Agency, Universality, and the Politics of International Legal History

Responding to Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int’l L.J. 475 (2010).

I.        Introduction

A widespread “turn to history” has marked international legal scholarship in recent years.[1] In the rich and extensive study to which the present note responds,[2] Arnulf Becker Lorca offers a new contribution to the growing literature on nineteenth-century international law[3] by approaching this period from the semi-periphery. That is, Becker Lorca prioritizes those states which, though not European, were deemed sufficiently “civilized” to engage with the West on something approximating a formally equal basis, or at least with greater power and legitimacy than was ordinarily accorded to “non-civilized” peoples. He argues that nineteenth-century semi-peripheral jurists appropriated and deployed the international law of their time to bolster the sovereignty of their states. It is in such appropriation—and not in some unidirectional process of European expansion or imposition—that he seeks to find an explanation for international law’s incremental “universalization” during the course of the nineteenth century.

Despite its familiar roots in world systems theory,[4] and its increasing currency among international legal scholars, “semi-periphery” is, like many of its cognates and corollaries, a deeply ambiguous term, suggesting considerations of ethnicity, territory, and politico-economic power alike. However, regardless of how it may be defined, at least one thing remains certain: jurists hailing from or in the service of states on the semi-periphery of the international legal order have often fascinated legal historians with their willingness and ability to put even the most overtly value-laden rules of international law to counter-hegemonic use.[5] Close enough to dominant centers of economic and intellectual production to come under their influence, but with national traditions and state institutions resilient enough to resist formal colonization, the semi-periphery was a natural home for informed engagement with the international legal rules that facilitated colonialism and imperialism. By adopting a comparative approach, Becker Lorca aims to demonstrate that such engagement drove international law to become “a global legal order” in the nineteenth century.[6]

The complex patterns of influence and interaction engendered by these relations made themselves felt in a variety of legal instruments. A well-known example, and one which Becker Lorca discusses, is the “standard of civilization,” a kind of metric with which nineteenth-century international lawyers sought to gauge and evaluate competing claims to formal membership in the international legal order.[7] Only by satisfying those attributes that happened to be associated with the standard at a given juncture could a state gain full admission into the “family of civilized nations,” winning recognition as a state in possession of the robust international legal personality requisite for the complete exercise of legitimate sovereign powers. Of course, like most criteria of its type, the standard admitted degrees. Hence, while China, Japan, and the Ottoman Empire were seldom recognized as belonging to the “family of civilized nations,” at least not without considerable controversy,[8] even the most crudely positivist jurists felt a need to carve out an intermediate category for cases of the type they were thought to exemplify, thereby distinguishing them from “savage” regions and terrae nullius.[9] Indeed, the influential classification of “civilized,” “barbarous” (or “semi-civilized”), and “savage” (or “non-civilized”) states that was offered by James Lorimer was intended to make room for precisely this type of gradation: Westerners may not have accepted judgments issued by Chinese courts, but they had to grant “partial” recognition to China as a state, given its “barbarous” rather than “savage” character.[10] Though the “standard of civilization” fluctuated over time, it remained a gatekeeper to admission in the international order spawned by the European state system well into the early twentieth century.

As problematic as the “standard of civilization” obviously was, the fact that neither its content nor its parameters was ever fixed, and that it appeared in different incarnations in the hands of different jurists, allowed it to serve a number of political projects. The most ambitiously counter-hegemonic were designed to strike at the foundations of the very political and economic relations which had made it possible for a “standard of civilization” to be articulated in the first place. To take one of Becker Lorca’s examples, Japanese international lawyers of the late nineteenth century often pushed for the abrogation of the unequal treaties into which authorities in Kyoto and Tokyo had entered with Western powers by arguing that their state satisfied each of the elements of the “standard of civilization.” Among other things, a functioning court system was now in place, a professional bench was on offer, extant laws and customs had been codified, and newer, more “modern” laws had been promulgated.[11] Less ambitious and counter-hegemonic, but no less revealing, were those projects in which semi-peripheral jurists employed “civilizational” discourse to distinguish the polities they represented from their regional neighbors or antagonists. Becker Lorca’s strongest examples here are Etienne Carathéodory, an Ottoman lawyer and diplomat of Greek heritage who saw in the “standard of civilization” an opportunity to question pan-Islamism, and Fedor Fedorovich Martens, the famous Baltic-Russian jurist who sought to draw a sharp distinction between the international status of the Russian state and those of its southern and eastern neighbors.[12]

The “standard of civilization” was not an idiosyncratic, easily isolatable outgrowth of an international law that had been placed at the beck and call of the “Great Game” or the “Scramble for Africa,” themselves merely two of the better known examples of nineteenth-century imperialism. Rather, it was one in an assemblage of instruments with which nineteenth-century lawyers sought both to conceptualize and to intervene in an increasingly complex world—a world marked as much by non-European resistance to European expansion as by such expansion itself. It comes as no surprise, then, that Becker Lorca focuses in his article on precisely the kind of creative appropriation one sees at work in semi-peripheral lawyers’ engagement with the “standard of civilization.” On his account, international law “became universal” not through imposition, as though “the rules applicable to the relations between the West and the non-Western world . . . exclusively flowed from the former to the latter,” but through appropriation, a multifaceted process driven by “a global profession that articulated a transnational legal discourse.”[13] Nineteenth-century semi-peripheral jurists shared “a distinctive . . . legal consciousness defined by a ‘particularistic universalism’”—to such a degree, in fact, that a “common pattern of appropriation” grounded in “functional equivalences” can be traced from Russia to Latin America and from Japan to the Ottoman Empire.[14] And this unique “legal consciousness,” this “common pattern of appropriation,” was one that permitted, even encouraged, innovative “reinterpretation” of “the doctrinal structure of international law.”[15] Instead of simply “learning how to play by the new rules of international law that Western powers sought to impose on them,” semi-peripheral jurists also learned how to go about “changing the content of those rules.”[16]

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[1] For discussion, see Martti Koskenniemi, Why History of International Law Today?, 4 Rechtsgeschichte 61 (2004); Matthew Craven, Introduction: International Law and its Histories, in Time, History and International Law 1 (Matthew Craven, Malgosia Fitzmaurice & Maria Vogiatzi eds., 2007).

[2] Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int’l L.J. 475 (2010).

[3] See Antony Anghie, Imperialism, Sovereignty and the Making of International Law 32–114 (2005); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001); Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (2004); David Kennedy, International Law and the Nineteenth Century: History of an Illusion, 65 Nordic J. Int’l L. 385 (1996); Casper Sylvest, International Law in Nineteenth-Century Britain, 75 Brit. Y.B. Int’l L. 9 (2004).

[4] For classic exposition, see Immanuel Wallerstein, Semi-Peripheral Countries and the Contemporary World Crisis, 3 Theory & Soc’y 461 (1976). As is well known, world systems theory seeks to describe and explain the emergence and development of global politico-economic systems by analyzing relations between “core,” “semi-peripheral,” and “peripheral” states. These relations change over time, generating different hegemonic regimes, divisions of labor, and modes of development. See, e.g., 1, 2, 3 Immanuel Wallerstein, The Modern World-System (1974, 1980, 1989); Chaos and Governance in the Modern World System (Giovanni Arrighi & Beverly J. Silver eds., 1999); The World System: Five Hundred Years or Five Thousand? (Andre Gunder Frank & Barry K. Gills eds., 1993).

[5] See, e.g., Liliana Obregón, Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America, in International Law and Its Others 247 (Anne Orford ed., 2006); Lauri Mälksoo, The History of International Legal Theory in Russia: A Civilizational Dialogue with Europe, 19 Eur. J. Int’l L. 211 (2008); Umut Özsu, “A Subject Which Excites the Deepest Interest throughout the Civilized World”: The Greek-Turkish Population Exchange and the Craft of Diplomatic Nation-Building, 24 Leiden J. Int’l L. (forthcoming 2011).

[6] Becker Lorca, supra note 2, at 475.

[7] For prominent analyses of the “standard of civilization” on which I draw, see, for example, Georg Schwarzenberger, The Standard of Civilisation in International Law, 8 Current L. Probs. 212 (1955); Anghie, supra note 3, at 84–87; Gerrit W. Gong, The Standard of “Civilization” in International Society (1984).

[8] Take the Ottoman Empire, the first non-European state to gain such admission. Even as late as 1894, Westlake could still write that

[t]he case of Turkey must . . . be left out of sight, because of the anomalous position of that empire, included on account of its geographical situation in the political system of Europe, but belonging in other respects rather to the second group of contrasted populations. She may benefit by European international law so far as it can be extended to her without ignoring plain facts, but her admission to that benefit cannot react on the statement of the law, which is what it is because it is the law of the European peoples.

John Westlake, Chapters on the Principles of International Law 103 (1894).

[9] The need to develop such classificatory schemes was felt widely at the time, and not only among lawyers. In 1859, for instance, John Stuart Mill wrote that “[t]o suppose that the same international customs, and the same rules of international morality, can obtain between one civilized nation and another, and between civilized nations and barbarians, is a grave error, and one which no statesman can fall into.” John Stuart Mill, A Few Words on Non-Intervention, in 21 The Collected Works of John Stuart Mill 111, 118 (John M. Robson ed., 1984) (1859). For lucid analysis of the distinction between “semi-civilized” and “non-civilized” states, crucial for organizing international legal relations and determining the kinds of politics semi-peripheral jurists could plausibly pursue, see Jörg Fisch, Internationalizing Civilization by Dissolving International Society: The Status of Non-European Territories in Nineteenth-Century International Law, in The Mechanics of Internationalism: Culture, Society, and Politics from the 1840s to the First World War 235, 252 (Martin H. Geyer & Johannes Paulmann eds., 2001).

[10] 1 James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities 444 (1883).

[11] Becker Lorca, supra note 2, at 497–98.

[12] Id. at 500, 542–45.

[13] Id. at 508, 546.

[14] Id. at 475, 483. See also id. at 503, 521. Comparisons on this scale may seem far-fetched or anachronistic, given the obvious differences that existed between the legal instruments in operation. Nevertheless, it is significant that, as late as the mid-nineteenth century, many British jurists did not draw sharp distinctions between the extraterritorial privileges British officials enjoyed over large swaths of Africa and the Pacific and the more formal extraterritorial jurisdiction they were authorized to exercise in Turkey and China. See, e.g., W. Ross Johnston, Sovereignty and Protection: A Study of British Jurisdictional Imperialism in the Late Nineteenth Century 29 (1973). This would suggest that at least certain legal comparisons can legitimately be drawn between the different semi-peripheral states of the period, and also, perhaps, between semi-peripheral states on the one hand and peripheral states on the other. From a voluminous literature, see Richard S. Horowitz, International Law and State Transformation in China, Siam, and the Ottoman Empire During the Nineteenth Century, 15 J. World Hist. 445 (2004); C. A. Bayly, Distorted Development: The Ottoman Empire and British India, Circa 1780-1916, 27 Comp. Stud. S. Asia, Afr. & Middle East 332 (2007); Melissa Macauley, A World Made Simple: Law and Property in the Ottoman and Qing Empires, in Shared Histories of Modernity: China, India and the Ottoman Empire 273 (Huri Islamoğlu & Peter C. Perdue eds., 2009).

[15] Becker Lorca, supra note 2, at 477.

[16] Id. at 482.