an additional utilitarian calculation involved. Population increases make an intensive use of the soil necessary. Pastoral and hunting ways of living are no longer deemed feasible, and have to give way to an agricultural form of existence, which is economically superior. This utilitarian calculus is supported by the emphasis on effective occupation mentioned above: nomads do not occupy their hunting grounds in a strict sense, as they roam over rather than inhabit them. Vattel calls this ‘uncertain occupancy’. Actual occupation, that is settlement and use, are decisive.73 Vattel concludes: ‘[W]hile the conquest of the civilized Empires of Peru and Mexico was a notorious usurpation, the establishment of various colonies upon the continent of North America might, if done within just limits, have been entirely lawful.’74 The emphasis on the status of the Peruvian and Mexican empires as civilized supports the familiar distinction between civilized and savage peoples. The group of civilized nations is no longer exclusively European. Vattel can be defended with his insistence on the idea of impartial justice, specified in the phrase ‘if done within just limits’. In addition, sufficient land has to be left to the natives. As we have seen, however, it is up to the sovereign state to decide where to draw this line, and given the human propensity to abuse power, an assumption Vattel himself subscribes to, there was little reason to assume that the Dutch, English or French in North America would meet even this minimal requirement.
Was all this the result of Vattel’s Eurocentric bias? It is more plausible to explain the outcome with the flaws in Vattel’s overall legal theory. His work can be seen as the perfect synthesis of a refined natural law theory and actual state practice. In other words, his theory is both descending and ascending, combines a top-down with a bottom-up procedure, ‘giving to the more acceptable principles of contemporary practice the respectable and fashionable cloak of a universally binding rational rule’.75 Vattel’s theory moves towards legal positivism, with state practice becoming more important. Nations are identified with states; individuals or families do not play any significant role in his system. In these respects, he laid the foundation of classical nineteenth-century international legal theory.
Conclusion
In this chapter, I have tried to show how many interpreters lump very different authors together, assuming that they are bound together by a common ‘colonial project’. This approach is unwarranted. My own interpretation emphasizes each author’s individuality and (limited) originality, and their profound differences in terms of arguments, legal theories and judgements on non-European peoples. The main errors of the authors mentioned in the introduction can be summarized in the following way.
1. The fallacy of another great narrative
Some authors explicitly or implicitly assume a totalizing ‘Western legal discourse’, especially Williams and Anghie. This theory, however, is an illusion, committing the fallacy of constructing a meta-narrative of modern history. What we really get is a complex picture: the small story that is being told here about Vitoria or Wolff is not necessarily part of a bigger one. The fallacy lies in assuming a false continuity and connectedness that is in fact the work of the interpreter’s mind. There are often several types of over-schematization involved: the cliché of a coherent ‘Europe’ or ‘Western civilization’ and a corresponding discourse, the sweeping reference to the category of ‘the other’ and misleading labels like ‘Western imperial project’ or ‘Enlightenment project’ (see also Chapter 1). The narrative itself is totalizing, essentialist and thus epistemologically unconvincing.
2. The construction of false continuities
For instance, Anghie makes fanciful connections between the sixteenth-century theologian Vitoria and the secularized discipline of nineteenth-century international law – when key concepts and approaches were civilization, race, sovereignty, state will and legal positivism, all of them rather alien to Vitoria’s natural-law thinking. There is a sweeping reference to ‘classical international law’ without an attempt to define this term. Bowden offers us some daring jumps: for example, from Allen (1939) to Wolff (1749), then to Hall (1890), with quotations from Ward (1795) in between.76 The complexity and pluralism of the discourses from various, and often very divergent, centuries get lost.
3. The influence of international legal theory is overestimated:
This is suggested by recent studies. McHugh and MacMillan stress the importance of the common law tradition for the English colonies, rather than the impact of international lawyers such as Vitoria, Suaréz, Gentili or Grotius. International legal theory and international legal practice did not always overlap, especially when theories had a philosophical bent. Fisch points out that law in general was indeed an instrument of colonialism, but adds several qualifications. Law ‘also set some limits to European intervention and manipulation’. He warns us not to overestimate the importance of legal mechanisms, let alone of legal writings. ‘One might suppose that, after all, legal policy was not of a decisive political importance: the end of European rule came in all areas within a short period regardless of the particular legal policy of the respective colonial power.’77 Often, indigenous law was used as a means of controlling the natives. It remains to be shown that European legal traditions by their very nature or essence lend themselves to be used as an instrument of oppression. The emancipatory, subversive potential of these traditions, for instance in terms of the concept of equality, should not be underestimated. Sometimes they turned against Europeans. There were unintentional effects, especially in the areas of legal equality and human rights.78
4. The ambiguity of texts
Vitoria’s lecture in particular is deeply ambiguous. It is definitely one-sided to present him as an unequivocal accomplice of European colonialism or imperialism. Even Vattel is a difficult case: texts are often multidimensional and open to divergent interpretations, and if Europeans and US-Americans used Vattel to justify colonialism (with the help of the agricultural argument), we should not forget that Commissioner Lin Tse-hsu quoted Vattel to criticize British pressure and impending intervention in the 1840s. When he took rigid measures to protect the health of China’s population and destroyed British chests of opium, he could have found support for that policy in the doctrines of several European natural lawyers. His scant knowledge of Vattel based on deficient translations apparently convinced him that his course of action was in agreement with norms of the European law of nations.79
At the end of the day, it is obvious that debunking Grotius and Vattel as accomplices of European expansion and colonialism is justified. However, we can also discover strong cosmopolitan traditions in some of the international lawyers. Vitoria’s moral cosmopolitanism is incomplete, but still an impressive feat, whereas Pufendorf’s and Wolff’s moral and legal cosmopolitanisms belong to the impressive intellectual achievements of modern European legal theory.
In his excellent book From Apology to Utopia, published some twenty years ago, Martti Koskenniemi simply did not mention the ‘colonial dimension’ when discussing international lawyers such as Grotius. In his more recent study The Gentle Civilizer of Nations, he devotes a whole chapter to late nineteenth-century European international legal theory and how it constructed the standard of civilization, ways of excluding non-Europeans and methods of justifiying imperialism.80 This indicates a significant shift of emphasis in contemporary scholarship, and one that should be welcomed.
3 • British Enlightenment: the Triumph of Commercial Cosmopolitanism
Introduction: a cosmopolitan Enlightenment?
The eighteenth century has usually been seen as a cosmopolitan age before the advent of nationalism in the wake of the French Revolution. In a recent publication, for instance, we find the claim that ‘the Enlightenment … was cosmopolitan in style and content’, and the Abbé de Saint-Pierre
