the law of nature.42
It goes without saying that this imprecise and sweeping provision generously legitimated a large variety of European colonial practices. In addition, there seems to be an inconsistency in Grotius’ work: in other passages, he advocates free choice and a qualified form of pluralism, a result of taking scepticism into account.43
Finally, Grotius’ theory of property clearly favours European agricultural societies. Grotius himself notes the colonial context, and the colonial debates in the wake of the Spanish conquista, with participants such as Vitoria, de Soto, Cano, Covarruvias, Molina and Gentili.44 Grotius presents an embryonic form of the agricultural argument, popularized by Locke and Vattel later on: ‘[I]f within the territory of a people there is any deserted and unproductive soil, this also ought to be granted to foreigners if they ask for it.’ Grotius distinguishes between dominium and occupatio. Dominion and jurisdiction still reside with the native population. However, settlers have a perfect natural right to occupy (as long as occupation is effective), which means that the consent of the natives is immaterial.45
Grotius’ key aim in De Jure Belli ac Pacis, it seems, was to show a way to establish peace among the Christians in Europe. His sphere of natural law is global in scope, but there is an inner, Christian circle, with Grotius hoping that Christian states would form a federation or league (foedus) ‘against the enemies of Christianity’.46 Given the naive and often anachronistic hagiography of past centuries – Grotius as the founder of the modern law of nations, as the champion of native rights, as the theorist of the modern states system, as the founding father of the ‘Grotian tradition’ in international relations, as ‘the tutelary deity of the Peace Palace at The Hague’ (Richard Tuck) – the current debunking is just and proper.47 Nevertheless, we should keep in mind that Grotius undoubtedly made important contributions in other disciplines and areas: for instance, in theology, contract theory, moral theory or the theory of natural rights.
Samuel Pufendorf: criticizing the rights of conquest
Samuel Pufendorf (1632–94) has also been included among those European authors who justified colonialism.48 If we take a closer look at his major work, The Law of Nature and Nations (1672), however, we get a very different picture. It is true that his theory is more state-centered, moving away from the idea of a moral community of humankind, and favouring states (rather than individuals) and their interests instead. But Pufendorf is fair enough to include non-European communities, even if they should not meet modern European standards of statehood. Like Gentili before him, Pufendorf mentions the Chinese as a people that avoids contacts with foreigners, and is justified in doing so.49 In another passage, he explicitly rejects Vitoria’s reasoning in favour of Spanish perfect hospitality rights. Pufendorf dismisses Vitoria’s first just title of ‘natural partnership and communication’. The perfect right of ownership trumps the imperfect right to visit and live in foreign countries. The property-holder simply has ‘the final decision on the question, whether he wishes to share with others the use of his property’.50 Pufendorf adds the pragmatic consideration that any unrestricted influx of immigrants who might stay for an unlimited period of time may have detrimental effects on the native community. In the language of natural law, this inflow could conflict with the community’s duty of self-preservation. Secondly, there is no natural, enforceable right to trade. Again, the natives have to grant permission and may renounce it ‘if the well-being of the state demands it’. Thirdly, Pufendorf rejects Vitoria’s claim that a unilateral grant of rights is unjust. Pufendorf asserts that rights do not have to be symmetrical in this respect. In matters of imperfect obligations, a property-holder can be ‘more liberal to one than to another’. This gave the Japanese, for instance, the right to admit Dutch traders, but refuse admission of other Europeans. Here and in other instances, Pufendorf applies the domestic analogy. In this case, he argues that the relationship between communities can be compared with the owner of a garden who grants exclusive privileges to one of her/his neighbours.
Pufendorf also refuses to accept Grotius’ incipient agricultural argument (the claim that native nomads do not really own their land because they failed to enclose and farm it permanently). He stresses the factor of agreement rather than natural rights. Rejecting Grotius’ subtle distinction between (European) effective occupation and (native) dominion, Pufendorf asserts that if no individual owner can be detected, the land ‘should not at once be regarded as unoccupied, and free to be taken by any man as his own, but it will be understood to belong to the whole people’.51
Pufendorf explicitly refers to the Amerindians when he criticizes Francis Bacon’s claim that Europeans have a right of humanitarian intervention to stop acts of cannibalism and human sacrifice. Like Bacon, most authors before Pufendorf took this right for granted. In Pufendorf’s account, state or community rights trump those of the global moral community. (He might argue that they serve the latter, albeit indirectly). There is clear indication of a paradigm shift. State sovereignty entails a strict duty of non-intervention. Foreign states may only intervene if their own citizens are victimized, provided that they have come as ‘innocent guests, or driven by storms’. Pufendorf distinguishes between foreign visitors who come to visit ‘as enemies and robbers’, and those who behave peaceably or are in need of help. An explicit reference to European colonialism is missing, but perhaps implied: ‘For only in the last case does a right of war lie with those whose citizens are treated with such cruelty, not in the others.’52 In sum, there are no special rights for Europeans. Pufendorf rejects the Aristotelian doctrine of natural slavery as implausible and conflicting with natural equality, and any titles of conquest based on civilization.53
Christian Wolff: the first culturally sensitive international legal theory
The innovative international legal theory of Christian Wolff (1679–1754) has rarely been appreciated. Brett Bowden is a case in point. He asserts that Wolff’s belief in European civilization is biased: the first step is the familiar distinction between civilized and barbarous nations. Next there is the assertion that ‘nations ought to be civilized’.54
From this assessment, it was just a short leap to the assumption that it was the task of the civilized to assist with the training of the uncivilized in their aspiring to the realms of the ‘civilized world’, should their minds be so pliable and adept at accepting such conditioning.55
This phrasing creates the impression that Wolff was one of the accomplices of colonialism. The opposite is true. Like Gentili or Pufendorf before him, Wolff defends Chinese isolationist policy. The Chinese have a perfect right to restrict or altogether refrain from international trade and commerce ‘for the purpose of preserving their own interests’. Wolff interprets Chinese intentions, claiming that the government was interested in perfecting the state, which is of course compatible with the duty of self-perfection. Wolff does not stress the right of self-preservation or self-defence, but points out instead that the Chinese are entitled to keep their morals ‘pure and uncorrupted’.56 If Chinese policy is perfectly lawful, Wolff nevertheless hints at the possibility that it may be imprudent, an argument elaborated on by political economists like David Hume and Adam Smith (see Chapter 3 below). Foreign commerce ‘makes a nation rich, consequently powerful’.57 Nations which refrain from it, Wolff suggests, might gradually lose their power, actually China’s fate in the nineteenth century.
Like Pufendorf, Wolff rejects any exclusive rights for Europeans. The right of each nation to decide on foreign commerce effectively abandons Vitoria’s first title. Nations may persuade, but must never force or compel others to embrace their religion. Unlike Vitoria and Francisco de Suárez, Wolff makes sure that no back doors are left open. If other nations reject ‘the true worship of God . . . that must be endured’. Probably again referring to Chinese practice, Wolff holds that states may expel missionaries, prohibit their entrance and ban their books.58 Wolff’s system of natural law
