocity of interests and, in the manner introduced by Pufendorf, in terms of its ‘internal freedom’, the latter described as the stability and mutual independence of its members (Heeren 1,6). Arnold Hermann Ludwig Heeren was born on 25 October 1760 in Arbergen, near Bremen. He studied philosophy, theology and history in Gottingen, and thereafter travelled in France, Italy and the Netherlands. In 1787 he was appointed one of the professors of philosophy, and then of history at Gottingen, and he afterwards was raised to the office of a privy councillor, the usual reward of successful German scholars. He died at Gottingen on 6 March 1842. His reputation as a historian was established by his first work, on the history of the states of antiquity, where instead of limiting himself to a narration of their political events, he examined their economic relations, their constitutions and their financial systems. This was the Ideen über Politik, den Verkehr, und den Handel der vornehmsten Völker der alten Welt (2 vols., Göttingen, 1793–1796; Eng. trans. A Manual of Ancient History: Particularly with Regard to the Constitutions, the Commerce, and the Colonies, of the States of Antiquity; Oxford, 1833). In a more sophisticated fashion than Pufendorf but with the same idea of

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understanding the wider purposes of government, he is now looked back to as a pioneer in the economic interpretation of history. Heeren’s chief work besides the Ideen über Politik der alten Welt was the Geschichte des europäischen Staatensystems (Göttingen, 1800; 5th ed., 1830; Eng. trans., 1829, 1834). The History of the European States System is not the history of single states, but the history of their mutual relations. Originally written in German at the start of the nineteenth century, it went through four more editions over the next twenty years; it was translated into a variety of European languages, including English, and it had a significant impact on thinking in both Europe and the United States (Somos 2020, 14–16). The new ‘international history’ that replaced the more traditional imperial history in Britain after the First World War took cues from Heeren and the Gottingen historians (see Butterfield 1955), and the British Committee on the Theory of International Politics sought first to gain insight into the historical nature of an international society from Heeren (Watson 1992, 7). Heeren gives no philosophical or metaphysical account of the origins or nature of the state system, (or state systems, since he identified more than one), but it is clear from his descriptors that he considered such ‘systems’ to be social unions, not mere sets of mechanistic interactions. European states formed a society based on common culture, religion and moral outlook, which Heeren classed together as ‘general ideas’ (see Butterfield 1955, 110–111). European international society is one moreover in flux. Heeren (1857, viii) insists that every “society or union of states” operates not only on the basis of general ideas but on ones that inevitably change across time, in respect of which he noted a greater “refinement” in the union of his time. The crucial factor that he used to account for the growing complexity of the European system was the fact that all of Europe shared a common faith: because Europe was made up of Christian states, this meant that the Europeans were “morally united into one community which was only politically divided” (1857, 7). It was the same argument that Martin Wight would make a century later. The role of the historian is to reveal how these changing ideas have affected the “reciprocal connections” that exist among states. Heeren followed Pufendorf in attaching fundamental importance to the Peace of Westphalia, in his case, because he saw the Peace as “settling the leading political maxims” according to which the “subsequent policy of Europe” was conducted (Heeren 1857, 103). He also presented the German arrangements as the exemplar of the maxims. The new German

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‘constitution’ establishing the de facto independence of the major German states with respect to the Holy Roman Emperor was not initially viewed as a treaty of general significance for the relations of all European states. What Pufendorf begins to argue, Heeren in essence completes. According to Heeren, the independence of the German states under the Westphalian Treaties demonstrated and confirmed the “most important” feature of modern European history: the interaction of states in a system characterized by “internal freedom; that is, the stability and mutual independence of its members” (pp. vii; 101–103), which Heeren treats as a form of constitutional principle (see Keene 2002, 20–21). Heeren’s understanding of a “state system” is contained in the Introduction to the History: “the union of several continuous states, resembling each other in their religion, manners and degree of social improvement, and cemented together by a reciprocity of interests.” The emphasis on contiguity and social resemblance indicated an actual social form and not merely, as in the Spanish jurists, a theoretical idea. European history was marked by changing constellations of power relationships within an actualized system, in which different powers predominated at different times. It was also possible to trace the dissolution and reformation of state systems themselves. Accordingly, they were multiple and changing. According to Heeren, the German states after Westphalia formed a system; the United Provinces of the Netherlands was a state system, as were the American colonies. For 300 years before their incorporation into a ‘European system’, there was a northern state system made up of Russia, Poland, Sweden and Denmark, and a southern system containing France, England, Spain, Austria and Turkey. Heeren presented the rise of Russia and its ascendancy in the northern system, alongside the partition of Poland, as the essential factors in the eventual formation of a single European system. The European international society that the British Committee credited with establishing a global ascendancy was Heeren’s European state system as the northern and southern systems came together (see Little 2008, 13–14). Heeren presented the politics in each system as strongly marked by what Hedley Bull would later identify as systemic forces—that is, by calculations of the responses of other powers. In effect, Heeren identified the politics among the German states, as well as among the ‘traditional’ European powers, in terms of balances of power and gave power balancing a central role in pre-French revolutionary diplomacy. But unlike Bull, Heeren did not try to distinguish ‘social’ from ‘systemic’ forces. On the contrary, he integrated them. He portrayed the various powers as

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operating the balance by means of diplomacy, international law, the use of force and claims to great power management. Indeed, all five of the practices and institutions that would be identified by Hedley Bull as the central institutions of international society—international law, great power management, diplomacy, war and the balance of power—play a central role in Heeren’s analysis of the workings of his ‘systems’. (For an enlightening discussion of the differences between Bull and Heeren, see Dunne and Little 2014.) Heeren accompanied his account of political relations with a detailed analysis of its economic substructure. From the middle of the seventeenth century through to the end of the eighteenth century, Heeren argues that the political economy of the ‘European system’ was based on mercantilism. As he (1857, 129) puts it, the “whole horizon of political economy” was circumscribed by a mercantile system that generated “perverse measures” that were made more oppressive because there were so few doubts about their “justice and even their expediency”. In essence, according to Heeren, mercantilism assumed that the only real source of national wealth was from mines and foreign trade. It followed that states must acquire raw materials, use them to produce manufactured goods and then sell them to other counties. Central to the mercantilist theory was the assumption that trade was a zero-sum game and so states needed to monopolize as much foreign trade as they could. Heeren (1857, 130) identified the outcome as a system of isolation with states endeavouring to be self-sufficient and to ‘buy nothing and sell all it could’ with the consequence that “while every government was seeking to extend its commerce, all were taking the most effectual means to destroy it”. It followed, according to Heeren, that trade bred both distrust and envy because it was assumed that if a state was prospering, then it must be at the expense of other states. Heeren (1857, 129) contrasts mercantilism with the ideas of the physiocrats but more especially with moral economists such as Adam Smith who measured national wealth in terms of talent and knowledge as opposed to material wealth. One of the most obvious consequences of mercantilism was the drive for colonies and the determination of states to monopolize trade with their colonies. Heeren provided detailed accounts of the growth of colonialism and the centrality of the great trading companies in this process. The colonization, moreover, was not restricted to areas inhabited by primitive or barbarous peoples. He provides detailed accounts of the way that the trading companies opened up trade in India and then began a process

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of colonization with the collapse of the Moghul Empire. His account of the mercantile state with its requisite colonies established Heeren as a politiker as well as a historiker who linked the eighteenth-century state with imperialism and colonialism, alongside his clear conceptualization of states and sovereigns as necessarily constituted within a plurality of states (and sovereigns). In the works that Marx read for what became Das Kapital, Heeren takes pride of place in his notes on colonialism (Rubel 1980, 25); and Marx developed his theory of a ‘world system of states’ engaged in colonial exploitation largely through his encounter with Heeren (see Pradella 2014, 157). Heeren’s History went through five editions (1809, 1811, 1819, 1822 and 1830); accordingly, he was able to chart the defeat of Napoleon and the restoration of the European states system in its post-Utrecht sense, that is, before Napoleon’s imperial system had ‘hegemonized’ it. The final edition of the History ends in 1826 with the entry of Greece into a reconstituted European states system. Heeren’s work was translated into English, American and British, French, Polish, Swedish and Dutch. It would be given added spine by the publication in 1824 of Ranke’s History of the Latin and Teutonic Nations from 1494 to 1514, and the Rankean idea that the Great Powers, and the relations between them, formed a prime role in the compass of world history. Leopold von Ranke, 1795–1886, most fully developed the form and turned the story of states into a grand historical drama with purpose and meaning. Trained at Leipzig, he was a product of Gottingen in the sense that Gottingen had by 1810 established its ascendancy in historical studies and historical method. Ranke’s historical technique—reliance on primary sources, an empirical focus, an emphasis on narrative history and especially international politics (Aussenpolitik)—often singled out for novelty, was drawn from the Gottingen historians. Like them, he tied his histories to pivotal developments in world history—in his words: “Two qualities, I think, are required for the making of the true historian: first he must feel a participation and pleasure in the particular for itself….Still, this does not suffice; the historian must keep his eye on the universal aspect of things.” He surpassed the Gottingen historians in going further in his sources and by turning the particular into a universal. His 1833 essay on the Great Powers is essentially a distillation of Heeren’s work, but heightened by his “commitment to the nation and to nationalism as an Absolute Ideal” (Stern 1973, 58–62).

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Ranke became deeply involved in the dispute between the followers of the German historian and professor of law, Friedrich Carl von Savigny, who emphasized the varieties of different periods of history and the followers of the German philosopher Georg Hegel who, following on the universal histories of the Gottingen school, saw history as the unfolding of a universal story. Ranke supported Savigny and criticized the Hegelian view of history as being unable to distinguish one historical story from another, and he rejected the teleological approach to history, by which each period is considered inferior to the period which follows. He rejected the idea that the Middle Ages were inferior to the Renaissance and insisted that the historian had to understand a period on its own terms and should seek the general ideas which animated each period of history. In an argument which would be taken up by Butterfield a century later in The Whig Interpretation of History, he argued that “God gazes over history in its totality and finds all periods equal”. At the same time, however, he was deeply influenced by a Hegelian understanding of history as a reflection of the Divine Mind. This meant that the singular human, such as a French peasant or a German historian could be considered as a genuine historical happening—a single manifestation of an eternal or universal idea as Hegel had called it. Equally, he insisted that all history, despite its diversity, was a manifestation of the universal idea. It was in this spirit that he identified the late seventeenth century as a pivotal moment in world history: It was from the late seventeenth century that history was conditioned by shifting power constellations among the Great Powers, not simply by constellations among all European nations. His maiden work, the Geschichte der romanischen und germanischen Völker von 1494 bis 1514 (History of the Latin and Teutonic Nations from 1494 to 1514), identified the prolonged struggle between the French and the Habsburgs for Italy as the phase that ushered in the new era of Great Power ascendancy. In his next book, utilizing for the first time the reports of the Venetian ambassadors, he dealt with the rivalry between the Ottoman Empire and Spain in the Mediterranean (Fürsten und Völker von Süd-Europa im sechzehnten und siebzehnten Jahrhundert). Between 1834 and 1836, he published The Papacy, Its Church and State in the 16th and 17th Centuries, which depicts the papacy not just as an ecclesiastical institution but above all as a worldly power. His studies focused on political history as mediated by foreign policy and traced the implications of their

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interaction for systems of government and administration. To the overall form, he gave the name of Weltgeschichte—World History (Ranke 1981). The basic theory behind the historical importance of the Great Powers he put forward in an essay of 1833. It identified the Great Powers as a special class of powers, not because of their material assets, but because they are the leaders of Europe’s political and spiritual development. He argued that each Great Power had a spiritual essence and made a special contribution to the world historical story; accordingly, it had a duty to pursue its own interests to develop and perfect its identity. Ranke identified the Latin and Germanic nations as the two protagonists of European cultural and institutional development and, from the sixteenth century on, confirmed the Protestant states as increasingly Europe’s leaders. Ranke’s is not a Macht theory: the Protestant states led Europe’s cultural and institutional developments not because of their power (which historically was less than that of France or Spain, the ‘Latin powers’) but because of the superior grasp of Protestant culture and the superior political institutions of Protestant states. At the same time, the Great Powers did not confront one another as particulars only: Ranke set them within a system of states that had conditioned their development. He accepted the notion as it had been elaborated by Heeren that what was typical of the European system and what defined it was the independence of the various states within it. Equally conventional was Ranke’s presentation of the balance of power as an instrument against hegemonic ambition to overthrow the system of equal and sovereign states. What was novel in his argument was the idea that their independence had allowed each to develop its particular genius, as expressed in its particular institutions and customs. He dealt with the leading European states at decisive stages of their development within a European system of states. States developed their qualities in the context of other states in the manner later identified by Karl Marx, in which the most developed provided lessons for the lesser developed. (Ranke was not surprisingly an opponent of the French Revolution and its universalizing ideas.) Accordingly, the impetus to European political development originated in and could be found in shifting balances among the Great Powers within a particular political and diplomatic system. What was equally novel in Ranke was the idea that the task of a Great Power was not only to realize itself, but to maintain and adjust the balance of power to preserve the system of states which gave it freedom. The idea that Great Powers perform a special social role appears for the first time in

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Ranke. He identified the eighteenth-century wars entirely in terms of this ambition, and the post-revolutionary period as increasing consciousness of their role. The union of Prussia, Austria and Britain in the defeat of Napoleonic and imperial France confirmed to him the durability of the balance of power, and he interpreted the emerging Concert of Europe as the coming to consciousness of their special role for European and world order, a view that would become a standard explanation for the development of the Concert (see Elrod 1976). The general thrust of Ranke’s political histories would come to be known as Aussenpolitik. Indicating more than the foreign policy of a state, it is the theory that the internal politics of a state and its constitutional development is determined in no small measure by its external politics and its success in dealing with the other powers. The pithy phrase, the primacy of foreign policy, was purportedly coined by Dilthey in his reflections on Ranke’s power-political ideas (Heffter 1951, 20). The most recent exposition is that of Henry Kissinger (1966). Ranke’s focus on the Great Powers and aussenpolitic has led him to be associated with political realism and, accordingly, with modern manifestations of ‘power politics’. Meinecke, the theorist of realpolitic, considered that, despite his ‘dualism’, Ranke revealed “more than any” the “inner necessity” of a completely realized state authority, the “violent force of State interest and the need for State power” (Meinecke 1957, 386). But Ranke’s focus was increasingly on cultural development and especially the development of political institutions as reflecting cultural development. In 1947, Meinecke moderated his view and in a lecture comparing Burckhardt with Ranke suggested that Burckhardt with his bleak view of power and the state was more the political realist than Ranke with his view of “the regulated process of world history” (quoted by Guilhot 2017, 133). Hedley Bull in The Anarchical Society assigned Ranke to the ‘Grotian tradition’ in his taxonomy of international thought; according to Bull’s biographer, Robert Ayson, he took the idea of great power management and its central role in the international system directly from Ranke (Ayson 2012, 115). In sum, the Gottingen historians historicized international society and made it a historical subject. Pufendorf had marked the significance of the post-Westphalian state and had defined sovereignty as the basic feature of a proper union of states, but it was the Gottingen historians and Heeren who identified independence within a system of states as the defining characteristic of state systems and classed  independence as a unique

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feature of the relations among European states. Heeren not only made the states of Europe collectively into a historical subject, he made the individual states into historical personages whose characteristic were comparable, who had interests and whose interests impinged on one another. Ranke developed these ideas further, into a grand historical narrative of changing power relations that determined political, economic and cultural processes and that informed the nature of the states themselves. The interconnections, calculations and mutual effects among the Great Powers became elements of a dynamic social process that had both external and internal effects. In Ranke’s hands, international society was not simply an arena for interactions among state actors. It became a historical subject that produced determinate outcomes.

References Ayson, Robert. 2012. Hedley Bull and the Accommodation of Power. Basingstoke: Palgrave Macmillan. Butterfield, Herbert. 1955. Man on His Past. Cambridge: Cambridge University Press. Dunne, Tim, and Richard Little. 2014. The International System International Society Distinction. In Guide to the English School in International Studies, ed. C. Navari and D. Greene. Chichester: John Wiley and Sons. Elrod, Richard. 1976. The Concert of Europe: A Fresh Look at an International System. World Politics 28 (2): 159–174. Gay, Peter. 1959. Voltaire’s Politics: The Poet as Realist. Princeton: Princeton University Press. Gay, Peter, and Victor G. Wexler, eds. 1972. Historians at Work, Volume Two, Villa to Gibbon. New York: Harper & Row. Guilhot, Nicholas. 2017. After the Enlightenment: Political Realism and International Relations. Cambridge: Cambridge University Press. Heeren, A.H.L. 1857. History of the Political System of Europe: From Its Formation at the Close of the Fifteenth Century to Its Re-Establishment Upon the Fall of Napoleon. Translated from the 5th German edition. London: Henry G. Bohn. The first English translation of 1834 published by Tallboys at Oxford is a­ vailable un-paginated at http://books.google.co.uk/books?hl=en&id=TifgtwZPxeU C&dq=arnold+hermann+ludwig+heeren&printsec=frontcover&source=web& ots=_pqEGicTCd&sig=aoAhcwM95mg6tTOE856qcz0WTE8#PPR5,M1. Heffter, Heinrich. 1951. Vom Primat der Aussenpolitik. Historische Zeitschrift 171 (1): 1–20. Iggers, Georg, ed. 2010. The Theory and Practice of History. London: Routledge.

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Keene, Edward. 2002. Beyond the Anarchical Society. Cambridge: Cambridge University Press. Kissinger, Henry. 1966. Domestic Structure and Foreign Policy. Daedalus 95 (2): 503–529. Koskenniemi, Martti. 2001. The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960. Cambridge: Cambridge University Press. ———. 2019. Imagining the Rule of Law: Rereading the Grotian ‘Tradition’. European Journal of International Law 30 (1): 17–52. Little, Richard. 2008. The Expansion of the International Society in Heeren’s Account of the European States-System. Working Paper No. 07-08. School of Sociology, Politics, and International Studies, University of Bristol. http:// www.bris.ac.uk/media-­l ibrar y/sites/spais/migrated/documents/little0708.pd. Meinecke, Freidrich. 1957. Machiavellism: The Doctrine of Reason of State and Its Place in Modern History. New Haven: Yale University Press. Pradella, Lucia. 2014. Globalisation and the Critique of Political Economy. London: Routledge. Ranke, Leopold. 1973. A Fragment from the 1830s. In The Varieties of History, ed. Fritz Stern, 58–62. New York: Vintage Books. ———. 1981. The Secret of World History: Selected Writings on the Art and Science of History. Edited and Translated by Roger Wine. New  York: Fordham University Press. ———. (1833) 2010. The Great Powers. In The Theory and Practice of History, edited with an Introduction by Georg G. Iggers, 29–82. London: Routledge. Rubel, Maximilien. 1980. Marx Life and Works. London: Macmillan. Seidler, Michael. 2013. Introductory Essay. In Pufendorf, An Introduction to the History of the Principal Kingdoms and States of Europe, J. Crull (trans.), ix–xl. Indianapolis: Liberty Fund. https://oll.libertyfund.org/title/ seidler-­an-­introduction-­to-­the-­history-­of-­the-­principal-­kingdoms-­and-­states-­ of-­europe-­1682-­2013. Somos, Mark. 2020. George Bancroft in Gottingen: An American Reception of German Legal Thought. In Comparative Constitutional History, ed. F. Biagi, J. Frosini, and J. Mazzone, 9–40. Leiden: Brill. Stern, Fritz. 1973. The Varieties of History. New York: Vintage Books. Van der Zande, J. 2010. Statistik and History in the German Enlightenment. Journal of the History of Ideas 71 (3): 411–432. Vermeulen, Hans. 2015. Before Boas: The Genesis of Ethnography and Ethnology in the German Enlightenment. Lincoln: University of Nebraska Press. Watson, Adam. 1992. The Evolution of International Society. London: Routledge.

CHAPTER 5

Eighteenth-Century Scepticism: Rousseau, Kant and Vattel

Hugo Grotius, Puffendorf, Vattel and others—Job’s comforters, all of them. —I. Kant, Perpetual Peace, 131

In the eighteenth century, the international society tradition became eclipsed. The idea of a society whose members related to one another through a law based on reasoning fell into abeyance; indeed, it was ridiculed. States were related to one another, if at all, through the idea of a balance of power that operated automatically, beyond the intentions of princes and their advisors, into whose grip they fell and by whose precepts they were required to act. A new international law was postulated based on state egoism, and a new ‘pure reason’ was put forward that rejected tradition as well as revelation. Instead of a postulated normal order of regulated relations, the first of the ‘peace plans’ appeared—utopian schemas that had a foundation in neither God’s Reason nor His Nature and which were called into existence on the basis of a desperate wish. The idea of a sociality binding states was almost extinguished, and accounts of state relations that postulated sociability and attempted to mitigate anarchy by calling on a natural order, such as those of the Abbe Saint-Pierre, not to mention Grotius, became regarded as foolish, misguided or positively pernicious. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1_5

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The reasons for this are not hard to find. After the period of relative peace that had immediately followed the wars of religion, the European powers fell again into war, continuous and brutal, that lasted throughout the century. There was no year between 1701 and 1793 that the powers were not in some combination of war with one another. The dominant ones and the ones by which the century is generally known were the dynastic wars—the wars of the Spanish succession and the Austrian succession, but they became mixed with trade wars, and eventually colonial wars. Following the war of the Spanish Succession, which the Treaty of Utrecht had hopefully closed, and the Austrian succession (1740–1748), came the Seven Years’ War, 1756–1763, which became a global war involving most of the great powers of the time and affecting Europe, North America, Central America, the West African coast, India and the Philippines for the rest of the century. In far-flung regions formerly remote from Europe, each sought to forestall others advantages and to secure geographical position, especially coastal position, expanding colonial possession to encompass every continent, and the competition for colonies engendered more war. On the causes of these wars, Voltaire in his Philosophical Dictionary expressed the common view of the thinkers of the time: “war comes to us from the imagination of three or four hundred people spread over the surface of this globe as the princes and ministers, all concerned to exercise in a foreign land an unlikely law inherited from a distant ancestry, or eager to take part in a war caused by another prince for a similar reason.” Voltaire, in his article dated 1764, does not analyse further and says nothing about peace. His words culminate in a bitter observation: “What is worse is that war is an inevitable scourge.” He might have hoped, as some did, “in the enlightenment of monarchs, who might in time realize the claims of justice and humanity” (Martin 1963, 267), but they were few. Kant, often credited with being such a one, in fact shared his scepticism, remarking at the end of Perpetual Peace that the “statesman looks down upon the theorist as a mere pedant whose empty ideas can threaten no danger to the State”. The state policy that drove these wars was national aggrandizement and monarchical glory. The increase of power, prestige and territory at the expense of neighbours was not merely the policy—it  was the openly declared policy. Every statesman from Louis XIV to Talleyrand would have agreed with Catherine the Great that “he who wins nothing, loses”. It was a competition for power that involved stealthy annexations of

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territory on borders, no less than constant wars abroad, along with general plunder and destruction. From 1740 onwards, Europe was an armed camp in which the main aim of the treasury was to raise arms. Montesquieu in his Reflections on Universal Monarchy writes of the competition of armaments as “the new malady which has…infected our princes” and describes with accuracy what would come to be known as the ‘security dilemma’: “For as soon as one Prince increases his troops the rest of course do the same….Each Monarch keeps as many armies on foot as if his people were in danger of being exterminated; and they give the name of peace to this general effort of all against all.” The result was the constant exhaustion of treasury. Every week, Bernis, Foreign Minister to Louis XIV, had “to spend a day coaxing Montmartel, the financier, to lend the King money” (Martin 1963, 263–264). The art of diplomacy became aggrandizement by any means at the disposal of the diplomat, however contrary to the ethics of ordinary human intercourse. Baron Bielfeld, councillor to Frederick II and author of Institutions Politiques, advised, “In matters of politics one must not be deceived by speculative ideas which the common people form of justice, equity, moderation, candor, and the other virtues of nations and their leaders. In the end everything is reduced to force.” Diderot summarized the views of the philosophers on the diplomacy of their times in his “Political Principles of Rulers”: “Make alliances only in order to sow hatred….Incite wars among my neighbors and try to keep them going.…Have no ambassadors in other countries, but spies.…To be neutral means to profit from the difficulties of others in order to improve one’s situation” (quoted by Ruddy 1968, 847). The model of the new monarchy was Louis XIV, France’s ‘Sun King’. Having provided Europe with the form of the centralized state governed from a capital, his example hurried all his neighbours to copy him and to suborn the remnants of feudalism, bringing provinces and provincial authorities under central control. Warfare defined his foreign policy and his personality shaped his approach. Impelled by what is commonly characterized as “a mix of commerce, revenge, and pique”, he used warfare to enhance his glory. In peacetime he concentrated on preparing for the next war and he taught his diplomats that their job was to create tactical and strategic advantages for the French military. “[E]veryone,” Louis advised his son, “arranges treaties according to his present interests…[they were] absolutely necessary” for social existence, but “of little significance

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beyond their sound” (Nathan 1993, 633). His reign lasted 72 years and 110 days, the longest of any monarch in European history. The international law commentaries of the century reflected the new reality. Christian Wolff’s Law of Nations Treated According to the Scientific Method (Magdeburg, 1740) sought to capture the new state via a pure rationalism that reduced natural law to an unnecessary hypothetical. Modelling his international law on basic postulates in the manner of Newton, he argued that all Being strove for perfection, and he presented the Absolutist State as the state achieving perfection. Actions that tended towards perfection produced pleasure and actions that tended towards imperfection produced displeasure (or pain). (Wolff’s international law anticipated Bentham’s ethical theory.) From this postulate, he derived the duties of states, to themselves as well as to others—among them, an ­absolute duty of non-intervention in the affairs of other states. The separation of philosophy from religion was a theme that Wolff developed and defended throughout his entire career. The ‘Balance of Power’ was intended to regulate this anarchy. First proposed by Fenelon at the end of the seventeenth century as a self-­ conscious posture to counter Louis XIV’s ambitions of universal monarchy, it took on the aspect of a precept that power ought to be evenly distributed, and as such became enshrined in the Treaty of Utrecht closing the war of the Spanish succession. From precept, it had come to be viewed analogously to the Newtonian solar system—an automatic movement. As a state grew more powerful relative to other states, “so their policies would turn away from the rising power by tending toward each other in preventing any one single state from setting the rules of the game” (Ishay 1995, 13–14). It was conceived, in other words, as a self-regulating mechanism, promising equipoise. But as the dance of power proceeded and war became a constant, the balance of power’s unintended consequences became increasingly apparent: promising peace, it led to war. “For, since the object of each party was always to weight the balance in its own favour, the equilibrium could scarcely be permanent, and constant war was necessary to preserve a balance which had been invented in order to maintain peace” (Martin 1963, 263). By the balance of power, the contemporary writer Mercier remarked, “people arm against each other and cut each other’s throats according to a system invented to prevent throat-cutting” (op. cit.). J. J. Rousseau theorized the situation in his essay on A Lasting Peace Through the Federation of Europe, published in 1761. Ostensibly a

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commentary on the Abbe Saint-Pierre’s Project of Perpetual Peace (on which more later), Rousseau used Saint-Pierre’s idea that perpetual war could only be overcome by a form of the federation to argue his own case on men in society. It contains Rousseau’s famous judgement on the ­necessary condition of states: In forming themselves into separate groups, men have, in fact, done either too much or too little. They have put an end to private wars, only to kindle national wars a thousand times more terrible. They have given their love to their fellow-citizens, only to declare themselves the enemies of the whole race.

Perpetual war was the outcome. The misery and waste of war is a condition that “will be disputed by none”: they are a “hundred times greater than they have ever been before”. Under existing circumstances, “the perpetual recurrence of war is a thing natural and inevitable, and will continue to be so, so long as each State retains its absolute independence of the others” (Rousseau 1917, 10). Rousseau conceded that the European powers did constitute a kind of whole, acknowledging the many commentaries on Europe’s political and cultural linkages. It was united by the identity of religion, of moral standard, of international law—by letters, by commerce, and finally by “a species of balance which is the inevitable result of all these ties”. But it was at the same time “a reign of violence” that could never be remedied. A coalition to dominate it would dissolve over the division of spoils, and “no potentate need fear to be cast from his throne by any of his rivals”. Accordingly, the balance of power “will never be broken”. But it was no peace-keeper: [T]he established order, if indestructible, is for that very reason the more liable to constant storms. Between the Powers of Europe there is a constant action and reaction which, without overthrowing them altogether, keeps them in continual agitation. Ineffectual as they are, these shocks perpetually renew themselves, like the waves which for ever trouble the surface of the sea without ever altering its level. The nations are incessantly ravaged, ­without any appreciable advantage to the sovereigns. (Rousseau 1917, 65)

Rousseau concluded the essay with a picture of ‘international society’ in the Age of Absolutism that would be carried forward into Richard Cobden’s 1836 denunciation of the balance of power (Wright 1975, 110) and Albert Sorel’s 1885 account of the diplomacy of the Ancien Regime

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(Sorel, 1971). It consisted of thirteen propositions, which in his view characterized the diplomacy of the time: (1) The existence of no solid right, except that of the stronger. (2) The perpetual and inevitable shifting of the balance from nation to nation. (3) The absence of complete security for any nation so long as its neighbours are not subdued or annihilated. (4) The impossibility of annihilating them. (5) The necessity of endless precautions and expenses to keep guard against possible enemies. (6) Weakness and consequent exposure to attack during minorities or revolts. (7) The absence of any guarantee for international agreements. (8) The impossibility of obtaining justice from others. (9) The invariable risk of the prince’s possessions, and sometimes of his life, in the quest of his rights. (10) The necessity of taking part against his will in the quarrels of his neighbours and of engaging in war at the moment when he would least have chosen it. (11) The stoppage of trade and revenue at the moment when they are most indispensable. (12) The perpetual dangers threatened by a powerful neighbour, if the prince is weak, and by an armed alliance, if he is strong. (13) The uselessness of prudence, when everything is left to chance (Rousseau 1917, 39–49).

Peace Plans Based on Pure Reason The century’s peace plans were meant to address the new malady and took their cue from Baron Sully’s memoirs of 1638  in which he claimed to recall Henry IV’s (1553–1610) ideas for a confederation of a Christian Europe: Sully described it as “a political system through which the whole of Europe could be shared and led like a family”. Sully’s ‘system’ was a barely disguised scheme for a French hegemony that would limit the Spanish crown’s power. That it was carried forward into the eighteenth century is due primarily to the accounting metaphor that Sully employed to recommend it to warring parties—the Abbé de Saint-Pierre quoted it in the introduction to his own Paix Perpetuelle: “The profit they will ­withdraw, above and beyond the inestimable value of peace, is far greater than that which they will have to spend.” Often characterized as ‘idealistic’ or otherworldly, Saint-Pierre was ­neither. He left his native Normandy and boyhood dreams of a monastic vocation for the ebullient intellectual atmosphere of Parisian university studies. For five years he followed every course available in the physical sciences (then dominated by the methods of Descartes). His consecration to Holy Orders provided him with a more than comfortable sinecure: he

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bought the office of the first chaplain of Madame, sister-in-law of Louis XIV and mother of the future Regent, and was able, for twenty years, to observe political life in Versailles and to note the internal and external misdeeds of a royal absolutism. He was a negotiator of the Treaty of Utrecht (1712–1713), to which he brought a Cartesian sensibility. He was, in short, a philosophe. His Paix Perpetuelle demonstrates the emerging ‘pure reason’. On the balance of power, he concluded that the physical model of weights and counterweights could not be applied to political and diplomatic relations; in any case, it could not offer the guarantee of sufficient security in ­relations between states. The reason was simple: the forces involved were constantly changing, whether military, financial or psychological, and a new balance was always to be found through new conflicts. The logical counter to balance was confederation; his argument would “demonstrate in a pinch” the advantages that large states as well as small ones would be able to find in a “Union of Europe”. His method in doing so was to discount in advance all objections that could be raised to such a scheme. The three volumes of his Paix Perpetuelle are basically devoted to such a demonstration. If he took spirit from Sully’s ideal of confederation, he excised from it any hint of a hegemony. In an abstract of the volumes which he prepared in 1729 (the Abrege), he summarized and enunciated five principles that followed logically from his demonstration. The first laid as the foundation for peace, a “perpetual alliance” between the signatory sovereigns ­guaranteeing them “for all the centuries to come, the entire security of their States and persons against both external and civil wars”. This increase in security will make it possible “to end their future disputes more quickly, without risk and without cost” while considerably reducing military spending. By the second article, the signatories would contribute to the alliance proportionate to their revenues. The third article established a definitive renunciation of armed force for conflict resolution. In the event of a dispute, a perpetual general assembly (or European Diet) would become a place of mediation operated by the rest of the Allies with a view to conciliation decided by the plurality of votes. The fourth article ­stipulates that if a condemned power refuses to bow before the arbitration judgement, there would be a sanction: “the Grand Alliance will arm and act against it offensively.” The fifth article provided that no change be made to the fundamental articles without the unanimous agreement of the states (Saint-Pierre 1729).

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Frederick the Great of Prussia wrote to Voltaire on the Projet pour rendre la paix perpétuelle en Europe: “The Abbe de Saint-Pierre has sent me a fine work on how to re-establish peace in Europe. The thing is very practicable. All it lacks to be successful, is the consent of all Europe and a few other such small details” (quoted by Rougement 1966, 119). Rousseau provided his own judgement in a late essay found in his papers, providing a more sophisticated reasoning: that there was a significant difference between the real and the apparent interests of states. The first, the ‘real interest’ would, as Saint-Pierre correctly understood, be in perpetual peace; the second ‘apparent interest’ derived from the actual condition which states inhabited, that of their absolute independence, which “relates to only two objects, to extend domination outside and to make it more absolute inside”. In this context, the call to form a Diet of States where their disputes are mediated is only “a sweet dream”. Moreover, the plan had a serious downside, in the idea of a united league operating a sanction: We do not see federative leagues established other than by revolutions; and on this principle, who of us would dare to say if this European league is to be desired or to be feared? Perhaps it would do more harm all of a sudden than it would prevent it for centuries.

He concluded that we might “admire such a beautiful plan”, but should console ourselves “not to see it executed”. Commenting on the Judgement, Ishay would observe that “internationalism remained an empty illusion, an idea condemned to the life of abstraction, a dream betrayed by even its staunchest defenders” (Ishay, 129). An equally “sweet dream” was Jeremy Bentham’s essay “A Plan for a Universal and Perpetual Peace”, written in 1789 and published in 1843, a year after his death, with other material under the title The Principles of International Law. It is similarly a rationalist exercise, in Bentham’s case based loosely on utilitarian principles. The focus of Bentham’s concern was the rapidly growing collection of colonies accruing to Britain and France as a result of the Seven Years’ War, which he suggested should be as rapidly given up. Declaring his goals as “simplicity of government, national frugality, and peace”, Bentham proposed that none of these was served by colonialism and accordingly that it was not in the interest of Great Britain or France to have colonies, or alliances, or a large navy. It was better for the colonies themselves to be self-governing. As for alliances, they led to wars, and the treaties (many of which gave an advantage

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in trade) were artificial economically and not useful in the long run. He conceded the need for a navy, but naval forces need only be strong enough to defend commerce against pirates. The purpose of perpetual treaties should be to limit troops and establish a common court of judicature to decide differences. In what was clearly a reflection on Saint-Pierre’s scheme and Rousseau’s objections to it, as well as his own aim of limiting troops, Bentham stipulated that the court should not be armed with coercive powers, but that it rely rather on public opinion to enforce its decisions. In defending his plan, Bentham relied on more than a pure reason to recommend it, calling on his acquaintance with court governing habits in the British empirical manner. He pointed to the corruption of patronage in the management of colonies, evident in both India and Gibraltar, and the “complication of government” in their administration, evident in the recent establishment of a colonial office. War had a corrupting effect, in that in war, “individual crimes are greatly multiplied” at the same time as wars gain public approval, engendering a sort of vicious circle. Also, in times of war, ministers are less deterred from misconduct and easily seduced by ambition, especially when shielded by secrecy. In recommending the power of public opinion to curb these practices, Bentham was doubtless reflecting on the coffee house culture already well developed in the City of London, on which the government relied for finance. He pointed to the example of the Swedish soldiers who refused to fight Russia. Equally, however, public knowledge of foreign affairs, much less British policy in their respect, was limited, such that he had to read the Leyden Gazette to get any news about British diplomacy, “as there was none in the home press”. The evils of secrecy in international relations were compounded by a naturally patriotic press. “It is that we are always in the right, without a possibility of being otherwise. Against us other nations have no rights” (Bentham 1843, 8). In short, he did not give his plan any hope of success. It depended on the war-makers being called to account, and while they “ought to be abandoned by the people”, this was scarcely possible under the royal prerogative. He defended the plan in terms of its contribution to ideas about peace, in which the world was woefully lacking. The popular conception of ‘perpetual peace’ was represented by a Dutch inn of that name, whose sign, reported to Kant, pictured a graveyard. (Leibniz reported observing the same, at the entrance to a cemetery.) Kant’s intention in his essay on Perpetual Peace has been the subject of some speculation, including irony (Lambert et  al. 2010, detect four

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occasions of irony in the text). In the parallel essay, the Doctrine of Right, he claimed that “perpetual peace, the ultimate goal of the whole right of nations, is indeed an unachievable idea” and in the text himself wrote that although the optimist may dream of perpetual peace, no such harmony can be hewn from “the crooked timber of humanity”. It was in other words an ideal. Kant’s intention in writing the piece is probably best understood as a ‘thought experiment’ in how such a thing as perpetual peace might reasonably be conceived. In his ‘thought experiment’, Kant presents perpetual peace as both “practical” (his term)  and radical, expressed in two sets of articles, the Preliminary and the Definitive. The preliminary articles are the results of practical reasoning considering the basic requirements of more peaceful relations among states as presently existing. They include peace treaties without secret reservations about future wars, the gradual abolishment of the standing armies and the restriction on contracting national debts so that armies cannot be endlessly engaged. We may assume that by these preliminary articles Kant is reflecting on the usual recommendations of the time, such as those of the Abbe Saint-Pierre, and he is telling us that they are perfectly sensible proposals. But he is also telling us that they are impossible in the circumstances of the time and that it is necessary to go forward in thought beyond practical reasoning. A permanent peace is only possible by a radical, indeed transcendent shift: it must be freely chosen by a free citizenry in a free state, which is a state organized along principles of law. (Kant makes clear by this that he does not mean a democratic government, but rather the manner in which a people are governed—in other words by a constitution and by law.) The reasons for this are clearly stated; we may safely surmise that free citizens will not agree to war. Kant gave credence to this radical suggestion via what in the context of the time was a desperate leap. He referred to it in terms that would have been familiar to his fellow philosophes as ‘theoretical reasoning’, and a particular form of theoretical reasoning. Its object is a form or idea that we think of into the physical world as “an end preconceived by the Author of the universe”. In simple terms, we imagine teleological laws as part of “the underlying wisdom of a Higher Cause directing itself towards the ultimate practical end of the human race”. Such ‘laws’ predetermine “the course of things with a view to its realisation” (Kant 1903, 144). We think, in other words, what ought to be done and then direct our actions to those ends. In Kant’s terms, politics can only be brought into alignment with morals by means of a transcendental idea. With regard to perpetual peace this

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transcendental idea is the idea of public right. It is only when we have such an idea that we can even begin to think about a lasting peace. The ironic tone that appears throughout the essay suggests the impossibility of this vision, given the sensibilities of the authorities of the time, not to mention the very uncertain status of the idea of public right. Kant adopts a mocking and sarcastic tone towards the authorities and assures us that his proposal like all the others for peace will be ignored, but for that very reason, he should put it forward in its full form, so that “like kingpins” it can be knocked down all at once. Kant is certain he is right but equally certain that nothing will come of it.

Sociality Extinguished? In the universities, Pufendorf remained standard fare until the end of the century, but among the philosophes he was scorned. Rousseau called him a friend of despotism; Voltaire found his predecessor Grotius merely boring. Kant’s sole mention of Pufendorf (in the company of Grotius and Vattel) is a vague and dismissive reference in Perpetual Peace to the “wretched comforters” (leidige Tröster) who are criticized for their overly flexible, empirical and situational treatment of the law of nations, features that had previously been considered its strength. Bentham’s vague and dismissive attitude towards ‘natural rights’ dismissed Pufendorf along with much natural law, while his presentation of what has been characterized as the “circumscribed ethics” of Mill’s utilitarianism was intended to provide an empirically based replacement to a priori reasoning. Pufendorf was carried into the nineteenth century mostly on account of his historical works and taken seriously in America largely on account of his treatment of confederations. Grotius’ and Pufendorf’s sociality fared little better. Rousseau satirized it as an ‘unsocial sociability’, a term invented by Montaigne that would resonate throughout the century. For Kant the question was the root of ungesellige Geselligkeit—the unsocial sociability. In his The Idea of a Universal History, the fourth proposition states that we have a “propensity to enter into society”, but we also have a “thoroughgoing resistance” to this tendency so that we are always liable to isolate ourselves and tear society apart. He agrees with Hobbes emphatically as regards the natural condition of princes, including the proposition that the state of nature of states is a state of war. Christian Wolff derived his international law from considering states as solipsistic individuals in a lawless state of nature bent

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only on their own perfection. As a general idea, sociality only survived in the Scottish enlightenment, as a support to the idea that commerce could be understood as a source of sociability and a mitigator of the impetus to war. (On the influence of Grotius and Pufendorf on the moral theorists of the Scottish Enlightenment, see Istvan Hont, “The Language of Sociability and Commerce: Samuel Pufendorf and the Theoretical Foundations of the ‘Four-Stages Theory’”: Pagden 1990, 253–276.) That it survived at all in relation to a political order among states is due almost entirely to the other citizen of Switzerland, Emer de Vattel. Originally from Neuchâtel, he enrolled at the University of Basel, where he seems to have attended courses on Samuel Pufendorf given by the Huguenot minister Pierre Roques. In 1733 he went to Geneva to pursue theological and metaphysical studies, where one of his teachers was Jean-­ Jacques Burlamaqui, a popularizer of Pufendorf. It was under Burlamaqui’s tutelage that Vattel first studied in detail the principles of natural law and the law of nations. From 1746, he served as Augustus III’s minister of embassy in Bern. His immediate influence was Christian Wolff who, as noted, had derived the duty to mutual aid between states from analogy between the state of nature and the realm of international relations: Wolff had presented the law of nations in the manner of Hobbes, as the war of all against all, not a hopeful analogy from the perspective of orderly international relations. But while following Wolff, Vattel also moderated him. He postulated an “eternal and immutable law of nature” but one with a difference—Vattel’s law of nature, while conceding to states perfect sovereignty, obliges them to respect and to treat other states as equals, like themselves. The second of Vattel’s principles of moderation was that states should provide one another mutual aid “so far as that other stands in real need of its assistance, and the former can grant it without neglecting the duties it owes to itself” (bk. II, §3). If the primary duty of states was to preserve and perfect ­themselves, the third principle of moderation was to assist each other in fulfilling those duties each state owed to itself as a collective of individuals. Vattel followed Pufendorf in according to the state a composite moral identity, which made it, in his terms “fundamental to principles of their association that they pay particular attention to the interests of their members”. Accordingly, each state should also understand as a duty each other state’s obligations to its own members. At the same time, he went further

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than Wolff in basing the foundation for legally binding rules in international relations entirely on the volition of states, whose bindingness and strength proceeds from “consent previously agreed upon”—a doctrine that would become the cornerstone of positivist approaches to modern international law. In short, Vattel synthesized the natural liberty of nations with the natural society of states. Using similar arguments to those employed by Pufendorf, he defended the moral obligations that all states ought to honour as members of the natural society of nations. Since, therefore, nature has thus formed mankind, it is a convincing proof of her intention that they should communicate with, and mutually aid and assist each other. Hence is deduced the establishment of natural society among men.…The universal society of the human race being an institution of nature herself, that is to say, a necessary consequence of the nature of man, all men, in whatever stations they are placed, are bound to cultivate it, and to discharge its duties [my italics]. (Vattel 2008, Preface, para. 4)

According to Ruddy, “He stressed the natural law basis of international law more than anyone else but Pufendorf and the liberty of states in that system more than anyone else but Wolfe” (Ruddy 1968, 858). If there was a tension between the natural liberty of states and the natural society among men, Vattel did not acknowledge it. Such as there was is exhibited in Vattel’s defence of small states against the militarized Powers in competition. Swiss thinkers frequently invoked a universal society of nations, but they remained highly suspicious of projects for perpetual peace, whether a benevolent hegemony or a European federation, fearful for their liberties in any such scheme. Vattel argued for a society of states, but in another way. In a famous passage, he claimed that commerce had transformed Europe from a “confused heap of detached pieces” into a kind of large republic, where all members were united “for the maintenance of order and liberty” (bk. III, §47). Accordingly, he defended a balance of power between large nations that would maintain the commercial republic of states (and the ability of Switzerland to continue to service the commercial republics). For Vattel, “[i]nternational equilibrium is understood to be the practice which harmonises duties to the state with obligations to humanity” (Linklater 1982, 89). He was

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convinced that if Britain played a more active role in the relations between European states, French aspirations to universal monarchy would be countered. This was expected in turn to safeguard the sovereignty of the smaller states and especially the Swiss republics, the legitimacy of whose existence was being questioned under Absolutism. Vattel’s case for the survival of small states in the modern world is one of his main themes in The Law of Nations. It was in part due to the republican character of Vattel’s Lois des Gens and to his defence of small republics that he was, along with Pufendorf, received so wholeheartedly in America, particularly by the lawyers of Boston who detected the injustice of Britain’s tea taxes. The American jurist Wheaton picked upon Vattel as the basic guide for his 1836 Elements of International Law, which became so prominent. For the English School a century later he came to stand full-square in the pluralist camp. Andrew Hurrell credited to Vattel the idea that there can indeed exist an international society among sovereign states—“the great society established by nature between all nations”, constructed around the goal of coexistence and embodying an ethic of difference. Its dominant values are “the maintenance of order and the preservation of liberty…as Vattel himself postulated” (Hurrell 1996). The philosophes are often credited with laying the foundations for a society of states, not least in their various peace plans. Nothing could be further from the truth. To the philosophes is rather owed the picture of the state of nature as an actual condition of war of all against all; and their peace plans should rather be understood as attempting to ameliorate what they considered to be a natural hostility among states—the ‘unsocial sociability’. Nor is it clear that even that was their intention. Their intention seems rather to have been a critique of the folly of the times and a rejection of the governing habits of the ancient regime, among which were the baleful relations of its monarchs and princes. None was carried into the nineteenth century as a serious guide to state relations: Perpetual Peace was not translated into English until 1897, and only then by the Boston Peace Society as an aspirational plan, while Campbell’s first translation appeared only in 1903 and again at the end of the ’Great War’. The actual idea of a society of states as a possible reality was carried into the nineteenth century by the citizen of a small Swiss republic, which was taken up by another jurist and diplomat of a somewhat larger republic, in the context of a revolutionary separation from a former colonial master.

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References Bentham, Jeremy. 1843. The Works of Jeremy Bentham. Edited by John Bowring. Vol. II.  Edinburgh: W.  Tait. https://www.laits.utexas.edu/poltheory/ bentham/pil/index.html. Hurrell, Andrew. 1996. Vattel: Pluralism and Its Limits. In Classical Theories of International Relations, ed. I.  Clark and I.  Neumann, 233–255. London: Palgrave Macmillan. Ishay, Micheline. 1995. Internationalism and Its Betrayal. Minneapolis: University of Minnesota Press. Kant, Immanuel. 1903/1795. Perpetual Peace: A Philosophical Essay. Translated by M. Campbell Smith. London: Swann Sonnenschwein Lambert, Greg, Aaron Levy, and Martin Rauchbauer. 2010. The Idea of Perpetual Peace. Resources, Perpetual Peace Project. Slought Organization: University of Pennsylvania. https://slought.org/pages/perpetual_peace_the_idea_of_peace Linklater, Andrew. 1982. Men and Citizens in the Theory of International Relations. London: Palgrave Macmillan. Martin, Kingsley. 1963. French Liberal Thought. New York: Harper Row. https:// archive.org/stream/frenchliberaltho00mart/frenchliberaltho00mart_djvu.txt. Nathan, James. 1993. Force, Order, and Diplomacy in the Age of Louis XIV. Virginia Quarterly Review 69 (4): 633–649. Pagden, Anthony, ed. 1990. The Languages of Political Theory in Early Modern Europe. Cambridge: Cambridge University Press. Rougement, Denis. 1966. The Idea of Europe. London: Macmillan. Rousseau, Jean-Jacques. 1917(1761). A Lasting Peace Through the Federation of Europe: And, The State of War. London: Constable. Ruddy, F.S. 1968. International Law and The Enlightenment: Vattel and The 18th Century. International Lawyer 3 (4): 843–858. https://scholar.smu. edu/cgi/viewcontent.cgi?article=4448&context=til. Saint-Pierre, Charles Castel. 1729. Abrege du project de paix perpetuelle. Rotterdam: Beman. Sorel, Albert. 1968/1885. Europe and the French Revolution. Translated by A. Cobban. London: Collins. Vattel, Emer. 2008/1758. The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and Richard Whatmore Indianapolis: Liberty Fund. https://oll.libertyfund.org/titles/2246 Wolff, Christian. 1740–48. Jus naturae and Jus Gentium. Translated by M. Thomann, Jus naturae. New York: Olms, 1972. Wright, Moorhead. 1975. Theory and Practice of the Balance of Power, 1486–1914: Selected European Writings. London: Rowman & Littlefield.

CHAPTER 6

The French Revolution: Concert, Progress and Civilization—Gentz, Wheaton and Lorimer

The French Revolution and the following Napoleonic Era produced enlightened notions and techniques that critically affected the progression of modern, Western society. —Anon

If the Gottingen historians invented the world of states, the French Revolution changed the course of its history. Over time and at home it produced constitutionalism and natural rights; immediately and abroad it produced new diplomatic techniques, new institutions and “enlightened notions” about the European state system and its place in the world. In relation to war, states discovered the levée en mass and the professional army. In relation to peace, the conference method was invented for the conduct of diplomacy, and a concert of Great Powers came into being for setting limits to changes in the international order. Permanent institutions were eventually established to regulate postage, protect Europe from the plague, set railway timetables and determine river borders. Most far-­ reaching of all was the idea that Europe was open to a process of development to a higher order than had yet been achieved and that this order could be managed and even directed. The European ‘system’ or ‘society of states’ began to appear as a civilization, while other cultural entities and methods of international organization became lower orders, subject to its sway. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1_6

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The newest of the new techniques was a different understanding of the balance of power and the associated idea of a concert of powers. When Fenelon first outlined the eighteenth-century idea of the balance, it was as a principle that inheritance rights should be managed in such a way as to avoid a hegemonial power that might overcome the ‘liberties’ of other powers and that this principle should be enshrined in a perpetual agreement. A very different idea appeared in Friedrich Genzt’s Fragmente aus der neuesten Geschichte des politischen Gleichgewichts in Europa (translated as Fragments upon the Balance of Power in Europe, London 1806). Gentz presented the balance of power not as a principle but as a practice, aimed at protecting the “state system” by means of a union of states against a “common enemy” seeking to overthrow it, following which he produced a lengthy expose of the actual political situation in Europe as a result of France overturning the “federal system of Europe”. But its real novelty and its prophetic character lay in its suggestions on how the ‘federal system’ might be restored. Rejecting the idea that a union of Britain and Russia might contain France, the fragment begins: “Germany has been the cause of Europe’s fall—Germany must lift it from its state of ruin” (Gentz 1806, xiv). He proposed that instead of an alliance of Britain and Russia, the dominance of France could only be broken by a union of Austria and Prussia, acting in concert with Britain. Here appears for the first time the idea of Britain as an offshore balancer, acting adventitiously to support the weaker side against a hegemonial aspirant, as part of a concerted effort that could be called upon when required, to secure “the constitution of Europe”. Concerting as a regularized practice was initiated, and established in nub, at the Second Treaty of Paris in 1815, when the powers agreed to extend their alliance “for consideration of measures the most salutary for the repose and prosperity of nations”. It was institutionalized for the duration at their meeting at Aix-La-Chapelle in 1818 when they renewed the alliance and agreed to guarantee the Vienna Treaty (Albrecht-Carrie 1968, 33, 48). It operated as a reality in 1830 when the guarantor powers met to determine the future of the Belgian-Dutch union, established at Vienna and in disarray, and it began to take on tasks beyond the Vienna settlements when three of the powers met in 1832 to establish a stable government in Greece following its revolution against Ottoman rule: the London Conference of 1832 between Britain, France and Russia determined the establishment of the Kingdom of Greece, under a Bavarian Prince.

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Management by the Great Powers did not arise spontaneously. It was theorized and negotiated. Castlereagh, preparing for the Congress of Vienna, reported to Lord Liverpool that “the conduct of the business must practically rest with the leading powers” (quoted by Clark 2011, 87) and prepared the oft-quoted memo for the Foreign Office as to how the business might be managed: The advantage of this mode of proceeding is that you treat Plenipotentiaries [of the lesser states] as a body with early and becoming respect. You keep the power by concert and management in your own hands, but without openly assuming authority to their exclusion. You obtain a sort of sanction from them for what you are determined at all events to do, which they cannot well withhold….And you entitle yourselves, without disrespect to them, to meet together for dispatch of business for an indefinite time to their exclusion. (Webster 1920, 153)

Congress historian Mark Jarrett has sourced it in the British model of deferential parliamentary politics writ large. It had a rocky start. The ‘Un-Holy’ Alliance of Russia, Prussia and Austria initially treated the Concert as a common front to put down any new appearance of revolution. Britain had reluctantly concurred, allowing the Alliance partners to put down the revolt in Naples in 1821, but broke with its partners over the ‘Spanish Question’ at the Congress of Verona in 1822 and left the coalition in 1825. It was not until 1830 and the Belgian Revolution that the five powers came together again, in the event to agree on the division of Belgium and the Netherlands, in effect sanctioning a change to the Vienna articles. Russia’s endorsement of the revolution in Greece effectively broke the ideological divide. Following both, concerting became the normal route to the management of changes to the Vienna treaty and to any alterations in the territorial status quo (see Albrecht-­ Carrie 1968, 12–22). The novelty of their concerting instead of competing was observed by Ranke, following the Belgian and Greek settlements. His notes, jotted down for his 1832–1833 lectures on the Formation of the Great Powers, read: It has always been a matter of balance—in the beginning I would say of the rivals Spain and France—later a balance of interests, French and anti-French interests, the land powers’ and the sea powers’ interests; but that five Great Powers, each sovereign, each with particular interests, would consult

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together on all important matters, so that—at least up to this day albeit under the most difficult circumstances—a solution has always been found, that is new, it is the sense behind the present state of things. (Schulin 1988, 14)

The conference system, which came to dominate nineteenth-century diplomacy, emerged out of the post-war congresses. The Revolution, being so extensive in its effects, had raised a wealth of problems that could not be determined by a simple peace treaty. Metternich recognized the difference in a semi-official commentary of October 1814 (Langhorne 1986 reproduces it, p. 318), and Castlereagh was responsible for the initial institutionalization, represented by Clause 6 in the Second Treaty of Paris, in which they agreed to “renew their meetings at fixed intervals” (Langhorne 1986, 319), by which several had occurred up to 1825. Conferencing on the basis of changes to the territorial status quo began in earnest after the Belgium settlement and included seven London conferences (1832–1867), two Berlin conferences (1876, 1884), the Warsaw Conference of 1850 and the 1856 peace conference closing the Crimean War. The application of the conference method to other diplomatic matters, notably of finance, international trade in specific products, health, customs regulation and arbitration became frequent after the mid-century. The ‘enlightened notion’ was the association of the society of states with ‘civility’ and ‘civilization’ and the further association of ‘civilization’ as progress. Previous revolutions had pictured the revolutionary act as one of restoration, of regaining liberties lost, but the French Revolution was pictured as moving political order forward. The contribution of the French Revolution to historical time was the idea of seizing the future and remaking it—in theory for humanity as a whole, in practice for European society. The French philosopher of science, Auguste Comte blessed this vision with a scientific grid in his Cours de philosophie positive 1830–1841. Translated into English by Harriet Martineau as The Positive Philosophy of Auguste Comte (1853), Comte proposed a ‘dynamic sociology’—that is, a law of social progress, commonly known as the ‘law of three stages’, in which he proposed that developing humanity passes through three successive social forms: the theological, marked by the appearance of an anthropomorphic God; the metaphysical, marked by abstraction; and the positive, marked by scientific truth. The period of the Enlightenment, particularly in France, was presented by Comte as the apogee of the metaphysical stage in European civilization, while the revolutionary unseating of the ancient regime was presented as the necessary preparation for the scientific stage.

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The British historian Buckle provided an Anglo-Saxon version in his History of Civilization in England (1857; see also Cain 2012). Both the techniques and the innovations gained formal expression in the leading international legal document of the age: Henry Wheaton’s Elements of International Law, the first international law digest since Vattel’s and the first that explicitly based the law on a civilization, understood as a specific cultural form. First appearing in 1836, it went through eight  subsequent editions, was translated into five European languages and had numerous reprints. The first modern digest of international law, it was adopted as “the foremost modern text in the diplomatic establishments of the US, Britain, France, and other European countries” (Liu 2012, 1132). Translated into Chinese at the expense of the imperial government (4 vols., Pekin, 1865) and subsequently translated into Japanese, it provided for the reception of modern international law in Asia. Wheaton was an American jurist, diplomat, Supreme Court reporter, and politically reformist or ‘whig’. He followed James Madison in his view of constitutional practice—that is, a federation to replace the confederation, with a Bill of Rights to protect the separate states as well as individuals. After serving as consul in Denmark for three years, he determined on a digest that would be of use to practitioners, that is, diplomats. He was the first of the nineteenth-century legal scholars “who interpreted and systematized diplomatic practice into legal rules…explicable by reference to a body of (European) public law…[and] the procedural character of that law” (Koskenniemi 1990, 6). But Wheaton also wanted to expose and defend interpretations of international law of particular cogency and relevance to the new republic, in its republican form. Wheaton followed Vattel closely in the structure of the work. He signalled from the beginning his obeisance to the ‘naturalists’, Vitoria, Grotius and Pufendorf who were “illustrious authors”, “friends of human nature”, “kind instructors of human errors and frailties” and “impartial witnesses” who developed the “principles of international morality”. He gave special deference to Grotius as the “father of international law” and to Pufendorf who derived “not only the rules of justice, but the rules enjoining all our other moral duties”. The deference to Pufendorf should not surprise: Pufendorf was considered a friend of federation in early America due to his consideration of the virtues of “free federations”, of which America considered itself one. (Pufendorf and Martens were the most frequently quoted in Congressional debates in the first years of the Republic.) But he also presented it, like Vattel, as a positive law, grounded

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in states’ consent (“received the assent”; Wheaton 1836, Advertisement), albeit an “imperfect” form, due to the indeterminateness of its precepts and the lack of the political power of the state and a judicial authority competent to enforce the law. Where he differed from Vattel was in his account of the origins of the positive law. Vattel had placed international laws’ origins in the consent of states understood as rational propositions; Wheaton by contrast followed the historical trend and placed them historically. Anticipating the argument in the historical sketch that prefaced the first edition (pp. 22–23), he made it specific in the third edition of 1845 (p. xiv), where he located the origins of the positive law of nations in the European Middle Ages, and in two specific institutions: first, in the “Christian states of Europe” who were drawn together by the moral authority of the Latin Church and by canon law. Codified in the thirteenth century, canon law guided “decisions of the Church in public as well as religious controversies”. The second development was the “revival of the study of Roman law, and the adoption of this system of jurisprudence by nearly all the nations of Christendom, either as the basis of their municipal codes, or as subsidiary to the local legislation in each country” (referenced by Onuf 2000, 2). Wheaton could not have made his point more clearly: “The international law of Christendom…the public law of Europe and of the Americas…had sprung from the European stock” (Wheaton 1836, 45) and from two principal sources, the canon law and the Roman civil law. Such a locus had clear implication for the scope of international law: “The public law always has been, and still is, limited to the civilized and Christian people in Europe or to those of European origin” (ed. of 1866, 15). He followed his mentor James Madison in considering international law as “those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations” (ed. of 1836, 46), but he understood those rules not in terms of a universal law as Grotius and Pufendorf had done, but as the law of a specific social order. He wrote: “The duties that are imposed by these rules [are] enforced by moral sanctions, [and] by apprehension on the parts of sovereigns and nations of incurring the hostility of other States, in violating the maxims generally received and respected by the civilized world [my italics].” Its universalism and its efficacy are grounded, not on legal or hierarchical political structures but on ethical and social structures—in his case the progress of civilization, which had produced not “invariable rules of

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conduct” but “rules which they cannot disregard without general obloquy” (Wheaton 1836, Advertisement). The other of Wheaton’s innovations was the concept of states’ rights as applied to international law. A former rapporteur for the Supreme Court, the Marshall court, at a time when the principles of the federation, particularly the rights of the federation as against the states were being contested, he had publicly supported Marshall’s judgement in the case of Ohio against the federation, in which Marshall found for the federation. Equally, however, as a follower of Madison, he defended state’s rights as they had been laid down in the Constitution—where states’ rights become the basis of the duties of the federal authorities to respect those rights. His treatise took shape accordingly: influenced by American constitutional practice and by the idea that states’ rights confer duties on others to observe those rights, his digest divided international law accordingly. After an introduction on sources, Part 2 deals with the absolute international rights of states, that is to say those that are unconditional; Part 3 with those rights in peace and Part 4 with state’s rights in war. The foundation of right in international law he reposed in the duty of other states to respect those rights. Nicholas Onuf perhaps overreaches the matter in considering its appearance in 1836 as conveniently dating the onset of the “conceptual world of liberal internationalism as a coherent project” (Onuf 2000, 3). Wheaton shows little evidence of wanting to spread an American constitutional practice or to encourage domestic reforms in the British Empire. But Onuf’s judgement that it is a “telling moment” in the history of European international law is not misplaced. Nowhere before Wheaton’s Elements were state’s rights made the basis of international law. At the same time, he severed the idea of state’s rights from any necessary liberal development within societies (since even illiberal societies could accept such a reading). This is no doubt why Wheaton’s Elements found such an enthusiastic reception among the diversity of European legal orders, not to mention even more diverse forms abroad. On such grounds we might acknowledge Onuf’s claim that “the template for a liberal legal order among states came from across the Atlantic, where liberalism found its greatest support in Constitutional practice” (p. 9). What does Wheaton’s Elements of International Law tell us about the theory of international society in the first half of the nineteenth century? First, notwithstanding the convulsions that France had brought upon Europe in the intervening years, Wheaton adopted Vattel’s position that

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Europe constituted an actual international society, not on a priori grounds of a universal society but on the de facto grounds of a shared body of legal practice. Second, he took international society to be grounded in specific legal procedures and practices of a historical nature that were European in origin and grounded in a specifically Christian experience. He also presented the society of states as a political order, concerned with regulative principles constituted by the political agency of states. It was not, as Grotius had grounded it, an ethical order; it was not, as Vattel had grounded it, a commercial republic, nor as with Mitrany a century later to be located in functional links. It was grounded in a form of a social contract between sovereign states. Within that society, states are free to pursue their interests individually and collectively. If they are so free, however, it is by virtue of a collective notion of rights. Each state is a rights holder and it is the duty of other states to respect those rights, the latter proposition as a correlative of natural rights. (It is on these grounds that Wheaton was classed as an ‘eclectic’ and a ‘Grotian’ (Baker 1937, 147) the latter having come during the nineteenth century to denote a combining of fundamental principles of natural law with an analysis of contemporary practice.) Wheaton was translated into French in 1846 with substantial revisions and amplifications, notably concerning the relations with foreign states; a sixth edition with the last corrections of the author was prepared by William Beach Lawrence (Boston, 1855) and an eighth by Richard Henry Dana Jr (Boston, 1866). At the instance of Anson Burlingame, U.S. minister to China, it was translated into Chinese (and published at the expense of the imperial government: 4 vols., Pekin, 1865—the translator was William Alexander Parsons Martin, an American missionary who was working in China). A Japanese translation followed and eventually one in the language of each country of Asia, making it Asia’s first introduction to European international law. Wheaton also produced Histoire du progrès des gens en Europe depuis la paix de Westphalie jusqu’au congres de Vienne, avec un précis historique du droit des gens européens avant la paix de Westphalie, written in 1838 for a prize offered by the French Academy of Moral and Political Science and translated in 1845 by W. B. Lawrence as A History of the Law of Nations in Europe and America (New York: Gould, Banks & Co). It presented much of the material from the Elements in a historical form and argued that international law had progressed from its association with dissimulation, crime and corruption (the Machiavellian associations) to “one of the

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most valuable products of civilization”, instancing abolition of slavery, neutrality and freedom of the seas as evidence of progress. The History took rank at once as one of the leading works on the subject.

The Standard of Civilization The association of international law with a civilized (and Christian) society of states raised a theoretical question—was there the possibility or feasibility of a universal legal order? If Wheaton had taken his cue from Grotius who “places the foundation of this law on the incontestable principle that wherever there is a society there must be a law obligatory on its members” (ed. 1866, 16), he gave it a particular twist: “the progress of civilization, founded on Christianity, has gradually conducted us to observe a law analogous to this in our intercourse with all the nations of the globe, whatever may be their religious faith, and without reciprocity on their part” (i.e. irrespective of their wishes; pp. 21, 22). In a move that would have been quite foreign to Grotius, Wheaton regards the ‘progress of civilization’ as the only source of universality. The corollary of this argument and one accepted by Wheaton is that with the progress and spread of civilization, the ‘barbarous’ and ‘semi-civilized’ will gradually come to accept the truth of a Christian and European founded international law. Practice had preceded the theory. Claims of civility had appeared in the ancient regime as an attribute of European court life from the 1750s; the first use in English of the term ‘civilization’ is attributed to Adam Ferguson, in his 1767 Essay on the History of Civil Society (drawn especially from developments in Britain and France). Declarations of independence from the American declaration in 1776 onwards routinely claimed the right of independence on the grounds of being ‘civilized’, especially in Latin America, and hence qualified to join the ‘civilized comity of nations’. The first international legal document resting its justification on the condition of civilization was the 1815 Declaration of Powers on the Abolition of the Slave Trade, on the grounds that it was a repugnant practice and that “the public voice in all civilised countries calls for its prompt suppression”. Voltaire had set the tone of the philosophes’ encounter with non-­ European societies in rejecting any assumption of the superiority of the Judeo-Christian nations over Ottomans or Mohammedans. European images of collective superiority in relation to non-European societies only began to proliferate from the 1840s. In 1835 Richard Cobden wrote a

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long account about the Turkish barbarity (Cobden: The Political Writings Vol. 1) in clear cultural and civilizational terms that would have been inappropriate a century earlier. Theophile Gautier’s memoir of Russia’s Winter Palace Ball of 1859 was widely quoted at the time: at the Ball, Alexander II had paraded tribal leaders dressed in court finery  as part of Russia’s ‘civilizing mission’, leading Gautier to remark how “the white glove of civilization […] concealed a little Asiatic hand accustomed to play with the handle of a dagger, grasping it with his nervous, dark fingers” (Gautier 1912, 212). They became routinely evident in diplomatic encounters. The formal dinner for the Iwakura mission from Japan hosted by the British Foreign Secretary, Lord Glanville, in August 1872 raised considerable interest amongst the Europeans as to how the ‘exotic’ Japanese dignitaries would conducted themselves. A very favourable impression was created by the decision of the delegation to wear European clothes, which demonstrated that the mission was ‘semi-civilized’ by Western standards. A member of the Swedish Embassy observed that the Japanese delegates displayed an “unusually high level of culture” for “Easterners” (Kayaoğlu 2010, 87–88). Its strictures originally applied to European powers as well as to the barbarians further abroad. Russia’s status as civilized began to be questioned as soon as the category was invented, and more persistently as it fell behind in the political and cultural modernizations occurring further to the West. Most of the German Kleinstaaten with their genteel cosmopolitanism were not considered sufficiently ‘up to the mark’ to be subjects of international law until united under Prussia into a unified German state. Following the successes of the abolitionist movement and the potential release of one million Africans from the yolk of slavery in America, the idea of civilization became racialized. In 1855, Gobineau produced his essay on the inequality of races, arguing that civilizations decline and fall when the races are mixed—the first instance of ‘scientific’ racism. In 1877, the American pioneering ethnologist Lewis Henry Morgan produced his Ancient Society that theorized three major stages in human development: savagery, barbarism and civilization (divided and defined by technological inventions). The black races of Africa were self evidentially savages and the Middle Eastern societies barbarisms; Douglas Lorimer (1988) has termed it a prime example of “Victorian ethnological racism”. The concept entered into international law formally late in the century and largely on racial grounds. In 1883 James Lorimer adopted Morgan’s schema and declared that humanity “in its present condition” was divided

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into “three concentric zones or spheres”—“that of civilised humanity, that of barbarous humanity, and that of savage humanity” (Lorimer 1883, 101) and that international recognition was variable, depending on the condition of the claimant. His racism is undeniable. In The Institutes he writes directly that “[t]he recognition of the equality of the negro with the white races in America is a case where law has outrun fact and for the present, at least, it furnishes no precedent of which international law can take cognizance” (quoted by Koskenniemi 2016, 20). Lorimer’s schema proposed a hierarchy of states in the international order. There was an “inner circle” comprised of Western state-organized societies governed by the rule of law and committed to protecting fundamental personal liberties; a second sphere consisted of societies such as Japan or China that clearly possessed complex state structures but fell significantly short of Western forms of ‘civilized’ governance; an outer circle was made up of ‘simple’ peoples that lacked any semblance of organized rule and represented humanity in its original condition of ‘savagery’. Arguing that the law ought to be based entirely on scientific principles, he proposed that the equality of states, like the equality of individuals, was a legal fiction and that the wealth of states was the best guide to their civilizational status. He made a direct argument for different degrees of recognition as between first and second sphere states and denied the relevance of recognition to the third category altogether. Koskenniemi stresses the idiosyncratic nature of Lorimer’s views, but the idea that certain political communities could not be treated as equals would become fairly pervasive in the international legal community by the late nineteenth century. In 1894, John Westlake, impeccably liberal and no friend of Lorimer, proposed, in preparing for the Hague Conferences, that one of the hallmarks of a society was the presence “of persons interested in maintaining the rules of good breeding” and recommended “shunning intercourse with those who do not observe them” (Westlake 1914, 6). Lassa Oppenheim, who put together the collection of Westlake’s essays, notes in evidence that Westlake thought it necessary for ‘European states’ to impose a “permanent diplomatic intercommunion” (i.e. a requirement to participate in its rituals) on the “Eastern empires”, “such was their engrained reluctance to accept its principles” (op. cit.), and in his own Treatise refers to the distinction between the family of nations and states outside the family, and affirms as a matter of course that international law is a product of “civilized” states and governments (Oppenheim 1905, 6, 13).

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The majority of non-European elites were keen to emulate the international establishment and to convince its members of their determination to make the journey to civilization by complying with their social standards. As part of its effort from the middle of the nineteenth century to be recognized as a “civilised monarchy”, the Siamese government dispatched representatives of the “highest social rank” to Britain for training in proper decorum and European languages. Their success in understanding ‘court etiquette’ led the London Gazette to praise the 1857–1858 mission—following an audience with Queen Victoria—“for setting an example of deference and good taste which it would be well for the Orientals frequenting our Court to be made to follow” (quoted by Englehart 2010). But the transition from one set of court rituals to another was not unproblematic. During the audience, the delegation, which was dressed in traditional attire, astonished onlookers “by crawling on all fours from the entrance of the hall of audience to the throne” (Gong 1984, 226) Its first application in diplomatic practice is associated with the Ottoman Empire, in a claimed imposition on Turkey in regard to its 1856 entry into international society (by Martin Wight 1977, 117). The occasion was the settlement of the Crimean War in which the Ottoman Sultanate had joined a coalition with France and Britain against Russia. The issue was the rights of Christian minorities in the Ottoman-ruled Holy Land, over which Russia claimed a protectorate. As a result of the Treaty of Paris, despite being associated with the victors, the Ottoman Empire ceded control over Walachia and Moldova, which became largely independent and whose Christian groups accordingly gained official equality with other former subject peoples. (Against Russian claims over Jerusalem, the Ottoman authorities accepted a compromise by which the Orthodox Church was officially recognized as responsible for communicants in Jerusalem.) The ‘entry into international society’ was effected by the invitation, contained in the Treaty, that Turkey join the Concert of Europe in the regulation of the matters of Europe, less as an equal than as a protectorate against further depredations, and the reward in effect for the ceding of Walachia (Romania) and agreeing to other limitations. Aside from Turkey, the main work of the civilizing concept was in relation to the imperial expansions that occurred from the 1850s, often understood and justified in terms of the ‘white man’s burden’. The ‘civilizing mission’ was a broad ideology that combined Enlightenment ideals of rationalism, Christian and Evangelical ideas of predestination, racist ideas about white superiority, and liberalism. In 1793, the Marquis de

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Condorcet had formally postulated the existence of a European “holy duty” to help non-European peoples “which, to civilize themselves, wait only to receive the means from us, to find brothers among Europeans, and to become their friends and disciples”. The mission civilisatrice was the cultural justification for the colonial exploitation realized in French Algeria, French West Africa and French Indochina. Indian civilization and culture was blamed for being incompatible with liberalism, justifying “indirect rule” from London (see Cain 2012). The claim that entry into ‘international society’ was made conditional on conformity to the Standard, first argued by Gerrit Gong (1984), must be tempered. First, as Koskenniemi points out, “[d]espite attempts…they never succeeded in developing a working standard of civilization”. Second, recognition was affected by various interests in the metropolis that changed from country to country. The most regular condition, and one set by the recipients of recognition, was that foreign subjects cease enjoying the privilege of special courts and become subjects of the local courts—that is, the end of the capitulations (see Article 5 of the Anglo-Siamese Treaty of 1909). In these cases, it was the former colonized entity that was setting the conditions, not the colonizer. The language of civilization was seldom the language of direct diplomacy but was used rather “to mark out a cultural difference that seemed palpable but did not lend itself to a detailed articulation” (Koskenniemi 2011, 7, 8). Where European images of collective superiority did their major work was in the influence of the standard on the ‘secondary imperialisms’ of powers such as Russia and Japan that attempted to join the ranks of the society of states by demonstrating their ability to contribute to a global ‘civilizing mission’. As ‘outsider societies’, proof of their worth and good faith “could be demonstrated by creating secondary empires that collaborated in the larger global ‘civilising mission’” (Linklater 2016). In November 1864, the Russian Foreign Minister, Gorchakov, celebrated Russia’s territorial expansion into the steppe as evidence of its membership of the civilization of the imperial powers. Russian advances to the East were presented as following all civilized states that were brought into contact with nomad populations possessing no fixed social organization. The conquest of Asiatics was required, since they were deemed “to respect nothing but visible and palpable force” (Wortman 2006, 203). The commitment to ‘civilizing’ the Eastern neighbours was claimed as part of Russia’s special mission.

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The Russians’ treatment of the rebel Chechen leader, Shamil, who had been captured in August 1859, sheds light on the imperial ‘civilizing mission’ with respect to ‘Asian peoples’. Tsar Alexander II used Shamil’s presence at official parades and ceremonies to advertise Russia’s success in not suborning but rather absorbing elite members of ‘a less civilized society’ into its institutional arrangements (Wortman 2006, 204). Shamil enjoyed celebrity status in Europe where he was presented as a leader of an ethnic cultural movement reacting against a backward empire. The presentation of a ‘nationalist’ leader as a participant in a civilizing mission led by the Tsar was designed to show that Russia had reached the position where it could promote “an Asian mission, to carry Enlightenment eastward, and to mediate between Europe and the Orient” (Barrett 1994, 363, quoted by Linklater 2016). (As noteworthy is Shamil’s ready complaisance to his elevation.) Following the Meiji Restoration of 1868, Japanese intellectuals gave the European idea of the standard of civilization various new meanings in line with Japan’s military strength and political convenience. In Yukichi Fukuzawa’s (1835–1901) writings, ‘civilization’ came to appear as a language of self-defence. To preserve its independence, ran the argument, Japan had to “transform itself into a European-style nation-state that possessed the astonishing political and military powers that the revolutionary idea of the ‘imagined community’ of co-nationals had made possible” (Suzuki 2009). The harshness of Western involvement in China provided a dark reminder of what might lie ahead if Japan failed to make a rapid transition to modern statehood. He advocated for learning from Western civilization and setting it as the goal for Japan, declining to attribute any inherent value to it. He conceived of civilization “within an instrumental framework of partisan, biased national interest: European civilization as the means of preserving independence, not as an end” (Shahabuddin 2018). The concept of civilization as self-defence morphed into the proposition that imperialism was civilization. Yukichi contended that Japan could not wait patiently for other Asian countries to become sufficiently civilized to want to join it in a coalition against the West. He maintained that the only course of action was to adopt the most distinctive feature of the Western orientation to the wider world and place it at the centre of Japan’s relations with societies such as Korea, China and Taiwan—in other words, imperialism. In the attempt to overturn European views that it was no more than a ‘semi-civilized’ society, the Japanese government established

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colonial rule in Taiwan in 1874 “with the explicit aim of demonstrating its capacity and willingness to bring the blessings of ‘civilisation’ to an ‘uncivilised’ people” (Suzuki 2009, 153). What facilitated this shift, according to Shahabuddin (2018), was the realization by the protagonists of Japanese modernization that their march towards civilization would not secure necessary recognition as a civilized nation from the West. Andrew Linklater (2016) confined the role of the standard to the globalizing world of the late nineteenth-century imperialisms and characterized it in as fair a manner as the subject can admit: Those innovations were testimony to the influence of the European ‘standard of civilisation’—to its role in encouraging peoples in the ‘semi-civilised’ world to reflect on their place within the lengthening political and economic entanglements that radiated outwards from the West, to consider how the more powerful regarded them, to overhaul ‘outmoded’ political institutions and to monitor closely whether or not they were ‘progressing’ towards ‘civilisation’.

Georg Schwarzenberger summarized the diplomatic practice in 1955 as “sufficiently stable to undertake binding commitments under international law, and whether it was able and willing to adequately protect the life, liberty and property of foreigners”. Its effect on the society of states was registered by the Five-Power Naval Treaty of 1922 to which the United States and Japan were signatories, indicating that Japan had entered into the ranks of ‘the civilized’. The last great conference in which Russia participated was the Berlin Conference of 1885 establishing free trade in Africa, in which it had little direct interest; Iver Neumann suggests that it was already falling out of the ranks (Neumann 2008.) In 1852, Alexis de Tocqueville addressed the French Academy of Moral and Political Science on the nature and subjects of political science, in which he characterized “the society of nations” as it had progressed in the thirty-five years following the Restoration in terms of a civility that took some effort to maintain. The famous quote is usually rendered as “this society of nations where each people is a citizen, a society always a little barbaric, even in the most civilized centuries, whatever effort one makes to soften and regulate the relations between the people who compose it”. It would scarcely surprise if the ‘little barbaric’ did not refer to the chaotic establishment of a French republic in 1848 and the coordinated efforts of

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Austria, Prussia, Russia and even republican France to defeat the uprisings in Germany, Italy and Eastern Europe. But a society in which “each people is a citizen” is nonetheless a society—and one, it seems, of autonomous entities with rights. Moreover, he graced ‘this society’ as worthy of being considered in a scientific manner, like other societies, in terms of categories of thought that inform the choices of the governors: Among all civilized peoples, the political sciences give birth or at least the form to general ideas, from which then emerge the particular facts, in the midst of which politicians are agitated, as well as the laws which they believe they invented…from which the spirit of the governed and those who govern both draw, often without knowing it, sometimes without wanting it, the principles of their conduct. (Tocqueville 1852)

It is worth observing that the persons he credited with giving form to the general ideas surrounding the international society of the 1850s were Pufendorf and Grotius, now become ‘political scientists’.

References Albrecht-Carrie, Rene, ed. 1968. The Concert of Europe: Selected Documents. London: Palgrave Macmillan. Baker, Elizabeth. 1937. Henry Wheaton 1785–1848. Philadelphia: University of Pennsylvania Press. Barrett, T.M. 1994. The Remaking of the Lion of Dagestan: Shamil in Captivity. The Russian Review 53 (3): 353–366. Cain, Peter. 2012. Character, ‘Ordered Liberty’, and the Mission to Civilise: British Moral Justification of Empire, 1870–1914. The Journal of Imperial and Commonwealth History 40 (4): 557–578. Clark, Ian. 2011. Hegemony in International Society. Oxford: Oxford University Press. Cobden, Richard. 1835. The Political Writings of Richard Cobden, with a Preface by Lord Welby. Vol. 1. London: T. Fisher Unwin. https://oll.libertyfund.org/ titles/82. Englehart, Neil. 2010. Representing Civilization: Solidarism, Ornamentalism, and Siam’s Entry into International Society. European Journal of International Relations 16 (3): 417–439. Gautier, Theophile. 1912/1867. The Travels of Theophile Gautier Volume 1 Travels in Russia. Translated and edited by F.C.  Sumichrast. Boston: Little Brown. https://archive.org/stream/travelsoftheoph04gaut/travelsoftheoph04 gaut#page/n9/mode/1up

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Gentz, Frederick. 1806. Fragments on the Balance of Power in Europe. London: M. Peltier. https://books.google.gr/books?id=VQIMAAAAYAcerAJ&pg=PP 9&hl=pt-­BR&source=gbs_selected_pages&redir_esc=y#v=snippet&q=Bala nce&f=false. Gong, G.W. 1984. The Standard of ‘Civilisation’ in International Society. Oxford: Clarendon Press. Kayaoğlu, Turan. 2010. Legal Imperialism. Cambridge: Cambridge University Press. Koskenniemi, Martti. 1990. The Politics of International Law. European Journal of International Law 1 (4): 1–29. ———. 2011. Histories of International Law: Dealing with Eurocentrism. Inaugural Lecture Delivered on 16 November 2011 on the Occasion of Accepting the Treaty of Utrecht Chair at Utrecht University. https://www. uu.nl/sites/default/files/gw_koskenniemi_martti_oratie_definitief.pdf ———. 2016. Race, Hierarchy and International Law: Lorimer’s Legal Science. European Journal of International Law 27 (2): 415–429. Langhorne, Richard. 1986. Reflections on the Significance of the Congress of Vienna. Review of International Studies 12 (4): 313–324. Linklater, Andrew. 2016. The ‘Standard of Civilisation’ in World Politics. Human Figurations 5: 2. http://hdl.handle.net/2027/spo.11217607.0005.205. Liu, Lydia. 2012. Henry Wheaton. In The Oxford Handbook of the History of International Law, ed. B.  Fassbender and A.  Peters, 1132–1136. Oxford: Oxford University Press. Lorimer, James. 1883. The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities, Vol. 1 (Volume 2 was published in 1884). Edinburgh: Blackwood. Lorimer, Douglas. 1988. Theoretical Racism in Late Victorian Anthropology, 1870–1900. Victorian Studies 31 (3): 405–430. Neumann, Iver. 2008. Russia as a Great Power, 1815–2007. Journal of International Relations and Development 11 (2): 128–151. Onuf, Nicholas. 2000. Henry Wheaton and the “Golden Age” of International Law. International Legal Theory 6 (1): 2–9. https://law.ubalt.edu/centers/ cicl/publications/docs/ILT_06_1_2000.pdf. Oppenheim, Lassa. 1905. International Law: A Treatise. London: Longmans, Green and Co. Schulin, Ernst. 1988. Ranke’s Universal History and National History. Syracuse Scholar 9 (1): 9–18. https://surface.syr.edu/suscholar/vol9/iss1/3. Schwarzenberger, Georg. 1955. The Standard of Civilisation in International Law. Current Legal Problems 8 (1): 212–234. Shahabuddin, Mohammad. 2018. The ‘Standard of Civilization’ in International Law Intellectual Perspectives from Pre-war Japan. Leiden Journal of International Law 32 (1): 13–32.

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Suzuki, Shogo. 2009. Civilization and Empire: China and Japan’s Encounter with European International Society. Abingdon: Routledge. Tocqueville, Alexis. 1852. The Usefulness of the Social Sciences and the Power of Ideas. Speech to the annual public meeting of the Academy of Moral and Political Sciences. December. www.institutcoppet.org/lutilite-­des-­sciences­sociales-­et-­la-­puissance-­des-­idees-­par-­alexis-­de-­tocqueville-­1852/ Webster, Charles Kingsley. 1920. The Concert of Europe. London: Foreign Office. Westlake, John. 1914. The Collected Papers of John Westlake on Public International Law. Edited by L. Oppenheim. Cambridge: Cambridge University Press. Wheaton, Henry. 1836. Elements of International law. Philadelphia: Carey, Lea & Blanchard. https://www.google.co.uk/books/edition/Elements_of_ International_Law/umued5KGUSAC?hl=en. ———. 1866. Elements of International Law, 8th ed. Edited by Richard Henry Dana, Jr. Boston: Little Brown. Wight, Martin. 1977. Systems of States. Leicester: Leicester University Press. Wortman, Richard. 2006. Scenarios of Power: Myth and Ceremony in Russian Monarchy from Peter the Great to the Abdication of Nicholas II. Princeton: Princeton University Press.

CHAPTER 7

Civilization as Humanity: The ‘Men of 1873’, John Westlake and the Grotius Society

After 1848, liberal activists sought increasingly to use the law to influence the course of European modernity —M. Koskenniemi, A History of International Histories, p. 954

John Austin’s 1831 jurisprudence has often been signalled as the start of a legal positivism that would enshrine the doctrine of state sovereignty in which states are unfettered by no law but their own constitutional law. But it did not. Koskenniemi has characterized the Austinian notion of law as the command of the sovereign as a deviation in the context of the nineteenth century, and David Kennedy 1996 quotes with approval Austin’s 1837 characterization of nineteenth-century international law as “law…set by general opinion”: The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected. (Austin 2018, 226)

If at the beginning of the twentieth century this famous paragraph would state a challenge, through most of the nineteenth century it was, according to Kennedy (1996, 112), “a plausible enough description of © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1_7

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how the international legal system actually functions”. Up to 1856 at least, “it seemed obvious that there were restrictions on sovereignty, and natural to experience sovereigns always already enmeshed in a system of rules” (p. 116). After 1856, what changed was not the system of rules, but the spirit of the rules—neither the protection of the Vienna order nor service to the new nationalism. Sovereignty came to be seen as in service to a body of law that would direct and amplify a civilizing project. The project was humanizing the laws of war. The Crimean War had witnessed the introduction into war practice of shell and shot whose explicit purpose was to wound rather than kill, scattering shot that spread. Its effect was to leave thousands of dead and dying on the field of battle. Publicity in the new pictorial weeklies raised a volley of concern in progressive circles, and in 1864, the Swiss government called sixteen European states to Geneva to consider the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. The convention, drafted by a Geneva Committee of five private citizens led by Henri Dunant, was accepted without alteration. In 1868, Czar Alexander followed the Swiss example, initiating the conference that led to the St Petersburg Declaration renouncing the use of explosive projectiles under 400 grammes weight. In 1874, encouraged by the signatures of nineteen state parties, including all the Concert Powers, he proposed a second: a full-scale Project of an International Declaration concerning the Laws and Customs of War. Meeting in Brussels, fifteen of the twenty-two state-entities who had signed the Treaty of Paris of 1814 accepted the Russian-prepared draft with minor revisions, which formed the Brussels Declaration concerning the Laws and Conventions of War. As a declaration of intent, it did not enter into force directly; rather, it formed the basis for the codification of the laws of war at the 1899 and 1907 Hague Peace Conferences. According to Geoffrey Best, the “legislative landmarks between 1859 and 1909…appeared as part of the mosaic of modern civilization” (Best 1983, 129). Michel Barnett’s history of humanitarianism has located the “passion for compassion” in the aftermath of the French Revolution and in the emerging religious idea of Awakening—a spiritual development that raised an individual’s moral consciousness and that “conferred on individuals responsibility for their own actions” (2011, 53). Among the earliest objects of compassion, prominent among reformers in Europe and America, were slaves—the abolitionist movement had taken a political form in Britain in 1789, when Wilberforce addressed the House of

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Commons. The Commons banned the practice in 1807, and in 1814, with the international Congress at Vienna pending, Parliament petitioned the King to use his endeavours “to procure the abolition of all civilised nations, of this infamous practice”. Accordingly, in 1815, the individual as an object of international law made its first appearance, in the Declaration on the abolition of the slave trade, which made slaves objects of international law. At Vienna, the four coalition states, eventually joined by France, promised to abandon slavery, which became an obligation in 1834. Other appearances followed. In 1857, privateering was abolished, which rendered privateers in effect as pirates and outlaws, and it outlawed the practice of seizing private persons as slaves and hostages. In 1863, the Lieber Code, codifying the customary law of war, entered into the domestic law of the United States. For use by the Union army, it insisted upon the humane treatment of populations in occupied areas, forbade the use of torture and described the rights and duties of prisoners of war. Heilborn’s 1896 Das System des Völkerrechts discussing the objects of international law included slaves, privateers and prisoners of war (Manner 1952, 428n). The idea that international law could be a vehicle for the alleviation of human suffering is credited to Henry Dunant, Swiss businessman and reformer, who witnessed the full horror of modern shot in the aftermath of the battle on the fields of Solferino in 1859 and who recorded it in his famous memoir. He founded the Geneva Committee with the express purpose of achieving a code directed to alleviating the suffering of soldiers on the field of battle. The novelty of the project lay in its execution: the 1840 World Antislavery Convention in London (a meeting of Anglo-­ American reformers to consider the further requirements of freeing slaves) had attempted no more than a programme of action for the civil society groups in attendance; Henri Dunant’s Geneva Committee went further and immediately engaged the interest of the Swiss Government in a concrete project, before it had even been drafted. Secondly, Dunant engaged professionals to join him in drafting the project: Gustave Moynier, Dr Louis Appia, Dr Théodore Maunoir and General Dufour—Moynier was the lawyer, Appia and Maunoir were surgeons and Dufour was a professional soldier. The state ministers’ meeting at Geneva in 1864 did not alter the draft, and the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was signed on 22 August, the first Geneva Convention. The practice of engaging specialists in the drafting of reports and conventions was continued at St Petersburg in 1866 and

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thereafter, joining a rational fraternity of international lawyers to the project of civilizing the international order. Three years after the Geneva meeting and one year after the Petersburg Protocol, Britain’s first chair in international law was founded, the Whewell chair at Cambridge in 1867, which took its inspiration from these endeavours. The founder, scientist and moralist William Whewell laid “an express injunction on the occupant of this chair that he should make it his aim in all parts of his treatment of the subject, to lay down such rules and suggest such measures as might tend to diminish the evils of war and finally to extinguish war among nations” (Sumner 1888, 1). The St Petersburg Declaration forbidding the use of explosive projectiles expresses the self-understanding of the state signatories. In their collective view: the progress of civilization should have the effect of alleviating as much as possible the calamities of war; That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity.

The authority to act so as to limit such arms was claimed in terms of a self-authorized Concert: The Contracting or Acceding Parties reserve to themselves to come hereafter to an understanding whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the armament of troops, in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity. (ICRC 1868)

It is understood as a universalizing project: the Declaration continues, “The Contracting Parties…will invite all the States which have not taken part in the deliberations of the International Military Commission assembled at St. Petersburg by sending Delegates thereto, to accede to the present engagement.” As they do, they will be participating in a common sovereignty (“The Contracting Parties…reserve to themselves [my italics] to come hereafter…”). The operative political concept is civilization—society

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now deemed to be in a condition of progress, guided by the “laws of humanity”. The idea of a society of states as expressed in the St Petersburg Declaration was of a collective sovereignty of civilized states dedicated to a modernizing project. That project was not the abolition of war but rather its regulation, initially in terms of needless suffering by soldiers in the field, but soon extending to civilian populations and prisoners of war. The engine of civilization was a legal process that would bind and commit states by means of a series of legal enactments, gradually widening in respect to both the objects of the law (soldiers, populations, prisoners) and willingness to commit (by states and other public authorities). Its legislators were described by Lord Salisbury to the House in 1897 as the Great Powers “by virtue of the position assumed by them, the legislature of Europe” (HCDeb 19 July 1897 c418). It was with such a consciousness of the law as an engine of civilization that, after the Franco-Prussian War of 1870–1871, a group of lawyers decided to establish an Institut de Droit International to propagate cosmopolitan ideas and reforms, specifically as members of a legal profession. Founded on 8 September 1873 by Gustave Moynier and Gustave Rolin-­ Jaequemyns at the Ghent Town Hall in Belgium (Moynier had drafted the Geneva Convention and Jaequemyns had served at Petersburg), they had been appalled to observe that the 1864 Geneva Convention had met with such little compliance during the Franco-Prussian War. It was to be an institution independent of any governmental influence that would be able to both contribute to the development of international law and act so that it might be implemented. The eleven founders were and conceived of themselves to be an international brotherhood in service to civilizational reform. They were Pascal Mancini (from Rome), President Emile de Laveleye (from Liege); Tobias Michel Charles Asser (from Amsterdam); James Lorimer (from Edinburgh); Wladimir Besobrassof (from Saint-Petersburg); Gustave Moynier (from Geneva); Jean Gaspar Bluntschli (from Heidelberg); Augusto Pierantoni (from Naples); Charles Calvo (from Buenos Aires); Gustave Rolin-­ Jaequemyns (from Ghent) and David Dudley Field (from New York). At its session in Geneva in 1874, the Institute appointed a committee to study the Brussels Declaration of the same year (see earlier) and to submit to the Institute its opinion and supplementary proposals on the subject. The committee put together a Manual of the Laws and Customs of War

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(called the Oxford Manual) that was adopted by the Assembly of the Institute in 1880. Together with the Declaration and the Lieber Code, it formed the basis for the codification of the laws of war at the 1899 Hague Peace Conference. The Institute met (and continues to meet) every two years (the 2017 meeting was in Hyderabad). Between sessions, Scientific Commissions study themes chosen by the plenary Assembly (the one in Hyderabad was on Human Rights and Cultural Pluralism). The Assembly receives the work of the Commissions, considers the proposals and if appropriate adopts resolutions of a normative character, which are communicated to governments and to the International Law Commission. The work which provided the Institute with its orientation was Grotius’ On the Law of War and Peace, which enjoyed an enthusiastic revival in the second half of the nineteenth century. Holdings of the British libraries record 135 publications by or about Grotius following Whewell’s translation of 1853, after a virtual dearth a century earlier (see https://discover. libraryhub.jisc.ac.uk). First translated for the Cambridge syndics (as Grotius on the Rights of War and Peace: An Abridged Translation), Grotius provided the modernizing lawyers with a detailed description of the various laws of war, both of the jus in bellum and of the jus ad bellum, as had been practised by civilized peoples as well as the less-than-civilized since the beginning of recorded time. Nothing had surpassed it in the intervening two and a half centuries until Lieber’s code, which was essentially a liberal selection from Whewell’s English rendering of Part III, the jus in bello. Its importance, beyond recording the many efforts at restraining war, was its methodological treatment of the war codes in terms of both principle and practice. Grotius provided the men of 1873 with an international law suited to their progressive goals, in that it drew on both natural law propositions and positive legal developments. Nor was its interest confined to lawyers. The peace societies of the time almost without exception traced back to the Grotius the evolving conscience of the ‘civilized’ world towards justice and mercy in international conflicts, despite the fact, generally recognized, that Grotius had provided a right to war (e.g. Anon. 1827). John Westlake, Whewell Professor from 1888 to 1908 and Britain’s leading theorist of international law during his tenure, joined the Institute in 1875, adding a conception of human rights to the humanitarian agenda. Born into a dissenting family in Cornwall, Westlake completed Cambridge in mathematics and classics and was called to the bar, eventually becoming Whewell professor following Henry Maine and preceding

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Lassa Oppenheim. Westlake was a dissenter and a founder of Working Men’s Colleges where he associated with Christian Socialists. He emphasized “activism, charity and the sense of personal responsibility, as central ideas around which international law was constructed” (Koskenniemi 2001, 76). He understood ‘European civilization’ in terms of a dissenter’s Christian duty. His collected papers (Westlake 1914), in which he expressed his general views of international law, open with a correction of Austin’s dismissal of international law as Law. He gently chides Austin for having misunderstood the nature of law, which is among other things “the rules which the conscience of man requires”. Considering what is meant by rules between states, Westlake is emphatic. “It is meant that states form a society, the members of which claim from each other the observance of certain lines of conduct.” His conception of international society was not a voluntary one. Westlake eschewed contractarian conceptions of law and based the law on what ‘the conscience of man dictates’. More Benthamite that Grotian, he declared: “The men who compose any state derive benefits from it and cannot at their pleasure only adhere to it in part and not altogether. The existence in geographical proximity to it of a state which was not bound by its rules would be the source of intolerable inconvenience and danger to the society.” He felt sufficiently bound to Grotius, however, to affirm that the social nature of man as understood by Grotius “lies at the bottom of these reasons” (p. 79). Originally an expert on private international law, he had become acquainted with Tobias Asser and Rolin-Jaequemyns at a congress of the Association Internationale pour le Progrès des Sciènces Sociales (International Association for the Progress of Social Sciences), which Rolin-Jaequemyns founded. The trio decided to establish the Revue de Droit International et de Législation Comparée (Review of International Law and Comparative Legislation), the first academic journal devoted to international law. Westlake served as sometime president of the Institute and provided the guiding theory to the lawyers’ efforts. He maintained that because the institutional structure of international law was weak and because an international power to define and defend the law was not available, the role of the international jurist was central. The progressive stance of the international lawyer could compensate for the inadequacies of the institutional structure of the international legal order by close reporting, legal argument and ethical guidance. It could provide the expertise which

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governments lacked. (Lauterpacht would follow Westlake in making a similar argument in The Development of Law by the International Court.) The foundation of his international law was the proposition that states are “intermediaries only”. He conceived the duties and rights of states in terms of the duties and rights of individuals, rejecting entirely the idea that a state had special responsibilities beyond those of the individuals who reside in it and who constitute it. His mantra was “The duties and rights of states are only the duties and rights of men who compose it” (Westlake 1914, 78). His theory concerning the authority of the law followed: The society of states “having European civilisation exists among men [individuals], and the general consensus among its members is the only authority that came make rules for it” (p. 78). He viewed international law in terms of an international public conscience and imagined that such a conscience had direct effect. Like his colleagues, he associated international law with the advance of civilization: International law was coexistent with “the general consensus of opinion within the limits of European civilisation”, a view as firmly held by his successor and memorializer, Lassa Oppenheim, who also maintained that consensus among the civilized was the source of the law’s authority. (Westlake allowed, however, as Wheaton before him had not done, that reciprocity in its application was possible, so long as Christianity was understood more ethically than theologically.) His view of law as public conscience led him to source the law in practice more than in convention, declaration or formal treaty, not in the sense of a number of purely voluntary acts “but the thing has been done or abstained from in the persuasion that such was the law” (Westlake 1914, xxiv). Practice included opinion: appeal to practice “forces us also to consider opinion, either because no practice exists or such practice as does exist has ceased to carry the persuasion of law”. The touchstone of Westlake’s international law was his view of the relations between states and humans in times of war. War at the present state of civilization was the means of asserting right—it was an instrument of justice, but with every measure of humanity. War was a condition from state to state, in which the particulars were only enemies accidentally, not as individuals and not even as citizens, but rather as defenders, and it was only as defenders that they were subject to attack. When they ceased being defenders, they deserved every consideration as humans, with the rights and obligations of humans. He argued that the laws of war as they had actually developed historically were primarily concerned to protect the helpless, the wounded soldier and private property and to regulate

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occupation against devastation and plundering. The whole content of the international law of war as argued by Westlake was essentially the jus in bello, and it could only be suspended by necessity in the most extreme conditions. For Westlake, international society was a historical fact, but in different degrees. He was firmly among that number Koskenniemi identifies as characteristic of the nineteenth century, who considered the community of states in terms of a public law of Europe, and, in his case, a public law in continuous development. Westlake held that different ages differed in the degree to which a real society of human rights and obligations had existed between states. Chapters 2, 3, 4, and 5 of his collected papers considered events and thinkers in respect of how they elucidate the nature and depth of the international society at the relevant time. There is no talk in Westlake of human rights in the sense of humans with direct rights protected by international law, as in the contemporary understanding. His view rather was that state relations should be modelled on human relations considered in terms of the rights and obligations of a Christian in a civilized society, what has been termed the ‘Victorian tradition’ in international law (Koskenniemi 1997). (In such a view, obligations are as relevant as rights.) This view he carried into the Institute, orienting its work in a Christian progressive understanding, and guiding opinion for long thereafter. In 1925, Hersch Lauterpacht, considering the relevance of Westlake’s progressive doctrine, judged that the supervening political changes, vast as they were, would require only “minor alterations” in Westlake’s work (Lauterpacht 1925, 400). Westlake’s views and the Institute’s efforts were carried into the Grotius Society, the British society founded in 1915 to carry on the work of the Institut de Droit International whose meetings had been disrupted by the war and its work suspended for the duration. Founded by a group of British lawyers, ‘domestic’ as well as international, they were as determined to continue Westlake’s influence in the realm of international legal processes as to survey the progress of the laws of war. According to Professor Henry Goudy, Regius professor of International Law at Oxford and its first director, the object in founding the society “has been to afford an opportunity to those interested in International Law of discussing from a cosmopolitan point of view the acts of belligerents and neutrals” (i.e. the law of war). The underlying orientation was the view that relations of states should aspire to the relations of individuals of character: as Goudy continued, “if it is to have any standing authority, [international law]

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must be based on the fundamental principle of human rights and must give effect to the common welfare of nations”. John Westlake was frequently cited in its papers, and his conception of international law as the reflection of the rights and duties of individuals was pervasive in its reports on human rights in international law. Its Transactions forwarded pacifism, human rights and an international rule of law as much or more than it served a system of independent nation-states that pursue their own interests. The Grotius Society focused on the reforming efforts of the international lawyers (and others) in Britain. In political science terms, it provided for expertise, aggregation and voice. Its Transactions appeared annually until 1959. In the early years it kept an eye on the development of weaponry and a steady focus on the treatment of humans in war and conflict situations. During the 1920s, it tracked institutional and legal developments of the League with an eye to identifying obstacles to the realization of its aims. The 1924 edition of the Transactions considered Article 10 of the League in relation to the American abstention and how to circumvent U.S. objections, the expansion of arbitration in relations to sanctions and the attitude of the German people to the League, the latter with a view to Germany’s eventual membership. It considered political as well as legal issues as they impinged on its aims and called on a variety of expertise in service of those aims. (The historian G. P. Gooch contributed the analysis on the attitudes of the German people to the League.) It was a collective instance of Koskenniemi’s ‘gentle civilizers’. Following Westlake, the second most frequently quoted source in the Society’s meetings was Grotius. Items on Grotius appeared regularly in the Society’s Transactions, sometimes with reference to the historical Grotius, sometimes in reference to a specific area of law, such as the law of the sea (particularly in respect of the Selden/Grotius dispute) and frequently with reference to international law and its status more generally. That Grotius had prepared the first digest of the international law of war was seldom questioned, much less that he had proposed the ‘right way’ to understand international law, which was the ‘equal emphasis on the positive and naturalist outlook’. He was seen as prefiguring the modern outlawing of war (e.g. Mandere 1925) and looked to as a prime supporter for the ‘naturalist’ outlook. The natural law revival of the beginning of the twentieth century was generally accepted to have been anticipated by the codification of the laws of war at The Hague, and that in turn attributed to the naturalism of Grotius and to Grotius as the ideologist of restraint in war (see Nabulsi 1999).

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(In 1958, the Grotius Society formed the British Institute of International and Comparative Law or BIICL in a merger with the Society of Comparative Legislation. A successor ‘Grotian Society’ was founded immediately thereafter by C. H. Alexandrowicz then at the University of Sidney, with branches in Australia, Britain and India, dedicated to the study of the history of international law, which published several noted histories of international law, the 1968 volume in collaboration with the BIICL.  The society’s name was chosen deliberately, according to Alexandrowicz to “give expression to the Grotian ideology with its equal emphasis on the positive and naturalist outlook”: Alexandrowicz 1967, 1058.) The Institute, Westlake and the Grotius Society belonged to a reputed ‘golden age of international law’, whose repute had not a little to do with international lawyers consciously constructing a legal carapace for the humanizing of war in the second half of the nineteenth century. This ‘civilizing’ of the society of states fell into the hand of a professional corps that self-consciously put itself into its service. Lawyers directed the law of nations towards liberal understandings of the status of individuals and the need for their protection. They went into partnership with sovereigns who aspired to be ‘modern’ and who called upon their skills; in return, they rejoiced in a sovereignty that could be directed towards progressive ends. In consequence, concerting took on the aspect of a progressive vehicle that could be steered, and the function of a supreme legislative authority that could be guided. The society of states became identified with a collectivity of state authorities regulating the ultimate sanction at a state’s disposal. Treitschke, a theorist of the power state and one of the founders of modern political realism, viewed the emerging laws of war as the purest expression of modern diplomacy and attributed their inspiration to “the continuous growth of civilization, at least on the part of the ‘great nations’” (Navari 2012, 57). He viewed them as the prime expression of an advanced social order, which he hoped a united Germany would soon join.

References Alexandrowicz, C.H. 1967. The Grotian Society. The American Journal of International Law 61 (4): 1058–1058. Anon. 1827. Important Opinions of Grotius. Friend of Peace 5: 161–164 (Cambridge, MA: Metcalfe).

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Austin, John. 2018/1837. The Province of Jurisprudence determined by John Austin. Edited by D. Campbell & P. Thomas. London: Routledge. Barnett, Michael. 2011. Empire of Humanity: A History of Humanitarianism. Ithaca and London: Cornell University Press. Best, Geoffrey. 1983. Humanity in Warfare. London: Methuen. ICRC. 1868. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, November 29/ December 11, 1868. https://ihl-­databases.icrc.org/ihl/full/ declaration1868. Kennedy, David W. 1996. International Law and the Nineteenth Century: History of an Illusion. Nordic Journal of International Law 65 (3–4): 385–420. Koskenniemi, Martti. 1997. Lauterpacht: The Victorian Tradition in International Law. European Journal of International Law 8 (2): 215–263. ———. 2001. The Gentle Civilizer of Nations. Cambridge: Cambridge University Press. Lauterpacht, Hersch. 1925. Westlake and Present Day International Law. Economica 15: 307–325. Mandere, H.C. 1925. Grotius and International Society of Today. The American Political Science Review 19 (4): 800–808. Manner, George. 1952. The Object Theory in International Law. American Journal of International Law 46 (3): 428–449. Nabulsi, Karma. 1999. An Ideology of War, not Peace: Jus in Bello and the Grotian Tradition of War. Journal of Political Ideologies 1 (1): 13–37. Navari, Cornelia. 2012. Treitschke, Social Hatred and the Theory of the Machtstaat. In Public Intellectuals and International Affairs, ed. C.  Navari, 29–61. Dordrecht: Republic of Letters. Sumner, Henry. 1888. Whewell Lectures, International Law, A Series of Lectures Delivered before the University of Cambridge. London: John Murray. Westlake, John. 1914/1894. The Collected Papers of John Westlake on International Law. Edited by L. Oppenheim. Cambridge: Cambridge University Press.

CHAPTER 8

The Recovery of Vitoria and Suarez, and the Apprehension of a World Society: Krabbe, Verdross and Leon Duguit

Law alone is sovereign. Every subject of law who claims to be sovereign immediately rises up against law and denies it. G. Scelle, Precis de Droit de Gens, p. 13

The tradition we have been considering so far is largely a Protestant tradition, which understood international society as a legal order, arising from a consensus rooted in a human appetite for society. It was joined at the end of the nineteenth century by a revival of Catholic ideas of a universal community of mankind. Appearing almost simultaneously in Holland, Germany and France, it considered international society not as a legal order but as an essentially normative order rooted in a universal human conscience. It argued the doctrine of a ‘higher law’ that existed above the jus gentium, a moral law that a universal human conscience could apprehend. The higher law infused international society from above, directing its juridical order legally, functionally and ethically. The immediate inspiration to the recovery of Catholic ideas of international society was the strongly positivist conception of international law arising in Germany, which proposed and defended legal dualism. Hegel’s individualistic conception of international law as each sovereign state’s ‘external state law’, based upon its self-commitment and nothing more, had exerted a powerful influence on nineteenth-century legal positivism, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1_8

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especially in Germany. One of the leading public international lawyers of the last quarter of the nineteenth century was Georg Jellinek (1880), who vigorously defended the view that the basis of obligation of international law was self-commitment (Selbstverpflichtung). Taken to its logical conclusion, the idea of self-commitment led to the doctrine of the superiority, or primacy, of national law over international law—a view dissolving the unity of international law into a variety of “externally orientated imperatives” (inausgerichtete Imperative) and rendering international society as nothing more than a sum of national imperatives. More broadly, the recovery was part of the reaction to the Kulturkampf (‘culture struggle’)—the conflict between the government of the Kingdom of Prussia and the Roman Catholic Church from about 1872 to 1878, predominantly over the control of educational and ecclesiastical appointments. From 1871 to 1876, the Prussian state parliament and the federal legislature (Reichstag), both with liberal majorities, enacted twenty-two laws in the context of the Kulturkampf. They were mainly directed against clerics: bishops, priests and religious orders, regulating internal appointments and forbidding clerics, of any order, from making state affairs the subject of discussion or sermons (Atkin and Tallett 2003, 130–140). Nor was this merely a German phenomenon. Under the influence of the new philosophies and ideologies of nationalism, secularism, liberalism and enlightenment, the role of religion in society and the relationship between society and church had become intellectually and politically threatened, including and beyond anti-clerical France. In 1861, having lost most of its territories to Italy, the church was at the weakest point in its history with the pope a claimed ‘prisoner in the Vatican’. Many countries endeavoured to strip the church of its worldly powers, to reduce the duties of the church to spiritual affairs by secularizing the public sphere and by the separation of church and state to assert the supremacy of the state, especially in education. Across Europe, governments engineered home-grown versions of Kulturkampf, especially in strongholds of liberalism, anti-clericalism and anti-Catholicism (see Clark 2003). In the 1870s, the Catholic Church began to fight back, beginning with the rejection of the Law of Guarantees by which the Italian state had attempted to turn the pope into an Italian citizen, formally establishing a claim to universal jurisdiction in matters of faith. Aiming to maintain and even strengthen its role in the state and especially in society, it strove to keep sway in such matters as marriage, family and education. It initiated a Catholic revival by founding papers, schools, social establishments or new

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orders and by encouraging religious practices such as pilgrimages, mass assemblies, the devotion of the Virgin Mary or the sacred heart of Jesus and the veneration of relics. The doctrine of papal infallibility was defined dogmatically at the First Vatican Council of 1869–1870 in the document Eternal Father by which the pope himself became an object of devotion. Along with an extraordinary proliferation of religious orders, the nineteenth century also witnessed the rise of countless Catholic associations and organizations, especially in Germany and in France. Catholic propaganda included the interpretation of daily events, spread through local and national Catholic newspapers prominent in all Western European nations, as well as through organized missions and groups dedicated to pious literature. The intellectual movement behind these efforts was ‘Thomism’. Church authorities and some university faculties had become convinced that the Christian faith could be defended against modern idealist and subjectivist philosophies by deploying the philosophical realism of Aristotle and Aquinas. In opposition to Hegel’s view of reality as the self-realization of ‘Spirit’, they affirmed the stability of aspects of the external world. Priests in the Jesuit order, especially threatened by secularism, became advocates for the study of Aquinas and other Scholastics in the light of modern intellectual and social issues. Pope Leo XIII gave official support to their efforts (in the encyclical formally entitled Aeterni Patris, 1879). It called for a restoration of the Christian philosophy of the Church Fathers and scholastics in meeting contemporary problems, augmented where necessary by reliable advances of modern research. The Code of Canon Law of 1917, the official compilation of church law, required that Catholic teachers of philosophy and religion follow the method and principles of Aquinas, establishing Thomism as the official philosophy of the Roman Catholic Church. The idea of ‘sound doctrine’ to meet contemporary problems brought with it the revival of Francisco Suarez, the “exceptional and pious doctor” (Doctor Eximius et Pius), born 5 January 1548, Granada, Spain, and died 25 September 1617, Lisbon, Spanish theologian and philosopher, often considered the most prominent scholastic philosopher after Aquinas and regarded in his own time as an advanced thinker. Suarez had argued for the natural rights of the human individual to life, liberty and property and had rejected the Aristotelian notion of slavery as the natural condition of certain peoples. He criticized most of the practices of Spanish colonization in the Indies in his De Bello et de Indis (“On War and the Indies”). He viewed the islands of the Indies as sovereign states legally equal to Spain as

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members of a worldwide community of nations. The Jesuits of the nineteenth century who revived Suarez balanced his work with that of Aquinas, other philosophers and socio-political phenomena of the time. ‘Suarezianism’ became the approach of expanding or, sometimes, refining Aquinas’ ideas in ways that could accommodate the intellectual and cultural developments of the time (see Harvanek 1963). The elements of Suarez that recommended him to international law theorists and social reformers revolved around his idea of a harmony between human structures and the divine plan. He had posited a natural law with which human beings are familiar, not through subjective moral awareness but through an experience of “charity and mercy” (translated in modern accounts as “solidarity”: see e.g. Borges de Macedo 2017, 237), itself part of the divine plan. It was Suarez who had assigned the task of ordering relations between nations to international law, through the agency of something like a global community. Positing the existence of a human society that transcended political and religious boundaries as well as the need for norms in such a society, he argued, against St Thomas, that Reason (understood as a direct apprehension of God’s nature) could not provide all the norms required. Rather than reason, an international law that stemmed from “the shared needs of peoples” could. (Suarez’s formulation, rendered by Villa (1997), reads “because each community never enjoys so absolute an autonomy that it does not need any help, common association or exchange”.) In modern terms, Suarez invoked the concept of interdependence as a pillar of international law and a basis for ensuring peace, justice, freedom, progress and coexistence. Westlake recorded “with a master’s hand” (Sherwood 1926) Suarez’s propositions on the necessity of a human society transcending states, the indispensability of rules for that society and the right of human society to reform on the basis of a “custom in conformity with nature” (Westlake 1914, 28). The Catholic canon law jurists had introduced the idea of a law of ultimate justice over and above the momentary law of the state—a higher law—into post-Roman Europe. The term ‘higher law’ can indicate a divine or natural law, but it can also be understood as a basic legal value, as, for example, the concept of international law as a higher law. Hans Kelsen’s notion of a ‘ground norm’ is a direct expression of the ‘higher law’ as a basic legal value transcending constitutional law and even custom or practice in international law. In either case, it is definitely a law above the law. As such, it possesses equal legal value to both the common and the civil law, as well as to positive international law. It is also opposed to

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natural law in the degree to which the latter is identified with common law. It was by invoking a rule according to a higher law that allied prosecutors proceeded to the punishment of war crimes following the Second World War. The contemporary notions of jus cogens and a legal obligation ergo omnes are other instances of a higher law. Suarez drew his notion of the law of nations as a form of higher law from Vitoria. Proceeding from the Thomist assumption that men are social beings by their very nature, Vitoria had concluded accordingly that separate communities (gentes) also shared this characteristic. Hence, like individuals, they were in need of a legal order governing their mutual relations, namely the ‘ius inter omnes gentes’. For Vitoria, the community of states was naturally universal; he referred to it as ‘una respublica’, whose purpose was the general well-being of all human beings (bonum commune omnium). From his conception, Suarez elevated the law of nations to a law above state law. Also in the tradition of Vitoria, ‘suarezianism’ distinguished between a jus gentium and a jus inter omes gentes—the first referring to private social relationships and the second to the relationship between states. The first could be understood as a global, human or ‘world society’ and the second as a society of states. It also suggested a dynamic relationship between the two. Father Gerald (Gerald Francis Benkert) would produce The Thomistic Conception of an International Society for the guidance of American Catholics contemplating America’s foreign policy following the war (Washington: Catholic University of America, 1942). Respectful of Suarez but a devotee of Vitoria, he suggested that the global society of humans, expressed in the jus gentium, was the ultimate source of validity for the jus inter omnes gentes, or international society. Anticipating Barry Buzan’s argument by half a century (see Chap. 11), he proposed that change in the international society of states could only come from developments in the global society of humans. Some of the contemporary advocates of suarezianism found it necessary to equivocate with the Grotian revival, on grounds of both historical accuracy and substance. Thus Grotius, at the height of his revival, was “bereft of originality”; Grotius “had dealt less comprehensibly with natural law than either Suarez and Vitoria”. “The chief merit of Vitoria and Suarez lay in the fact that they emphatically asserted—sooner and more effectively than Grotius—that nations are bound by natural law.” They even apprehended before Grotius “a natural law which is independent of God and based on human nature itself”. Above all, Grotius did not

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acknowledge his debt to Suarez. Verdross, below, and Hersch Lauterpacht, later, would effect a truce between the two.

Krabbe, Verdross and the Higher Law The first substantive representative of the Catholic revival in international law was not a Catholic but the son of a Dutch reform minister. Hugo Krabbe (1857–1936) was a lawyer and professor at Leiden University who published The Modern State Idea in 1915. Reviving the teachings of Vitoria and Suarez, he presented municipal legal orders as branches of a universal legal order of mankind. It was the universal order that regulated the competences of the individual municipal systems. Krabbe conceived of international law not as a law between states but as a supranational law anchored in a universal legal conscience. The universal juridical conscience linked all humans and disposed of the law both downwards and upwards— down to municipal authorities and up to international bodies (and also laterally to private bodies), depending on a constant evaluation and re-­ evaluation of interests. Their separate relations are regulated, not by sovereignty but by law itself. These ideas took form from his theory of the state. Sabine’s Introduction to Krabbe’s major work (1922) summarized it thus: The theory presented in this book attempts an explanation of the modem state in terms of the sovereignty of law. It is not necessary to imagine a hypothetical entity or organism to which a quasi-personal authority can be imputed. The theory starts simply from the community itself with the network of jural and moral relations subsisting between its members. The agencies of government fulfil their functions only in connection with these established relations. (p. LXXXI)

According to Krabbe, the state consisted of self-authorizing communities among whose members a web of legal and moral relationships and injunctions had developed autonomously and in keeping with an apprehension of the requirements of mutual dependency. The organization of sovereignty was merely a reflection, and in some versions a distortion of this underlying reality. According to his translator, the theory has “at least the merit of moving in the circle of realities”. It rejected traditional doctrines of sovereignty as a fiction and it “cuts the ground from under all merely formal schematizing of law” (loc. cit.).

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The law that regulated the relations between the state and its various social groupings was a law in evolution. Chapter two of The Modern State Idea (see also The Theory of the Modern State) plotted the changing concept of sovereignty as part of a process of changing legal and political ideas, from the medieval idea of Kingship, to Absolutism, to Rousseau’s idea of popular sovereignty to the nineteenth-century idea of the constitutional order. Krabbe’s purpose was to demonstrate that the authority of the sovereign was being steadily supplanted by the authority of law. The growth of international law, especially through the agency of the League of Nations, was the palpable evidence of this movement as well as its natural conclusion. A transnational law was emerging that both circumscribed and expanded the sovereignty of states according to social needs, and it shaped state sovereignty to the fulfilment of social needs. Alfred Verdross (1890–1980) was a Catholic. Initially a diplomat, he was a founder and professor at the Austrian consular academy from 1922, university professor at the University of Vienna from 1924 to 1960 and judge at the European Court of Human Rights from 1958 to 1977. He was also a member of the International Law Commission and the Institut de Droit International. A student of Hans Kelsen, he took from Kelsen the idea of the unity of law (e.g. Die Einheit des rechtlichen Weltbildes, Tubingen, 1923, translated as “The unity of the legal world view on the basis of the international law constitution”). He was “one of the first scholars who transferred a meaningful concept of constitution to international law” (Kleinlein 2012, 385), but he turned away from Kelsen’s positivism and based his structuring of international law directly on the School of Salamanca, “which was so influential on Verdross that he virtually adopted it as the Leitmotiv of his entire international legal thinking” (Simma 1995, 39). Based on a moral apprehension of peoples, Verdross, like Krabbe, posited an immanent international society in the collectivity of individual human consciousnesses. In his Universelles Volkerrecht (first edition in 1937; third edition 1984) he ordered the universalistic and individualistic conceptions of international law into a relationship of ‘ought’ and ‘is’. In an account that attempted to reconcile the notion of a ‘higher order’ with the self-evident developments in positive international law (and Suarez with Grotius), he gave both the universalist and the positivist conceptions a “sound core” but argued that each missed the other’s argument. Bruno Simma (1995, 40–41) summarizes his argument thus:

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The universalistic view takes as its starting point the normative idea of the moral unity of mankind, that is, an ethical ‘ought’; whereas the individualistic conception concentrates on certain factual situations. The problem is that the individualist conception overrates their importance for the legal system by drawing attention to the mutual rivalry of states and overlooking the common interest that all peoples have in the preservation of peace. On the other hand, the universalistic theory commits a mistake in the opposite direction because it merely contemplates the social nature of states and neglects their factual conduct.

Verdross argued that any realistic theory of law must consider both aspects, particularly with regard to international law, because in spite of the increasing organization of the international system, states self-­evidently confront one another and violate the rules of international law. In consequence, ‘So bleibt es oft “beim Sollen”’ (the situation often does not move beyond the ‘ought’). At the same time, Verdross posited a universalistic conception of law that overreached both (in technical terms, ‘legal monism’). Following Kelsen, he argued that the law is hierarchal, in his case a pyramid whose various levels are commonly understood domestically with constitutional law at the apex, followed by statutory law, executive decrees, administrative ordinances and decisions, in descending order. He argued that the hierarchical character of law is “immanent in law, not extraneous”; that is, it is part of law’s nature as law. The pyramidal structure accordingly raised the question as to the original source of law. On that source, he argued that law is a universal practice—all social orders are based on laws—and as such, legal practice can only rest in a common or universal legal consciousness. On this basis, he advocated the unity of international and domestic law, with international law (or the universal conscience) enjoying primacy. In terms of the specific legal order of his time, he presented positive international law as moving in the direction of the ‘ought’ as he had delineated it. He argued that it was currently involved in a fundamental process of transformation from a mere ius inter potestates to a legal order for mankind as a whole. The last sentence of his Universelles Volkerrecht echoed the Catholic doctrine of subsidiarity in reference to the future organization of the international community: “In necessariis unitas, in dubiis libertas, in omnibus caritas” (unity in essential matters, freedom in non-­essential ones, charity in everything).

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Leon Duguit (1859–1928) and Social Solidarism Leon Duguit, a child of the French Revolution and the leading French constitutional lawyer of his time, turned both theories around. He insisted that the real teaching of Aquinas and Suarez and indeed the constant teaching of Catholic theology was that while power in its idea derived from God, its material exercise derived from the people—understood as a multitude that recognized the political equality of all individuals in society. Like Krabbe and Verdross, he discarded theories that looked upon law as deriving from the authority of the monarch or the state, but unlike them, he did not theorize a universal legal ‘conscience’. Instead, he moved directly to the ‘fact’ that human are social animals endowed with a universal sense or instinct of solidarity and social interdependence and that it was solidarity that was the basis of law. Out of this instinct or sense came the recognition of certain rules of conduct as essential for living together in a society. Duguit presents the state not so much as a law-endowed body, but as an institution that has arisen out of the social needs of humans. Governments, like individuals, are bound by the rules of law that are in turn derived from social necessity. He invented the term ‘Social solidarism jurisprudence’ and was the founder of the theory of public law in the ‘Bordeaux school’, where he was a colleague of Emile Durkheim. Duguit was influenced by August Comte’s rejection of the idea, becoming popular with the nationalist movements (and inherent in positivism), that the law was a historical and subjective artefact, arguing that “the only right which man can possess is the right always to do his duty”. More immediately he was influenced by Emile Durkheim’s Division of Labour in Society (1893) where Durkheim had distinguished between two types of social solidarity, what he called ‘mechanical solidarity’ and ‘organic solidarity’. Within early, undeveloped society, mutual assistance and the combining of aptitudes was necessary to survival and gave rise to a common consciousness. People are bound together by the fact that they share a common conscience. This traditional cohesion Durkheim  had  called mechanical solidarity or solidarity by “similitude”. In such a society, because of the collectivist attitude, individualism would exist only at a low level. In more advanced societies, however, in which the division of labour was widespread, collectivism was replaced by individualism, but an individualism in which individuals were linked by functional interdependence.

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Such links produce an organic solidarity or solidarity by division of labour, which reflected the functional interdependence of humans. Law is not irrelevant to this process; on the contrary, law expresses it and organizes it. But because there is not one single form of social cohesion, there is not one single ideal form of law. Law is an index of social solidarity. Because law tends to reflect different types of social cohesion, different types of solidarity will produced their own forms of law. Duguit did not use the term, but the doctrine would  become known as ‘legal pluralism’, meaning the coexistence of different forms of legal order within the same legal system.

World Society as International Solidarity Duguit’s thinking was carried forward into notions of international society by his student Georges Scelle, the most prominent theoretician during the interwar period of an international community progressing step by step towards social and political integration. As in the case of his mentor, Scelle started off from the phenomenon of solidarity, which is produced not only within state-based communities, contributing to their own wellbeing but also without. In considering the political organization of peoples, Scelle also borrowed from Durkheim and distinguished between two forms of solidarity—solidarity by ‘similarity’ and solidarity by ‘division of labour’. Scelle argued that the first, ‘by similarity’, formed the basis of national exclusivity or nationalism and was in effect being superseded by the forces of modernity. Solidarity by division of labour, on the other hand, is what makes nations as well as individuals indispensable to each other. It corresponds, according to Scelle, to “a law of integration and progress” (Scelle 1932, Thierry 1990). Out of the confluence of people, in their changing interests, grows a social reality of solidarity (in our term ‘interdependence’) which grows locally, regionally, nationally and internationally. States are no less interdependent than peoples, and their interdependent nature produces an organic solidarity. Accordingly, international law should be judged by the same requirement: “Thus the first axiom of his [Scelle’s] legal thought is the primacy of law as an expression of social solidarity” (Thierry 1990, 197); its basis is in human need; and a progressive international law is that which promotes international solidarity. The progressive law was an ‘objective law’, a term Scelle took from Duguit and which he opposed to both natural or customary law and positive law. Natural law, as it was conceived in the

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eighteenth century, “being a product of reason” (p.  198) possessed a static, immutable character. In contrast, ‘objective law’ (droit objectif ) conforms to social necessities that change with time and place; it therefore has an evolutionary character. Objective law, far from being the product of the will of the state, or at the international level the product of a confluence of states’ wills, develops out of society itself. It is the ‘higher law’ and is quite independent of legal practice as normally understood. In effect, legal practice does not exist in the making of law, but rather in conforming to the requirements of solidarity The demise of the sovereign state and the rise of interdependence permitted and encouraged the construction of federalism, exalted by Scelle both as a future and as a reality. It took various forms, sometimes institutional and sometimes normative, such as in the concept of an “ecumenical community of the law of people” (“Q’communauti oecuminique du droit des gens”). In other words, federalism does not necessarily take an institutional form—there is also organic or normative federalism. Scelle acknowledged that with regard to the hierarchy of norms, the international community was more a form of normative rather than strictly institutional federalism. Within the normative federation, as it existed, national governments are called on to provide for the international system’s legal functions. The growth of interdependence forces them to assume law-making, adjudication and enforcement roles that, in the event, have double effects. Scelle developed the concept of role splitting (“dedoublement fonctionnel”) to elucidate the double effect: by it he meant that the actions of national governments can produce results in the international legal system as well as in their national legal systems—results that are ‘federatif’. The generative force behind the various federalisms is the individual, “in the final analysis, the yardstick of the Scellian system”. Individuals alone are capable of willing, responsible for their actions and the only subjects of international law to the exclusion of other claimed legal entities, such as universities, corporations or states. “The law of people”, he writes, “reigns without any limits to its sphere of action, not only over domestic or constitutional legal systems, but also over interstate, suprastate and extrastate legal systems of secondary international communities, or, as they are also called, special communities of the law of people, communities of independent states, whether regional or continental, federal or confederal systems, any Church or ‘International’” (quoted by Thierry 1990, 200). For Scelle, the individual is not only the immediate subject of the “law of people”; it is the only subject.

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Krabbe and Duguit in Britain: International Functionalism Harold Laski developed Krabbe’s argument on pluralism and Duguit’s argument on social solidarity, formalizing the doctrine of legal pluralism in British political science (see Hirst 1989). Professor at the London School of Economics from 1926 to 1950, he first promoted social pluralism, emphasizing the importance of local voluntary communities such as trade unions that directly expressed the needs of their constituents such as workers. Laski’s early work, especially in the essays collected in Studies in the Problem of Sovereignty (1917), argued that the state should not be considered supreme because people could and should have loyalties to local organizations, clubs, labour unions and other societies. The state should respect these allegiances and promote political pluralism and decentralization. In the Authority in the Modern State (1919) and The Foundations of Sovereignty (1921), he developed a socio-political theory of the nature of sovereignty in modern society. He argued that in the modern state, authority does not reside in any particular place but shifts constantly from one group (or alliance of groups) to another, according to issue and saliency. There was no single locus of sovereignty, and the only meaning that could be given to it is the idea of the ‘final decision’. A right to sovereignty, moreover, “does not exist for the sake of sovereignty; it exists for the ends sovereignty is to serve”. A right to sovereignty must be correlative with the duty of fulfilling social ends. These are in their sum “the maximum possible fulfilment of [individual] desires”. The logical inference from a right to sovereignty would be “a duty so to organize and exercise the sovereign power as to secure the ends for which it exists” (Laski 1932, 237). Laski accompanied these ideas with attacks on the ‘unified’ character of sovereign statehood, emphasizing its baleful consequences. Traditional conceptions of sovereignty, as emerging from monarchy or from an inherent idea of the state, made differences within states invisible, rendered similarities across states meaningless, obscured the liberal state’s necessary connections to freedom in economic transactions, and supported order and authority over the less predictable but ethically superior qualities of democratic freedom. Laski passed these ideas to his student, David Mitrany, who developed the theory of international functionalism. Calling on both Krabbe and Duguit to support that idea that different legal orders could and indeed

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did coexist in society, Mitrany (1930) began to argue the wisdom of regulating different areas of international cooperation along different functional lines—that is, according to the needs required by the task at hand. He called it “technical self-determination”, proposing that different “functional dimensions” would “reveal the nature of the action required…and the powers needed by the respective authority” (Mitrany 1975, 118). It became a constant refrain in his work that “the function concerned would determine the institutions, powers, and authority necessary for its performance and that these would vary from function to function” (Navari 1995, 230). Mitrany, following Scelle, built his functional theory on the “growth of material civilization which made each people a partner in the fate of all” and the “widening of social tasks that the modern state was called upon to perform”. The nineteenth century “by such timid and groping manner, more forced that willing” had acquired a sense of the “unity of international interests” and had begun the process of organizing internationally. But these efforts were being impeded by the expansion of state sovereignty and the growing compass of the state in regulating the life of citizens. The solution was to draw on the increased executive competence of the modern state to engage with other states in creating joint administrative authorities for the management of social tasks that crossed boundaries. He suggested in various places that such a system might become comprehensive, what he called federalism by instalments. But this was not the federalism of the federalists, as the latter were anxious to make clear (see Chitti-Batelli 1950). Mitrany maintained that the modern federalist movement had the “temper and ways of the national state” and aspired merely to transfer a plenitude of sovereign powers to a higher level. His model of international society was not a federal authority but the European Coal and Steel Community, an experiment in ‘joint administration’ between states that shared in Europe’s steel production—an experiment that moderated between sovereign powers, and that divided its management between relevant communities, an international civil service and state authorities. He looked forward to the multiplication of that experiment and to the creation of a large web of functional organizations that would reflect and service the social needs of an increasingly interdependent international community. In sum, the Catholic revival brought three strands into the understanding of international society. The first was the postulated existence of a higher legal order than the body of positive international law, one to which

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the positive law was subject, as in the idea of ‘crimes against humanity’. The second was the idea of a universal legal conscience which all the world’s peoples share: by the universality of conscience  all peoples can understand crimes against humanity. The third was the idea of solidarity and its expression in functional interdependencies. ‘Solidarity’ was identified with a sensation of ‘oneness’ that derived from a posited reality of ethical and social links among peoples and their political and economic interdependence, as theorized by Krabbe and carried forward into international relations by David Mitrany, where it would eventually form the basis of a functional ‘sociology of international relations’ whose most frequently acknowledged expression would be Karl Deutsch’s 1957 Political Community and the North Atlantic Area.

References Atkin, Nicholas, and Frank Tallett. 2003. Priests, Prelates and People: A History of European Catholicism since 1750. London: Bloomsbury. Borges de Macedo, Paulo. 2017. Catholic and Reformed Traditions in International Law: A Comparison Between the Suarezian and the Grotian Concept of Ius Gentium. Cham: Springer. Chitti-Batelli, Andrea. 1950. Functional Federalism. Common Cause 3 (2): 475–487. Clark, C. 2003. The New Catholicism and the European Culture Wars. In Culture Wars: Secular-Catholic Conflict in Nineteenth-Century Europe, ed. C. Clark and W. Kaiser, 11–46. Cambridge: Cambridge University Press. Harvanek, R. F. 1963. Suarezianism. Teaching Thomism Today The Proceedings of the Workshop Conducted at the Catholic University of America, June 15 to June 26, ed. G. F. McLean, pp. 81–96. Washington D.C.: Catholic University of America Press. Hirst, Paul, ed. 1989. The Pluralist Theory of the State: Selected Writings of G. D. H. Cole, J. N. Figgis, and H. J. Laski. London: Routledge. Jellinek, Georg. 1880. Die rechtliche Natur der Staatenvertrage. Vienna: Holder. Kleinlein, Thomas. 2012. Alfred Verdross as a Founding Father of International Constitutionalism? Goettingen Journal of International Law 4 (2): 385–416. https://ssrn.com/abstract=2923978. Krabbe, H. 1922. The Modern Idea of the State. Authorised Translation with an Introduction by George H.  Sabine. The Hague: Martinus Nijhoff (The Introduction May be found at https://link.springer.com/content/pdf/ bfm%3A978-­94-­015-­0995-­4%2F1.pdf) Laski, Harold J. 1932. Studies in Law and Politics. New Haven: Yale University Press.

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Mitrany, David. 1930. Pan-Europa—A Hope or a Danger. The Political Quarterly 1 (4): 457–478. ———. 1975. The Functional Theory of Politics. New York: St. Martin’s Press. Navari, Cornelia. 1995. David Mitrany and International Functionalism. In Thinkers of the Twenty Years Crisis, ed. D.  Long and P.  Wilson, 214–246. Oxford: Oxford University Press. Scelle, Georg. 1932. Precis de droit des gens. Vol. 1. Paris: Librairie du Recueil Sirey. Sherwood, F.W. 1926. Francisco Suarez. Transactions of the Grotius Society 12: 19–29. www.jstor.org/stable/742674. Simma, Bruno. 1995. The Contribution of Alfred Vedross to the Theory of International Law. European Journal of International Law 6 (1): 33–54. Thierry, Hubert. 1990. The Thought of George Scelle. European Journal of International Law. 1 (1): 193–209. Villa, Sergio Moratiel. 1997. The Philosophy of International law: Suárez, Grotius and Epigones. International Review of the Red Cross No.320. https://www. icrc.org/en/doc/resources/documents/article/other/57jnv9. Westlake, John. 1914. Collected Papers. Cambridge: Cambridge University Press.

CHAPTER 9

The Lawyers and the League: Charles Manning, Hersch Lauterpacht and Georg Schwarzenberger

“The Treaties of Peace by establishing a League intended to comprise all civilised States turned the unorganised Family of Nations into an organised community of States.” —L. Oppenheim, International Law: A Treatise, p. 10.

Lorimer had observed that the “great impediment” to thinking about the organization of international society was the “hopelessness caused by the debris of impossible schemes that cumber our path”. Sully, Kant and all had to be cleared away in their “impossible dreams”, which was how he considered the schemes for the reining in of state interests. He also considered that the problem of international jurisdiction might be “demonstrably insoluble” (1884, 197). As late as 1916, the hortatory nature of the schemes for a political organization of international society was still in evidence, as demonstrated by the American diplomat Philip Brown’s call, in the midst of the most brutal battles of the war, for enlightened self-­ interest and a diplomatic conference. But after 1919, this changed. With the founding of the League of Nations, a union of sovereign states was constituted. With regard to international jurisdiction, a Permanent Court had been created, accessible to all states for the judicial settlement of their international disputes (and states were able to declare beforehand that for certain classes of dispute they recognized the Court’s jurisdiction as © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1_9

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compulsory). Lord Parmoor marked the change in his address to the House of Lords in 1925: [T]he League of Nations has been constituted as a central international society, entrusted with far-reaching powers and duties in the common interest of the constituent bodies and for their common good. It does not constitute anything in the nature of the super-State, but it does constitute an international community with very specific duties and very considerable powers. (HL Deb 25 November 1925 vol 62 cc869-93)

The realization of the ‘impossible dream’ was followed by a movement in thought: A realized dream could be evaluated; lessons could be drawn from the experience of it, about impediments to its operation and about principles of its construction. After 1919, there began to appear something not possible before its institutionalization—analytical accounts of its nature and operation, and something like a theory which explained its workings. These were accompanied, and supported, by thick accounts of its facticity. David Kennedy (1996) underlines the historical significance of moving from a pre-institutional order to an institutionalized order. Whereas the ‘men of 1873’ had looked upon the laws of humanitarian warfare as a novel tendency that could be expanded, those of 1919 viewed international society as a social fact. T. J. Lawrence opened his 1917 lectures at Bristol with the observation that “the average human being takes such a society [of nations] for granted, pretty much as he takes for granted families, governments, laws and tribunals”. The tenor of his lectures implied, moreover, that it would grow. The League of Nations, in short, appeared as the institutionalization of a developing international community with uncertain but hopeful prospects; and the ‘men of 1919’ were called upon to interpret it. They included social reformers, colonial officers and political placemen, but above all, and due mainly to their roles as the architects and interpreters of the humanitarian war codes, lawyers and organizations of lawyers.

The Dimensions of International Society Since the Congress of Vienna, foreign ministers, of all states, accompanied by international lawyers, had met with increasing frequency through the century to draft treaties and conventions, not only on political matters but on technical and administrative questions, and to set up permanent bodies

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to deal with the public affairs of an expanding European international respublica that was drawing in Latin America and even the developing colonial empires. In 1907, the first volume of The American Journal of International Law published as one of its first articles “International Congresses and Conferences of the Last Century: Forces Working Toward the Solidarity of the World” (Vol. 1, No. 3, pp. 808–829) that listed 118 conferences on peace and war, trade, postal unions, monetary matters, communications, colonial arrangements, the sugar trade and more on matters economic and technical as well as subjects of high politics. There was not only the fact of their occurring, but also the fact of their outcomes—its compiler recorded that “all had issue”. The Hague Conference of 1899 was, accordingly, novel neither in its occurrence nor in its ambitions: the codification of the humanitarian laws of war had already begun with the Lieber Code and the Brussels Declaration. The novelty was not in 1899 but in 1907. The Second Hague Conference, notably less ambitious in its agenda of issues, overreached all previous conferences in one crucial respect: it promised a permanent development in the institutionalization of its subject matter. It had produced a raft of new conventions, including the first force-reduction treaty, on naval reductions. But the innovation to prove the forerunner was two permanent institutions, a Prize Court and notably the Convention for the Pacific Settlement of International Disputes, in which twenty-five states recognized the “solidarity which unites the members of the society of civilized nations” (1917, 3) and which established a permanent mechanism for dispute settlement. Asserting that “a definite political union of the states of the world has been created”, the German international lawyer and neo-Kantian pacifist Walther Schücking (1918, 18) presented the Hague conferences as a nucleus of a future international federation that would meet at regular intervals to administer justice and develop international law procedures for the peaceful settlement of disputes. The League of Nations was soon acknowledged to have surpassed both. Philip Marshall Brown (1875–1966), American diplomat and Princeton Professor of law, frequently cited as providing the first reference to an international civil society, provided an early ‘lawyerly’ account. Entitling it International Society: Its Nature and Interests (1923), he presented the League as the permanent executive agency of the will of an international community—a will invested mainly in the Council but potentially in the Assembly and in most cases when “the Great Powers failed”. (He pointed to the administration of the Saar Basin, the execution of the arbitral award

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of the Council over the Silesian question between Germany and Poland, the amelioration of hostilities between Servia and Albania and the demilitarization of the Aaland Islands as cases in point.) He presented it, further, as the legal carapace for the old and newer technical agencies, whose incorporation created a link to the broader aims of the League. This meant in turn that its Secretariat, which had been designed to deal with the League’s various areas of competence, “supervises international intercourse to a certain extent”. Despite “laboured explanations to the contrary”, he reckoned the League more a “guarantee of the status quo” as it had been achieved in 1919 rather than a forerunner of change, “at least in a moral sense”. But he also accorded it wider aims: its role as a conciliator of international disputes might eventually be done better elsewhere, but its “fundamental role” was as a body for the “permanent and on-going cooperation in all that conduces to the best interests of international society”—that is, as the administrative apparatus of an international society in development (Brown 1923, 126–128). Felix Morley’s 1933 The Society of Nations for the U.S. Brookings Foundation would confirm Brown’s confidence with a detailed account of the work of the League’s technical organizations, in which he gave the Secretariat the prominent role. For others, the novelty of the League lay in the new form of authority that it created. Norman Leys, a constitutionally-minded British medical officer in the colonial service in Africa and considered a “fiery and determined prophet on colonial affairs”, welcomed an authority that “no longer resides in any sole unrivalled seat; it issues from a loose Association of all civilised states”. The reference was to the authority behind the mandate system. For Leys the establishment of A Plan for Government by Mandate in Africa (1921) meant that such authority as the mandatories exercised over the inhabitants of the territory “is exercised on behalf of the League of Nations; and it is conferred upon him [the mandatory] solely with a view to secure their well-being and development” (as well as to open the former colonial territories to the “enterprise of all the Members of the League”; p. 7). The mandate system created not only a new authority, but new subjects of that authority. On paper, the mandate was a contract between the mandatory power and the League, but there were in fact “three parties to every mandate”. Leys considered that the League’s authority would eventually be “transferred to and is finally to rest in the not yet existent organs of the governed themselves” (p. 4). Via the mandate system, the subjects of the former colonial territories had thereby become potential subjects of

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the League of Nations, whom Leys further distinguished between ‘natives’ and ‘nationals’. ‘Nationals’ were the colonists and settlers; ‘natives’ were the traditional inhabitants of the lands taken by colonists. He assigned a special obligation to the mandatory powers in respect of the natives (to which he sometimes referred as ‘backward peoples’), who were to be relieved of “the evils which have resulted in the past”, evils visited on them mostly by the ‘nationals’. Leys’ view, widely shared, was that “the well-­ being and development of such peoples form a sacred trust of civilisation” (op. cit., 6, 38). Discussion of the provisions of the League with regard to its new subjects, including the non-existence of provision for the end of racial discrimination, were ongoing throughout the interwar period and included the prospect that the League might one day act to protect citizens of foreign states from inhuman treatment by their governments. In 1924, Malbone Graham, American political scientist, proposed that “the creation of an organized Society of Nations has given the sanction of social solidarity, on an objective basis, to the hitherto purely sporadic, isolated acts of altruistic nations acting as enforcers of the law” (Graham 1924, 328; also Crowdy 1928). The general view of the lawyers during the 1920s was that any form of international association depended upon “the authority of international law over all nations, regardless of their magnitude, commercial interests, or military efficiency” (Hill 1919). During the first decades of its existent, it was generally believed that the League would lead to the codification and growth of international law and accordingly to the increased legalization of the society of nations (Hill 1919; Root 1921; Keene 1922; Cole 1926). Alejandro Alvarez, future judge at the International Court of Justice and who was a solidarist in international legal terms, plotted such future developments in international law as should be forthcoming from the condition of social interdependence among states, deemed by him to be growing from the middle of the nineteenth century via the new “juridical consciousness” of the public (Alvarez 1929; also Samore 1958). These hopes faded after the Japanese seizure of Manchuria. Alfred Zimmern, addressing the Grotius Society in its 1934 meeting, somewhat sardonically noted the confusion in international law between dictates “of tradition, of etiquette and of anticipation” and suggested that the progress in international law, such that it was, had not so far evoked a sufficiently common social consciousness to justify the many anticipations. He advised the society of lawyers that instead of pinning their hopes on a universal legal

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development, they might better look to cooperation between domestic legal orders with comparable social practices—in other words, to cooperation between the legal orders of ‘civilized’ states (Zimmern 1934). Lawrence’s six lectures in the autumn of 1917 at the University of Bristol, published as The Society of Nations, Its Past, Present and Possible Future, expressed the general view of the compass of the League among “all or most of the civilised states” as “settling disputes by justice instead of force”. The Advisory Committee to the League had received numerous suggestions between 1911 and 1919, both by national and international private bodies and by governments, for the establishment of an international judicial tribunal, of which “the most substantial were the Italian proposals”, modelled on the Permanent Court of Arbitration, and the proposal of Lord Bryce’s group of international lawyers, published in his 1916 Essays and Addresses in Wartime (Hull 1924, 648; see also Keene 1924). The original Article 35 of the Advisory Committee’s draft statute of the Permanent Court of Justice had defined the body of law on which the judges could draw as conventions, customs and the “principles of law recognised by civilised nations”, the latter of which could be taken to mean obligatory jurisdiction. Acknowledged by Scott (international lawyer in Elihu Root’s State Department) as “sound doctrine”, it was nonetheless “too strong a diet for the large states”, and the competence of the court was reduced to cases that the parties involved referred to it, to be judged according to conventions in force and no further. Scott identified as obligatory the arbitration of a diplomatic dispute only when, of those submitted to it by the parties, diplomatic efforts were deemed by both parties to have failed (Scott 1921). The Permanent Court of International Justice (PCIJ) was empowered to give advisory opinions upon any dispute or question referred to it by the League of Nations Council or Assembly, but opinions only. Scott made it clear that it was not a court as understood in domestic legal orders. The original Article 35 remained in place, however, as an Optional Clause to which states could adhere, and the smaller states did so. In 1924, Samuel Gompers, addressing the U.S. Congress, drew on the initial experience of the Permanent Court to propose that adjudication would lead to higher standards of international morality, and Professor Williams adduced to the Court the fact that international law “has reached the stage of concern with ethics and international morality [as] duties rather than rights”, quoting from Westlake’s Collected Papers (U.S.  Congress

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1924, 157; Williams 1925). Keen, who had served on the Bryce committee, outlined the “The Duties of Nations” to the Grotian Society in its Transactions of 1922 and judged arbitration to be emerging as a duty. Lawyers and legal bodies also endorsed Lord Bryce’s view, widespread in progressive circles, that the League “opposes a social situation which it organises against a chaos that would ensue if it collapses”. Bryce had laid out the compass of the war’s disastrous effects in a much-quoted lecture to the British Academy on the relation of the war to civilization, rejecting the Darwinian view of war as progress and resting the progress of civilization on “friendly cooperation [between nations] in the healing and enlightening works of peace” (Bryce 1916). He recommended the activities of the American League to Enforce Peace as well as the efforts of his own group, warning that “If we do not make an end to war, war will make an end to us”. In 1913–1914, H. N. Brailsford, British journalist and left-­ wing activist who served on the international commission, had been sent by the Carnegie Endowment for International Peace to investigate the conduct of the Balkan Wars of 1912–1913. He co-authored its report, which concluded that during the war there had not been a single clause in international law applicable to land war that had not been violated, and by all the belligerents. In a series of works (The Origins of the Great War (1914), Belgium and the Scrap of Paper (1915), A League of Nations (1917), A Share in Your Motherland and Other Articles (1918) and Covenant of Peace: An Essay on the League of Nations (1919) with an introduction by Herbert Croly), he laid out the destructiveness that war entailed and recorded its effects, and in After the Peace, 1920, he warned that if the League failed, war, with all its attendant evils, would ensue. The fear that war would ensue became general after the crises of the 1930s when there began to appear warnings about the disintegration of Western civilization, largely attributed to the inability of the League of Nations to deal with the new militarism (see e.g. Friedmann 1938, who argued that “the international society” had descended into a competition between Schmidtian ‘friends and enemies’).

The Political Analysts of the New Society The political aspect of international society was referred to as ‘international jurisdiction’ and was deemed to be the particular domain of lawyers and the legally trained. Cecil Hurst and David Miller, both government lawyers, whose draft formed the basis of the League Covenant, had

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appeared before the Grotius Society in 1919, advising that lawyers had a particular responsibility to promote understanding of the League. Even before the League’s creation, it was lawyers who had dominated in discussions concerning the organization of international society and it was in the main lawyers who produced schemes for its construction, as evidenced by the make-up of the Bryce committee. Their analyses, not surprisingly, demonstrated a legalist perspective and a concern with juridical procedures. The most prominent lawyer with regard to international organization in the first decades of the twentieth century was Elihu Root, Secretary of State under President Theodore Roosevelt and a former Secretary of War under both Roosevelt and McKinley, ably abetted by the State Department’s international lawyer, James Brown Scott, who founded the American Society for International Law and was “its heart and soul for the first 18 years”. A distinguished lawyer before his joining government, Root had negotiated twenty-four bilateral treaties that committed the United States and other signatories to use arbitration treaties to resolve disputes, formulated the plan to create the Central American Court of Justice, convinced the signatories of the First Hague Conference in 1899 to establish a Permanent Court of Arbitration with general rules to serve the international community as a whole and proposed what became the Permanent Court of International Justice. In 1918, he had laid out the basic requisites of an International Court of Justice in a letter to Colonel House, arguing that breaches of the peace were a concern to the “entire Community of nations” and that the war had demonstrated that it was a matter of direct interest to every state and “to which every member has a right to object”. The Convention on the Permanent Court of Arbitration had laid out some general principles of arbitration but, institutionally, it had provided for little more than a list of arbiters; what was required, argued Root, was a court-proper with permanent judges who applied rules of law instead of seeking diplomatic settlements. Scott later cited the arbitral decision in the Russian indemnity case as the model, in which “the court applied principles of law, cited decisions of courts of arbitration as precedents and drew up its opinions in a form to which we are accustomed” (quoted by Kirgis 1996). In 1920, at the request of the Council of the League, Root joined the Advisory Committee to devise plans for the PCIJ and guided it to the draft proposals that were put before the League Assembly at its second session. (Root also gained eventual U.S. adherence to the new Court.)

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In 1920, Lassa Oppenheim, Whewell professor, whose legal text formed the basic statement of international law for the twentieth century, wrote his last work, the League of Nations and Its Problems, presenting the new facts that made the League a possibility—in his view, the rise of the democracies and the defeat of the militaristic powers. He warned about considering the League as a form of a super-state and advised that laws could not be passed by any majority of its constituents. But this did not prevent him from considering in detail what could be accomplished within its strictures. So much did he expect from its legal development that the third of the three lectures was on the administration of justice, where he argued the need for an eventual tier of courts, on the grounds that the development of the League system and the progress of international society would require judicial review and appeal. The revisions to the PCIJ and its transformation into the International Court of Justice were largely inspired by Oppenheim’s analysis. The League and the Court made urgent the question of compliance and, accordingly, the sources of compliance, on which the leading Continental lawyers demonstrated a surprising degree of consensus. Alfred Verdross presented the 1927 Hague Lectures, on “Le Fondement du Droit International”, in which he identified the central cause of compliance as a Grotian commonality of values and interests that drove states to agree to honour the agreements they enter into. Verdross argued that “the duty of states in their reciprocal relations” derives from “a supra-­consensual norm [the pacta sunt servanda], the content of which enshrines consent as the foundation of the legal system” (a consent Verdross based on the facts of observance and practice). The following year, Oxford’s James Brierley lectured at The Hague on The Basis of Obligation in International Law (“Le Fondement du caractere obligatoire du droit international”). Arguing forward from Verdross, Brierley joined him in eschewing strict reliance on either natural law or positivist consent as sources of legal obligation, suggesting instead that compliance derived from the need to preserve solidarity with one’s fellow states, ascribing this view to Duguit (Bailey 1932). He proceeded to contrast the need to preserve solidarity with Krabbe’s alternative theory, which he understood as asserting that obligation “proceeds from men’s sense of right”, arguing that solidarity was the stronger motivation. What is noteworthy about all three accounts is their closeness to forms of natural law reasoning. Georges Scelle, probably the leading legal advocate of League-based compliance, argued less from natural law than from modern technology.

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In his Precis de Droit des Gens of 1932, he posited that the move towards greater harmony, the demise of the state (“depassement de I’Etat”) and the formation of a world order generated by law were the normal and probable outcomes of scientific, economic and technical progress. In short, a confluence of states’ wills was developing out of the emerging forms of modern society itself. He argued that law-making treaties (“traite’s-lois”), such as the treaty that created the League, were exactly like laws in domestic legal systems: they ensure the expression of emerging solidarity requirements. Accordingly, they must take precedence over national solidarities (Kasirer 1987). His slogan was “Henceforth internationalism is the crucial fact”. Largely dismissed by British international lawyers, who tended to base compliance on habit (and Brierley’s argument could be interpreted as leaning in that direction), Scelle’s theory prevailed in Geneva (see Cassesse 1990). Reviews of the first decade of the League’s progress were encouraging. Following the League’s second session, the American Political Science Review commissioned a substantial review of the accomplishments of the League, which appeared as a supplement to the 1924 volume. Kohn, a staff member of the journal and a political scientist, reviewed the entire organization and listed its accomplishments in both arbitration and treaty settlements. The League of Nations Second Session, which had limited the compass of the Permanent Court of Justice, had rendered it more of an arbitral system than a court. It had also removed the military provision from Article 16, frequently charged by later commentators to be a crucial factor in the weakening of the League. But the author did not agree. He argued that the League was essentially a conciliatory body, designed to prevent war, not to “repress” it. As such, the limitations of the second session did not seriously damage its authority—on the contrary Kohn argued that it strengthened it. Nor did this appear to be an apologia; Kohn stated it as a fact that the League’s eschewal of the use of force rendered it “increasingly the conciliatory body to which nations naturally turn in at critical moments in their national life” (p. 78). Overall, the lawyers agreed on the eschewal of the use of force. Quincy Wright early pointed out that the League’s chief reliance “has been [on] cooperation rather than compulsion” and that voluntarism was the foundation of the League’s authority (Wright 1925, 77, 100). Clyde Eagleton for the 1937 issue concurred and further noted that no state supported any redrafting of the Covenant. He reported a general consensus that it should operate to prevent war rather than to repress war. The

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problem of the League, he argued, was not its compass, but the absence, by that time, of four of the Great Powers—Germany, Japan, Italy and the United States. Charles Manning concurred with Eagleton in the latter respect, arguing in the conclusion to the symposium on Peaceful Change for the Institute of International Studies (Manning 1937) that the League had not failed but rather that the Great Powers had failed the League. He also made what was arguably the first coherent argument against the use of domestic analogy to judge the League: Given, then, a milieu where the units are persons only in idea, where the foundation of ordinary intercourse is the notion of sovereignty, and where law is not even superficially an instrument of social control, the problem of promoting collectivism must, I conceive, be one where analogies drawn from domestic experience may admit, at best, of only the most hesitant application. (quoted by Suganami 2001)

There was an insistence on all sides that what was being created was not a super-state, but there was  an equal reluctance to define what political form the new society was taking. Scelle was the only international lawyer of the time who gave it a characterization: one of the chapters of the Precis was on the “federal phenomenon”, a section of which is entitled “The League of Nations as a Federal Organization”. Scelle provided a series of examples demonstrating that federalism was a successful political form, growing in application, and he distinguished between institutional and ‘normative’ federalism, characterizing the emerging international community of the League as a form of normative rather than institutional federalism. The distinction between the two lays in the degree to which international supervision was exercised by organs of individual states (in the form of what he called “dedoublement fonctionnel”) or is instead fulfilled by “social organs proper”, that is directly by the organs of the emerging federal organization (see Thierry 1990). In 1924, Oscar Newfang, an American banker “credit manager”, set out a constitutional scheme for such a “World Organisation Authorised to Regulate International Relations”, the first of its sort, presenting the League of Nation as the first stage of a world federation in embryo with the Assembly as a potential legislature, the Council as an executive, and the Permanent Court as itself. Entitled The Road to World Peace: A Federation of Nations, it and subsequent works analysed the difficulties

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facing the League from the federalist perspective. Denys Myers, reviewing Newfang’s oeuvre for the American Polical Science Review called it “more than a magnificent obsession”. It anticipated the flood of federalist proposals that would ensue with Clarence Streit’s 1939 Union Now.

The Political Theory of the New Society Analyses of the workings of the League and the Court during the interwar period hinted at deeper forces concerning the essential character of international society, its constituent bodies and the motivations of its founders. They revealed liberal, realist, Marxist and even constructivist progenitors. In a famous essay, Martin Wight (1966) would deny that there was anything in the way of a political theory of international relations. But if by ‘political theory’ we understand a theory that postulates basic motivations, suggests processes, proposes some ethical grounding and, in Martin Wight’s term, proffers an idea of the good life, there were (despite Wight’s judgement to the contrary) three, all drawn in varying degrees from the experience of the League. Each of the three accounts marked a progression from the historical and descriptive accounts produced by the Gottingen historians and their successors (the  diplomatic historians) to political theoretical accounts produced by lawyers. Charles Manning and the Social Nature of International Society Charles Manning was professor of international relations at the London School of Economics (LSE) from 1930 to 1962 and a trained international lawyer who had served as Permanent Secretary to Eric Drummond at the League and whose undergraduate training was in science and mathematics, which may explain his interest in the analytic philosophy developing in the 1930s. At Lauterpacht’s suggestion, he had undertaken the translation of Julius Hatschek’s Outline of International Law (1930, London: G. Bell and Sons) which modified Jellinek’s dualism, and whose influence he acknowledged in the Introduction to the 1975 edition of his work on The Nature of International Society. (The Introduction explained the route through which he understood both the law and the society.) The nub of the approach was the relevance of ‘meanings’ or conventional assumptions in underpinning social life, including international social life. “It was the prevalence, as orthodox, of such a set of assumptions that made it possible for states to interact with one another in a relatively

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orderly manner” (Suganami 2001, 102). The purpose of the study of both law and society was to uncover and reveal the compass of meanings attached to, in his case, international law and international society. His earliest analysis in this direction was a close examination of John Austin’s use of the term “law” as against the conventional usage of the term (Manning 1933). Manning argued that according to the conventional understanding of ‘positive law’, international law was indeed not ‘positive law’, but he also reminded the reader that Austin had related international law to something called ‘positive morality’, meaning the values that guide human conduct in fact. He argued further that ‘positive morality’ had various forms and that some dictates of positive morality had a legal form, in that consequences followed from their ignoring, and that positive morality was accordingly divisible into those items which could be treated as ‘law properly so called’ and those which could not. He argued that a good deal of international law was ‘positive morality’ in a legal form and that Austin and followers of Austin should acknowledge that a good deal of international law was, in fact, law properly so called. In terms of a society of states, the common assumption underpinning it was the “historically-given plurality of sovereign states”. However it had been previously understood, sovereignty was now commonly understood as constitutional insularity (as opposed, for instance, to national solidarity) and confirmed as such by international law. Amongst states, sovereignty was accordingly constructed as ‘top-dogness’ and the society of states was a “club of top dogs”, whose constitutive and procedural rules were found in international law. Following the Continental theorists on the doctrine of the ‘higher law’, he argued that it was international law which established the dimension of sovereign statehood. Accordingly, “The possibility of a recognised sovereign statehood, divorced from subjection to international law, no more arises than does membership of the Stock Exchange divorced from subjection to the rules of the Stock Exchange. It is technically unthinkable” (Manning 1962/1975, 103). According to Manning, international law constituted states and states constituted an international society as a common body of rules that it considered binding. In this way Manning tied sovereignty, international law and international society intimately together. It was not possible to understand any of them apart from the others. As Peter Wilson has written, “Sovereignty became the basis of international society and international law established the rules by which this occurred” (Wilson 2020, 17).

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Once international society is constructed in terms of meanings, the key task for the theorist of international society is to decode the meanings. Manning provided examples of decoding in the 1975 Introduction to The Nature of International Society, in the guise of the searcher after meaning. He pointed out that the “resolutions of, say, the UN General Assembly are very few of them binding, so that to refer to them as ‘decisions’ may well be misleading”; that, were the British Parliament, for example, “to legislate away the traditional freedom of parents to provide for their children the education of their choice, this could not constitute a violation of the Universal Declaration of Human Rights”; that the rights listed in the Universal Declaration are not in reality rights which humans have as humans, but simply those which” it is considered that, if not already having them, they ought ‘by rights’ to be given—a rather different thing”; that, notwithstanding its opening words, the parties to the UN Charter are states, mostly fully sovereign states, not peoples as its opening words suggest. And when the cry is for ‘’Justice for A’ or ‘Justice for B’, “he will demonstrate his originality by suggesting that justice be sought as between the claims of A and B” (Manning 1962/1975, xv–xvi). International society in Manning’s terms was an “on-going process which is the quasi-social coexistence of those quasi-persons, the sovereign states, in their quasi-society”. It was game-like “in that it presupposes the sufficiently general and sufficiently unqualified acceptance of the appropriate set of conventional assumptions”. Each game had its own set of orthodox, though artificial, assumptions. The business of his theory “was, and is, to highlight the identity, the point, and the logical status of the relevant assumptions if only so that those seeking the improvement, through its reform, of the inherited system may appreciate just what it is that they must be wishing to preserve and see in what sorts of peril it may be” (Manning 1962/1975, xxiii). This depiction of international politics as a rule guided and institutionalized process of diplomatic dialogue and exchange united Manning and his constructivist approach in method with the legal positivist tradition represented by Vattel and Lassa Oppenheim, at the same time as it provided the basis for a critique of legal positivism. Hersch Lauterpacht and the Civitas Maxima Lauterpacht’s postulate of a civitas maxima or higher political order was contained in his response to the question of the sources of international law’s normativity. Criticizing the doctrine of co-ordination as argued by

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Georg Jellinek and his followers, as well as the doctrine of international legal obligation as based on law-making agreements between states, he agreed with Hans Kelsen that the binding force of law could not be derived from either the individual will or the common will of states, just as domestic law could not be derived solely from citizens’ consent. Such a view made the law subject to the movements of fashion and to social divisions, which ultimately denied it the status of ‘law’. Kelsen had argued that to give international law a legal character required an a priori assumption, and he had proposed that the norm, pacta sunt servanda or ‘treaties oblige’, was both a reasonable and a sufficient assumption to explain why international law was law. Lauterpacht followed his teacher in the requirement of an a priori assumption but located it rather in the will of the international community, the civitas maxima. The term ‘civitas maxima’ was a Roman legal concept applied to the different tribes and nations that made up the Roman Empire and had been drawn upon by Christian Wolff to indicate the existence of a higher political obligation than that to the state. In Lauterpacht’s hand, it became the idea of an international community that was more than the sum of its parts and that had a will capable of willing. The civitas maxima was states in their totality, not individual governments; moreover, the duty of states was to serve individual human beings. The international community for him, thus, was a community of individuals, whose will, due to the rudimentary stage of political integration, was expressed by states. But the state was merely the medium of a potentially global community. Thus, the ground for the bindingness of international law becomes the norm voluntas civitatis maximae est servanda. The League of Nations Covenant was an expression of the voluntas civitas maxima. In the British Yearbook of 1936, Lauterpacht argued that the Covenant was a contract that was founded on stronger ties of connection than other international contracts and accordingly took precedence over other contractual norms of international law. He argued this not on the basis of Article 16, which committed states to sanction those who derogated from its provisions (and which was mired in the issue of contradictory obligations), nor on the basis of Scelle’s notion of a federal legislative body, to which he made caustic reference, but on the basis of Article 20 of the League Charter which committed states to abrogate contracts that contradicted with its provision. He argued that Article 20 incorporated into the Covenant a fundamental principle of all legal doctrine, which is that contracts that contradict an already existent contract are nonbinding. On this basis he reached the conclusion that the Covenant was

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the ‘higher law’ and was, moreover, “a purposeful instrument in the process of political integration of mankind”. Starting out as a postulate, Lauterpacht treated the international community as an immanent reality which over time would gain towards greater legal and political expression, allowing the community of individuals to express its will through a variety of institutions, not merely the state. Lauterpacht eventually rested this idea in a particular reading of Grotius. The essential aspect of the ‘Grotian Tradition’, as he called it in the famous essay (Lauterpacht 1946), was to expand the law’s scope by arguing, as Grotius had done, from a variety of legal sources, not only Roman law, but also domestic law, from general principles and importantly from ideas about a common morality (p. 29). Grotius had taught that “man’s essential nature is social and…the deepest truths are the simplest ones, the Grotian ‘law of love, the law of charity, of Christian duty, of honour and of goodness’” (p. 2). The Grotian method of argument lies in the analogy—and the essential identity—“of rules concerning the conduct of states and of individuals”. Lauterpacht drew on Grotius’ support to argue that “behind the mythical, impersonal, and therefore necessarily irresponsible personality of the metaphysical state there are actual subjects of rights and duties, namely individual human beings” (p. 336). Lauterpacht’s theory gives precedence to natural rights (in the sense of individual human rights) as rooted in common morality and as expressed in Western legal and political thought, from Greek philosophy to modem Western constitutions. The theory presented human rights in terms of support and enforcement by both natural and international law, the two having developed together from Grotius and Vattel to the doctrine of humanitarian intervention. Where law might be lacking, unclear, contradictory or unjust—and it was often precisely that—“morality came to the rescue, ensuring the law’s completeness and acceptability, sometimes via the enunciation of general principles, sometimes by analogy with domestic law” (Koskenniemi 1997). This was Lauterpacht’s understanding of the Grotian tradition. But the legalization of the morality of the international community required more than moral avowals. For Lauterpacht, compulsory arbitration was essential for the international community to exist as a community under the rule of law and thus as a community in which peace could be realized. The international judge was the highest and most important function that could be placed in the hands of man (a function which Lauterpacht himself exercised as a judge at the International Court of

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Justice from 1954 until his death in 1960). Judges were not only indispensable to ensure the bindingness of international law (which did not exist if states were judges in their own cause), they could also, according to Lauterpacht, remedy certain injustices in the law resulting from a divergence between the legal rules on the one hand and the “essential purposes of law and requirements of international justice” on the other. Judges could, in other words, exercise a creative function in regard to international law and international community. Lauterpacht did not imagine that judges invented law. He argued that judges could fill material gaps through recourse to general principles of law, mainly derived from municipal private law, a subject on which he had written his doctoral thesis (at the LSE and published in 1927 under the title “Private Law Sources and Analogies of International Law with Special Reference to Arbitration”). Private law sources, such as trade union law and medical law, revealed legal principles derived from immediate human experience and of immediate relevance in terms of human rights (Feichtner 2011). Thus the engine of the legal development of international society was in law and, importantly, in private municipal law. Georg Schwarzenberger and the Power Political International Society Professor of International Law at the University of London, George Schwarzenberger was a student of the legal philosopher and Heidelberg Professor Gustav Radbruch, who had served as Reich Minister of Justice in the early years of the Weimar Republic. Radbruch had argued that where statutory law is incompatible with the requirements of justice “to an intolerable degree” or where statutory law was obviously designed in a way that deliberately negated “the equality that is the core of all justice”, statutory law must be disregarded by a judge in favour of the justice principle, ‘the higher law’. Schwarzenberger took from Radbruch his neo-­ Kantian distinction between the ‘ough’t and the ‘is’, and an appreciation of what came to be known as the sociology of law—the effect of social forces on the law’s compass and meaning. In his 1936 book The League of Nations and World Order he noted the generality of restrictive proposals concerning membership of the League, of which the most generous was that of ‘civilized nation’ who were ascribed conduct, often against reality, as “more sincere and more peaceful” (Schwarzenberger 1936, 29), and he proposed that a new ‘standard of civilization’ (Schwarzenberger actually

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coined the term) had become an operative principle in the consideration of membership, a standard which sought to restrict active membership to states-in-being and to limit self-determination to European peoples. He laid out the basic principles of his sociology of law in Power Politics: A Study of International Society in 1941, with a revised second edition that appeared in 1951. Schwarzenberger’s aim in Power Politics was to establish a science of international law, which he placed within a “science of international relations” that sought to identify “the real driving forces in this turbulent society” (p. xvi). He defined the “objects” of his new science as “the evolution and structure of international society; the individuals and groups which are actively or passively engaged in this social nexus; the types of behavior in the international environment; the driving forces behind action in the international sphere, and the pattern of things to come on the international plane” (p.  3). He ascribed paramount importance to states: compared with the individual, or with corporate associations, compulsory territorial organizations, endowed with overwhelming physical force, are like giants in relation to dwarfs (Schwarzenberger 1951, 251). Groups other than states, whether they “represent economic interests, such as big industry or finance, or whether they are of a religious or ideological character, such as churches, parties or trade unions”, have “an essential feature in common: in their attempts to influence international relations, they work in the main through the medium of either the State apparatus or of public opinion” (p. 126). The individual “as such”, though often described as “the ultimate basis of community and society life”, counts “for little in international society” and is appropriately relegated by “classical international law” to the position of individual as object, rather than subject, of international law (pp. 146, 143). His conception of “power politics” came from a sociological distinction between ‘society’ and ‘community’. Schwarzenberger insisted that international society, while real was not a true international community. The difference is that “Society is the means to an end, while a community is an end in itself” (p. 12). International society was a means in the striving for peace but the locus of community remained the state, which, despite rhetoric to the contrary, remained an end in itself. Consequences followed: where “(e)ach group considers itself not merely as a means to a common end, but as an end in itself” (p.  13) “any measure which is required to achieve self-preservation is deemed to be justified” and groups are “measured by their weight in any potential or actual conflict” (p.  13). The resultant is “power politics” as “a system of international relations”. In the

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‘system of international relations’, the dominant patterns of behaviour are “armaments, isolationism, power diplomacy, power economics, regional or universal imperialism, alliances, balance of power and war” (p. 13). The system of international relations is overlaid by “the cloak of a community”, but this is nothing but a “system of power politics in disguise”. Beneath the cloak, the system actually continues on as before and is “not replaced by an international community proper” (pp. 13, 14). In Part Two, entitled “Power Politics in Disguise”, Schwarzenberger reviewed in detail the experience of the League of Nations, including the specialized agencies, and the United Nations in its founding to demonstrate that international society had not yet devised an escape from power politics. With respect to both the League of Nations and the United Nations, “the gap between the ideals of these collective systems and reality was bridged by processes of de facto revision of the Covenant and Charter, that is to say, by the adoption and subordination of these commitments to the requirements of world power politics” (pp.  213, 214). The League and later the United Nations in effect depended on peace between the world’s powers, while the “powers that matter” have been unwilling to confer upon the world institutions the competence necessary to transform “international society into an international community” because each power “stands for values which it cherishes more highly than universal peace”. There is a “world society”, but it has yet to become “an international community” (p. 223). In the discussion of functions, Schwarzenberger assigned international law, morality and institutions a very small role in limiting “the rule of force in international society” (p. 253). On the contrary, in a society in which power is the overriding consideration, the primary function of law is to assist in maintaining hierarchies established on the basis of power, to secure the supremacy of force and to lend to such a system the respectability and sanctity of law (p. 203.) International law, in other words, is the necessary adjunct to the “system of power politics in disguise”. In his review of the work, Myres McDougal (1953) judged that despite his anchoring in German international law theory of the first half of the twentieth century, Schwarzenberger was an “outsider in international law”. Nor was McDougal alone—most accounts of the post-war ascendancy of political realism routinely cited Schwarzenberger as a pre-eminent example of a political realist and Britain’s main contender for the title. But, in fact, Schwarzenberger had no theory of power, and his focus was not on an analysis of power but on a sociology of law. His siting of law within a

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particular socio-political framework (in his case, one in which power predominated) would assign him to the school of legal realism, which he could be crediting with inventing (see Steinle 2003). Reviewing these theories in an unpublished note, Navari referred to them as sociological, ethical and power political. They marked a transition from a historical understanding of international society, inherited from the Gottingen historians and as expressed in the works of Genz, Heeren and Ranke, to a social science understanding as foreseen by Alexis de Tocqueville. None neglected the historical narrative, but all looked for the more fundamental forces that drove the narrative. They argued these, moreover, not from suppositions, or a priori reasoning, but from experience. All drew on the lived experience of an actualized international society to draw their conclusions.

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Marshall Brown, Philip. 1923. International Society: Its Nature and Interests. New  York: Macmillan. https://archive.org/details/internationalsoc00brow/ page/128/mode/2up. McDougal, Myres. 1953. Dr. Schwarzenberger’s Power Politics. American Journal of International Law 47 (1): 116–121. Myers, Denis. 1939. Review: World Federation. By Oscar Newfang. American Political Science Review 33 (4): 680–680. Oppenheim, Lassa. 1920. International Law: A Treatise, Volume 1. London: Longmans, Green and Company. Root, Elihu. 1921. The Great War and International Law. Advocate of Peace through Justice 83 (6): 225–230. Samore, William. 1958. The New International Law of Alejandro Alvarez. The American Journal of International Law 52 (1): 41–54. Schücking, Walther. 1918. The International Union of the Hague Conferences. Oxford: Clarendon Press. Schwarzenberger, Georg. 1936. The League of Nations and World Order. London: Constable & Co. ———. 1939. The Rule of Law and the Disintegration of the International Society. American Journal of International Law 33 (1): 56–77. Schwarzenberger, George. 1951. Power Politics: A Study of International Society (Second Revised Edition). New York: Frederick A. Praeger, Inc. Scott, James Brown. 1921. Aim and Purpose of an International Court of Justice. The Annals of the American Academy of Political and Social Science 96: 100–107. Steinle, Stephanie. 2003. “Plus ça change, plus c’est la même chose”: Georg Schwarzenberger’s Power Politics. Journal of the History of International Law/ Revue d’histoire du droit international 5 (2): 387–402. Suganami, Hidemi. 2001. C.A.W.  Manning and the study of International Relations. Review of International Studies 27 (1): 91–107. Thierry, Hubert. 1990. The Thought of Georges Scelle. European Journal of International Law 1 (1): 193–209. U.S. Congress. 1924. Permanent Court of International Justice: Hearings Before a Subcommittee of the Committee on Foreign Relations, United States Senate, Sixty-eighth Congress, First Session… April 30 and May 1, 1924. Washington: U.S. Government Printing Office. Williams, B. 1925. Prospective Development of International Law. Virginia Law Review 11 (3): 169–182. Wilson, Peter. 2020. Sovereignty, Law, and International Society: The Contribution of C.  A. W.  Manning. In International Society: The English School ed. by C. Navari, 15–31. London: Palgrave Macmillan. Wright, Quincy. 1925. The Outlawry of War. The American Journal of International Law. 19 (1): 76–103. Zimmern, Alfred. 1934. International Law and Social Consciousness. Transactions of the Grotius Society 20: 25–44.

CHAPTER 10

The British Committee, Hedley Bull (1932–1985) and the Theory of International Society

For different people, however, the term meant different things —H. Butterfield, ‘International Society Discussions, October 1961’. p. 395

The members of the British Committee on the Theory of International Politics, meeting from 1958, did not immediately acknowledge their forebears. It was not until the spring of 1961 that Grotius became a subject of their discussions, that Lauterpacht was introduced into their midst and that Heeren was recommended to them as a possible guide. This was partly because they were mostly historians well-schooled in the failures of the League, which did not accordingly recommend itself as a source of wisdom, and with the earlier sources, only Butterfield and Wight were conversant. But it was also because of the task with which that they had been charged by their sponsor, the Rockefeller Foundation, which was to aid American efforts to devise a theory of international relations. An American committee had undertaken to locate such a theory, and its efforts were faltering (see Singer 1969). Herbert Butterfield, Britain’s leading public historian, was asked to convene a group to the same end, and he constantly sought to refocus the group on the theme of theory and repeatedly apologized to the Rockefeller Foundation for the slow progress (Vigezzi 2005, 399–401). It was out of its discussions on what kind of © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1_10

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theory that the British Committee fell on the idea of an international society. They theorized international society in the context of trying to theorize international relations. The major protagonists were Butterfield, then Master of Peterhouse College, Cambridge, Adam Watson, former diplomat and historian who followed Butterfield closely in thought and method, and Martin Wight, a medieval historian who had been teaching a course of the theory of international relations at the London School of Economics (LSE). The junior was Hedley Bull, a recently appointed colleague of Martin Wight. All were people of extraordinary talent, but quite different intellectual orientation. Wight was a ‘theological realist’, so named for his Augustinian Anglicanism, with views of international relations quite close to those of Georg Schwarzenberger (which might explain why the political Realist, Hans Morgenthau, invited him to spend a term in Chicago). Butterfield was a ‘republican’ historian, author of The Whig Tradition in History, a critique of liberal progressivism in historical writing, who advocated for a meliorist progressivism that respected the classic principles of diplomacy. Bull was an Australian logical positivist with a scanty education in the social sciences that had been bolstered by a course on the theory of law at Oxford under the tutelage of H. L. Hart. Given their differences in interests, method and philosophy, it may surprise that they could collaborate, but they shared a tough-mindedness when it came to theorizing international relations, and all were somewhat sceptical of the liberal idealism of the interwar period. The idea of a society of states was introduced into their midst by Hedley Bull at the beginning of 1961 (Bull 1966a). Interestingly, no one questioned that there existed an international society, but as the convener observed, the term meant different things to different people. These were played out in three phases, associated with the three protagonists and their followers. There was an initial exploratory phase featuring a certain tension between Bull and Wight that developed into a project on a comparative study of state systems, in the event somewhat aborted. Bull’s own idea of an international society would be developed outside the context of the group and indeed outside of Britain, written during his professorship in Australia, which was The Anarchical Society, a theoretical study of the basis of world order, and which rendered ‘international society’ into social science terms. The third phase was initiated by Adam Watson, following Butterfield, which produced a historical theory concerning the development of a European order into a global system.

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Hesitant Beginnings When the idea of international society first entered into their discussions, the question of what kind of theory was well underway. Wight’s famous essay (and the first essay for the group) “Why Is There No Theory in International Relations” (Wight 1966) had addressed the agenda of the Rockefeller Foundation directly and had characterized such theory as existed. For his part, Bull spent much of 1957 in the United States to learn how the ‘new science’ of international relations was developing and had spent some time briefing  the Committee on Morton Kaplan’s systems analysis. The idea of international society appeared following a 1961 paper by Michael Howard questioning the value of sovereignty in the modern age. Bull immediately sprang to the defence of the concept and its practice, presenting it as the basic source of order in what he termed ‘international society’, leading Butterfield to ask him to enlarge upon his point of view (Vigezzi 2005, 64, 149). The source of Bull’s ‘international society’ can be located without much difficulty. With no background in international relations and little in politics, Bull had been appointed to his position at the LSE by Charles Manning who, in the words of Mary Bull, “did not want lecturers who had been taught the subject of international relations by anyone else; he wanted his staff to learn his own idiosyncratic view of it” (Bull, M. 2008, 4). (Hedley’s selection was due to the reference provided by Hart who had been tutored by Manning and for whom he had great respect.) Manning had introduced a set of lectures on ‘The Structure of International Society’ at the LSE in 1949, gave them annually and instructed Bull to attend them. As Bull was untaught in the subject, Manning did not expect him to immediately produce a set of his own: Bull taught classes to Manning’s syllabus for three years (Ayson 2012, 32). The idea of international society, as well as the defence of sovereignty, came directly from Manning. However, his fundamental ideas did not accord with those of Manning or indeed with scarcely anyone in the tradition of thinking about international society. Bull’s training was as a logical positivist in the style of the Vienna School, which had steered him away from normative commitments and towards the goal of a ‘value-free’ social science (if indeed it could be called a science at all; see Bull 1966c). He sought an understanding of his ‘international society’ that was ‘objective’ in the understanding of positivism—that is, free from the value stances of the participants as well

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as the value orientations of the observers. In this respect, he was more in line with the tradition of the eighteenth-century rationalists and sceptics than with the international society theorists. As Molly Cochran has explained, “Bullian skepticism required that members of the British Committee argue for ethical positions on the basis of empirical, not moral foundations” (Cochran 2014, 187). The paper, entitled “International Society and Anarchy” (Bull 1966a), crystallized the different points of view. Arguing in the classic Cartesian manner, Bull began a priori and from a tabula rasa, theorizing such basic social requirements as could be deduced from considering humans as in a state of nature, unencumbered with culture. From that hypothetical position, he deduced the basic human motivations as the preservation of life, of property and the requisites of ‘truth’. Martin Wight, Bull’s colleague at the LSE, immediately questioned Bull’s approach and proffered a thick, cultural account, arguing that it was not logic but a common culture that underpinned actual, historical international societies. Wight’s position, in turn, was queried by Butterfield, who introduced the Gottingen historians to the group and suggested a historical origin, dating from around the seventeenth century in the context of the religious wars, evidencing Heeren among others (Butterfield 2005, 396). These differences implied three different notions of international society—logical, cultural and historical—but an agreement in according substance to the concept. Grotius was very much the ghost at the feast in this ‘classic’ period of the Committee’s discussions. He appears first in Wight’s 1959 essay “Why Is There No International Theory?” where Wight had laid out the proposition that ‘history’ is for international relations what ‘theory’ is for politics and had praised Ranke and Mattingly (a modern ‘Gottingen historian’) and even Seeley and Sorel (the progressive historians) for offering “a coherent structure of hypotheses that will provide a common explanation of phenomena”. As a theory, he had  discounted their efforts, which he characterized as little more than a “theory of survival”, notwithstanding “the noble attempt of Grotius and his successors to establish the laws of war” (Wight 1966, 33). Grotius first appears in the BC discussions as one of the ‘sorry comforters’ whose efforts illustrate the vast difference between political theory and international thought. Grotius appeared again in the context of discussions on traditions of thought in international relations—again inspiring disagreement. Drawing from his LSE lectures (edited as Wight 1991), Wight introduced the group to his idea of three traditions of understanding international

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relations, presenting Grotius in a new light, as the touchstone of a third or middle way—lying between a “Machiavellian/Hobbesian” tradition of realpolitik and a “Kantian” progressivist or cosmopolitan tradition and, in effect, as a rationalist and a meliorist (Wight 1966). (Wight is clear that these are not different versions of international society, as if there were three types, but rather as three different ways of considering the same thing.) Hedley Bull responded quite sharply, placing Grotius, contrary to Wight, firmly within the cosmopolitan, idealist tradition. In a parallel essay to that of Wight’s, he (Bull 1966b) defined “Grotianism”, and the “neo-­ Grotian” international lawyers of the interwar period in terms of their “solidaristic tendencies” and in essence as a type of idealist. In this seminal essay, Bull first identified, in his own words, “the theory and practice of international relations”. It consisted of two different analytical and theoretical tendencies: solidarism and pluralism. Solidarism (and ‘Grotianism’) he defined as (1) finding new sources of law in order to evade the requirement of sovereign consent, (2) extending the range of subjects of international law beyond states and (3) promoting the triumph in war of the party representing the just cause. He identified the tendency with Hersch Lauterpacht and contrasted Lauterpacht’s Grotianism, unfavourably, with the “pluralism” of Heeren and the Prussian historian Friedrich Ancillon, who stuck more closely to actual events. The essay prefigured two different visions of international society and two different practices of it: a solidarist vision of international legal efforts to overcome the limitations of sovereignty and a pluralist vision dependent upon Great Power management to maintain a fragile world order. (Bull’s career progress is relevant to the structure of the essay. His sabbatical term to America in 1957 had brought him in touch with the emerging thought on nuclear deterrence, being theorized as a rational proposition, and had given him the sought-after direction of his academic specialism, which was arms control. In 1961, he had produced his first major work, drawn from that experience: The Control of the Arms Race, where he distinguished arms control from disarmament in terms unfavourable to the latter, arguing that “arms control does not provide a technique of insulating a military situation from the future will of states to change it: it cannot bind, not settle in advance, the future course of politics”. At the same time, he had begun to work with Philip Noel-Baker, a conscientious objector and an advocate of disarmament, on a study of the failed Disarmament Conference of 1933 from whose analysis, as it became clear, Noel-Baker hoped to draw lessons for complete post-war

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disarmament. Bull regarded complete disarmament proposals “as dated as those of the early League period, and as…mistaken”, and, as Noel-Baker’s intentions became apparent, withdrew from the project (Ayson 2012, 37–38). In the distinction between the disarmers and the arms controllers, Bull found the distinction between solidarists and pluralists.) In the subsequent discussion, Bull waxed eloquent on the dangers of the ‘just cause’ position for what is emerging in his thought as a procedural concept of international society, defending the approach of the jus in bello against the jus ad bello. He identified “neo-Grotians” in terms of their focus on the justice of a war’s cause, not the justice of the means employed, and associated them with a Grotian tendency to mix law and morality, to the detriment of each (Bull 1962; Vigezzi 2005, 150–151). He represented the ‘Grotians’ as engaging to overthrow the sensible eighteenth-­ century view that international law is separate from, but validated by, practice based on express or tacit consent—that is, on a consensus among states. (Butterfield attempted to reclaim Grotius from Bull’s rather negative view, arguing that Bull had not treated Grotius fairly, since the De Jure Pacis is in fact full of rules for the conduct of hostilities (Vigezzi 2005, 151).) The thrust of these early discussions pointed to a historical approach to theorizing international relations, with a focus on state systems: Butterfield proposed the approach in two papers following Bull’s 1961 presentation, one on historic state systems, recommending Heeren as a model. Brunello Vigezzi notes the “growing attention and admiration” that both Bull and Watson rendered to Heeren (Vigezzi 2005, 6) and “the immediate and extraordinary predominance” given to Pufendorf and Heeren with regard to state systems in the BC papers and discussions (p. 39). Gradually, Bull is won to a historical focus, not least because it might reveal an actual international system free from normative attachments (especially from those that ‘international society’ and the League had acquired during the interwar period: see Alderson and Hurrell 2000, 37–41). Also, a theory of international relations might be revealed through a history of state systems. Accordingly, he presented a plan for a second volume of essays to follow Diplomatic Investigations (DI), entitled “State Systems”, that was to begin with a consideration of “the European system”, of which the example was “the work of early nineteenth century writers like Heeren and Ancillon who presented the history of diplomacy in terms of the working of the European state system” (Vigezzi 2005, 408, 2014, 43–45). Eventually, Heeren will become the main historical referent for Bull’s idea

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of an international society (see The Anarchical Society p. 13), and Heeren’s Manual of the Political States of Europe a possible model for reconciling the subjective viewpoint of Wight with his own demand for objectivity in theorizing international relations. It is not fanciful to place the eventual Expansion of International Society (Bull and Watson 1984)  in the same tradition as Heeren’s Manual and  as a modern version of Statistik— Watson certainly considered it so (Watson 2007, xx, 6). In the event, the resolution of such issues as theory versus history (and objective study vs subjective commitment) seemed possible via a comparative study of state systems, formally proposed by Watson in April 1967, following the appearance of their exploratory essays (published in 1966 as Diplomatic Investigations). Martin Wight agreed to pilot the project and prepared a note on papers already written (Vigezzi 2005, 409–410). Instead of a comparative study, however, Wight embarked on a series of essays exploring his ‘culture-alone’ thesis, focusing on the “norms and values that animate [each] system, and the institutions in which they are expressed” (Bull 1977b, 17). The result was four essays on Hellas, Persia and the modern state system, demonstrating a variety of beliefs, social forms and ‘animating’ tendencies, with little in the way of generalizations, and some doubts about “the validity of the concept itself of a states-­ system” (Wight 1977, 105). Aside from a substantial piece by G. F. Hudson on China, other studies were nugatory, and no second volume, intended to follow DI appeared. Bull edited Wight’s studies (Wight 1977), putting them together with other material in a stand-alone volume after Wight’s death, intended to illustrate Wight’s thesis that a common culture underlay any state system. The comparison of states systems was eventually carried out by Adam Watson, the third chair of the group, who established a comparative schema for the “organization of different peoples in other civilizations” along with “a notional spectrum between absolute independence and absolute empire” (Watson 2009 [1992], 10). The schema imagined five ideal type organizations of ‘different peoples’—independence, hegemony, suzerainty, dominion and empire—and analysed eleven civilizations, from the Sumerians to the ‘Islamic System’ in terms of the schema. Aside from Pufendorf’s discussion of various sorts of confederations, it was the first typology of international systems (or societies of states). On the basis of the comparative study, Watson drew some “provisional theoretical deductions” about the nature of states systems from a scientific point of view (Watson 2009, 91). The first was that “whenever a number

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of states or authorities were held together by a web of economic and strategic interests and pressures, they evolved some set of rules and conventions to regulate their intercourse”. Second, these could reach “sophisticated levels of organizations even when the leading communities belonged to different cultures”, a partial refutation of Wight’s thesis. Third, however, and in support of Wight, he concluded from the historical material that wherever there was a common culture, the system or community was “more integrated”; and finally that the “dominant culture” went far in determining the “distinctive forms and institutions” by which relations were conducted. At the end of the study, he identified a “propensity to hegemony” and a legitimacy variable that would set the agenda for further exploration (Watson 2007). Watson’s deductions constituted the first set of social science theorems applicable to international society.

The Anarchical Society and the Scientific Theory of International Society In 1965, on the basis of The Control of the Arms Race and his contacts with the American strategic community, Bull was appointed director of the Arms Control and Disarmament Unit of the British Foreign Office, forfeiting his Australian nationality for British citizenship. Two years later, in 1967, he was appointed to a professorship of international relations at the Australian National University (ANU). At Canberra, he distinguished between the ‘thinker’ and the ‘doer’, associating his official role in British arms control with ‘doing’ and his present role with ‘thinking’, and he began to prepare a basic statement as a professor of international relations. The result was The Anarchical Society (TAS), which appeared in 1977, in which he returned to his argument of a decade previously, enlarged it and placed it on a scientific foundation, transposing the ethical injunctions of the interwar period into the institutionalized structure of an actualized world order. He opened the argument with several empirical observations: first, that despite the anarchical character of the international arena, international relations were orderly, and their orderly nature was demonstrated not only by regularized and predictable (“systematic”) exchanges but by shared norms, presenting the latter as matters of fact. Following Manning, he posited the state as the constituent member of the society, referring to and

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defining it in the terms of the Montevideo Convention of 1930. (It must claim sovereignty over (i) a group of people (ii) within a defined territory, and (iii) it must have a government.) He departed from Manning in proposing an important distinction, inspired in part by Morton Kaplan’s System and Process in International Relations, between a system and a society. States form a system when they have a sufficient degree of interaction to impact each other’s decisions, so as to “behave—at least in some measure—as parts of a whole”. He distinguished that from a society of states, which comes into existence “when a group of states, conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions” (Bull 1977a, 13). A society, in other words, is the product of intentions. The system/society distinction set up two types of international order and established a presumption of a historical movement between them, in which a pre-social condition might evolve into a social condition. Bull offered no theory as to how movement from one to the other might occur. Rather he theorized a set of functional requirements for social existence, reaching back to his paper “International Society and Anarchy” (Bull 1966a). He expressed the functions in a slightly altered version, now as the need to preserve life, the need to preserve property and the “need to preserve promises”, noting that “all societies recognise these and embody arrangements that promote them” (Bull 1977a, 5). This ‘anthropological’ version is in contrast to his 1961 remarks, where he had cited H. L. Hart’s “the core of good sense in the doctrine of Natural Law” as the source of sociability—that is, the logic in it. The functions had an empirical manifestation. Bull located them empirically in a structure of rules, which could be understood as a sort of legal system (another idea he took from Hart). He identified three sorts of rules, starting with ‘fundamental’ or constitutive principles, such as state sovereignty, which are “prior to international law” and “manifest in a whole complex of rules”. These are enacted through another sort of rule, “the rules of coexistence” such as the basic rule pacta sunt servanda and the rules “restricting the place of violence”, which together form a kind of constitution of the international order. Finally, there are rules that “prescribe behaviour”—rules which tell the state authorities what they can and cannot do, across a range of subjects, and which become more complex as society reaches a “wider range of objectives than mere coexistence” (pp. 68–70). TAS was not historical and was not intended to be. Instead,

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it proffered a ‘historical demonstration’ of international society, visible in its ‘institutions’. As presented by Bull, institutions were the observable habits and practices of conventional diplomacy, to which he assigned “the functions of helping to make the rules effective”. He listed a variety of institutions including consent, official words, rule interpretation and enforcement, rule legitimation and protection, for which each state is responsible and which it enacts. But among the many habits and practices, he theorized a distinct set of institutions—the “institutions of international society”— which he identified as the particular practices and usages by which states maintain collaboration amongst themselves. Bull named them collaborative institutions and placed them as the central instruments for the maintenance of order. Sometimes termed ‘the famous five’, they are the balance of power, international law, the “diplomatic mechanism”, “the managerial system of the great powers” and war (p. 74). They are a special set of institutions that “serve to symbolise the existence of an international society that is more than the sum of its members, to give substance and permanence to their collaboration in carrying out the political functions of international society, and to moderate the tendency to lose sight of common interests” (p. 74). In other words, Bull posited many sources of order in ‘World Order’, including the institutions designed for securing domestic order. The institutions of international society were a specific set of institutions relevant to “carrying out the political functions of international society”. By this means, Bull identified international order (and international society) as distinct social processes, with distinct institutions, located within a wider institutional context that included domestic arrangements, private and corporate economic transactions and non-governmental transnational organizations (such as the Catholic Church). Bull adopted the usages of Martin Wight in conceptualizing institutions. Wight had first named them in 1955, in a paper on ‘the Institutions of International Society’, as “alliances, diplomacy and war” (Bull 1977b, 6). In his essay on ‘Western Values’, they became the diplomatic system, the balance of power, international law, and “social and technical interdependence and the functional international organizations established latterly to regulate it” (Wight 1966, 96–97). In his lectures, Wight identified them in terms of “recognised and established usages governing the relations between individuals or groups”, referencing Ginsberg’s 1934 Sociology; he further drew on the Dictionary of Sociology to provide a formal definition: “an enduring, complex, integrated, organized

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behaviour pattern through which social control is exerted and by means of which the fundamental social desires or needs are met” (as examples he cited marriage and property) (Wight 1991, 141). They were sociological concepts. In the substantive middle section of his book, Bull outlined the compass of each of the institutions and the functions it performed in producing order in international society. (The one that required more clarification was war considered as an institution.) Bull also borrowed from Wight the distinction between institutions and organizations, which became a leitmotif of the British Committee. Bull recorded the first appearance of this distinction in a seminar which Wight had presented soon after Bull had arrived at the LSE (Bull 1977b, 6). Bull concluded the argument of TAS with a series of imagined alternatives to the society he had been outlining, each of which displayed different institutional arrangements. The Anarchical Society was welcomed everywhere as a major theoretical statement and marked as the beginning of an ‘English school’ of international society, casting Manning’s major work, reissued only the year before, in the shade. The argument occasioned some perplexity: the historical and theoretical elements were not well integrated, and the master concept of ‘order’ as life, property and ‘truth’ had no further dimensions, rendering it difficult to distinguish one form of international order from another or to make comparisons. The distinction between a system and a society was not defined enough to render them clearly distinguishable or to enable theorizing in how to move from one to the other. On the other hand, its detractors (as well as its admirers) did not always appreciate the argument’s theoretical strengths. Bull’s theory identified the constitutional order of international society, defined its political institutions and identified the processes by which it was maintained and managed. Bull had created a map of international society and had identified its governing institutions.

The Expansion of International Society The recovery of the Gottingen historians and their introduction into English historiography was primarily the work of John D. Acton, the master of Peterhouse before Butterfield. In his Lecture on the Study of History (London, Macmillan, 1895) Acton had argued that Ranke’s historical works provided “the best introduction from which we can learn the technical process by which within living memory the study of modern history

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has been renewed”. In his ‘German Schools of History’, he associated Gottingen with “the recovery of the facts without recourse to theory”, a position Butterfield would develop in The Whig Interpretation of History, in which he accused a generation of liberal historians of writing history as if it demonstrated the necessary progress of liberalism. Butterfield distanced himself from Acton’s Catholic historiography but not from his defence of Gottingen, which he credited in Man on His Past (Butterfield 1955) for the recovery of a purified text, the diagnoses of interpolations and corruptions, and the discovery of the sources that the writer had used. It was the beginning of technical history as that came to be understood in the British context, that is, ‘history with footnotes’. One of Butterfield’s students was Quentin Skinner, who applied the lessons of the Gottingen historians to political thought and argued for a contextualized history of thought, which, among other things, insisted on evidence of influence. Butterfield (referred to as the Master in the records of the BC meetings) introduced Heeren and the Gottingen historians into the discussions of the BC in the September 1961 session, following Bull’s presentation of his paper on International Society and Anarchy. At the September session given over to a ‘Discussion of International Society’, the Master presented Heeren as a useful model for thinking about an international society, quoting Heeren’s own concept of his task. (Heeren 1834, had written that “an historian…who proposes to exhibit the various changes which have occurred in the reciprocal connections of these states must consequently regard them as a society of independent individuals, variously related to each other”; 7–8). Heeren had located international society in the particular historical experience of the European states following the Thirty Years’ War; Butterfield contrasted that idea with both Bull’s and Wight’s conceptions—with Bull’s “idea of a society arising naturally from the intercourse of independent communities” and with Wight’s idea of a common culture. Butterfield did not deny that the European states had a common culture, but regarded the religious wars as the necessary experience that had called forth the historical system. What Butterfield took from Heeren and presented to the BC was the idea that an international society “was deliberately created and might easily be lost” (Vigezzi 2005, 396–397). It was not a ‘natural fact’ but an artefact and a historical creation. Butterfield drew again on Heeren in the discussions the following July on the construction of a theory of international politics. Here, he presented the Gottingen historians as capable of grasping relationships based

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on practice, and he put forward a proto theory of international relations based on the historical experience of Europe since the fall of the Roman Empire. That experience, which displayed a post-imperial common culture alongside independent ‘regional centres’ that constantly readjusted their relationships on the basis of a balance of power, “suggested the elements of a theory on a more general scale” (Vigezzi 2005, 179). Further, in the discussions of historical state systems which dominated the 1965 session, he drew on Heeren and the post-Napoleonic period again to propose that “a states-system can only be achieved by a tremendous conscious effort of reassembly after a political hegemony has broken down” (Vigezzi 2005, 187). Adam Watson was the first to be fully converted, and Butterfield’s influence is evident throughout his work: Butterfield’s1965 paper on ‘Historic States Systems’ served as the theoretical framework for the second section of Watson’s The Evolution of International Society (entitled “The European International Society”) and Butterfield’s remarks on the difficulties of constructing such a society echo throughout its third section. He in turn influenced Bull: when Bull returned from Australia in 1977 to take up the Montague Burton chair at Oxford and the Chair of the Committee, Watson supported strongly the idea and may have actually proposed the title “Expansion of International Society” for the Committee’s next project. From his Australian perspective, and from the turbulence of the era, Bull had become rather doubtful about the idea of an international society and had proposed ‘convergence and divergence’ as a possible theme for the next project (Vigezzi 2005, 257). It was Watson who nudged the scheme towards a steadier focus on international society and on a European international society growing into a global order with attendant tensions (see Vigezzi 2005, 83–84; Bull’s proposal for a study of October 1978, p. 425, and Watson’s “Some Comments on Our Theme” pp. 428–431; also Watson 1990). The joint project was conceived in four parts. A first section would lay out the contours of the European International Society and the means of its engagement with the ‘outside world’, generally through the exercise of dominion, both military and economic. Watson’s first chapter would lay out the general contours of the expansion, including the imperial expansions; four subsequent chapters would cover in some detail the Russian, Spanish and British imperialisms, which together had absorbed much of the globe by the end of the eighteenth century, and the rush for Africa by all the European states at the end of the nineteenth. A second section

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would focus on the still independent states or state-like entities that had not been absorbed into the imperial systems, few by the end of the nineteenth century, notably Siam, China and the Ottoman Empire, and detailed how they were absorbed into international society, essentially through the adoption or imposition of the institutions of international society. The third section was a bow to Bull’s unease about theorizing a ‘society’. Entitled “A Challenge to Western Dominance”, it recorded the major sources of divergence and schism, essentially since de-colonization. Bull contributed the opening chapter on a general Revolt against the West; there were specific chapters on racism and underdevelopment, and the editors identified five ‘outliers’ in international society, largely on the grounds of disagreement with prevailing rules and practices. (India appeared alongside the communist countries, China and the Soviet Union, largely on the grounds of its nonalignment, accompanied somewhat oddly by France, largely because of de Gaulle’s dissidence and his attempts to undercut the Anglo-American dominance of the system.) A final section assessed the contemporary prospects for international society and stressed dissidence and different interests. The editors supplied a conclusion noting that the contemporary ‘anarchy’ did not derive so much from the new entrants, who could be accommodated, as from the super-power contest and the consequences of the Russian revolution. The new states had “embraced” international society, although its continued cohesion depended on the willingness of ‘the Western minority’ to entertain reform to address the interests of the new entrants. The different authors displayed different ideas as to the ‘cement’ of international society. Watson steadily and Bull intermittently focused on the institutions of international society as laid out in Bull’s Anarchical Society; the institutional focus also took precedence in the second section on the entry of non-European states into international society, which was via “accepting its rules and institutions”. Special chapters in the final section were devoted to the institutions of law and diplomacy, and both Gerrit Gong’s chapter on China in the dissident powers section and Suganami’s chapter on Japan in the expansion section focused on the reception or imposition of the rules of the West. Bull also presented the challenge to Western dominance as a challenge to the West’s rules and institutions, but he went further and also listed the challenges arising from colonialism, racism, economic inequalities and cultural dominance. The main focus of the famous chapter on the Revolt against the West was a

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wide-ranging political movement caused by new entrants with different interests to pursue, with the implication that the cement of international society had been a set of political agreements, not only rules and institutions, among imperial powers that were being disrupted by decolonization. Finally, the ghost of Martin Wight was evident in final two chapters considering the cultural questions and cultural differentiation in the new order. The editors’ Conclusion, which was probably drafted by Watson (see his “Some Comments on Our Theme”, Vigezzi 2005, 428), attempted to pull together a somewhat diverse argument via a synthetic historical survey in which international society is presented as a historical product whose early period was determined by Christian categories of una respublica directed towards achievement of the common good, whose middle period was determined by the rise of Absolutism, and in the nineteenth century by a standard of civilization. The twentieth-century international society featured a new legal and moral climate occasioned by decolonization. The historical sequence was the Catholic-Christian ecumene of “Christian international society” in pre-Reformation Europe, to a “European international society” that developed largely in the two centuries after 1517, to the completed “world international society” (sometimes called “universal” or “global” international society) that spread fully in the nineteenth century (Bull & Watson, 13–32). The general view presented in the volume was that the expansion was effected via the imposition of the West.

International Society as a Social Science Construct With The Expansion of International Society, the British Committee had produced two forms of international society rendered as a social science construct. On the one hand there was the somewhat illusive system-­society distinction proposed in The Anarchical Society where the master concept was Order, understood as a structure in the social science sense—one induced by the condition of state sovereignty and which was maintained by five ‘institutions’ or working methods. Despite Bull’s insistence to the contrary, it is a form of systems analysis in the manner of Karl Deutsch and Morton Kaplan that identifies a linkage of parts and locates its functional supports. The Expansion story, by contrast, presented itself as a grand historical narrative, in which the agency of Powers each at their own behest and striving in competition unintentionally combine with history to produce a significant outcome—the form that was developed by Ranke and

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which he considered the highest form of historical writing. The former turned international society into a structure of identifiable parts and gave it a dynamic; the latter turned the structure into a historical subject and gave it an origin and a destiny.

References Acton, John-Dalberg. 1886. German Schools of History. The English Historical Review I I: 7–42. Alderson, Kai, and Andrew Hurrell. 2000. Hedley Bull on International Society. Basingstoke: Macmillan. Ayson, Robert. 2012. Hedley Bull and the Accommodation of Power. Basingstoke: Palgrave Macmillan. Bull, Hedley. 1962. The Doctrine of Just War. Unpublished Paper. ———. 1966a. Society and Anarchy in International Relations. In Diplomatic Investigations, ed. H.  Butterfield and M.  Wight, 35–50. London: George Allan & Unwin. ———. 1966b. The Grotian Conception of International Society. In Diplomatic Investigations, ed. H.  Butterfield and M.  Wight, 51–73. London: George Allan & Unwin. ———. 1966c. International Theory: The Case for a Classical Approach. World Politics 18 (3): 361–377. ———. 1977a. The Anarchical Society. London: Macmillan. ———. 1977b. Introduction: Martin Wight and the Study of International Relations. In Systems of States, ed. M.  Wight, 1–20. Leicester: Leicester University Press. Bull, Mary. 2008. The Early Years: Sydney and Oxford. In Remembering Hedley, ed. C. Bell and M. Thatcher, 1–8. Canberra: Australian National University. Bull, Hedley, and Adam Watson, eds. 1984. The Expansion of International Society. Oxford: Clarendon Press. Butterfield, Herbert. 1955. Man on His Past. Cambridge: Cambridge University Press. ———. 2005 (1961). International Society Discussions, October 1961. In The British Committee and the Theory of International Politics, ed. Brunello Vigezzi, 395–397. Milan: Unicopli. Cochran, Molly. 2014. Normative Theory in the English School. In Guide to the English School in International Studies, ed. C. Navari and D.M. Green, 185–205. Oxford: Wiley Blackwell. Heeren, Arnold. 1834. Manual of the Political State of Europe and its Colonies. Oxford: Tallboys. http://books.google.co.uk/books?hl=en&id=TifgtwZPxe UC&dq=arnold+hermann+ludwig+heeren&printsec=frontcover&source=web &ots=_pqEGicTCd&sig=aoAhcwM95mg6t TOE856qcz0WTE8#PPR5,M1.

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Singer, David J. 1969. Theorising about Theory in International Politics. The Journal of Conflict Resolution 4 (4): 432–442. Vigezzi, Brunello. 2005. The British Committee on the Theory of International Politics. Milan: Unicopli. ———. 2014. The Committee and International Society: History and Theory. In Guide to the English School in International Studies, ed. C. Navari and D.M. Green, 37–58. Oxford: Wiley Blackwell. Watson, Adam. 1990. Systems of States. Review of International Studies 16 (2): 99–109. ———. 2007. Hegemony and History. London: Routledge. ———. 2009 [1992]. The Evolution of International Society. A Comparative Historical Analysis. Reissue with a New Introduction by Barry Buzan and Richard Little. London: Routledge. Wight, Martin. 1966. Western Values in International Relations. In Diplomatic Investigations, ed. H.  Butterfield and M.  Wight, 89–131. London: George Allan & Unwin. ———. 1977. Systems of States. Leicester: Leicester University Press. ———. 1991. International Theory: The Three Traditions. Edited by Gabriele Wight and Brian Porter. Leicester: Leicester University Press.

CHAPTER 11

International Society as a Research Tradition: Vincent, Keene, Wheeler and Buzan, Among Others

How do you know an international society (or international system or world society) when you see one? —M. Finnemore, “Exporting the English School?”, p. 509

In the decade after The Anarchical Society appeared, and during the period when Expansion was being formulated, the efforts of the members of the British Committee began to bear fruit in the form of a second generation of scholars who began to develop the proposals and assumptions of those who had gone before. A research tradition began to take shape, in which scholars drew on the concepts of the British Committee and its early formulations to refine their insights, to develop them into theories and to propose methods to test its assumptions. Theories gave forth new theories, and in the process, a ‘school’ developed—groups of scholars collaborated with one another and drew on one another’s insights to develop a body of linked theorems. Initially, they were Hedley Bull’s research students at Oxford—John Vincent, Gerrit Gong and Andrew Hurrell—and Charles Manning’s appointees at the London School of Economics, notably Alan James. In 1974, Michael Donelan, also at the London School of Economics (LSE), established the International Political Theory Group among whom James Mayall, Hidemi Suganami and Cornelia Navari would develop aspects of © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1_11

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the British Committee’s insights. Donelan’s most distinguished research student was Andrew Linklater, who carried elements of the international society tradition to the University College of Aberystwyth in Wales, bringing in Nick Wheeler and Tim Dunne. Richard Little’s (1975) doctorate that considered the American Civil War in terms of the norm of non-­ intervention may have been the first application of English School (ES) categories to a diplomatic case study. His collaboration with Barry Buzan on The Logic of Anarchy led them to test the thesis of anarchy in their 2000 International Systems in World History, which in turn led to Buzan’s engagement with ‘English School’ categories. Kal Holsti at British Columbia—who was introduced to the ‘English School’ via Hedley Bull’s defence of the ‘classical approach’ as against American behaviouralism— made a home for it at UBC where Robert Jackson sought refuge and passed the torch to William Bain. These developments occurred in two phases. There was an initial period of rapid development following the publication of The Expansion of International Society in which Bull’s students featured prominently, which concerned the nature of the institutions of international society, the state/ society distinction and the pluralism—solidarism distinction. A second phase followed a decade later that further refined the various categories and began to look more seriously at fundamental questions of methodology and ontology. The first to come under sustained examination was Bull’s system/society distinction.

System and Society According to Vigezzi (2005, 291), Bull had become even more wedded to a system-society distinction following his period in Australia, concerning which he had begun to doubt the ‘social’ element as applied to the Cold War order of the 1970s. Efforts to characterize the distinction multiplied. Jackson (2000) proposed the difference between two types of human conduct: instrumental and non-instrumental, drawing on the theories of Michael Oakeshott. Navari proposed a distinction between observable ‘patterns of behaviour’ and implicit ‘rules of the game’, suggesting that systems produce patterns of behaviour while societies display rules. Dunne suggested  that, “Sociologically speaking, it [system] is a useful category to signify the boundary between interactions that are social and interactions that are anomic. If a particular state, for example, is

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indifferent to the rules and sensibilities of other members of international society then one could usefully argue that it is in the system but not in the society” (Dunne 2005, 169). He implied, like Navari, that structurally driven behaviour was system-induced and that conduct taking into account the “sensibilities of other members” was the result of socialization. The most sophisticated theory was that proposed by Buzan and Little (2000), who argued that ‘the master concept’ was an international system and that within various ‘sectors’ of the system, such as the legal sector or the economic sector, elements of society crept in. Vigezzi, who considered the system/society distinction as “the most delicate and important for the comprehension of past and present international life”, judged all these treatments, including Buzan’s, to “fail to offer a cogent treatment of possible relations between ‘international system’ and ‘international society’” (2005, 293), a judgement shared by American scholars interested in causal explanation. Martha Finnemore (2001) asked how “politics moves from an international system to an international society, or from an international society to a world society”, and doubted that the English School could provide an answer. In 2019, Ian Hall suggested that the historiography of the English School offered the best prospects in that respect, referencing Butterfield’s synthesis of radical historicism and social history and pointing to James Mayall’s Nationalism and International System and Cornelia Navari’s Internationalism and the State in the Twentieth Century, both of which focused on historically specific transformations. The alternative route was to deny the distinction. Alan James, in his much-referenced “System or Society?” (1993), argued that Bull’s distinction was “without relevance” since any form of interaction between states (not to mention other sorts of actor) requires some sort of social rule in order to proceed. In support of his argument, he evidenced no historical instance of anything that could properly be called an international system that did not display some basic rules of procedure. His argument suggested that the master concept was international society and that Bull’s distinction was without merit. Barry Buzan confessed himself convinced by James’ argument and formally dispensed with the system/society distinction in his 2004 volume on the English School and globalization, introducing instead the distinction between “thin” and “thick” international societies, arguing that the critical question was differentiation between international societies, both diachronically and synchronically. (He had already suggested different

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international societies over time in his 2000 book with Richard Little.) He incorporated the idea of pluralism and solidarism into his schema as the two ends of a ‘thin’/‘thick’ spectrum of shared norms, rules and institutions, with a novel idea that non-liberal norms and rules could also engender a ‘society’. In other words, a spectrum defined by pluralism and solidarism could provide a way of describing different types of international society, the types of values they share as well as the depth with which they are shared. He called on the standard social science categories of coercion, calculation and belief to provide an explanatory grid as to how different international societies might sustain shared values.

The Institutions of International Society John Vincent’s path-breaking 1986 Human Rights and International Relations established the basic method for identifying international society’s substantive norms and injunctions, in the form of a ‘dialogue’ between political theory, international law and state practice. Gerrit Gong (1984), another student of Bull, applied Vincent’s method to elucidating the ‘Standard of Civilization’, which he discerned from the practices and law texts of the late nineteenth century: accordingly, he theorized an operative concept in the form of ‘civilization’ that was used to manage relations with extra-European states and to justify imperialism. Wheeler (2000) followed suit in his own study of the non-intervention norm, closely observing the development of both law and practice to suggest the rise of a solidarist norm of intervention to protect peoples threatened with extreme coercion by their governments. Navari (2013) formalized the methodological criteria in her “Liberalism, Democracy, and International Law: An English School Approach”. The members of the BC had shown little concern with the question of method in approaching Bull’s ‘institutions’, accepting Wight’s treatment of them as empirical phenomena in the form of social practices that could be directly observed. Hidemi Suganami (1983) suggested otherwise, identifying Wight’s approach in terms of the categorization originally proposed by William Dilthey at the end of the nineteenth century between explanation and understanding. In a paper originally written for a Japanese journal, entitled “British Institutionalism”, Suganami presented Wight’s (and Bull’s) approach as “interpretive” and as a version of Verstehen—that is, that Bull’s institutions were matters of interpretation. (He reported his reliance on the emerging distinction between ‘understanding’ and

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‘explaining’ as applied to international theories and, since concern with explanation did not seem to be high on Bull’s agenda, assigned Bull’s theory to the ‘understanding’ school (interview with the author.)) Alongside his characterization of the approach as Verstehen, his reference to cultural frameworks and ideal-type analysis pointed clearly to an interpretive approach. The idea was validated by the president-elect of the International Studies Association (ISA) at its 1988 conference whose keynote address distinguished between rational and reflective approaches to the study of international institutions (Keohane 1988). Robert Keohane assigned the rational approach to the study of international organizations and the reflective approach to the study of ‘institutions’ as understood in the English School. Andrew Hurrell (1993) followed suit, authoring an English School contribution on international law for the Rittberger volume on regimes that sourced law in a common culture and common interests, distinguishing between “the procedural rules of state behaviour and the structural principles which define the character of the system and the identity of the players” (Hurrell 1993, 59). Tony Evans and Peter Wilson (1992) agreed, referring to the “interpretive elements” in English School thought. Important distinctions were drawn between the various sorts of norms and injunctions and their institutional referents. In 2004, in a path-­ breaking work, K.  J. Holsti distinguished between ‘constitutive norms’ and ‘procedural norms’. The former, which he identified with the foundational institutions of international society, “define and give privileged status to certain actors”; the second “regulate their interactions” (Holsti 2004, 25). In 2015, Spandler, working along the same lines, distinguished between constitutionalizing and institutionalizing, the first involving the declaration of a constitutional principle and the second the establishment of rules to put it into effect. Another theoretical development was the treatment of institutions as structures in the social science sense. Hedley Bull probably had a structural idea in mind when he referred to the balance of power as the institution that made the other institutions possible. Ian Clark carried this insight forward in his 2001 The Post-Cold War Order, where he made an important distinction between order as structure and order as procedure. He identified the post-Cold War structure in terms of a particular form of balance of power, which he called ‘moderated unipolarity’, and he offered it as an explanatory variable in the normative choices of the actors. He

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identified collective security, in turn, as the most relevant regulatory procedure of the Cold War and one which was becoming a matter of debate. The idea of regulatory procedures as a central attribute of international order and as central subjects of international politics was a genuine insight, anticipating later debates about multilateralism, ‘Green room’ procedures in the WTO and humanitarian intervention.

Institutions and Organizations Another major theoretical innovation concerned the role of international organizations. Bull and the British Committee had distinguished sharply between international ‘institutions’ and international organizations such as the League of Nations, resting order on the former and neglecting the latter. In his 2004 work, Buzan had linked them more organically, suggesting that institutions were “primary” and organizations were “secondary”, presenting the latter as deposits or instantiations of the former. Accordingly, he rendered organizations, at least in part, as the empirical manifestation of the foundational institutions of international society and the palpable evidence that they did indeed exist. Buzan’s linkage suggested that a still more dynamic relationship between institutions and organizations might be possible, a suggestion seized upon by a working party on institutions convened under the aegis of the English School section of the International Studies Association (see Navari 2013a). The argument was worked up by a team led by Knudsen and Navari who developed the idea of Buzan’s nested institutions into an argument about the reticular and constitutive relationship between foundation institutions and international organizations, which the team leaders termed “the institutional structure of world order”. The team produced an elaborated model of the relationship between the two levels of institutionalization that demonstrated how the relevant institutions were connected, how sustained and how the messages moved between them (Knudsen and Navari 2019, 71). The theory illuminated the role of international organizations and regimes in defining the compass of the institutions of international society, in reproducing them, but also in transforming them. The generation of British international historians that emerged after the First World War had treated such transformations as a matter of course, evident in studies of how informal balancing had become a Concert of Europe through the peace conferences following the Napoleonic Wars, and how imperialism had become a matter of more than laying a flag, through congresses and

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conventions. The new theory highlighted the role of organizations and organizational processes in the transformations. The study demonstrates how the idea of environmental stewardship was formalized through the UN Framework Convention on Climate Change and made a responsibility of states, which in turn raised the idea of Great Power management as encompassing environmental stewardship (a role which the United States originally rejected and China eagerly adopted: Kopra 2019, 164–165) and how “collective enforcement, in principle and in practice, of international law and international humanitarian law” developed through the UN bodies (Knudsen 2019, 196).

Pluralism and Solidarism “The Grotian Conception of International Society”, which Hedley Bull published as part of the influential collection of papers,  Diplomatic Investigations, (Bull 1966) had identified two ideologies of the society of states—solidarism and pluralism, which, in the classic manner of ideologies, justified different forms of ordering and different institutional arrangements. He also suggested that solidarism undercut pluralism and presented a threat to a fragile world order built on the sovereignty principle. His student, John Vincent, politely and circumspectly began to diverge. The language of “pluralism” and “solidarism” figures sparingly in his 1986 Human Rights and International Relations, but they are in the background, providing a backdrop to the argument that human rights augur, not the subversion of international society, but its consolidation and legitimacy. Vincent noted the limitations of the pluralist arrangement of coexistence and began to put forward an alternative theory around a solidarist commitment to human rights. Such a shift had the potential to radically alter the criteria for membership in international society, so that “[t]he failure of a government of a state to provide for its citizens’ basic rights might now be taken as a reason for considering it illegitimate” (Vincent 1986, 123–128). Nicholas Wheeler (1992) picked up on the “profound tension” in Bull’s Hagey lectures and the implications of Vincent’s (1986) position on state legitimacy to argue in a major subsequent treatment that “states that massively violate human rights should forfeit their right to be treated as legitimate sovereigns, thereby morally entitling other states to use force to stop the oppression” (Wheeler 2000, 12–13, 1992, 447; emphasis in original), defending a right of humanitarian intervention by states. Wheeler’s

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argument associated solidarism with humanitarian intervention—that is, he identified solidarism with a specific institutional procedure that cohabited with others in a still-pluralist world order, a move which allowed that solidarism and pluralism could coexist in the international order. Knudsen made the inference specific and identified the particular institutions of solidarism that were becoming embedded in the pluralist order in his 2019 “Fundamental Institutions and International Organizations: Solidarist Architecture”. At the level of justificatory ideology, the pluralist thesis was variously elaborated and defended. Jackson’s (2000, 379–380) treatment of humanitarian intervention took as its point of departure the question: “what shall take precedence when pluralist norms of state sovereignty come into conflict with solidarist norms of human rights?” He framed his answer in terms of the value of the procedural association, an idea that he adapted from Michael Oakeshott’s notion of practical association. Jackson argued that states associate with one another in respect of procedural norms—equal sovereignty, non-interference and territorial integrity—the justice of which is determined solely in terms of their authenticity. These norms, being non-instrumental and moral in character, he distinguished from prudential norms, that is, rules of skill which guide the pursuit of substantive wants, desires and ends. James Mayall’s book (2000) World Politics: Progress and Its Limits presented a moderated version of the same argument, which detailed the limits to liberal progressivism and by association the limits of solidarism. John Williams’ Ethics, Diversity and World Politics: Saving Pluralism from Itself supported pluralism-in-fact with an argument that political communities are communities of belief, not merely of interest, and that the solidarist quest requires a sophisticated encounter with knowledge systems.

The Expansion of International Society The major work developing the expansion thesis was that of Edward Keene (2002). Reaching back to the Grotian and/or natural law era of international thought (which he dated as between 1500 and 1800) he argued that a single Westphalian system was not the historical reality. Instead, there had been two very different kinds of international order in place globally since the onset of the Christian era, one in Europe and one elsewhere, with “principles of appropriation” devised by Europe to relate to the territories of the rest of the world. Thus a “radical distinction

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between civilized and uncivilized societies” was maintained by the West for centuries (2002, 111). By the mid-nineteenth century, Europe’s extra-­ European order had codified into a means of civilizing “decadent, backward” peoples (2002, 7). Keene also brought the Expansion Narrative up to date by suggesting that the two worlds merged and became at least “superficially unified” after the Second World War via the UN system. In the period 1917–1945, the rift between West and non-West was healed as Communism and Fascism/Nazism emerged and cut the civilizational boundary along different lines. A new divide emerged in the West, as Germany, Japan and Russia transited into “the uncivilized world” (Keene 2002, 121–123; see also Zhang, 1991, 2014), anticipating the present divisions between the autocracies and the rest. Certain treatments in the Expansion narrative had suggested that the so-called standard of civilization was less a matter of imposition by the Great Powers as a device used by the aspiring entrants to manage and deal with the imperializing Powers (Gong 1984). This analysis was carried forward by Yongjin Zhang in a series of studies on China and by Yasuaki Onuma (1986) in reference to Japan. Buzan’s 2004 book, From International Society to World Society, coined a new term for the ES narrative—“vanguardist”—the situation where one regional international society takes the lead in designing an international society for all, arguing that “So successful was the European state in unleashing human potential that it overwhelmed all other forms of political organization in the system” (2004, 216). The vanguardist term was later used as a critique of the process (Dunne and Reus-Smit 2017). Buzan later added the term “syncretist” (2010) to describe a development process the opposite of vanguardist, in which no civilization takes the lead. The Expansion Narrative raised the question of state systems before the expansion process had engulfed them. Suzuki et  al. (2014) considered systems outside the nineteenth-century experience that Expansion had relied upon, asking about the “non-Eurocentric international orders” of the past. For example, the East Asian order before the mid-nineteenth century, which was no primitive international order, displayed ample evidence of civilizational coexistence including the relatively unique saikoku-­ like policies initiated by China and followed by Japan and Korea, of controlled isolation from Western contacts (Zhang 2014; Suzuki et  al. 2014). Green (2020) argues that this recovery of forms of international society before they were engulfed by the West “provincializes” the

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European experience and begins to correct “the silence and bias” of approaches that fail to cover eras and settings in which non-European actors were dominant. Finally, a major new statement was The Globalization of International Society edited by Tim Dunne and Christian Reus-Smit (2017) that challenged core elements of the expansion process as presented by Watson and Bull. Perhaps most significantly, the volume rejected the incorporation/ expansion model in favour of globalization processes writ large, proposing the “globalization” of international society, not the “expansion” of it. “Expansion” denotes something whose core characteristics don’t change, an incorrect characterization of the process (2017, 29). Second, the authors embraced Alan James’ idea that all international systems are inherently social. In short, there is no notion that an international system preceded a societal one (p. 33). Third, to discuss the source of change in the globalization dynamic, the authors returned to Bull’s (1977, 278) concept of the “world political system”, in which all actors and forces in the world, not just state actors, constantly influence the development of international society (pp. 33–34). The institutions of international society thus always exist within and develop from this “broader world of political actors and relations” (p.  34). Fourth, they highlight the effects of power and contestation across history, arguing that international society was never “a realm of settled norms” (p.35)—instead, these have always been contested and should be treated as such (Dunne and Reus-Smit 2017, 28–39).

Regionalism The ontological grounding was provided by Barry Buzan (1991, 186, 1993), who posited that, because of the increasing autonomy of regional relations that followed the end of the Cold War, regional systems could themselves be objects of analysis. In 2004, he widened the concept to include distinct sets of norms and practices, arguing that regions constituted differentiated ‘mini’ international societies that ‘receive’ the norms and practices of the global international society but in different ways, adjusted to their own histories, identities and interests. Diez and Manners (2007) applied the concept to the European Community, arguing that it was less an emerging federation that an international society of particular ‘thickness’. Yannis Stivachtis (2010 and 2013) developed the implications of Buzan’s observations, drawing on Buzan (1993) to argue that the ‘logic

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of anarchy’ works more powerfully over shorter rather than longer distances, that states living in close proximity with one another may also share elements of common culture and that the uneven development of international society means that some parts of the contemporary global system have more developed regional international societies than others. Accordingly, within the bounds of a relatively ‘thin’ global international society, there are several ‘more thickly developed’ “regional clusters” in which the solidarist elements of international society are developed to a greater degree. In the various regional studies that ensued, concepts derived from a global perspective were presented as having significant purchase at the regional level (Stivachtis and Webber 2014, 10). Filippo Costa Buranelli (2015) carried the latter point forward. He argued that while regional international societies can and do adopt institutions that operate at the global level, they may take those institutions to mean something different at the regional level. He suggested that the development of regional international societies is favouring the “polysemy of institutions”, a situation where different international societies adopt the same institutions while at the same time attaching different meanings and specific normative contents to them. Jorge Lasmar and his colleagues (2015) carried the idea of polysemy forward by mapping the reach of key universal norms and rules of Human Rights Law in international society while also mapping, at the same time, specific regional interpretations and practices of such norms and rules in Latin America. Costa Buranelli (2018) listed the entire range of international organizations in terms of their different ordering of the basic norms of international order. A further argument, developed by Buzan and Ole Waever at Copenhagen in their 2003 volume (pp. 144–171), was that some of the regions might be suitable frameworks for peaceful change. They identified regimes in terms of their security provisions, distinguishing between a security ‘regime’ and a security ‘community’: A security regime is directed against a common enemy and simply secures the status quo, whereas a security community goes further and obviates the use of force in the resolution of disputes among the members of the group. (They referenced the original idea of a security community to Karl Deutsch who first proposed it in relation to the Atlantic Community, where “there is real assurance that the members of that community will not fight each other physically but will settle their disputes in some other way” (1957, 5), and related their classification system to Wendt’s (1999) socially constructed Hobbesian, Lockean and Kantian “cultures of anarchy”, which focused upon the

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manner in which system members view each other: as enemy, rival or friend.) Among the conditions that allowed a security community to develop, Buzan and Waever stipulated “a strong shared view of the status quo, allied to a shared culture and/or well-developed institutions”. Andrew Hurrell provided a more elaborated theory in his contribution to the Barnet and Adler volume on the subject (Hurrell 1998, 2007).

Comparative World Systems Adam Watson (1992) established the illusive comparative schema with which to elucidate and compare state systems in his categories of independence, hegemony, suzerainty, dominion and empire, establishing a basic taxonomy of state systems. Buzan and Little’s book International Systems in World History (2000) carried Watson forward with a grand survey of all historical systems that could offer records and supplemented Watson’s types of rule with functional categories built around four types of interaction—military, political, economic and societal (or socio-cultural). Their contribution included a taxonomy of types of the international system (2000, 94–96), with useful distinctions: one might have a “full international system” or an “economic international system” and even “pre-­ international systems” (p. 96). They identified cultural-ideational exchange and luxury goods trade as being the most substantive forms of social linkages between separate polities (p. 95). The authors also introduced “interaction capacity” in the global system as a variable, providing a way of thinking about the system-society boundary and how structural forces can accelerate interaction, integration and convergence. Green (2020) argued that Buzan and Little’s schema allows connectedness and technological breakthroughs to be more systematically integrated into English School’s understandings of global history.

Order and Justice in International Society Charles Manning in 1937 had identified the conflict between order and justice as the fundamental problem of peaceful change in a symposium (and the published volume) on the subject. He argued that concrete proposals for peaceful change were never disinterested and were never based solely on reason or justice but were rather in the interest of what he called the “satisfied powers”—those who benefited from peace, who wished to preserve a presently existing order and avoid “otherwise anticipated

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warlike change” (Manning 1937, 174). Hedley Bull initially set the problem within a structural context. It was not merely that justice was subjective and all too prone to be determined by interests, it was that in the decentralized international order, made up of a congeries of territorial jurisdictions, it was not possible to legislate justice (Bull 1977, 142–145). (The same point was made by Terry Nardin (1983) who argued that international law is based on procedural norms, not on desirable end-states, and Robert Jackson (2000) who argued that the only agreed-upon justice in the international order is justice in the law.) But Bull’s focus did not remain steady, and Andrew Linklater would offer another casting of the problem. Bull presented an alternative argument, based on the different ideas of justice evident in the public debate at the time—individual, interstate and cosmopolitan justice, in a manner reminiscent of Isaiah Berlin in his essay “Two Concepts of Liberty” (Berlin, 1958)—that is, he presented the problem not as structurally determined, but in terms of value pluralism (Bull 1977, 79–81). Historically and analytically, there were different ideas of justice, which were not capable of resolution in terms of one another. Andrew Linklater illuminated the dilemma in his doctoral thesis, submitted to the University of London in 1978. Published as Men and Citizens in the Theory of International Relations, it argued a tension in the theory and practice of the modern state between “two concepts of obligation, two modes of moral experience”. The tension was between “the obligations which men may be said to acquire qua men and the obligations to which they are subject as citizens of particular associations”. The problem was not structural but one of competing values. Bull outlined his own resolution in the Hagey lectures (Bull 1984), where he argued that developing countries, and the Third World in general, had a just claim for redress and that the claim should be honoured. He based his argument on a situational ethic and on what situationists call ‘relevant moral facts’. (The relevant moral facts were that the claim was widely recognized by both individuals and governments in the Western countries, that a good deal of the change had already been accomplished and that the West had a case to answer.) On such grounds, he argued that the West “should seek an accommodation” and “be prepared to make adjustments to their positions…of undue privilege” (Bull 1984, 244). (Situationists argue from facts on the ground not on abstract considerations of justice.) Wheeler and Dunne (1996) applied a similar approach to thinking about the ethics of statecraft in the post-Cold War world,

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focusing on the responses of the society of states to humanitarian crises. They argued that a more solidarist world order had become a conditional possibility on the grounds that solidarist sentiments had penetrated the consciousness of state leaders. This could only be done, however, within the framework of ‘order’: Andrew Hurrell (2014) took Bull’s arguments forward without changing the fundamentals. He argued that justice was a matter of social construction, perennially being questioned; at the same time, international law and international society provided for a “stable institutional framework within which substantive norms can be negotiated”.

Methodology and Ontology Concern with formal methodology was intermittent. Richard Little (2009), responding to social science concerns that the English School had no methodology, argued that, on the contrary, it had too much—that it mixed historical method with political realism, liberal institutionalism and normative evaluation somewhat haphazardly. Such ‘methodological pluralism’ was allowable, however, if one took into account the different domains with which the ES was concerned, notably system, society and world polity. Little argued that realist approaches were appropriate to plotting movement within a system, that liberal or sociological institutionalism was the appropriate approach when dealing with international society and that the skills of normative reasoning were required to unlock trends in the ‘world polity’. Navari included Little’s essay in her edited volume of 2009 on Theorising International Society, which also had Robert Jackson’s account of the interpretive method that he used in writing The Global Covenant and B. A. Roberson’s 2009 account of legal reception, which she used to elucidate the way by which Egypt joined international society. In 2012, Peter Wilson recommended the methods of the Chicago school to illuminate the norms and practices of international society—that is, qualitative methodologies directed towards naturalistic observation, using a variety of sources. Navari’s own account went through several versions for the ISA Compendium with a final for the Oxford Research Encyclopaedia of International Studies (Navari 2019). It distinguished between agent-centred and structure-centred approaches, how the two methodologies related to various periods in the development of the English School and the various methods associated with each. The following year, she produced a major statement (Navari 2020) arguing that the main tendency in

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the School was neither agent-centred nor structure-­centred, but rather that agents and structures co-constituted, drawing on the structuration theory of Antony Giddens. She was not alone in suggesting the approach. Ian Clark’s (2007) work on world society informing and impacting on international society, Killian Spandler’s (2015) work on constitutionalization and institutionalization, Charlotta Friedner Parrat’s (2014) work on institutions and actors modelling them and Holsti’s (2004) and Buzan’s (2004) works on institutions all implicitly or explicitly rely on structuration theory.

Theories in Contestation As the ‘English School’ theory developed and became more formalized, it came under theoretical and normative attack from other approaches to international relations. Realists argued that the theory, while it had formalized the proposition of anarchy, ignored the central problem of anarchy, which was “leaders’ uncertainty about the present and future intentions of other states” (Copeland 2003, 428). American liberal institutionalists found it difficult to determine what exactly the school was trying to explain, or how one would go about measuring its ‘core variable’—international society (Finnemore 2001). Feminist theorists and post-colonial theorists argued that it could not critique its own foundations. The expansion story became subject to the most robust critique, and by international society theorists themselves. It was claimed as Eurocentric and obsessed with Western power (Buzan 2004, 214–216; Buzan and Little 2000; Dunne and Little 2014; Keal 2003). It is also said to have sanitized a process that was often violent, describing as gradual and benign a “process of social incorporation” that was in fact repressive and excluding. Non-European polities are portrayed as “embracing the rules and practices of the expanding international society” (Reus-Smit 2013, 31), while we know that many elements of the rules and practices were profoundly disputed. Finally, the expansion story is “primarily descriptive not explanatory” (Reus-Smit 2013, 31); the original narrative was not primarily concerned with why things happened. In 2020, Dan Green described the process of ‘rebooting’ the ‘English School’ in the Routledge Handbook of Historical International Relations (De Carvalho et al. 2021). Against charges of ‘eurocentrism’ and ‘orientalism’, he argued that it addressed colonialism better than most approaches and that the social story of how practices were developed in a ‘European

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cultural hearth’—in intense interaction with the rest of the world—effectively brought the rest of the world ‘in’ and gave it a voice. Dunne and Reus-Smits’ 2017 account of the globalization of the system of states, which substituted ‘globalisation’ for expansion, emphasized the changes in the periphery that affected the ‘European cultural heartland’, demonstrating that the theory could critique its own foundations. They highlighted the contestation that had surrounded international society’s institutions from the beginning, but they also placed the same institutions centre-stage as the focus of contestation, debate and change. Navari in the Routledge Handbook argued that the historical narrative had established the temporality of the present state system and that the focus on institutions underlined its uniqueness as a historical system. She argued that its contested nature was inherent in its saliency, and she supported Butterworth’s (and Heeren’s) contention that state systems based on mutual recognition and equality are historically rare. She ventured to predict that the fact that they are so should keep attention focused on its institutions and structures, the contingent historical conditions that maintain them and the methods that illuminate them, for the foreseeable future.

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Index

A Abolitionist movement, 94 Abolition of slavery, 11 Achenwall, Gottfried, 47 Acton, John D., 153 Alexander II, Tsar, 88 Alliances, 18 Althusius, Johannes, 20 Alvarez, Alejandro, 125 Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 94 American League to Enforce Peace, 127 American Society for International Law, 128 The Anarchical Society, 144, 150–153 Anarchy, 175 Ancient Society, 84 Anglo-Siamese Treaty of 1909, 87 Appia, Louis, 95 Aquinas, Thomas, 1, 17, 107, 108 Arbitration treaties, Unites States, 128

Aristotle, 18 Politics, 17 Armitage, David, 7 Article 16, 135 Außenpolitik, 52 Augustine, of Hippo, 22 Aussenpolitik, 55 Austin, John, 93, 99, 133 Authority in the Modern State, 116 Ayson, Robert, 55 B Bain, William, 7, 16, 162 Balance of power, 48, 50, 59, 62, 65 commercial, 71 Fenelon, 62 Friedrich Gentz, 76 to preserve the system of states, 54 unintended consequences, 62 Barnett, Michel, 94 Belgian Revolution, 77 Bellum Legale, 23

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Navari, The International Society Tradition, Palgrave Studies in International Relations, https://doi.org/10.1007/978-3-030-77018-1

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INDEX

Benkert, Gerald Francis, 109 Bentham, Jeremy, 66, 67 Berlin Conference of 1885, 89 Best, Geoffrey, 94 Brailsford, H. N., 127 Brierly, James, 129 British Committee on the Theory of International Politics, 2, 12, 49, 143 British Institutionalism, 164 Brodie, Bernard, 6 Brown, Philip Marshall, 121, 123 Brussels Declaration concerning the Laws and Conventions of War, 94 Bull, Hedley, 2, 7, 15, 144, 146, 173 arms control, 147 international society, 145, 154 justice, 173 Leopold Ranke, 55 logical positivist, 145 Bull, Mary, 145 Bullian skepticism, 146 Buranelli, Filippo Costa, 171 Butterfield, Herbert, 5, 143, 144, 146, 148, 154 Leopold Ranke, 53 Buzan, Barry, 162, 163, 166, 169, 171 C Calvinist doctrine of predestination, 16 Calvinist view, 20 Cameralism, 46 Canon law, 80 Castlereagh, 77, 78 Catholic Church, 106, 107 Catholic revival, 106 China, 88 Cicero, 2, 18 Civilization, 11, 75, 88, 164 as progress, 78 only source of universality, 83

Civilizing mission, 86 Civitas maxima, 134–137 Clark, Ian, 165 Cobden, Richard, 63, 83 Cochran, Molly, 146 Code of Canon Law, 107 Colonialism, 51 Compulsory arbitration, 136 Comte, August, 11, 78, 113 Concerting, 76 Concert of Europe, 86 Concert of Great Powers, 75 Condorcet, Marquis de, 86–87 Confederation, 36 Conference method, 75 Conference system, 78 Congress of Verona, 77 Congress of Vienna, 77 Constitutionalism, 75 Cours de philosophie positive, 78 Crimean War, 86, 94 Cultures of anarchy, 171 D De Bello et de Indis, 107 Declaration of Powers on the Abolition of the Slave Trade, 83 Declaration on the abolition of the slave trade, 95 Deutsch, Karl, 118 Devetak, Richard, 8 Diplomacy, Absolutist, 61 Division of labour, 114 Domestic analogy, 131 Doyle, Michael, 6 Dufour, General, 95 Duguit, Leon, 113–114, 129 Dunant, Henry, 94, 95 Dunne, Tim, 2, 162, 170 Durkheim, Emile, 113

 INDEX 

E Eagleton, Clyde, 130 East Asian order, 169 Eichhorn, Johann Gottfried, 46 Elements of International Law, 79 Eliot, T. S., 4 Encyclopédie, 44 Ergo omnes, 109 Essai sur les mœurs et l’esprit des nations, 44 Essay on the History of Civil Society, 83 Ethics, Diversity and World Politics: Saving Pluralism from Itself, 168 Ethnology, 45 Etsi deus non daretur, 19 Eurocentric, 175 European Coal and Steel Community, 117 European Community, 170 European international society, 50, 155 European treaties, history, 47 European Union as a regional society of states, 37 Evans, Tony, 165 The Evolution of International Society, 155 Expansion Narrative, 169 Expansion of International Society, 153–157, 168–170 F Fascism/Nazism, 169 Federalism, 115 institutional, 131 institutional vs. normative, 115 normative, 131 Finnemore, Martha, 163 The Formation of the Great Powers, 77 Forsyth, Murray, 30

183

Foundational institutions, 165 The Foundations of Sovereignty, 116 Franco-Prussian War, 97 Franklin, Benjamin, 10 Frederick the Great of Prussia, 66 French Academy of Moral and Political Science, 82, 89 French Revolution, 75 Friedner Parrat, Charlotta, 175 From International Society to World Society, 169 Functional interdependencies, 118 Functional theory, 117 Fundamental Institutions and International Organizations: Solidarist Architecture, 168 G Gatterer, Johan Christian, 45 Gay, Peter, 44 Geneva Committee, 94, 95 Geneva Convention, 97 Gentili, 8 Genzt, Friedrich, 76 The Globalization of International Society, 170 God’s reason, 16 Gomarus, Franciscus Gomarists, 20 Gompers, Samuel, 126 Gong, Gerrit, 87, 164 Gottingen historians, 10, 146, 153, 154 Graham, Malbone, 125 Great Power ascendancy, 53 Great Power management, 147, 167 Great Powers, 52, 97, 123, 169 Greece, Kingdom of, 76 The Grotian Conception of International Society, 167 Grotian Society, 11, 15

184 

INDEX

Grotian tradition, 3, 7 The ‘Grotian Tradition,’ 15, 136 Grotius, Hugo, 2, 5, 7, 9, 15, 16, 19, 20, 98, 102, 143, 146 contributions to political science, 27 De Veritate Religionis Christiane 1627, 21 empire, 26 as the ‘father’ of international law, 27 intervention, 23 jus ad bello, 23 Mare Liberum, 26 method, 18 middle way, 147 as political scientists, 90 Grotius Society, 101, 102, 125, 128 Guild tradition, 4 H Hagey lectures, 173 Hague Conference, 11, 123 Hague Peace Conferences, 94 Hatschek, Julius, 132 Heeren, Arnold, 10, 48, 148, 149, 154 economic interpretation of history, 49 European international society, 49 Hedley Bull, 50 history of the states of antiquity, 48 mercantilism, 51 Peace of Westphalia, 49 state system, 50 Hegel, Georg, 53 Hermeneutics, 46 Hierarchy of states, 85 Higher Criticism, 46 Higher law, 108, 115, 133 The higher law, 137 History of Civilization in England, 79

History of the European States System, 49 A History of the Law of Nations in Europe and America, 82 History, universal, 45 Hobbes, Thomas, 9 resemblance to Grotius, 30 state of nature, 30 Holsti, K. J., 162, 165 Holy Roman Empire, 7 Humanitarian intervention, 168 Humanitarianism, 11, 94 Humanizing of war, 7 Human Rights and International Relations, 164, 167 Human sociability, 17 Hume, David, 27 Hurrell, Andrew, 72, 165, 172, 174 Emer de Vattel, 72 Hurst, Cecil, 127 I Index of forbidden reading, 19 Individual as object subject, 138 Institut de Droit International, 97, 101, 111 Institute of International Law, 11 Institutionalization, 123 Institutional structure of world order, 166 Institutions and organizations, 153 Institutions of international society, 51, 152, 156, 164–166 Martin Wight, 152 Interaction capacity, 172 Interdependence, 108, 115 Interdependent, states as, 114 International Congresses, 123

 INDEX 

International Court of Justice, 129 International Declaration concerning the Laws and Customs of War, 94 International history, 49 Internationalism and the State in the Twentieth Century, 163 International jurisdiction, 127 International law, codification, 125 International law ‘Victorian tradition,’ 101 International organizations, 166 International society, 1, 56, 87, 138, 157 Catholic, 105 collective sovereignty of civilized states, 97 historical, 49 historical subject, 55 institutions, 30 invented, 2 J.J. Rousseau, 63 Manning, 134 meanings, 134 power political, 137–140 social nature, 132–134 thick, 163 thin, 163 tradition, 2, 9, 15, 16, 59 International solidarity, 114–115 International Systems in World History, 162, 172 Introduction to European International Law, 48 Introduction to the History of the Principal Kingdoms and States of Europe, 39 Iwakura mission, 84 J Jackson, Robert, 162, 173 James, Alan, 163

185

Japan, 87 Japanese intellectuals, 88 Japanese seizure of Manchuria, 125 Jeffery, Renee, 7 Jellinek, Georg, 106 Jesuitical argumentation, 5 Jesuit tradition, 9 Juridical consciousness, 125 Jus cogens, 109 Jus gentium, 16 obligatory status, 19 Jus inter omes gentes, 109 Just cause, 148 K Kant, Immanuel, 7, 60, 67, 69, 121 theoretical reasoning, 68 Kaplan, Morton, 145, 151 Keene, Edward, 168 Kelsen, Hans, 108, 111, 112 Kennedy, David, 93, 122 Keohane, Robert, 165 Kissinger, Henry, 55 Kollar, Adam, 45 Korea, 88 Koskenniemi, Martti, 27 Krabbe, Hugo, 110 Kulturkampf, 106 L Laski, Harold J., 116 Lauterpacht, Hersch, 2, 12, 15, 100, 101, 134–137, 147 Law municipal, 137 and state, 164 Law of three stages, 78 Lawrence, T. J., 122 Laws of war, humanizing, 94

186 

INDEX

League of Nations, 1, 11, 121, 123, 125, 139 Article 16, 130 Federal Organization, 131 as international society, 122 Second Session, 130 League of Nations and Its Problems, 129 The League of Nations and World Order, 137 Legal pluralism, 114, 116 Legal positivism, 105 Legal system, 151 Levée en mass, 75 Leys, Norman, 124 Liberal peace, 6, 7 Lieber, Francis, 11 Lieber Code, 95, 98, 123 Linklater, Andrew, 89, 162, 173 Little, Richard, 162, 163 Loevestein fortress, 21 Logic of anarchy, 170–171 The Logic of Anarchy, 162 London Conference of 1832, 76 London School of Economics, 116 Lorimer, James, 11, 84 racism, 85 Louis XIV diplomacy, 61

Martens, George Friedrich de, 48 Martin, William Alexander Parsons, 82 Maunoir, Théodore, 95 Maurice of Nassau, Prince of Orange, 21 Mayall, James, 163 Mechanical solidarity, 113 Mediations, 5, 8 effective, 8 Meiji Restoration, 88 Meinecke, Friedrich, 40 Meletius, The, 20 Men and Citizens in the Theory of International Relations, 173 Mercantilists, moderate, 47 Mercantilist theory, 51 Methodology, 174 Metternich, Klemens von, 78 Miller, David, 127 Mitrany, David, 116–118 Moderation in War, 22 The Modern State Idea, 110, 111 Montesquieu, Charles-Louis de Secondat, 61 Montevideo Convention, 151 Morgan, Lewis Henry, 84 Morgenthau, Hans, 144 Morley, Felix, 124 Moynier, Gustave, 95, 97

M Mabillon, Jean, 43 Macaulay, Thomas Babington, 6, 7 The History of England, 6 Madison, James, 79 Maine, Henry, 98 Manning, Charles, 12, 131, 132, 145, 150, 172 Manual of the Laws and Customs of War, 97

N Nationalism and International System, 163 Natural Law, different from law of nations, 24 Natural rights, 75 The Nature of International Society, 132, 134 Naval Treaty of 1922, 89 Navari, Cornelia, 162–164

 INDEX 

New Testament, 9 Noel-Baker, Philip, 147 Norms constitutive, 165 procedural, 165 O Oakeshott, Michael, 162 Objective law, 115 Obligatory status, 19 Offshore balancer, 76 Oldenbarnevelt, Johann van, 20 Old Testament, 9, 46 On the Law of War and Peace, 15, 17, 98 On the Present Condition of the German Empire (CGE), 35 Onuf, Nicholas, 81 Onuma, Yasuaki, 169 Oppenheim, Lassa, 11, 85, 99, 129, 134 Organic solidarity, 113 Origins, 8 Origins of the positive law of nations, 80 Ottoman Empire, 86 entry into international society, 86 P Pacta sunt servanda, 129, 135 Paix Perpetuelle, 65 Parry, John, 16 Peace plans, 59, 64–69 Permanent Court, 121 Permanent Court of Arbitration, 126, 128 Permanent Court of International Justice, 128 Permanent Court of Justice, 126

187

Perpetual peace, 68 Perpetual Peace, 67 Physiocrats, 51 A Plan for a Universal and Perpetual Peace, 66 A Plan for Government by Mandate in Africa, 124 Pluralism and solidarism, 167–168 Political Community and the North Atlantic Area, 118 Political economy, 46, 51 peace, 47 Polysemy of institutions, 171 Pope Leo, 107 Positive morality, 133 The Positive Philosophy of Auguste Comte, 78 The Post-Cold War Order, 165 A posteriori reasoning, 3 Power politics, 139 Power Politics: A Study of International Society, 138 Practical association, 168 Precis de Droit des Gens, 130 Privateering, 95 Procedural norms, 173 Project of Perpetual Peace, 63 Prudential norms, 168 Pufendorf, Samuel, 8, 31, 69, 148 civil condition, 33 federation, 34 Grotius, 32 as historian, 39 historical aspects, 38 historiker, 40 Holy Roman Empire, 35 law of nature, 34 Natural Law, 38 as political scientists, 90 as Politiker, 10 positive law, 38

188 

INDEX

Pufendorf, Samuel (cont.) sociability, 31 society of states, 40 sovereign state, 35 sovereignty principle, 32 the state, 34 state as will, 35 state of nature, 33 state systems, 37 ‘system of states,’ 35 theory of the state, 38 unitary state, 36 as a voluntarist, 32 R Racial discrimination, 125 Ragion di stato, 46 Raison d’état, 40 Ranke, Leopold von, 52, 146, 153 balance of power, 54 concerting, 77 cultural development, 55 the Divine Mind, 53 Great Powers, 54 Hegelian view, 53 political realism, 55 Receuil de Traites, 48 References, 173 Regional international societies, 171 Regional pacts, 37 Regional systems, 170 Reus-Smit, Christian, 170 Revolt against the West, 156 Revue de Droit International et de Législation Comparée, 99 The Rockefeller Foundation, 143 Rolin-Jaequemyns, Gustave, 97 Roman civil law, 80 Root, Elihu, 12, 128 Roshchin, Evgeny, 18

Rousseau, J. J., 62, 63, 66 balance of power, 63 on Grotius and Hobbes, 29 Russia, 87, 89 as civilized, 84 history, 45 S Saint-Pierre, Abbé de, 63, 64 Satisfied powers, 172 Savigny, Friedrich Carl von, 53 Scelle, Georges, 114, 115, 129, 131 federalism, 115 role splitting, 115 Schlözer, August Ludwig von, 44 Schmauss, Johann Jacob, 47 Schwarzenberger, George, 11, 89, 137, 138, 144 Scott, James Brown, 126, 128 Secondary imperialisms, 87 Second World War, 1 Secularism, 20 Security ‘community,’ 171 Security dilemma, 61 Security ‘regime,’ 171 Selden, John Mare clausum, 26 Shamil, Chechen leader, 88 Sharp Resolution, 20 Simma, Bruno, 111 Skinner, Quentin, 154 Smith, Adam, 27, 51 Sociability, 2, 21 unsocial sociability, 69 Socialism, 5 Sociality, classical idea, 17 Social order, 1 Social science, 165 Social solidarism, 113–114 Societas, 1, 7 Societas gentium, 16, 18, 19, 23

 INDEX 

The society of nations, 89, 125 The Society of Nations, 124 The Society of Nations, Its Past, Present and Possible Future, 126 Society of states, 1, 72, 100, 144 Emer de Vattel, 71 Solidarism, 113–114 and pluralism, 147 Solidarist, 125 Solidarist world order, 174 Solidarity, 113 Sorel, Albert, 63 Sovereignty, 94, 116 constitutional insularity, 133 Spandler, Killian, 175 Standard of civilization, 83–90, 137, 169 State of nature Pufendorf, 9 State’s rights, 11, 81 basis of international law, 81 State systems, 36 ‘close’ systems, 36 Statistik, 41, 46 Stivachtis, Yannis, 170 Stoics, 17 St Petersburg Declaration, 94, 96, 97 Streit, Clarence, 132 Structuration theory, 175 The Structure of International Society, 145 Suaresianism, 108, 109 Suarez, Francisco, 9, 18, 19, 107, 108 Suarezians, 15 Subjects of international law, individuals, 115 Subsidiarity, 112 Suganami, Hidemi, 2 Supranational law, 110 System or society, 163 System/society distinction, 151, 162, 163

189

T Taiwan, 88 Taxonomy of state-systems, 172 Temperamenta Belli, 22 Theorising International Society, 174 Theory of international relations, 143 Theory of the Modern State, 111 Thirty Years’ War, 7 Thomism, 107 Thomist, 109 The Thomistic Conception of an International Society, 109 Tocqueville, Alexis de, 89 Tradition, 3, 7 as ‘essence,’ 3 as ‘selection,’ 3 “Tradition and the Individual Talent,” 4 Treaty of Utrecht, 62 Tuck, Richard, 30 Turkish barbarity, 84 U Ubi societas ubi lex, 18 UN Framework Convention on Climate Change, 167 Union Now, 132 United Nations, 139 Universal history, 45 Universal legal conscience, 110 University of Göttingen, 43 V Value pluralism, 173 Vanguardist, 169 Vattel, Emer de, 6, 10, 70 law of nature, 70 Lois des Gens, republican, 72 natural society of nations, 71 Venetian Relations, 46

190 

INDEX

Verdross, Alfred, 111, 112, 129 Versailles Treaty, 1 Victorian ethnological racism, 84 Vienna School, 145 Vienna treaty, 77 Vigezzi, Brunellno, 148 Vincent, John, 164 Vitoria, 109 Voltaire, 44, 69, 83 war, 60 Voluntarist account of obligation, 20 Voluntas civitatis maximae est servanda, 135 W Waever, Ole, 171 War dynastic, 60 global, 60 is justifiable, 22 in prosecution of one’s rights, 23 Watson, Adam, 144, 148, 149, 155, 172 Westlake, John, 85, 98, 99, 101, 108 duties and rights of states, 100 international law, 100 international society, 99 Westphalia, Peace of, 35 Westphalian system, 168

Wheaton, Henry, 10, 25, 79 Emer de Vattel, 79 international society, 81 Samuel Pufendorf, 79 states’ rights, 81 Wheeler, Nicholas J., 164, 167 Wheeler, Nick, 162 Whewell, William, 96 The Whig Interpretation of History, 5, 53, 154 White man’s burden, 86 Why Is There No Theory in International Relations, 145 Wight, Martin, 40, 49, 86, 132, 144, 146, 149 three traditions, 146 Williams, John, 168 Wilson, Peter, 133, 165 Wolff, Christian, 10, 62, 69, 70 World History, 54 World of states, 8, 40 World political system, 170 World society, 114–115, 139 Wright, Quincy, 130 Z Zhang, Yongjin, 169 Zimmern, Alfred, 125 Zouche, Richard, 8