The Palgrave Handbook of International Political Theory: Volume I [1st ed. 2023] 3031361105, 9783031361104

Table of contents :
Preface
Acknowledgements
Praise for The Palgrave Handbook of International Political Theory
Contents
Notes on Contributors
1 Introduction
Part I: The Ancient World
Part II: Early and Early Modern Christianity
Part III: The Westphalian Moment
Part IV: Colonialism, Decolonisation and Post-colonialism
Part V: Progress and Promise of International Law
Part VI: Challenges to Sovereignty, Territory and Borders
Reference
Part I The Ancient World
2 The Chinese Contribution to Theorizing International Relations
Introduction
Four Philosophies and Six Concepts
Survey on Current Thinking
Gender and Race/Ethnic Relations
Gender in Chinese Thought: The Visible and the Invisible
Race and Ethnicity in Chinese Thought: Tianxia in the Making
Conclusion
Note
References
3 Thucydides and Social Processes: Beyond Tragedy
Decontextualised Comparisons: Melos and Acanthus
Thucydides’ Ambiguous Assessment of Brasidas’ Military Campaign in Northern Greece
The Processual Context: Beyond Tragedy
The Processual Context: Civilisation, Civil War and War
Brasidas’ Military Campaign in Processual Context
Conclusion
References
4 Stoicism, Cicero and Relations Among Nations
Introduction
Reason
The Universal Natural Law
Equality
Political Communities
The Hierarchy of Duties
Duties
The Law of Nature and the Law of Nations
Rome and the Wider World
Conclusion
References
Part II Early Christianity and Early Modern Christianity
5 Augustine, Realism, and Their Revealed Truth
Augustine’s Anthropology and Politics
The Pelagian Controversy
Augustine’s Political Philosophy
The Augustinian Legacy
Classical Realism—Schmitt & Morgenthau
The Animus Dominandi
Challenging the Creation Myth of Realism
References
6 The Roman Empire and the Universal Church
The Papacy
Giles of Rome
The Holy Roman Empire
Dante
Engelbert of Admont
William of Ockham
Nicholas of Cusa
The Waning of Medieval Universalism
References
7 Crusader–Muslim Relations: The Power of Diplomacy in a Troubling Age
Conceptual Issues First
Justifications for Peace
Sultan Al-Kamil and Emperor Frederick II
The Third Crusade
Post-Third Crusade
The Image of the Other
Issue of Sovereignty
Concluding Reflections
References
8 The Conceptual Challenge: Europe and the New World
Introduction
The Recognition of Non-Christians (Infidel Rights)
Just War (Right to Missionary War)
Legitimacy of Indigenous Political Authority (Right to Colonise)
Conclusion
References
Part III The Westphalian Moment
9 Dynamic Cosmopolis: The “Westphalian World Order” and Beyond
The “Westphalian World Order” and International Legal Theory
The Early Modern European Background: Transcending or Dissolving Boundaries
Dynamic Legal Cosmopolitanism
Dynamic Commercial Cosmopolitanism
References
10 The Cosmopolitan Challenge: Cosmopolitan Ideas in the Eighteenth and Nineteenth Century
Political and Philosophical Cosmopolitanism in the Eighteenth Century
Cosmopolitan Law and Kant’s Critique of Colonialism
The Abolition of the Slave Trade and Slavery
Peace Societies and the War Referendum
The Geneva League of Nations and the End of the Right to War
Note
References
11 The Positivist Challenge, the Rise of Realism, and the Demise of Nationalism
Introduction
Credentialed Social Scientists vs. Critical International Theorists
Reflexivity and an Ethics of Anti-Hubris
Emotions and Art History
Conclusion
Note
References
Part IV Colonialism, Decolonisation and Postcolonialism
12 Amílcar Cabral and the International: Race, Colonialism, Liberation
Introduction
Cabral and the International
Race
Colonialism and Imperialism
Liberation
Cabral and Anticolonial Thought
Conclusion
References
13 Imperialism and Its Critics
Two Critics and a Realist, from Kant to Marx
Hegel and the Forward March of Spirit—The Right of Imperialism
Marx
‘Liberal Imperialism’: Mill and Tocqueville
Tocqueville
Conclusion
Notes
References
14 The African Challenge and Its Aftermath: Colonial Legacies and the (Re)making of the International Legal Order
Law in the African “Post-Colony”: Two Tales of Globalization
Law in the African Post-Colony: The Puzzle of Legacy
Africa’s Lawyers: Between Imperial Legacies and Transformations in Global Capitalism
Africa in the (Re)making of the International Legal and Economic Order
Notes
References
15 New Imperialism
Introduction
New Imperialisms
Humanitarian Imperialism
Economic Imperialism
Western/American Imperialism
Moral Imperialism
Conclusion
References
Part V Progress and Promise of International Law
16 Practicing Humanity: Humanisation and Contemporary International Political Theory
Introduction
Humanisation in International Law
Humanisation and Contemporary International Political Theory
Humanisation and Progress
Conclusion
References
17 Hegel and International Political Theory
Introduction
Hegel on Politics as a ‘Struggle for Recognition’
Hegel and International Relations
Hegel and Colonialism
Hegel and Cosmopolitanism
Conclusion
Note
References
18 Just War Theory: Past, Present, and Future
Introduction
Past
Present
Discovery
Interpretation
Invention
Future
Conclusion
Notes
References
19 Three Axial Ages of Religion, Law and Global Constitutionalism
Introduction
Societal Formations, Worldviews, Formative Periods
Societal Formations—Decentering Eurocentrism
Worldviews as the Superstructure of Axial Turns and Global Legal Revolutions
Formative Periods: Abysses and Bridges
Second Axial Age of Law
First Modern Constitution of Europe
Libertas Ecclesiae
The Second Axial Age: Law that is Emancipatory
Third Axial Age of Global Constitutionalism
Notes
References
Part VI Challenges to Sovereignty, Territory and Borders
20 Conceptual Foundations of Sovereignty and the Rise of the Modern State
The Discourse of Sovereignty
Bodin on Sovereignty
Hobbes: The Sovereign State
Locke’s Theory of Government
Rousseau: Popular Sovereignty and the General Will
Kant: The Rule-of-Law State and the Sovereign
External Sovereignty
Notes
References
21 Nationalism and Intrastate Diversities
Introduction
Setting the Scene: International Relations
National, Nation and Nationalism: A First Look
Is There a Unitary Understanding of the National and Nationalism?
Responses to the National Idea
Nationalism and Intrastate Diversities
Multiculturalism and Intrastate Diversity
Nation and State
States and Nations
Conclusion
Notes
References
22 Universal Obligations: Jus Cogens and Obligations Erga Omnes
Historical Background
The UN Charter as the Centre of Legitimate Normative Authority
The Legal Tools: Article 38 of the Statute of the International Court of Justice
Specificities of the Legal Sources Listed in Article 38 ICJ Statute
International Treaties
International Customary Law
General Principles of Law
The ‘Super-Norms’: Jus Cogens and Obligations Erga Omnes
Jus Cogens
Historical Background
Substantive Content
Progressive Consolidation
Emergence of Jus Cogens as Norms of Ordre Public in International Law
Legal Consequences
Obligations Erga Omnes
Conclusion
Notes
References
23 Self-Determination and Secession: An Act of Collective Emancipation
Introduction
Individual and Collective Notions of Self-Determination
Theoretical Approaches to Secessionist (External) Self-Determination
Remedial or Just Cause Theories
National Theories of Secession
Secession as an Individual Choice
Conclusion
Note
References
24 Migration Across Borders
Introduction
Arguments for the State’s Right to Control Immigration
Arguments for More Free Movement Across Borders
Responsibilities to Refugees
Who Counts as a Refugee?
Duties to Refugees
Some Further Contemporary Issues
Admissions, Culture, Citizenship Criteria, and Integration
Undocumented Migrants and Justice
Temporary Migration and Justice
Justice in Out-Migration
Critiques from Critical Border Studies
COVID-19 and Borders: Some Concluding Reflections
References
25 Remedying Cosmopolitan Wrongs: Indigenous Peoples, Kant, and Historical Injustice
Introduction
Provisional Right, Indigenous Peoples, and the State
Historical Injustice and the Spirit of Cosmopolitan Right
Challenges to Invoking Cosmopolitan Right for Redress
Conclusion
Notes
References
26 Women and War
The Pioneering Legacies of Elshtain and Enloe
Jean Bethke Elshtain
Cynthia Enloe
War, Masculinity, and Men
The Co-constitutive Nature of War
Men and War
Problematising the Binaries
Queering Women and War
Conclusion
References
Correction to: Amílcar Cabral and the International: Race, Colonialism, Liberation
Correction to: Chapter 12 in: H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_12
Index

Citation preview

The Palgrave Handbook of International Political Theory, Volume I Edited by Howard Williams · David Boucher Peter Sutch · David Reidy Alexandros Koutsoukis

International Political Theory

Series Editor Gary Browning, Oxford Brookes University, Oxford, UK

The Palgrave International Political Theory Series provides students and scholars with cutting-edge scholarship that explores the ways in which we theorise the international. Political theory has by tradition implicitly accepted the bounds of the state, and this series of intellectually rigorous and innovative monographs and edited volumes takes the discipline forward, reflecting both the burgeoning of IR as a discipline and the concurrent internationalisation of traditional political theory issues and concepts. Offering a wide-ranging examination of how International Politics is to be interpreted, the titles in the series thus bridge the IR-political theory divide. The aim of the series is to explore international issues in analytic, historical and radical ways that complement and extend common forms of conceiving international relations such as realism, liberalism and constructivism. This series is indexed by Scopus.

Howard Williams · David Boucher · Peter Sutch · David Reidy · Alexandros Koutsoukis Editors

The Palgrave Handbook of International Political Theory Volume I

Editors Howard Williams School of Law and Politics Cardiff University Cardiff, UK Peter Sutch School of Law and Politics Cardiff University Cardiff, UK Department of Political Studies University of the Witwatersrand Johannesburgh, South Africa

David Boucher School of Law and Politics Cardiff University Cardiff, UK Department of Politics and International Relations University of Johannesburg Auckland Park, South Africa David Reidy Department of Philosophy University of Tennessee Knoxville, TN, USA

Alexandros Koutsoukis School of Psychology and Humanities University of Central Lancashire Preston, UK

ISSN 2662-6039 ISSN 2662-6047 (electronic) International Political Theory ISBN 978-3-031-36110-4 ISBN 978-3-031-36111-1 (eBook) https://doi.org/10.1007/978-3-031-36111-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023, corrected publication 2023 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: Dr. Alexander Mack This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

The last few years have been particularly eventful in world politics. The occurrence of a global pandemic beginning in late 2019 and early 2020 changed things remarkably, bringing a threat to light which affected not only states domestically but also all states almost at the same time. For once the major threat to security in world politics was not that brought about by other states but by a natural phenomenon, the spread of a contagious deadly disease. The whole world was tightly focused on the search for a cure or at least successful measures to prevent the disease from spreading further. COVID-19 was not of course the first pandemic of recent times. There had been warnings with Aids in the 1990s, the first Sars outbreak of 2002–2004, and the Ebola epidemic in 2014–2016, however they did not sufficiently affect the majority in the advanced West to shake things up in the manner of COVID19. Simultaneously with the arrival of the pandemic nature also asserted itself more forcibly in the shape of the continued acute environmental crisis with global warming, and the disasters it brought in its wake: fires, terrifying storms and flooding. The climate crisis reached emergency levels in many parts of the world. Internal politics became dominated for a while by global problems in an unprecedented way. This collection captures some of this change. It brings out that global politics is just as much about forms of cooperation as it is about forms of conflict. Long may this new emphasis last, despite the long shadow cast by the final event which has made current times exceptional. The War in Ukraine threatens to bring back past agendas of global armed conflict but it is too soon to tell whether that will dominate, to everyone’s detriment. Several excellent collections on international political theory are already available. However, the field is not so crowded that a new volume on the topic will not be welcome. As priorities in the study of international relations continually change, it makes sense to reflect that change in publications. The Handbook is a contribution to that process. It also seeks to be diverse, not only by first examining the history of the understanding of global social order v

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PREFACE

but also by focusing in the subsequent chapters on the issues which in the editors’ view dominate world politics today. Although in the line-up of editors we were defeated in our aim to seek gender balance in the contributors we nonetheless partially make up for this in having a better than average 1/3 of contributors being female. Like international political theory itself, gender balance in the academy is a work in progress. Contributors are also geographically diverse with all the inhabited continents represented. Although North American and British contributors predominate, there are also authors from Central Europe, Latin America, Asia and Australasia. The authors were given considerable scope in handling their material. Each of the contributors was invited to present their chapters to provide an argument which not only summarised and highlighted the chosen topic, but also brought to the fore their own research interests. Many of the authors took full advantage of this to put forward a thesis they held to be new. Others surveyed the chosen field more conventionally but always from the standpoint of their own research interests. The balance between survey and judgement is, therefore, different in each chapter. This we think adds, rather than detracts, from the Handbook’s value. Cardiff, UK Cardiff, UK Cardiff, UK Knoxville, USA Preston, UK

Howard Williams David Boucher Peter Sutch David Reidy Alexandros Koutsoukis

Acknowledgements

We thank the large number of colleagues and collaborators worldwide who evaluated and commented on the chapters as they came through. Unavoidably this occurred with very little advance notice and with no financial reward. We are glad of the forbearance and patience they uniformly showed. Thanks must go to David Sullivan for his supporting work and considerable help in writing the introduction as also to our fellow editor, Alexandros Koutsoukis, whose role expanded unexpectedly and considerably as the volume took shape. Alexander Mack kindly provided the cover image for the first volume and the volume that is to follow, which nicely symbolises both the unity and diversity of the project. Special mentions are due also to Ambra Finotello and Naveen Dass at the press. Ambra was not only an inspiring editor but was able also to correspond with Howard WIlliams in Welsh when the occasion arose. Diolch yn fawr.

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Praise for The Palgrave Handbook of International Political Theory

“This handbook of thought-provoking new articles on international political theory is diverse in subject and outlook and refreshingly timely. Spanning two rich volumes, early contributions examine the historical roots and development of theorizing in this realm and challenge our often Eurocentric perspective on it. Later discussions range over a host of topical issues—from migration and global distributive justice to drone warfare, disaster relief, and climate change—and engage pressing current debates from varied perspectives—cultural, geographic, racial, and gender-based. The handbook promises lecturers and their students (undergraduate or graduate) solid disciplinary foundations and a sense of the exciting range and contemporary significance of the subject.” —Sarah Holtman, University of Minnesota, USA

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Contents

1

Introduction David Boucher, Alexandros Koutsoukis, David Reidy, David Sullivan, Peter Sutch, and Howard Williams

1

Part I The Ancient World 2

The Chinese Contribution to Theorizing International Relations Rosita Dellios

27

3

Thucydides and Social Processes: Beyond Tragedy Alexandros Koutsoukis

47

4

Stoicism, Cicero and Relations Among Nations David Boucher

69

Part II Early Christianity and Early Modern Christianity 5

Augustine, Realism, and Their Revealed Truth Huw L. Williams

89

6

The Roman Empire and the Universal Church Cary J. Nederman

109

7

Crusader–Muslim Relations: The Power of Diplomacy in a Troubling Age Suleiman A. Mourad

8

The Conceptual Challenge: Europe and the New World Camilla Boisen

125 147

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CONTENTS

Part III The Westphalian Moment 9

10

11

Dynamic Cosmopolis: The “Westphalian World Order” and Beyond Georg Cavallar

167

The Cosmopolitan Challenge: Cosmopolitan Ideas in the Eighteenth and Nineteenth Century Oliver Eberl

185

The Positivist Challenge, the Rise of Realism, and the Demise of Nationalism Felix Rösch

205

Part IV Colonialism, Decolonisation and Postcolonialism 12

Amílcar Cabral and the International: Race, Colonialism, Liberation Branwen Gruffydd Jones

13

Imperialism and Its Critics Demin Duan and Howard Williams

14

The African Challenge and Its Aftermath: Colonial Legacies and the (Re)making of the International Legal Order Sara Dezalay

15

New Imperialism Brett Bowden

225 245

265 283

Part V Progress and Promise of International Law 16

Practicing Humanity: Humanisation and Contemporary International Political Theory Peter Sutch and Oliver Pierce

303

17

Hegel and International Political Theory Tony Burns

321

18

Just War Theory: Past, Present, and Future Cian O’Driscoll

339

19

Three Axial Ages of Religion, Law and Global Constitutionalism Hauke Brunkhorst

355

CONTENTS

Part VI 20

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Challenges to Sovereignty, Territory and Borders

Conceptual Foundations of Sovereignty and the Rise of the Modern State Silviya Lechner

381 403

21

Nationalism and Intrastate Diversities Andrew Vincent

22

Universal Obligations: Jus Cogens and Obligations Erga Omnes Christian Tomuschat

423

Self-Determination and Secession: An Act of Collective Emancipation Costas Laoutides

445

23

24

Migration Across Borders Gillian Brock

25

Remedying Cosmopolitan Wrongs: Indigenous Peoples, Kant, and Historical Injustice Timothy Waligore

26

Women and War Caron E. Gentry and Rebecca Wilson

Correction to: Amílcar Cabral and the International: Race, Colonialism, Liberation Branwen Gruffydd Jones Index

463

483 501

C1

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Notes on Contributors

Camilla Boisen is a historian of political thought and Senior Lecturer in the Writing Program at New York University, Abu Dhabi. Her main area of research is the intellectual history of Empire and political theory in relation to the development of ideas of rights and trusteeship and their influence on contemporary problems, such as postcolonial restitution. She is the author of numerous articles in journals, such as The History of European Ideas, Settler Colonial Studies, Journal of International Political Theory and Global Intellectual History. David Boucher has published on a wide variety of subjects, including international relations; history of political thought; British Idealism; the political philosophy of R. G. Collingwood; and cultural studies. He has held visiting fellowships in Oxford, the University of Johannesburg, Canterbury University, New Zealand, The Sun Yat Sen University, Taiwan; and the Australian National University. He has been the Chairman of the R. G. Collingwood Society, and Director of the Collingwood and British Idealism Centre since 1993. He has been Head of School, School European Languages, Translation and Politics and Deputy Pro-V-C for Staffing and Diversity, Cardiff University. His most recent books are Theories of International Relations from Thucydides the Present (1998), British Idealism and Political Theory (with Andrew Vincent, 2001), The Limits of Ethics in International Relations (2009), British Idealism: A Guide for the Perplexed (2011 with Andrew Vincent). He is currently working on a book entitled The Hobbesian Legacy in Political and International Thought. He is a Fellow and council member of The Learned Society of Wales; a Fellow of the Royal Historical Society; and a Fellow of the Academy of Social Sciences. Brett Bowden is Professor of Historical and Philosophical Inquiry at Western Sydney University, Australia. He is an elected fellow of the Royal Historical Society (UK) and the Royal Society of New South Wales. His monographs xv

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NOTES ON CONTRIBUTORS

have been awarded the Norbert Elias Prize, the APSA Crisp Prize, and the GW Symes Award. He is the recipient of a Distinguished Alumni Award from Flinders University of South Australia for his contributions to scholarship and the wider community. Gillian Brock is Professor of Philosophy at the University of Auckland in New Zealand. She has published widely on issues in political and social philosophy, ethics, and applied ethics. Her eleven books include Justice for People on the Move: Migration in Challenging Times (Cambridge University Press, 2020), Global Justice: A Cosmopolitan Account (Oxford University Press, 2009), Global Health Ethics: New Challenges (with Solomon Benatar, Cambridge 2020), Debating Brain Drain (with Michael Blake, Oxford, 2015), and Political Theory and Migration (Polity, 2021). Work in progress includes a book on responsibilities for addressing corruption in a globalised world. Hauke Brunkhorst is Senior Professor of Sociology at European University Flensburg. His last major books were Solidarity (MIT Press, 2005) and Critical Theory of Legal Revolutions (Bloomsbury, 2014). He is working on the last part of a book on the revolutionary evolution of law and politics. Tony Burns is a Professor of Political Theory in the School of Politics and International Relations at the University of Nottingham, UK. He is co-editor (with Ian Fraser, Loughborough University) of The Hegel-Marx Connection (Palgrave, 2000). His most recent publications include Social Institutions and the Politics of Recognition, Volume 1: From the Ancient Greeks to the Reformation (Rowman & Littlefield, 2020); Social Institutions and the Politics of Recognition, Volume 2: From the Reformation to the French Revolution (Rowman & Littlefield, 2020). Georg Cavallar (*1962), Universitätsdozent of Modern History at the Department of History, University of Vienna, Austria, has published on Kant’s political philosophy, the history of international law, and the philosophy of cosmopolitanism. He has also published on modernity, the Enlightenment, and Islamic cultures: Islam, Aufklärung und Moderne. Ein Plädoyer. Stuttgart: Kohlhammer, 2017 and Gescheiterte Aufklärung? Ein philosophischer Essay. Stuttgart: Kohlhammer, 2018. More recently, he has written introductory coursebooks for philosophy, psychology and history. Rosita Dellios Ph.D., is Associate Professor of International Relations at Bond University in Queensland, Australia. She lectures and writes on the themes of China’s strategic and defence philosophy, peace and war in international relations, and twenty-first-century geopolitics. Her publications include two coauthored books on China: China’s Quest for Global Order (Lexington Books, 2013) and The Politics and Philosophy of Chinese Power: The Timeless and the Timely (Lexington Books, 2017). She has also published on a range of

NOTES ON CONTRIBUTORS

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related topics, including several security articles for The Palgrave Encyclopedia of Global Security Studies; and chapters that explore the application of Confucian concepts to security and development. Sara Dezalay a lawyer and political sociologist, is Associate Professor at the European School of Political and Social Sciences (ESPOL) of the Université Catholique de Lille. She was previously a Reader at the Cardiff School of Law and Politics, Cardiff University, and adjunct judge (appointed by the UNHCR) at the French national court for asylum seekers. Demin Duan is an Associate Professor with tenure at the Department of Political Science, School of Government, Peking University. He got his Ph.D. from the Institute of Philosophy (Center for Ethics, Social and Political Philosophy) at the Catholic University of Leuven. He teaches and researches on political theories, history of political thought, European studies. Oliver Eberl (PD Dr.) is in the summer semester 2023 a Substitute Professor of Political Theory at Goethe University Frankfurt. He received his Ph.D. (Dr. phil.) from University of Bremen in 2007 and habilitated at Technical University Darmstadt in 2017. He works on democratic theory, the history of ideas and international political theory with a focus on Kant and the history of colonialism. Professor Caron E. Gentry is Pro Vice-Chancellor for the Faculty of Arts, Design, and Social Sciences at Northumbria University, Newcastle. Her main area of research is gender and terrorism. Publications include Disordered Violence: How Gender, Race, and Heteronormativity Structure Terrorism (Edinburgh University Press, 2020) and articles in Critical Studies on Terrorism, International Affairs, and the International Feminist Journal of Politics, amongst others. Branwen Gruffydd Jones Professor in the School of Law and Politics at Cardiff University in Wales. She previously taught at Goldsmiths, University of London. Her work focuses on the politics of knowledge, the experience and legacies of colonialism in Africa, and African anti-colonial thought. She is currently researching the political thought of the national liberation movements of the former Portuguese colonies in Africa. She is editor of Decolonising International Relations (Rowman and Littlefield, 2006). Alexandros Koutsoukis is a Lecturer in International Relations at the University of Central Lancashire. He holds a Ph.D. from Aberystwyth University and worked as Andrew Linklater’s post-doctoral research assistant on symbols and world politics. He is interested in war studies, theories of international relations and process sociology. He has published on Thucydides, Clausewitz and the wars in Afghanistan and Ukraine. He has served in the editorial teams of the journal Kantian Review (CUP) and the website E-International

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NOTES ON CONTRIBUTORS

Relations. He is also a joint winner of the 2019 BISA Distinguished Excellence in Teaching International Studies Award. He is currently working on a monograph on Thucydides. Costas Laoutides is an Associate Professor of International Relations at Deakin University, Australia. His area of expertise is ethnopolitical and separatist conflict, and its resolution. He is the author of Self-Determination and Collective Responsibility in the Secessionist Struggle (Routledge, 2016) and the co-author of Myanmar’s Rohingya Conflict (Hurst/Oxford University Press, 2018, with Anthony Ware). Silviya Lechner is Associate Professor and Head of Department of Political Science at the Anglo-American University (AAU), Prague, Senior Visiting Research Fellow at King’s College London, UK, and Senior Visiting Research Fellow at the Contestations of the Liberal Script (SCRIPTS) Cluster of Excellence of the Free University Berlin. She specialises in political theory, international relations theory and the philosophy of social science. She is the author of Hobbesian Internationalism: Anarchy, Authority and the Fate of Political Philosophy (Palgrave Macmillan, 2019) and Practice Theory and International Relations, with Mervyn Frost (Cambridge University Press, 2018). Suleiman A. Mourad is the Myra M. Sampson Professor of Religion at Smith College (USA). His research and teaching focus on Islamic history and religious thought, and on jihad and the laws of war and peace, and his publications include Ibn cAsakir of Damascus: Champion of Sunni Islam in the Time of the Crusades (Oneworld, 2021), and Muslim Sources of the Crusader Period: An Anthology (Hackett, 2021). He served as historical advisor and appeared on several film documentaries, including Jerusalem: City of Faith and Fury (CNN), and The Sultan and the Saint (PBS). He is also a regular op-ed writer on historical and current issues, and has a weekly column in 180Post.com (Lebanon). Cary J. Nederman is Professor of political science at Texas A&M University. His latest books are Thomas Becket: An Intimate Portrait (Paulist Press) and The Bonds of Humanity: Cicero’s Legacies in European Social and Political Thought, c.1100-c.1550 (Pennsylvania State University Press). His forthcoming monograph, entitled The Rope and the Chains: Machiavelli’s Early Thought and Its Transformations, will be published by Lexington Books/Rowman & Littlefield in 2023. Cian O’Driscoll is a Professor of International Relations at the Coral Bell School of Asia Pacific Affairs, ANU. He has written extensively on the ethics of war. His most recent book, Victory: The Triumph and Tragedy of Just War, was published in 2019 by Oxford University Press. He is currently working on a project entitled, Experiencing Just War: What Soldiers can Teach us about the Ethics of War.

NOTES ON CONTRIBUTORS

xix

Oliver Pierce has held teaching positions at both Cardiff University and the University of Bristol in the course of completing his Ph.D. The broad thrust of his research concerns the difficult normative questions that contemporary international politics draws attention to with unfortunate regularity. To that end, the chapter offered here alongside Peter Sutch represents the first step on an academic journey that seeks to sketch out what is required when the tough questions of global justice come calling. David Reidy earned his B.A. from DePauw University, his JD from Indiana University and his PhD from the University of Kansas. He works primarily in political and legal philosophy. He has authored or edited several books, including Human Rights: The Hard Questions, Rawls’ Law of Peoples: A Realistic Utopia? and Universal Human Rights: Moral Order in a Divided World. He has also authored many journal articles and book chapters. His work has twice been recognised by the American Philosophical Association with the Berger Prize and by the American Society for Value Inquiry with the James Wilbur Prize. He is currently Professor of Philosophy at the University of Tennessee. Felix Rösch is Senior Lecturer in International Relations at the School of Global Studies, University of Sussex. As part of his research, he published extensively on Hans Morgenthau and classical realism. Results have appeared amongst others in Ethics & International Affairs, the Review of International Studies and the International History Review. David Sullivan was Head of the School of lifelong Learning and Senior Lecturer in the School of Philosophy and Religion at Bangor University, UK. He is the author of Francis Fukuyama and the End of History (with Howard Williams and E. Gwynn Mathews), University of Wales Press, Second Edition, 2016 and Education, Liberal Democracy and Populism, Routledge, 2020. Peter Sutch is Professor of Political and International Theory at Cardiff University. He is also Visiting Professor at the University of the Witwatersrand, South Africa. His research draws on Anglo-American political theory, constructivist and English School IR theory and focuses on the politics of International law in areas including Use of Force, Global Commons governance and benefit sharing, and Human Rights as well as in the political theory of IR more broadly. Christian Tomuschat is Professor Emeritus of the Law Faculty of Humboldt University in Berlin. After legal studies in Heidelberg (Germany) and Montpellier (France), he became Professor of Constitutional and International Law in Bonn and since 1995 in Berlin. He served as expert in the UN Human Rights Committee and in the International Law Commission. From 1997 to 1999 he coordinated the National Truth Commission in Guatemala. Andrew Vincent is Professor of Political Theory, Cardiff University, Emeritus Professor of Political Theory, Sheffield University, Fellow of the Royal

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Historical Society and Fellow of the Learned Society of Wales. Recent publications include British Idealism: A Guide to the Perplexed (with David Boucher) (2012) and Comparative Political Thought (with Michael Freeden) (2013). Howard Williams is Honorary Distinguished Professor in the School of Law and Politics in Cardiff University and Emeritus Professor of Political Theory in the Department of International Politics, Aberystwyth. He has been a Visiting Scholar in Stanford University (twice); Wilfrid Laurier University, Canada; Krakow University; Humboldt University, Berlin; Frankfurt University; Halle University; Mainz; Munich; and Heidelberg. He is author of Marx; Kant’s Political Philosophy; Concepts of Ideology; Hegel, Heraclitus and Marx’s Dialectic; International Relations in Political Theory; International Relations and the Limits of Political Theory; Kant’s Critique of Hobbes; and Kant and the End of War. He is the co-author of Francis Fukuyama and the End of History with David Sullivan and G. Matthews. He is a founding editor of the journal Kantian Review and editor of the Philosophy of Immanuel Kant in the Cambridge University Press series Elements. Timothy Waligore is an Associate Professor of Political Science at Pace University in New York. His research interests include Kant, historical injustice, modern political theory, climate justice, and Indigenous peoples. His work has been published in the journals Political Theory; Critical Review of International Social and Political Philosophy; Moral Philosophy and Politics; Politics, Philosophy & Economics; Global Justice: Theory Practice Rhetoric; Public Reason; and Analyze & Kritik. He is co-editor of the books Domination and Global Justice (Routledge, 2015, with Barbara Buckinx and Jonathan Trejo-Mathys) and Rectifying Historical Injustice (Routledge, forthcoming, with Lukas H. Meyer). Huw L. Williams is Reader in Philosophy at Cardiff University, and University Dean for the Welsh Language. His research connects global justice, political theory and history of political thought with an interest in the local, namely the history of ideas in Wales and its progressive traditions of thought. He has published six books in the fields of politics and intellectual history. Rebecca Wilson Ph.D., is a Student Developer at the University of St Andrews. Her research focuses on both International Relations, specifically on the narration of gender and violence in global politics, and academic skills development, with a specialisation in student transitions. Her upcoming book is entitled: University and You: Developing Skills for a Changing World (Oxford University Press).

CHAPTER 1

Introduction David Boucher, Alexandros Koutsoukis, David Reidy, David Sullivan, Peter Sutch, and Howard Williams

International political theory (IPT) is a multidisciplinary field, eclectic in its intellectual approaches and in the questions that have captured the imagination of scholars across centuries and continents. This two-volume handbook is testimony to this, showcasing the work of political theorists, social scientists and historians, all of whom make IPT the vibrant and fascinating field D. Boucher (B) · P. Sutch · H. Williams School of Law and Politics, Cardiff University, Cardiff, UK e-mail: [email protected] P. Sutch e-mail: [email protected] H. Williams e-mail: [email protected] D. Boucher Department of Politics and International Relations, University of Johannesburg, Auckland Park, South Africa A. Koutsoukis School of Psychology and Humanities, University of Central Lancashire, Preston, UK e-mail: [email protected] D. Reidy Department of Philosophy, The University of Tennessee, Knoxville, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_1

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that it is. The moral, political, religious and legal concerns that we take as our subject matter reflect the long history of scholarship in the broad field. In this collection, we bring together scholars with an extraordinarily diverse and rich expertise in an attempt to tell the complex story of what has become IPT. In Volume 1, we explore some of the formative contributions to debates that have shaped the field we now know as IPT. Our contributors take us from the ancient world to the formation of the modern state system as we lay the groundwork for a critical understanding of changes in, and challenges to, core ideas such as sovereignty, international law and territorial integrity. The Western tradition of political philosophy has dominated conceptions of how the international system has evolved, and what the relations between states ought to be. Our current considerations predominately compel us to conceive of the past in terms of them, and given the discipline of international relations, and the sub-field of international political theory, are relatively new, dating from the end of the nineteenth century; it is not surprising that the Western belief in its own superiority in comparison with other civilisations was reflected in the Eurocentric conception of the world. Even Hegel and Marx, giants of nineteenth century thought, when they theorised Africa, for example, did so solely in terms of its relation to Europe. For both philosophers, African history did not begin until its encounter with European civilisation, and the history of the Americas began in 1492 with the discovery and conquest of the continent. These ideas found material expression in the Europeanisation of the world. Europe became released from considerations of geography and its standards were forcibly imposed on other cultures; their languages denigrated and ridiculed, to be suppressed and replaced by the three European languages, and by implication the carriers of European culture, French, English and Portuguese. It has been a long journey from the end of World War II, when the allies and the axis powers exhausted their resources and resolve to continue forcibly to hold on to their empires, to the present where the continuing legacies of colonialism, and neo-colonialism, have precipitated movements to decolonise the mind and the curriculum. White settler communities. that almost completely eradicated indigenous peoples, still practise a form of internal colonialism where European peoples constitute the dominant culture, but with a growing sensitivity to its injustices. The discipline of international relations has, since its inception, almost completely conceptualised the world in terms of states, and perpetuated the myth of the Peace of Westphalia as the emblematic moment when state sovereignty, and the notional equality of states within the modern state D. Sullivan School of Philosophy and Religion, Bangor University, Bangor, UK e-mail: [email protected]; [email protected] P. Sutch Department of Political Studies, University of the Witwatersrand, Johannesburgh, South Africa

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system was born. Historical correctives have not been in short supply, but the emblematic myth persists. Prior to European dominance the history of the world is one of civilisations. Hegel’s Lectures on the Philosophy of History is a philosophical characterisation of the succession of civilisations. European states themselves acquired empires, and it is difficult to conceive of them simply as states interacting with each other in a European context. Great Britain alone in the early part of the twentieth century ruled over 25% of the earth’s landmass, and 20% of its population. It was such a dominant force in Europe because of this largely non-European Empire. When Hitler attempted, by force, to unify vast areas of Europe into an empire he sought to define non-Germanic Europeans, such as the Slavs, as products of inferior civilisations. This handbook consciously reflects this European domination of the discipline, in order to provide insights into how it came to conceive the world in its own image. At the same time, we have provided correctives to this European perspective that dominates the discipline, by recalibrating and refocusing on non-Western perspectives, and reactions to European hegemony.

Part I: The Ancient World The shadow that classical Greece and Rome cast over the modern world is immeasurable. A considerable degree of the way we conceive politics owes a great deal to the ideas developed by the Greeks, and to the political and legal practices of the Romans. This heritage, of course, has been mediated through subsequent generations, each with their own preoccupations, who have adapted them to make intelligible the very different circumstances they faced. In attempting to understand the international political theories of the Greeks and Romans, we should keep in mind what Reinhart Koselleck conceptualised as ‘the space of experience’. He meant by it the world with which different thinkers and political actors engaged, and of which they were capable of making sense. The space of experience places constraints on their horizons of expectation, that is, the capacity thinkers have to imagine a more desirable and possible future condition. Political thought and action is largely the attempt to overcome the distance between experience and expectation (Koselleck 2004, 255–275). There are many reasons we engage in continuous dialogue with the past. For some it is for its own sake, immersing themselves in the worlds of different ages. For others, it is to be considered a transhistorical conversation, in which lessons are to be learnt. Both Thucydides and Machiavelli, for example, believed themselves to be providing timeless truths about human nature, which they believed would be of use to humanity. Thucydides, of course, wrote of the war between two empires, Sparta and Athens, while at the same time acknowledging the immense influence of the Persian Empire on the growth and character of Athenian daring. The three chapters that comprise this section, and others later in the volume, such as those on Augustine, Morgenthau, imperialism or the Crusader-Muslim relations attest to this.

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It is appropriate that the first chapter of the book is devoted to a study of an ancient and highly sophisticated non-Western tradition of international political thought. In ‘The Chinese Contribution to Theorizing International Relations’, Rosita Dellios argues that the central core of Chinese political thought is very old—first emerging during the Warring States period—but is characterised by ‘the ability to renew itself through constant adaptation’. She provides a guide to key intellectual movements and central concepts in Chinese international political thought and their impact on thinking about strategy and diplomacy and demonstrates how they continue to be discussed philosophically. They also have a continuing, and profound, influence on modern Chinese politics—exemplified by the most significant intellectual movements, Confucianism, which was condemned by Mao but reinstated under Deng, and Legalism, which has become more dominant under Xi. A contemporary Chinese theory of international relations which takes serious account of urgent and problematic issues such as race and gender has to be founded on this long tradition of ‘civilizational values’, which ‘relies on understanding the nature of change as an eternal process’. Two other questions, more long-standing, but not unrelated to the recent debates about Eurocentricity, are how we recover (if indeed we can) the original meaning of older writers and what influence these writers have had on later thinking about international politics. More recently, the discipline has taken an historical turn, reflecting similar trends in the history of political thought. David Armitage, for example, has emphasised the need to examine international thinkers in the context of conventions in which they wrote, in order to avoid the inherent bias towards anachronism in the less historically minded students of the history of international thought, among whom he identifies Martin Wight and Hedley Bull. Recovering the original meanings by reading the texts historically does not exclude examining ways in which their work has been received over time. As R. G. Collingwood reminds us, there is always a history of the historiography of texts and their meanings, and for different ages or generations they may take on a different significance. Hans-Georg Gadamer has understood this process as a fusion of horizons, in which interpretation takes place in the context of a tradition of interpretation. We encounter texts, not as tabula rasa, but carrying with us a forestructure of meanings, or prejudices, which help structure our understanding. One such tradition of interpretation that has been structuring Western thought and giving history a more deterministic outlook has been that of tragedy. The rise and fall of empires, internecine conflicts, the monstrous killings within and across civilisations, the ability of humans to harm each other or even take pleasure from it, and the valorisation of warrior culture for ages have made this metanarrative a dominant popular and theoretical perspective. More recent readings of history and of Western thought, however, have been illuminating the limits of human choice in the development of history in ways that leave more room to appreciate historical ambiguity and human freedom. Thucydides, like Machiavelli, Hobbes and Clausewitz, is a key figure in this

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tragic metanarrative in the history of international political thought. Nonetheless, as Alexandros Koutsoukis argues in Chapter 2, ‘Thucydides and Social Processes: Beyond Tragedy’, interpretations of his work have been changing considerably over time, partly as a reflection of broader debates in international relations theory and political philosophy, and partly because of an increasing recognition of the more open-ended historical thinking of Thucydides that he traces. As Koutsoukis also points out, discussions of Thucydides frequently illustrate a related danger that of using historical events in the writing and teaching of international political thought to treat them merely as exemplars of political theories, or as illustrations of particular conceptual problems. The Melian Dialogue in Thucydides’ History of the Peloponnesian War, is a familiar instance of this, often being treated as an illustration of realist thinking. The problem with such an approach is that decontextualising such events forces the reader to lose sight of the broader and deeper social processes of which they are part. Koutsoukis offers an alternative processual approach which takes account of these processes, and through a detailed analysis of Thucydides’ discussion of the Spartan general Brasidas’ campaign in the North of Greece shows how such a broader analysis can both deepen contemporary readers’ understanding of Thucydides’ writing and enrich modern approaches to the study of international politics. Stoicism, which emerges in the Greek and Macedonian empires, has had a profound impact on the development of European political thought. Cicero, one of the great Roman orators and politicians, became immersed in Stoic thought and offered an enduring characterisation of a standard of state conduct that rises above the ordinary laws of the state or empire, emphasising that we have duties as citizens, as well as humans in a universal community. His is probably the most famous characterisation of natural law, a concept conceived differently by Aristotle and Sophocles, before him, but which nevertheless constitutes the belief that there are ideals to which we must aspire, even if we are condemned to fall short. In Chapter 3, ‘Stoicism, Cicero and Relations Among Nations’, David Boucher offers a detailed reconstruction of the thought of this highly influential, if somewhat unorthodox, Stoic writer on politics. As a politician and orator Cicero emphasised the importance of an active, as opposed to a merely contemplative life, changing ‘the earlier emphasis of the Stoics from the virtue of wisdom and the community of the wise, to the virtue of justice’. Central to his thought is the idea of a natural law which reflects a rationally ordered cosmos. Reason enables humans to participate in and be harmonious with this order, although this law is only fully realisable under ideal conditions where human beings are completely rational. The laws of particular states ought to be assessed in the light of this universal law, as should their actions. This idea implies a universal moral community; a concept that also underpins modern international law. From this idea of universal law follows the idea of the equality of all human beings, irrespective of differences such as race or gender, an idea which, like that of a universal moral community, has strongly influenced modern cosmopolitanism. There is

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also a hierarchy of duties which stipulates that our primary obligation is to the specific political community of which we are a member. Obligations to people who do not belong to our own community are primarily that of not harming them—there is no duty that overrides the greater obligation to one’s own community. Peace is much more preferable than war, though war may be honourably engaged in as a last resort. ‘The purpose of war must be the achievement of peace, and to eliminate injustices between nations when victory is secured’.

Part II: Early and Early Modern Christianity The era of international thought this section encompasses is the period between the disintegration of the dominance of the Roman Empire around AD 400, emblematically immortalised in the sacking of Rome in 410, and the discovery of the ‘New World’ in 1492, along with the emergence of the modern European state around 1500. Realists frequently argue that the central tenets of realism are ‘timeless truths’—principles which hold true at all times and in all places. The portrayal of human nature is almost invariably pessimistic. In defence of this view, they often refer to the recurrence of these views in various writers throughout history, such as Thucydides and Machiavelli. Yet as the chapters in the previous section demonstrate, unless care is taken to locate thinkers in their historical context, serious misunderstandings of their meaning and of their application is almost certain to occur. This section testifies to the importance of obligations to supranational political entities, including the Roman Empire and the Christian Church, and how Christendom became the primary focus of allegiance and identity in the West following the death of the apostles and the emergence of bishops who oversaw urban Christian populations. The period of persecution waned with the ascension of Constantine the Great, the first to convert to Christianity, in the fourth century AD and the birth of St. Augustine in Roman North Africa. Constantine lay the foundations of Christendom, building an imperial residence in Constantinople which subsequently became the capital of the Empire for more than a thousand years. The term Christendom largely refers to the medieval and renaissance idea of the ever-expanding Christian world which far outgrew its European boundaries as a political entity through aggressive territorial acquisition during the Crusades. As the official religion of the Empire from 310 Christianity’s rise paralleled Rome’s decline, Christianity at once had to justify and legitimise itself against charges that it has undermined the institutions of the Empire. Consistent with Sallust and Cicero, St Augustine contended that it was moral probity that upheld the Empire, and moral corruption that marked its decline. St Augustine attempts to overcome the deficiencies of Roman Stoicism and Christianity. Augustine is an exponent of natural sociability which allies him with St Paul and the Church Fathers. Like them he believes a Law of Nature

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was emblazoned in men’s hearts, incapable of being extinguished, but capable, nevertheless, of being corrupted by sin and depravity. The flickerings of God’s law that continue to find a place in men’s hearts enable them to grasp, albeit dimly, the ideal of justice required to animate our social and political institutions. Because of original sin perfection is beyond the attainment of humanity. This pessimistic view of human depravity was unacceptable to the Celtic monk Pelagius. In what came to be known as the Pelagian Heresy, he and his followers denied the doctrine of Original Sin and Christian Grace. They contended that individuals are capable of receiving or rejecting the Gospel, presupposing the ideal of the wise man, which was central to the ethical principles of the Stoics. For Augustine, society was held together by an agreement of wills (voluntarism) and having a common purpose, rather than by a shared conception of justice. St Thomas Aquinas emphasised that society coheres because of law and reason. He stands in the declaratory tradition of law. Natural law, with its derivative, the law of nations and the idea of justice, has to be discovered by right reason. In answer to the question, ‘Who am I?’, the answer became ‘I am a Christian’, and in contrast to the infidel who posed a significant threat in the form of the Ottoman Empire. As Christendom expanded territorially to encompass large parts of the Middle East and North Africa, its geographical boundaries went far beyond Europe. Even though the Church constitutes a distinct challenge and claim on the universal obligations of the faithful, the idea of empire, even after Rome fell, remained a force to be reckoned with. The emperor in Constantinople, heir to the Roman Empire, but particularly Charlemagne, gave impetus to the revival of the empire in the West in 800. The primary loyalty, however, was to Christianity. The Moslem threat, which Suleiman Mourad nuances for us in Chapter 6, was from the seventh to the tenth century conceived in both spiritual and territorial terms. The crusades from the eleventh to the thirteenth century, defending the borders of Christendom, were severely shaken by the loss of Jerusalem, and parts of Europe, such as Spain and Sicily. If there is a key issue identifiable in the late medieval period, it was the conflict over the jurisdiction of the Papacy and of the Emperor. During the period, when Aquinas lived (1225–1274) the idea of a universal Christian empire was becoming unfeasible, but was not yet seriously challenged by the idea of the sovereign state. The city-state, such as those quintessentially found in Italy, were the most common political entities, with their own legislative authority, but they were, however, understood in terms of the universal moral principles and ideals discoverable in the rational natural law, which was the hallmark of the Christian Church and its brotherhood of mankind. As the Middle Ages waned, and the Crusades came to an end with expulsion of the Moors from their caliphate in southern Spain, Christianity found a new mission that went hand in hand with colonial expansionism. Alexander VI, in his papal donation, and as the heir to St. Peter, granted to Spain and Portugal temporal authority over the Americas, while reaffirming the mission and duty

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of the Church to propagate the faith to infidels and heathens. The process of European adventurism and aggressive colonisation that follow was one of the most momentous meetings of cultures ever experienced, the consequences of which Camilla Boisen explores in Chapter 7. Huw Williams in Chapter 4, ‘Augustine, Realism, and their Revealed Truth’, situates the political thought of Augustine of Hippo, who is often included in the canon of realist thinkers, in the historical context of his confrontation with Pelagianism. It is only when we grasp the way in which Augustine’s theory of human nature developed as a consequence of this debate, Williams argues, that it is possible to fully understand that the supposedly timeless truths emerged from a particular theological and political context and have their distinct meaning only within that context. Understanding this, and also realising that Augustine’s political theology was only one of a number of competing interpretations of Christianity, one which triumphed not because it expressed timeless truths but because it suited the interests of the Roman Empire to impose this particular viewpoint enables a deeper appreciation of the distinctiveness of Augustine’ political thought. In doing so, it also challenges the claims of modern realist writers to have uncovered supposedly universal, abstract and unchanging truths about the nature of international relations. In Chapter 5, ‘The Roman Empire and the Universal Church’, Cary Nederman reflects on the complexity and political possibilities of international political order. He offers a reconciliation of the apparent contrast between the spiritual unity of the Church and the ideal of the single universal empire despite the political fragmentation of Europe in the later Middle Ages. Rather than anachronistic, this view of the discourses of empire helps acknowledge gradual developments in society, politics, religion, law and social imagination. He concludes that some forms of these universalising imperial discourses are still recognisable in contemporary models of global governance. This is followed by Chapter 6, ‘Crusader-Muslim Relations: The Power of Diplomacy in a Troubling Age’, in which Suleiman Mourad, using a variety of classical Muslim sources, challenges simplistic dichotomies between Crusaders versus Muslims that perpetuate an exaggerated realpolitik view of the Middle Ages. Mourad de-centres war from our view of the Crusades presenting an inclusive way of studying them. He argues that the Crusades were an era characterised by both war and peace and by a complex environment in which diplomacy and rule-making shaped the relations between Crusader and Muslim states. To capture this more accurate view of international order, he suggests, we need to avoid presupposing opportunistic motivations. We ought instead, appreciate the development of both realistic and idealistic elements in the relations between Crusaders and Muslims. In Chapter 7, ‘The Conceptual Challenge: Europe and the New World’, Camilla Boisen shows how the new adventurism following the expulsion of the Moors from Spain, focused upon the conquest of the Americas. With it came conceptual challenges as Europeans interacted with the ‘unknown’ other, the search for a new ‘order’ and the available vocabulary in which to

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legitimise it was found wanting. At first, the new world is assimilated into the Christian worldview, immediately exposing the inadequacy of its Biblical cosmos. Because of the immense new horizons for acquisition an obsession with theories of property emerges in order to justify European expansionism and land confiscation, including enslavement. History has long been a testament to attempts made at constructing a series of ‘justifications’ that ensure the sustained survival of the newly created world order. This Chapter covers aspects of this history, from the end of the Christian Crusades in 1492, to the evolution of Grotian and Lockean theories of natural law in the seventeenth century. As such, this chapter maps the dialogue regarding possibilities and limitations of natural law in formulating arguments for interventionism. This is done through three important vectors of ‘infidel rights’, the ‘right to missionary wars’ and the ‘right to colonise’. With the introduction of the debate between Sépulvida and Las Casas regarding ‘by what right’ the Spaniards rule over the peoples of the Americas and confiscate their property, it becomes evident that the age characterised as the discovery of the new world, saw that the brutality with which the Indians were treated demonstrated acts of barbarism far greater than those of the Americans.

Part III: The Westphalian Moment It is commonplace in international relations to take the Peace of Westphalia as emblematic of the emergence of the modern state system. It is, however, a convenient fiction which serves to disguise the complexity of international relations at the time of the Thirty Years’ War, Europe’s first continental war. It was a war much more destructive than any that had preceded it, mainly because of major innovations in weaponry. It had significant economic and social consequences that brought the war to an end, not because of military defeat, but because of sheer exhaustion. In Germany, for example, estimates vary between one and two thirds in the decline of population. The Thirty Years’ War began principally because of religious rivalries, but also out of fear that the Hapsburg Holy Roman Empire had hegemonic designs. The Peace of Westphalia was largely the product of French, Swedish and Dutch interests. The aim was to diminish the universal authority of the Papacy and the Holy Roman and Spanish empires of the Hapsburgs. As a consequence, they became juridically equal with established and newly emergent states. The treaty essentially acknowledges the political and theoretical developments at the time when the modern state began to emerge gradually claiming a monopoly over declarations of war and peace, diplomatic representation and the concluding of treatises with foreign powers. At the same time, Westphalia sanctioned the principle of balance of power as the mechanism to prevent dangerous accumulations of power, and in doing so reduced dynastic disputes to a minimum. While a small number of wars of succession continued, such as the Spanish, they were fought, not to acquire new territory, but to prevent successions that might lead to excessively

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powerful alliances. The Westphalian settlement was not designed to prevent war, but instead provided the criteria for when it may legitimately be pursued. Of the twenty-two wars fought between 1648 and 1713, religious disputes hardly emerged because Westphalia had left the regulation of religious practices to states themselves and promoted religious toleration, conceding the right of parents to educate their children in their faith. The recognition of Calvinism and Lutheranism was not acceptable to the Papacy, nor was religious intolerance prevented within states. However, between states, the Peace did succeed to a large extent in alleviating religious friction between states. The disciplinary myth of the peace of Westphalia and the Westphalian Moment in history is challenged in the following three chapters of this section. They also provide the backdrop for chapters in other sections that focus on issues of race, international law and nationalism. A common thread that characterises these chapters is the added-value of normative thinking to understand international politics or make policy recommendations. This section focuses on both cosmopolitan (Cavallar; Eberl) and realist (Rösch) discourses. Cosmopolitanism offers a major alternative to Realism and liberalism in contemporary international relations theory, and there has been an increasing recognition of the need to recover its historical development. In Chapter 8, ‘Dynamic Cosmopolis: The “Westphalian World Order” and Beyond’, Georg Cavallar discusses the re-emergence of cosmopolitan thought during the period from 1500 to 1800. He identifies an important strand which replaced what he characterises as the Stoic view of a global community as something given and static with a belief in an emerging and dynamic global community. Drawing on the writings of important thinkers from Vitoria to Kant, he argues that the latter view underpins much modern cosmopolitan thought. The emphasis on change highlights the importance in much modern cosmopolitan thought of aspiration and creativity rather than, as was the case with Roman Stoics such as Cicero, of an initiation into a fixed hierarchical order, and offers an important critique of the nature and significance of the so-called Westphalian system and of the contemporary theory of a society of states. Oliver Eberl’s Chapter 9, ‘The Cosmopolitan Challenge: Ideas of Cosmopolitanism in the Eighteenth and Nineteenth Centuries’, focuses particularly on cosmopolitanism in the ‘long’ nineteenth century, arguing that Kant’s cosmopolitanism laid the foundations of later nineteenth century critiques of colonialism and of slavery and the slave trade, though he also points to the way in which powerful European states misused cosmopolitanism ideas in seeking to justify ‘civilizational imperialism for humanitarian reasons’. Kant’s writings also provided much of the intellectual justification for the peace movements which became increasingly important in the nineteenth century and to the gradual development of international institutions which sought to promote cosmopolitan law as the basis of just relations between states. This process culminated in the creation of the League of Nations in the aftermath of the World War I. Although he points to ways in which imperialist powers were able to misuse ideas of cosmopolitan responsibility, such as the League

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of Nations mandate system, Eberl concludes that the moral influence of these ideas is such that ‘colonialism, slavery, and war of aggression can no longer be morally, legally and politically legitimate after cosmopolitanism’. The need to engage with how ideas about the good life or a decent society or civilisation develop and impact on the world of sovereign states is often juxtaposed to the perceived cynicism of realism. Yet, even within the paradigm of realism both traditional and scientific approaches have emerged, which are more or less compatible with the need to think normatively. From previous chapters that offer re-readings of Thucydides or Augustine to contemporary readings of Morgenthau that detract from the Waltzian or Mearsheimerian straitjacket of the international system, realists of various colours have unearthed a well-spring of insights that challenge the textbook view of realism or of realist thinkers. In Chapter 10, ‘The Positivist Challenge, the Rise of Realism, and the Demise of Nationalism’, Felix Rösch, offers such a classical realist reading of the Westphalian world order that challenges positivist interpretations and centres on the contingency of life and the need for a normative agenda. Classical realists, such as Hans Morgenthau, he argues, privilege a spatio-temporal contextualisation of international politics and grasp the implications of the tragedy of the nation-state: the epicentre of popular loyalties that is, however, unable to address economic, political and military security problems that cross national borders. For this reason, Rösch continues, classical realists and especially Morgenthau advocated the development of new emotional attachments away from the nation-state, even though he was unable to find satisfactory solutions. Yet, Rösch concludes, classical realist thinking serves as a powerful voice to counter simplistic nationalist-populist visions of how to achieve a more secure or peaceful world.

Part IV: Colonialism, Decolonisation and Post-colonialism Imperialism has become a central topic of debate in recent international political thought, much of it centring on the critical analysis of nineteenth and twentieth century Western imperialism and its continuing legacy in the twentyfirst century. Imperialism is essentially racist. The imperial power in justification of the exercise of its rule, or influence, infantilise those peoples they dominate, arguing that different civilisations, some of which had regressed, and some having barely moved beyond savagery to barbarism, required the guidance of the higher European civilisation towards self-government. In whatever form it takes imperialism is the domination of one people by another which entails various strategies of dehumanisation, including the denigration of culture, language, religion, economic efficiency and moral character. The church and state were complicit in European adventurism from the start of early modern imperialism in 1492. Wherever colonialists went, missionaries were sure to follow, declaring they were fulfilling the central tenet of the Christian religion,

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of whatever denomination, to propagate the faith and save the souls of the infidel. When disaggregated, nineteenth and twentieth century imperialism is characterised by three categories. At the top of the hierarchy are white settler colonies that had become well-established, and for the most part where indigenous peoples had become minorities, in part due to the introduction of European diseases, natural disasters and conscious eradication. The exception was South Africa where the two white populations, the British and Afrikaans, brutally ruled the majority black population until 1994. In the traditional white settler communities, a form of internal colonialism persists with the languages of communication and governance remaining European— English, French, Spanish and Portuguese. Even in Africa these languages, with the exception of Spanish, remain the lingua franca and dominate education, publishing, literature and research. The next level down in the hierarchy are those colonies that were deemed once to have had sophisticated civilisations, such as India and South-East Asian countries such as Malaysia, Singapore, Vietnam, Indonesia and parts of the Middle East. In justifications of European imperialism, these countries had in a way degenerated, both morally and economically, and required to be inducted into European civilisation in order to resume the path to civilised life. At the bottom of the hierarchy was Africa which had long been denigrated by European philosophers and deemed by such thinkers as Hume, Kant, Hegel, Marx, and more recently Arendt, to have no interest or significance, indeed, no history, until the arrival of European civilisation. In Chapter 11, Branwen Gruffydd Jones brings her long curated expertise in African anti-colonial political thought to bear on the question of how international political theory should conceive of the work of anti-colonial writers as a part of the general international political theory project. Focusing particularly on the work of Amílcar Cabral she shows how the now vibrant literature that explores issues of colonialism has positioned the genre. She shows how Cabral’s Western education as an agronomist means his thought cannot be considered non-Western in an epistemological sense. Importantly however, this does not mean it is continuous with or derivative of modern Western or Enlightenment thought. Drawing on his reflections on race, colonialism and liberation both shows how Cabral’s work speaks to the international and how it should be considered an autonomous form of international political thought. In Chapter 12, ‘Imperialism and Its Critics’, Demin Duan and Howard Williams discuss a number of different approaches in the writings of five nineteenth century thinkers, who they divide into two broad groups. In the first, they discuss Kant, Hegel and Marx, who despite their very significant differences, each stress the importance of a philosophy of history. In the second, they place two liberal thinkers, Mill and Tocqueville who began with considerable areas of agreement, and mutual regard, but later came to disagree. Engaging with these five thinkers helps to show, they argue, how ideas of,

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and responses to, imperialism varied considerably even in the heyday of European empires. It is also a reminder that the debate between these different strands of radical critique and moderate reconciliation with colonialism, as well as many of the underlying assumptions, still informs modern understandings of imperialism. The Berlin Conference of 1884–1885 epitomised the so-called Scramble for Africa. European countries such as France, Portugal, Belgium, Germany and Great Britain sought to safeguard their economic and commercial interests in Africa. Over the course of the conference territorial settlements were reached, free trade agreements signed and a framework for future European claims to be negotiated was set-up. There was no provision in either the Berlin Conference, or in the negotiating framework for African involvement in discussions on the partition of their homelands. The Berlin Conference legitimised the colonisation of Africa by European powers and by 1900, 90 per cent of African territory belonged to European states. It is in relation to Africa that the notorious dual mandate system was developed and theorised by Frederick Lugard (1858–1945). This system underpinned European imperialism in sub-Saharan Africa. He argued that the resources of Africa were a common unexploited heritage and that they could be developed for mutual benefit by the technologically superior imperial powers. Lugard’s legacy was to establish the principle that Europe had a fundamental right to the wasted natural resources of Africa, and a duty to hold them in trust for the benefit of humanity. In return, as guardians and trustees of Africa’s resources, the imperial powers of Europe had an obligation to develop and advance Africa and the welfare of its people. Following the World War I the mandate system was established as a mechanism by the League of Nations, enabling the victors to govern the colonies of the vanquished and prepare them, over time, for self-governance. The League established three classes of mandate for occupied territories based on their stage of development and preparedness for self-rule. Class A Mandates covered the colonies of the Ottoman Empire and were administered by France and Britain, and were deemed to need little assistance towards self-rule. Class B Mandates were the former German colonies in Central and Sub-Saharan Africa, and deemed to be some way off independence, and were apportioned between Britain, France and Belgium. Class C Mandates were former German colonies, designated unlikely ever to become independent. They were in South-West Africa and the Pacific Islands. The Pacific Islands came under the influence of Britain, Australia, New Zealand and Japan. South Africa gained control of South-West Africa (modern Namibia). In Chapter 13, Sara Dezalay combines Global History and the political sociology of law and lawyers to propose a research agenda that traces the complex interconnections in legal developments between Africa and the Global North. Dezalay maintains that investigating the social characteristics, professional strategies and political manoeuvrings provide useful entry-points to bring into sharp relief transformations of the state in the context of globalisation on the

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African continent over the longue durée. This highlights the extent to which major legal, political and economic revolutions, past and present, are at play on the so-called African peripheries. Post-World War II decolonisation advanced at a rapid pace. The colonial powers had either been defeated in the war (Japan, Italy, Germany) or were severely weakened (Britain, France, the Netherlands). The struggles for independence were often bloody and traumatic, involving strategies of conciliation and coercion which attempted to establish systems of complicity with the colonial elites, who tended to be, from the point of view of the coloniser, more progressive, and in order to protect their privileges could be relied upon brutally to suppress radical dissidents. Decolonisation in Africa was characterised by persistent and brutal tactics, involving levels of violence which flouted the precepts of international law which the colonisers themselves had constructed. Such tactics encouraged violence in return. Martial law was a common strategy in resisting opposition. It was antithetical to colonialism’s claim to have a civilising mission by bringing the rule of law to ‘barbaric’ places. Detention without trial was prevalent; torture; mass executions and collective punishment. Because they regarded the peoples of Africa uncivilised and savage, the colonisers were not constrained by moral standards of conventional warfare. Numerous liberation theorists such as Fanon, Cabral, Cesaire and Nkrumah accused the west of hypocrisy in fighting against the axis powers in the name of human rights, civilisation and freedom, while at the same time denying their colonial subjects those very same rights, and instead acting towards them in ways that did not distinguish them from the Nazis. In 1959, for example, the British perpetrated a massacre at the Hola concentration camp in Kenya, to break the spirits of the inmates before dismantling the camp. This was the seventh year of the state of emergency (1952–1959) that legitimised the extreme measures adopted to defeat the anti-colonial insurgency of the Mau Mau movement. An estimated 1.5 million people were detained by the British. The brutality of the state of emergency actually accelerated decolonisation because it exposed the myth that European rule had brought civilisation, law and economic development to Africa. The transition to relative autonomy was not so much decolonisation, but what Kwame Nkrumah termed neo-colonialism. Modern theorists of global justice tend to portray the West as the saviour of developing countries. They formulate normative arguments which are more inclusive and cosmopolitan, emphasising obligations to redistribute the global wealth more equitably. In contrast post-colonial political theories portray the developed world, not so much the redeemer, but rather the exploiter and cause of the injustices. The re-establishment of national sovereignty is imperative as the manifestation of national culture. This does not mean the mere retrieval of culture, along with its values and structure. In 1960 the UN passed resolution 1514, which was the culmination of a series of resolutions denouncing colonialism. The General Assembly

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proclaimed ‘the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’, on the grounds that ‘All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. Decolonisation, however, to use Fanon’s term, gets under the skin of the colonised. Colonial domination humiliated, degraded and instilled inferiority complexes in the colonised by denigrating their cultures, languages and resources, and even seizing and rewriting their histories as adjuncts to the west. Contemporary emphases on the decolonisation of the mind; decolonisation of the curriculum; Rhodes Must Fall; and Black Lives Matter, are testimony to the enduring and insidious pervasiveness of colonialism. The handbook’s engagement with the history of imperialism and the effort to distil lessons from it relevant to our current post-colonial period concludes with a chapter by Brett Bowden. In Chapter 14, ‘New Imperialism’, Bowden explores the phenomenon of new imperialism. He discusses variations of imperialism from the late nineteenth century till the present era and finds a common feature. This common feature is the persistent moral dimension of the spirit of imperialism. All types of imperialism, despite their type of manifestation as humanitarian, economic or Western/American, Bowden concludes, always lay claim to a form of moral superiority. As volume 1 progresses we turn our attention to specific challenges to sovereignty and international law. Parts V-VI, for all the breadth of subject matter, reflect the ways in which normative and policy debates at the international plane have been legalised. That is, the vernacular of debates around justice, legitimacy and moral and political responsibility is informed by the politics of international law. This in no way dilutes the moral and political complexity of IPT but we find debates disciplined in significant part by the contours of debates about the changing nature of international legal obligation. In the final sections of volume 1, we establish some of the broad conceptual contours of the legalisation of world politics and some of the immediate challenges that arise from this.

Part V: Progress and Promise of International Law The principal theme of internal jurists of the law of nations was to subject relations among states to the rule of law. Grotius, for example, had divided international law into two parts; the necessary law of nations, which was directly derived from natural law a priori, and the permissive law of nations, which was arrived at a posteriori, derived from agreements, usage and practice. The issue of the relationship between natural law and the law of nations was of central importance because it was integral to the question of obligation at the international level. Thomas Hobbes, for example, equated natural law and the law of nations, suggesting that they had identical content, but different subjects, the individual and the state, respectively. For him, neither could be law proper because they did not have a sovereign to enforce them. They did

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act, however, as prudential constraints. Samuel von Pufendorf differed only in so far as he believed God the author of the law of nature and of nations, and as a result they were, for him, equally obligatory as positive law. As far as Pufendorf was concerned God enforced the law of nature and nations even if the punishment was not always immediate and self-evident. It was the German jurist Samuel Rachel who was one of the first to establish the law of nations as a type of law entirely different from natural law, with states exclusively as its subjects, having different rights, duties and obligations from those of the individual. The independent integrity of the law of nations, which Jeremy Bentham termed international law in the nineteenth century, was elaborated by the German Christian Wolff, and consolidated by the Swiss Emer de Vattel in 1758 in a book dedicated to the Law of Nations, which he described as ‘so noble and important a subject’ which had not ‘hitherto, been treated of with all the care it deserves’ (Preface). This emphasis upon the exclusivity of the law of nations, or international law, relating wholly to states and their international obligations began to unravel with the rise of Nazism on the European continent, and the desire among the allies to establish personal responsibility for war crimes, or crimes against humanity. With the rise of the human rights culture based on customary international law, and formal conventions, we observe the individual becoming once again the centre of questions about international morality. Whether as an object of study, a language of normative debate or the refuge of Kant’s ‘miserable comforters’, by which he meant the likes of Grotius, Pufendorf and Rachel, international legal thought is inherently entwined with international political theory with many shared canonical texts and political challenges. In the section entitled ‘The Progress and Promise of International Law’, we see just some of the breadth of work that continues to make this the case. The section offers a longue durée history of the evolution of international society (Brunkhorst), a textual analysis of one of the canonical thinkers in the history of international political thought (Burns), an exploration of the shared focus on the humanisation of international law in contemporary AngloAmerican political thought and in the social constructivist traditions of IR and international legal thought (Pierce and Sutch) and an insightful exploration of just war theory from the perspective of a contemporary military scandal (O’Driscoll). Each chapter is, of course, more than this. However, the sheer breadth of the work being done by scholars in the field explains the enduringly rich nature of the relationship. Questions of justice, legitimacy, compliance and non-compliance turn on our understanding of constitutional principles or metavalues. There has been a long-standing debate about whether these animating features of the international legal order are interior to law itself or anterior to law and hence political or moral. However, the relationship between international political theory and international law suggests the question is unnecessary. The continuum from morality to ethically normative, to soft law, to communities of practise

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is extraordinarily rich. Similarly, the relationship of customary law and treaty law to peremptory law to constitutionalism is fascinating and this collection of chapters shows the many ways that international political theory makes an impact in these debates. In Chapter 15, ‘Practicing Humanity: Humanisation and Contemporary International Political Theory’, Oliver Pierce and Peter Sutch chart a shift in international law from a largely interstate perspective to an individual rights/ humanity law perspective. In their view, human dignity now counts at least equally with state sovereignty in its importance in emerging international law. Some rules which relate to the treatment of individuals and groups are now regarded as peremptory norms—rules that apply irrespective of the conventional consent of states. The thought that there are legal/moral rules that are more significant to international society than the consent of states gets fuller treatment in Chapter 21 but looms large throughout contemporary debate. Prohibitions on slavery, piracy, war crimes, genocide and torture apply to all states even in the absence of state consent. It is now plausible to speak of a humanised state sovereignty which bears responsibility for the protection of basic human rights for its peoples. The authors see communitarian theory and cosmopolitan theory as evolving in the context of the emergence of a worldwide human rights regime. But it is not a case of seeing the establishment of legal hierarchy over communitarian statism. The ways that element of IPT have responded to the centrality of humanity changes the nature of the normative arguments but does not resolve the core disagreements between scholars on either side of this divide. That international law has in many circumstances already moved to a greater worldwide respect of human rights does not in itself provide a guarantee for continued progress. Without formal legal agreement based upon the consent of states both well-meaning cosmopolitanism and communitarianism may fail. The authors conclude that a synthesis of the two traditions might best ensure the further success of the process of humanisation in international law. G. W. F Hegel is one of those towering figures in European philosophy who questioned the efficacy of international law, because in his view, it was nothing but the agreement of states based on their particular, state-centric interests, rather than upon the real will of a community. Hegel is, as Tony Burns writes in Chapter 16, ‘Hegel and International Political Theory’, a complex, ambiguous thinker, whose ideas have been interpreted in many different, and sometimes contradictory, ways in the two centuries since his death. Nevertheless, much can be learnt from Hegel’s contribution to international political thought, particularly if it is understood in terms of the central importance of the concept of recognition in both his political philosophy and his philosophy of history. By taking this approach, Burns clarifies some of the misunderstandings of Hegel’s thought, such as the mistaken belief that he was a defender of virulent German ethno-nationalism, while acknowledging some problematic areas which remain, such as his dismissive attitude to ‘uncivilised’ Africa. It is particularly important, Burns argues, to appreciate that the concept of

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recognition can also be turned against some of the most significant deficiencies in Hegel’s political thought to draw out a set of more positive conclusions from his core ideas. To develop this insight, he discusses how a modified Hegelianism might have a valuable contribution to make to contemporary discussions of decolonisation and cosmopolitanism. Central to discussions of constraining the behaviour of states, and the conduct of the military, from the ancient Greeks and Romans to the present, is the idea of Just War, and the just conduct of war. The definitive statement was made by the North African St. Augustine of Hippo in the fifth century. All of the international jurists addressed the conditions for a just war, until Vattel faced head-on the obvious claim that in war both sides always claim that justice is on their side. Vattel shifted the debates away from the conditions for the just declaration of war (jus ad bellum), to an almost exclusive emphasis on the justice of the conduct of war (jus in bello). Most recently the debates surrounding just war were revived by the Neo-cons in the United States in the person of George Bush Jr. who placed just war at the centre of his foreign policy in Afghanistan and Iraq, and in the war against terror. In Chapter 17, ‘Just War Theory: Past, Present, and Future’, Cian O’Driscoll discusses the just war theory tradition, its usefulness and its limits. His starting point is the Brereton Report (Inspector-General of the Australian Defence Force 2020) regarding serious misconduct by Australian troops in Afghanistan, 2005–13. The report is indicative of the author’s topical concerns and of his effort to advance more synthetic arguments. On the one hand such reporting demonstrates military moral failures that are challenges for just war theory today. On the other hand, it showcases the need for just war theory to develop in a more subjectivist direction. If the current military personnel find the demands of just war theory impossible to achieve, then the theory ought to be revised. O’Driscoll concludes that the future of just war theory lies in pursuing a combination of objective and subjective approaches to theorisation that is more fully aware of the disconnect between the theory’s objectives and the lived experience of war. In an ambitious chapter on the historical development of legal systems Hauke Brunkhorst traces the evolution of law—in a schema influenced by the writings of Karl Jaspers—from the earliest Axial Age to the current third axial age which takes on the form of a gradually evolving global constitutionalism. His thesis is provocative. He argues that a grand narrative of history is essential to make sense of the continuous process of change in law as the main social forms and practices alter. The key age in Brunkhorst’s view is the one inaugurated by the Papal Legal Revolution at the time of the first millennium. In the eleventh century, the Roman Catholic Church established an organisation that was centralised, continental in scope, with a disciplined cadre of priests and followers that acted as a model for other forms of social and political organisation for the next millennium. At the core of the Papal Legal Revolution was the move from the wholly God centred religion of the earlier epoch to a

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religion which was more humanly centred. Following this turn to law, centralisation, and a more reliable system of justice within states, the Atlantic-Pacific revolutions of the eighteenth century ushered in a third Axial Age of Global Constitutionalism. Brunkhorst views this third Axial Age as an ongoing process which has yet to fully shape international relations. It features, he believes, the eventual complete demise of Eurocentrism and the inauguration of a genuinely global legal order. A new order of international law as law of subordination of all political organisations, states and empires under international public law (democratically generated from within states themselves) beckons, ready to replace the anarchic organisation of the Second Axial Age.

Part VI: Challenges to Sovereignty, Territory and Borders The final section of volume 1 draws on many of the concepts already introduced to examine a set of challenges to sovereignty. The concept of the sovereign state is central to a great deal of contemporary political thought about international politics—and to much popular political discourse—but the complexities and ambiguities within the concept can lead to uncertainty and confusion, not least when deployed rhetorically in international disputes (Lechner). This section highlights a number of problematic elements both in the concept of sovereignty itself and in relation to other ideas. One of the most important questions in current political debate is the relationship between sovereignty and nationalism (Vincent). Does the nation provide the best justification for the legitimate authority of the state? If so, how can a sovereign government act impartially when there is conflict between members of different nations in a multi-national state (Laoutides)? Related to this are issues around the status of migrants: are there any limits on the right of the sovereign state to control its borders and territories to the exclusion of any people it considers undesirable ?(Brock) One response to such questions is to appeal to international law, but to what extent, if at all, is international law either a legitimate or practical restraint on the actions of powerful sovereign states (Tomuschat)? Finally, even within a relatively homogeneous state with well-defined borders, the exercise of sovereignty might exclude significant groups within the community—women, historically, being a prime example (Gentry and Wilson; Waligore). Part of the reason such complexity and ambiguity arises is that the concept of sovereignty has developed over a long period of time and in Chapter 19, ‘Conceptual Foundations of Sovereignty and the Rise of the Modern State’, Silviya Lechner analyses the development of the concept as it was used to articulate and defend the rise of the modern state, through a reading of five key thinkers: Bodin, Hobbes, Locke, Rousseau and Kant. On the basis of this reading, she argues that when properly understood, sovereignty is a feature of the modern state as a public institution, rather than of private persons, and the sovereign state is a juridical institution rather than ‘a structure of domination

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or of economic allocation’. In the final section of the chapter, she discusses the implications of this view of sovereignty for recent debates over the duty to protect citizens of a foreign state whose rights are being abused by their government. Another form the challenge to sovereignty takes is the demands imposed on it by the nation-state and what we mean by it. In Chapter 20, Andrew Vincent investigates the compound name ‘nation state’, which is presupposed in key assumptions of the discipline of IR. Vincent explores empirical, conceptual, popular, periodic and academic developments in the meaning of key ideas linked to the nation state. The concepts of the nation, ethnie, nationalism and multi-nationalism as well as sovereignty, state and supranational states are all engaged with, none of them on its own or in relation to the nation or the state account fully for national diversity. Given a tendency in the discipline of IR to presume a homogeneous view of the nation, better coming to terms with national diversity is a challenge that lies at the foundations of the field. In a sense, Vincent observes that to think of IR as the realm of survival at the expense of normative thinking does not do justice to our ongoing efforts to come to terms with nationalism and intrastate diversity. One form which the challenge to sovereignty, borders and territory may take is the development of international laws which have precedence over the laws of individual states. A key problem with this challenge, as neo-realists and nationalists often argue, is that there can be no consensus on what might form the basis of a universally accepted international law. In Chapter 21, ‘Universal Obligations: Jus Cogens and Obligations Erga Omnes ’, Christian Tomuschat acknowledges the failures of nineteenth century statesmen, and of the League of Nations in the 1920s and 1930s, to establish a peaceful, law based, world order. Nevertheless, he argues that the United Nations, through its main judicial organ, the International Court of Justice, has brought about a significant change by facilitating the development of a body of widely accepted international laws. Tomuschat considers a number of sources of legitimacy in international law—international treaties, international customary law and the General Principles of Law—but argues that while they are important, they lack the capacity to function as ‘the foundation of a universal constitution’. By contrast, he maintains, taken together, the two concepts of jus cogens, or peremptory norms of international law, and erga omnes, the obligations of states towards each other, are ‘super-norms’ which do provide just such a foundation. Jus cogens , though, is not to be understood as a type of natural law theory, grounded in a transcendental authority, but as based on a consensus ‘derived from the wisdom and experience of responsible political leaders all over the globe’. This consensus had been considerably enabled not least because decolonisation after 1945 enabled the leaders of previously silenced peoples to contribute to a reworked, less Western, more inclusive set of international laws. Tomuschat is optimistic about the gradual development and increasing importance of international law, particularly for the protection of human rights, although he admits that the willingness of

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states to apply these laws in the interests of a united international community is rare. ‘On a normative plane’, though, he argues, ‘a true international community has taken shape’, and ‘…the two concepts of jus cogens and obligations erga omnes embody the core values shared by humankind’. Another ongoing challenge to sovereignty is the perennial mismatch between the state and the different national groups that inhabit it. This mismatch creates a world of differentiated sovereign states that are not made equal, are not equally cohesive and deal with the problem of autonomy, independence and emancipation differentially. In Chapter 22, ‘Self-Determination and Secession: An Act of Collective Emancipation’, Costas Laoutides discusses the history of the concept of secession in theory and in practice and argues that it has a long future, and it should influence the practice of sovereignty. To grasp this, he provides a tripartite taxonomy of theories and justifications of secession that theorists and national groups have used to pursue emancipation. Just cause theories of secession argue in favour of a remedial right to secede due to gross injustices, though it is unclear which these social groups that have this right are. One is to presume that they are only ethnic groups. National theories are premised on the moral and democratic value of the nation as a distinct and homogenous community attached to a historic territory. This creates problems when different nationalities lay claim to the same territory. Theories of secession as an individual choice see secession as an individual democratic decision. Majority decision—usually through referenda—decides on redrawing the territorial boundaries of the sovereign state through secession. However, no criteria regarding this decision other than the majority rule are offered; hence, the new borders can be as undemocratic as the previous ones. Laoutides concludes that appreciating this challenge to sovereignty does not lead to endless secessionism. In fact, it could help states appreciate the need for further democratisation if they wish to avoid secessionism. In a world in which over the past three centuries secessionism has been implemented in an ad hoc way, and thus the pursuit of human emancipation has been implemented haphazardly, there is need for change. The international community ought to de-sacralise the notion of the state’s territorial integrity. Secondly, it has to depart from ad hoc solutions. Thirdly, it should proceed with a legal framework that can assess secessionist claims consistently. In the view of many political theorists and politicians, migration offers one of the most acute challenges to a state’s sovereignty, especially in relation to its abilities to control its own borders. In practice, many states have had highly restrictive immigration policies and the central question which Gillian Brock addresses in Chapter 23, ‘Migration Across Borders’, is the deceptively simpleseeming one of whether states should be more generous in allowing would-be immigrants to settle in their territory. The first part of the chapter demonstrates the complexity of the issues this question raises by considering arguments which defend a state’s rights to control immigration, sometimes severely, and alternative arguments for

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more open borders. Against the background of this debate, she next considers responsibilities to refugees, a particular category of migrants who are often thought to deserve special consideration. She focuses her discussion on two questions which are analytically fundamental and practically urgent: ‘Who ought to be considered refugees?’ and ‘What duties do states have towards refugees?’ In the penultimate section, she more briefly surveys some further prominent topics: normative constraints on admission policies, irregular migration, temporary migration, justice in out-migration and critiques from critical border theorists. Finally, reflecting the balance throughout the chapter between the theoretical and the practical, Brock offers some preliminary thoughts on the possible implications of the COVID-19 pandemic for future debates about the nature and significance of migration. In Chapter 24, ‘Remedying Cosmopolitan Wrongs: Indigenous Peoples, Kant and Historical Injustice’, Timothy Waligore deploys a Kantian framework to analyse the circumstances of Indigenous Peoples as they sought to deal with the incursion of European peoples into their territories. Waligore deploys sympathetically Kant’s account of hospitality in the short book Perpetual Peace to construct a more positive approach to the encounter between native populations travellers, traders, and settlers than the indigenous populations in fact experienced. Whereas Kant required that indigenous populations should be treated as equal inhabitants of an originally commonly owned earth’s surface having a full claim to the lands upon which they subsisted, white European visitors regarded the territories as ownerless and open to exploitation by new arrivals. Admittedly, many such visitors did try to establish their rights through treaties, but Kant held that they often took advantage of the ignorance of indigenous people in arranging these treaties. Waligore’s focus is not solely on the wrongs of the past, however. He inquires how such former wrongs might now be redressed using Kant’s framework. He also questions whether Kant’s framework is wholly adequate for today’s purposes. Waligore is acutely aware of the infelicities to be found in Kant’s discussions of race, and although he acknowledges that in principle Kant’s approach is universalistic, he rejects some of its anthropological features. An emphasis that Waligore wholeheartedly wants to share with Kant is that upon the need to analyse the obstacles faced by indigenous peoples within not only a domestic context but also in the international context which contributed so much to their disadvantage. Caron Gentry and Rebecca Wilson interrogate the title of their chapter, ‘Women and War’, as a way to illuminate the ways gender relations and war-making shape ideas of citizenship, belonging and sovereignty. Should the notion of women and war appear as straightforward, the authors are dispelling such illusions offering a historical and critical tour d’horizon. Women are increasingly participating in war, but the implications of this observation are not self-explanatory. Revealing the gendered division of men and women’s relationship with violence and war is not satisfactory to understand sovereignty. The meaning of ‘women and war’ has many layers of meaning. Complicating it is a necessary starting point to make sense of war, gender and sovereignty. The

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authors trace the trajectory of feminist and queer scholarship in international relations to make these points. To begin with, feminist scholars like Elshtain, Enloe and Cohn have challenged our binary understanding of gender roles within (and beyond) war. They have asked where the women are and questioned the portrayal of women as victims of war. The feminist language on war has allowed the flourishing of an understanding of how binary gendered relations are conducive to the militarisation of politics. Yet, even though these feminists provided the necessary steps for understanding women and war, they did not go far enough to challenge the associated heteronormativity. In particular, the term ‘women and war’ is complicit in gendering society and shaping the state and sovereignty. To illuminate this point, the authors engage with queer theory and work from Cynthia Weber. ‘Recognising the complexity of identity within war and conflict and the co-constitutive nature of war’ is essential. It ‘allows feminism to move the question away from ‘women and war’ to ‘gender and war’ and the implications of this thinking on masculinity and men’. ‘Women and war’ is far from an innocent title; it ‘replicates the gendered power structure that there is an inherent division forever keeping women and femininity outside of war and war-making’. Therefore, Gentry and Wilson conclude, ‘the way ‘women and war’ maintains in some respect women-as-outside-of-war re-secures the hetero-patriarchal state and thereby the hetero-patriarchal nature of war’. The editors are aware of the precariousness of the undertaking which this Handbook represents which both begins from the prevailing tradition of international thought—wedded as it is to European history and the colonialism and imperialism it generated—but also departing from it in highlighting recent trends, which put into question the reliability of that tradition. The interpretations of Kant’s thought throughout both volumes in this handbook demonstrate how he exemplifies the European tradition, but also how he casts doubt on the European heritage, demonstrating the treacherous waters these volumes navigate. The contributions that allude to his thought both emphasise his complicity in supremacist ideology at the same time as they bring out the new starting points he provides in his critical analysis of the white European world view. This dichotomy will be developed further in the second volume in its engagement with global politics and present challenges.

Reference Koselleck, Reinhart. 2004. Futures Past: On the Semantics of Historical Time. New York: Columbia University Press.

PART I

The Ancient World

CHAPTER 2

The Chinese Contribution to Theorizing International Relations Rosita Dellios

Introduction The Chinese contribution to theorizing international relations has a long ancestry. It came of age in the classical period from the sixth century BCE to the third century CE, establishing the cosmological ground from which philosophies of statecraft emerged. Its cultural antecedents go back even earlier to the semi-mythical Xia dynasty (circa 2070–1600 BCE) with its ancestral heroes including the Yellow Emperor, the Shang (1600–1046 BCE) which saw the development of writing from the practice of divination, and then came the Zhou dynasty (c. 1050–221 BCE) whose decline in the east of China through civil war marked the future contours of Chinese strategic thought. The Zhou explained the overthrown of the Shang via the legitimizing doctrine of the Mandate of Heaven (tianming ). As discussed below, such a ‘mandate’ from the moral universe was an essential feature of the right to rule, as well as the right to overthrow those who have lost it. The Zhou was the longest lasting dynasty in Chinese history. It endured for eight centuries across two periods: Western Zhou (c.1050–771 BCE) with its capital in Xi’an and Eastern Zhou (770–221 BCE) with the capital having moved east to Luoyang. The former signified the standards of Chinese political ideals (rule by virtue) which Confucius (Kongzi, 551–479 BCE) upheld as a model. The latter was also divided into two parts. The first was the Spring and Autumn R. Dellios (B) Bond University, Queensland, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_2

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Period or Chunqiu (770–476 BCE), named after the classic chronicle of the era, its title reflective of events being depicted by season and not only year. The second part became known as the Warring States Period (475–221 BCE), as the competition amongst nobles for power and resources under an increasingly weakened and ceremonial House of Zhou gave way to warfare amongst the surviving powerful ‘states’. The victorious state of Qin had mastered war but not the peace, giving way to the Han dynasty 15 years later. What the Qin lacked in longevity, however, it made up for in legacy: it ushered in the first Chinese empire. In doing so, China entered a distinctly new age, but it never lost the intellectual and spiritual foundations of the past. Most notable amongst these was the teaching of Confucius. Confucianism, with its emphasis on humanity and the moral cultivation of the individual, through to the ruling dynasty, developed in this formative period in Chinese ‘international relations’. Whilst Confucianism became the best known of the philosophical schools, even if not the most widely practised, there were others that stood out. These were Legalism with its emphasis on the strong state (which Qin followed with strategic success), Mohism that preached a strictly defensive doctrine, ruling out any form of offence, and Daoism—the philosophy of non-interference and source of strategic insights. Other schools that made up the ‘Hundred Schools of Thought’ (a term used to indicate they were numerous) may be regarded as subsidiary. Two, however, are worth noting as they pertain to international relations. One was the school of diplomacy that concerned itself with alliance politics, either with or against the strong state of Qin. The other was the school of the military, of which Sunzi (Sun Tzu) was its most famous military strategist. These ‘schools’ were derivative philosophically (especially from Daoism) but they did address a niche market in skills, be it for diplomatic practice at a time of danger or military strategies and tactics for victory. Of the two, the school of the military has remained the most memorable thanks to Sunzi’s Art of War which is still studied to this day, and not only in China. Sunzi was one of a number of sophisticated practitioners of the arts of war (on the military classics, see Sawyer 2007), a quality which sets China apart as having a distinctive military culture. Its emphasis on psychological factors, whereby the most important battlefield is in the mind, contrasts with the traditional European focus on war’s physicality. For Sunzi, the ‘supreme art of war is to subdue the enemy without fighting’ (Sun Tzu III:2); Clausewitz’s On War (1984), on the other hand, defines war as ‘an act of force to compel our enemy to do our will’ (I:2). Both psychological and material factors are necessary elements of warfare, but in China, the former has been privileged—largely due to the conceptual foundations described below. Key concepts within this multi-school philosophical environment were operating at different levels. Thus the cosmological yinyang (Chinese dialectics) found strategic application in wuwei (actionless action) and shí (timeliness); whilst the idea of the world, tianxia (All under Heaven), carried with it the vision of datong (Great Unity) and the justification for acquiring ruling

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power—tianming (Mandate of Heaven). Whilst these six concepts are interrelated, the four schools of thought are historically prone to syncretic adaptation across time and circumstance. The common thread in all is that they are process-based rather than structure-driven. This is not to downplay traditional China’s political structures and classics-educated bureaucracy as formidable forces of governance. Rather, it is to point out that the very existence of ‘structure’ in Chinese society and politics was predicated on the philosophical ‘software’ that entailed relational processes. These were not only humanto-human but, more profoundly, Heaven (tian)-to-human as a constantly renewing mutuality. In comparing this perspective to Greek philosophy upon which the West has built its own edifice of understanding, Ames (2015, 8) has observed that the Chinese ‘commitment to an inherent, emergent sense of order rather than [Greek] assumptions about an underlying permanent order’ expresses ‘the primacy of process and change over form and stasis’. Being process-based, the Chinese contribution to theorizing international relations holds potential for influencing future developments in an international system that includes contemporary China as its newest superpower. Moreover, the inherent dynamism of such thinking would entail adaptation and renewal of theories, for the principle of change—be it transformative or simply in terms of ‘movement-stillness’ (Zhang 2002, 197)—lies at the heart of Chinese philosophy. This chapter begins by addressing the four most influential schools of thought, followed by the six key concepts. They are chosen for their relevance to international relations. They also open a portal to a survey of the existing state of thinking on the Chinese contribution to theorizing international relations, as most contemporary thinkers begin with the foundational schools of thought and their conceptual environment. The chapter broadens with considerations of gender and ethnic relations, concluding with fresh ideas for the future drawn from the Chinese past.

Four Philosophies and Six Concepts 1. Confucianism The school of scholars (rujia), or Confucianism as it is better known in the West, may have seemed an indulgence at a time of political upheaval. However, it represented the security that could be found in tradition and which promised resilience in transformational times. In other words, the school of scholars relied on the state’s civilizational credentials and their renewal. By being deeply concerned with how to cultivate one’s humanity and by returning to the meaning of rituals that were ancient even in Confucius’ time, an effort was made on the part of the rujia to ensure a civilizational continuity within society as patterns of governance.

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The quest for harmony propelled this approach to governance. China’s famed bureaucracy was educated in the Confucian classics (on the ‘foundational texts’, see Ferguson and Dellios 2017, p. 38). Its role was to manage the affairs of the empire in a professional and perspicuous way. Confucius taught the importance of moral leadership for society to flourish, using the Duke of Zhou (eleventh century BCE) as the exemplar for a realized politicocosmic being. The key Confucian virtue ren (humaneness) was supported by appropriate behaviour in the form of li (ren-imbued ‘ritual’). Li was of particular importance in the conduct of foreign relations, which came under the Ministry of Rites. This ministry also oversaw the imperial examinations of Confucian scholars. Whether external or internal, the Confucian overlay of Chinese governance was pervasive. Even under the Chinese Communist Party (CCP), Confucian political culture has had a role to play. When Chairman Mao Zedong (1893–1976) was alive, Confucianism was vilified as a class-based remnant of the ‘old China’. However, when the ‘new China’ (People’s Republic of China–PRC) strengthened under the leadership of Deng Xiaoping and his successors, Confucian philosophy was brought back to serve the government. It was employed to reassure the world of China’s ‘peaceful rise’ and the cultural resources it could bring to bear in foreign and domestic policy (Dellios and Ferguson 2013). Hu Jintao, when addressing the United Nations General Assembly in 2005, called for a ‘harmonious world’ in the spirit of Confucius. A government white paper, ‘China’s Peaceful Development Road’ that included the ‘harmonious world’ theme, was issued the same year. This was the international counterpart to the policy of creating a ‘harmonious society’ domestically to address the imbalances caused by the unprecedented pace of development. This is what is referred to as New Confucianism by a number of contemporary scholars (see, for example, Tseng 2020; Deng and Smith 2018; Rošker 2016). 2. Legalism As the PRC grew even stronger, however, its external and internal disposition changed yet again. Whilst Confucius was not abandoned, his guiding light did not shine as brightly as before. Another, lesser known, school of thought from classical China represented a more authoritarian style that sat well with CCP objectives of maintaining domestic control and asserting international influence. This was the school of Legalism ( fajia) which gained its name from an emphasis on the law (typically draconian) applying to all equally. China’s Confucian-based ‘peaceful rise’ was eclipsed by President Xi Jinping’s ‘Chinese Dream’ of national rejuvenation. This called for a strong state and a powerful military. Looking back to Legalism’s classical laboratory, it was the Qin state’s winning formula in the Warring States Period. Fajia’s leading philosopher was Hanfeizi (c. 280–233 BCE), after whom the text is named. Like Confucius, Hanfeizi was a transmitter and enhancer

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of traditional Chinese thought. He also infused this tradition with the durability of perennial usefulness. For example, in the chapter on ‘The Way of the Ruler’, the Hanfeizi advises on the promotion of officials based on merit and warns against the presence of ‘tigers’ (traitors) and corruption (Hanfeizi, Sect. 5, trans. Watson 2003). The difference with Confucius was that the desired objective was achieved not through moral example but by legal means. The Hanfeizi’s themes have been taken up in Xi Jinping’s China. The largest anti-corruption campaign in PRC history began soon after Xi became party leader and China’s president. He even quoted the Hanfeizi: ‘If those who uphold the law are strong, the state will be strong; if they are weak, the state will be weak’ (Hanfeizi, Sect. 6, trans. Watson 2003); indicating, as McGregor (2019) paraphrases, ‘the ruler sits above the law and commands it as an instrument of power’. The punitive use of the law also applies to ‘traitors’, as demonstrated by the controversial national security law for Hong Kong in 2020. This includes severe penalties for subversion and entails the erosion of civil liberties. The use of surveillance technology to punish and reward citizens through the social credit system provides a further modern-day reflection of Legalism. In this system, as in the Legalist emphasis on severe punishment, ‘disproportionate sanction’ (Creemers 2018, 13) prevails. According to a 2016 government report: ‘if trust is broken in one place, restrictions are imposed everywhere’ (quoted in Creemers 2018, 13). However, Chinese society has not been passive. At the ground-level of police-society relations, expressions of dissatisfaction have emerged from the Chinese social media and online videos targeting conflict with police (Scoggins 2019). The use of technology works both ways. Within the dynamics of a relational culture, every yang entails a yin. ‘Fa’ can mean standards as well as law, and the unifying Qin dynasty was noted for its standardization of the writing system, laws, taxes, currency and weights and measures. It was also known for building infrastructure across its vast territory—a reputation upheld by the present century’s Belt and Road Initiative (BRI), even if the geographic scope is international rather than internal. A ‘programme of gargantuan public works’ served the cause of integrating China after it had been won militarily, and it was this administrative feat which did more to immortalize Shi Huangdi (First Emperor of Qin) than the elixirs of immortality he sought (Keay 2009, 93, 103). Similarly, the reputation of president-for-life Xi Jinping may rise or fall on the success of BRI, which has become even more crucial as a China-influenced international sphere that links to the domestic economy. A successful BRI could become a crucial catalyst in the ‘dual circulation’ strategy of mutually reinforcing internal and international economic complementarity, proposed by Xi Jinping in 2020 and featuring in the country’s 14th Five-Year Plan (2021–2025). One crucial measure of success will be the ecological component infusing both BRI and the wider ‘dual circulation’ strategy. The stage, however, has been set. China has positioned the environment as a crucial component of the economy, rather than the sacrificial

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victim of rapid development. The term ‘ecological civilization’ was enshrined in the CCP constitution in 2012. It has subsequently been promoted through legal frameworks and mobilizing speeches such Xi jinping’s ‘Beautiful China Initiative’ advanced at the 19th CCP National Congress in 2017. 3. Mohism Whilst Legalists found little of interest in Confucian teachings, they did learn from Mohism the importance of ‘uniform standards and on the mobilization of society for the achievement of utilitarian ends’ (de Bary and Bloom 1999, 191). However, beyond this point, the two schools of thought diverged. Mohism viewed people as more important than the state and regarded wars of aggression as acts of murder and plunder. The concept of ‘universal love’ or ‘impartial caring’ ( juan ai) represents an early expression of the idea that human rights are universal. Though not as well-known as Confucius, Mohism’s founder, Micius (Mozi, c. 470–c. 391 BCE), is recognized as a philosopher, scientist and engineer who cared about defence without glorifying military might. ‘The intent of Heaven’, he argued, ‘does not desire that large states attack small ones … that the strong oppress the weak’ (Mozi jicheng 7:6b in Watson 1999, 74). During the Warring States Period, Mozi sought to dissuade the powerful from attacking the weak and helped the latter improve their defences through his expertise in building fortifications. The world’s first quantum communications satellite, launched by China in 2016, was named in his honour. The Micius satellite enables secure encryption in long-range communication. It has been credited with ushering in a ‘new era of communication security’ (Šiljak 2020). Indeed, defence against internet surveillance represents a fortification in the modern context of cyberspace. China’s defence white papers emphasize the defensive nature of its defence policy, whilst acknowledging that its strategic guideline of ‘active defence’ necessarily entails ‘offense at operational and tactical levels’ in order to prevail in war (State Council Information Office, PRC 2019, Section II). 4. Daoism If Mohism seems less active in its defence philosophy than contemporary policy preferences, Daoism (Taoism) is even more radical and removed from military convention. Its slogan, if it were to have one, would be noninterference. At the same time, it offers insights in the conduct of operations and tactics, as exemplified in grey-zone and guerrilla warfare. This can be explained by reference to its name as a school of thought. The dao or the Way, which is a key concept permeating traditional Chinese thought, is especially developed within the school that carries its name. Daoism shares with Legalism the idea of equality—but without authority. This was not a communist dream of the withering away of the state. Rather, the state

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does not arise. If it does, it is pluralist and syncretic, not draconian. It is also small and peaceful. This can be seen in a passage from Daoism’s key text, the Daodejing (the Book of the Way and its Power/Virtue), also called the Laozi (Lao Tzu, ‘Old Master’) after its possibly mythical author: Reduce the size of the population and the state. Ensure that even though the people have tools of war for a troop or a battalion they will not use them; and also that they will be reluctant to move to distant places because they look on death as no light matter. (Lao Tzu, ch. 80, trans. Lau 1963, 142)

Daoism’s approach to ruling a large state, however, is well depicted in the Huainanzi (Master of Huainan). This was a text that represented a response to its time as well as the syncretic capacity of Chinese philosophy to act in relation to political need. Before dwelling further on the Huainanzi, it is worth recalling the range of philosophical schools that were available to those in power. The extremes in political thought—from the realized politicocosmic being to the realist pursuit of survival and accrual of power—can be conceptualized as historically endorsed propensities. Dong Zhongshu (179– 104 BCE), a scholar who was influential in instituting Confucian thought as the Han dynasty’s primary ideology under Emperor Wu from the second century BCE, observed that each of China’s philosophical schools had a role to play according to the needs of the time and the circumstances that arose (Dong Zhongshu in Queen and Major, ed. and trans. 2015; Babb 2018, 79–80). To this end, the early Han dynasty combined a Confucian sensitivity to the values of Zhou and retained a less severe form of Qin’s organizational system for running an empire (Major et al. 2010, 3; Dellios and Ferguson 2013, ch. 3), and after the Qin’s damage to the economy through excessive taxation and the productivity costs associated with its military corvées (He et al. 2008, 165), the restorative powers of Daoism’s equivalent to laissez faire (wuwei, see below) were applied. The Daoist influence even competed with Confucian political ascendancy under the above-noted Emperor Wu. He was about to make the Confucian classics the official teachings when in 139 BCE Wu’s uncle, Liu An, a Daoist philosopher and king of Huainan,1 brought to him a remarkable Daoist document. This was the aforementioned Huainanzi. It was compiled by scholars commissioned by Liu An whose motives may not have been only to ‘head off’ the move to Confucianism (de Bary and Bloom 1999, 268), but as a royal relative and king of a diminished realm, it was in Liu An’s interests to present the virtues of Daoist decentralization in governance. This also accorded with the Western Zhou dynasty’s reputation, thanks to Confucius, as an era of exemplary rule. Tensions between centralization and decentralization have figured throughout Chinese history. Lui An, who was not only a regional king but also a potential heir to the imperial throne, seemed to want to do both. As a philosopher, moreover, he saw the more independent polities as existing within

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the wider unity of loyalty to the sage-king—or, in this case, the sage-emperor. Thus, the Huainanzi incorporated ‘different policies, techniques, and institutions characteristic of centralized and decentralized rule’ (Queen and Major 2015, 6). As expressed in the words of the Huainanzi: With things, it is certainly true that there are instances in which being large does not compare with being small, or being numerous does not compare with being few. When it comes to the strength within weakness and the weakness within strength, the danger within safety and the survival within destruction, if not for a sage, who could see it! Greatness or smallness, honor or disgrace, [alone] do not suffice for an assessment to be made. (Huainanzi 13:22, trans. Major et al. 2010, 526)

It is not difficult to move from philosophy to strategic concepts, when one considers, as in the above reflection, the paradox of strength within weakness and weakness within strength. Here the concept of yinyang prevails. It is one of six introduced below. Whilst classical in origin, their ontological and future value remain, especially as the world shifts to accommodate President Xi’s Chinese Dream of a newly rejuvenated China. The first three are about change and when to act; the second three concern the world and its governance. 1. Yinyang (阴阳, Chinese dialectics) Perhaps the best explanation of yinyang is a visual one: the taijitu (‘diagram of the supreme ultimate’). It is the widely recognized symbol of light and dark hemispheres, each containing the seed of the other, combining in a greater circle of harmony within dynamic change (see Fig. 2.1). Zhang Dainian in Key Concepts of Chinese Philosophy (2002) accords yinyang a leading role in Chinese cosmology, tracing it from early texts which located yang as facing the sun and yin in shadow, how this developed as the way ‘to explain the changes in the natural world’ (p. 84), through to yinyang’s transformative power that contains both the ‘invisible’ and the ‘visible’ (p. 94). Zhang concludes that ‘yin and yang were two forms of qi [the cosmic life force, defined earlier as ‘potentiality’ combined with ‘matter’, p. 46], but in later philosophy they were used as the master concepts for expressing the paired nature of reality’ (p. 94). Thus reality, in Chinese ontology, contains not only its more obvious correlative ‘pair’ (such as night and day, cold and warm, movement and stillness) but also its less obvious potential. It is characterized by relationships, movement and patterns. Something exists, or has the potential to exist, in relation to something else. This is the yinyang dialectic of mutual articulation. Like the symbol expressing yinyang ’s relational concept within dynamic change, the 64 hexagrams of the ancient classic, the Book of Changes (Yijing ), comprising broken (yin) and unbroken lines (yang ), bring forth the meaning of transformation in human affairs. Many of the commentaries reveal the values

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Fig. 2.1 The Yinyang symbol (Source Wikimedia Commons)

of statecraft based on virtue and acting at the right—or most auspicious—time. This becomes more apparent in the next two concepts, wuwei and shi. 2. Wuwei (无为, actionless action) According to Daoism, ‘The Way never acts yet nothing is left undone’ (Lao Tzu, ch. 37, trans. Lau 1963, 96); whilst in the Analects of Confucius there is also mention of governing through nonassertion by recalling the sage-king Shun who ‘achieved order without taking any action’, other than making himself reverent and facing South, the traditional position of the ruler (Analects 15.5). Wuwei ensures that the cosmic possibilities are open to a ruler who is attuned to the Way of Heaven. When applied to international relations, actionless or effortless action is a form of non-coercive statecraft which—like a minimalist Chinese ink painting which expresses the inner spirit of nature—does so by taking the form of circumstances for reshaping the political landscape by a few strokes of influence. This relates to the next concept, timeliness.

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3. Shi (時, timeliness) To exert influence with only a few strategic strokes calls for a sense of timeliness. The First Emperor of Qin, Shi Huangdi, recorded in a memorial inscription: ‘To initiate things in accord with the times is what this Emperor does’ (The First Emperor of Ch’in, Basic Annals 6 [245], in Ferguson and Dellios 2017, 53) whilst the Guanzi, a first century BCE philosophical text, stated that the wise ‘conform to the time no matter whether in action or nonaction, in opening or closing, or in advance or withdrawal’, emphasizing the point by advising to ‘take actions if it is the time’ but ‘remain still if it is not’ (quoted in Ferguson and Dellios 2017, 53). Shi originally meant ‘season’ and for an agrarian society it made sense to plant and reap in the right season. It extended to strategic affairs and timeliness in warfare as well as diplomatic action. Shakespeare’s lines that ‘There is a tide in the affairs of men. Which, taken at the flood, leads on to fortune’ (Julius Caesar Act IV, Scene III) are an instructive lesson in shi. These related concepts of yinyang , wuwei and shi find application in how to understand the world and its governance. What is the world? 4. Tianxia (天下, All under Heaven) This term not only refers to the world as a geographic expression but also a human and institutional one in which societies flourish under the order provided by a global institution. Whilst the United Nations and other supranational institutions provide the tianxia of today, their capacities are under strain as states still seek to pursue interests that impact negatively on other states. Moreover, disparities across an array of issues—from unequal development to gender and race (see below)—remain. China’s traditional tianxia was hierarchical whilst its modern equivalent accepts equality amongst states but advances the need for a ‘harmonious world’ model. As noted above, this was outlined by Hu Jintao at the United Nations General Assembly in 2005, and again in 2009. His recommendations were essentially concerned with a holistic approach to security and development, cooperation on transnational problems, and inter-civilizational tolerance and trust. These are also familiar fronts upon which the UN has sought to advance. The problem of accommodating political pluralism or egalitarian values in a diverse world would still prevail. Nonetheless, tianxia holds the key to China’s future trajectory as a world power that will need to come to terms with cosmopolitan inclusiveness, as it also manages with its internal diversity. 5. Datong (大同, Great Unity) Related to tianxia is the utopian vision of datong (great unity or great community) where, according to the Confucian Book of Rites, the ‘world was

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shared by all alike’, including resources which were not ‘hoarded’ for private use, and ‘ritual and rightness’ were employed ‘to regulate the relationship between ruler and ruled’ (21:1a-3a, in de Bary and Bloom, 343). Parallels may be found in modern Chinese history: ‘equal community for all’ (or great commonwealth) was advocated by the Republic of China’s first president and Nationalist Party (Kuomintang) leader, Sun Yat-sen (1866–1925); ‘serve the people’ was the political slogan of the new Communist Party-led China under Mao. In the current context of IR theory, datong may be regarded in a Daoist relational mode. Ling (2014) has termed this ‘Worldism’, which ‘investigates the linkages among and within articulations of difference, and how these cocreate an entwined complex of relations, socially and structurally, epistemically and normatively, to amount to what we call world politics’ (pp. 23–27). Daoist yinyang dialectics are employed to engage Westphalian IR logic with Multiple Worlds (non-Western modes of thought about the political world), positioning the Westphalian West with yang energy and characteristics while the ‘Other’ worlds are depicted as dwelling within the shadows of yin. This is not necessarily an oppositional force on the path to conflict but contains the potential for mutual learning—a characteristic of Chinese dialectics. 6. Tianming (天命, Mandate of Heaven) The selflessness of the ideals above can be tempered through the political balance afforded by tianming. It allows for the overthrow of the prevailing government when there is just cause, as endorsed by the overarching moral authority of Heaven (Tian). It is a Confucian concept of virtuous rule that leads to cosmic-social harmony and hence prosperity and peace in the realm. Tianming has attracted sceptics, not only as a justification by the Zhou to overthrow the Shang dynasty but also as the whole idea of rulers having power over the people. This not only digresses from the utopian qualities of tianxia and datong, but also sits uneasily with a Daoist disdain for authority. Moreover, tianming represents a two-edged sword. It can be used to unseat a corrupt ruler but can be used against one’s own leadership, not only by others but also by interpretations of natural calamities as Heaven’s displeasure. Crop failures, floods, earthquakes and plagues are easily turned into signs of the loss of Heaven’s mandate. If such beliefs persist, and Orville Schell (2020) has observed that ‘Confucian thinking and forms of deeply rooted superstition continue to hold widespread sway across the country’, then President Xi Jinping’s leadership stands to benefit from the recovery of economic power— a Legalist priority. This would indicate his capacity to redress the formidable impact of COVID-19. Any such ‘triumph’ would also imply a cosmic rebalancing that would appeal to more traditional thought about Tian/Heaven as the moral universe.

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Survey on Current Thinking Yan Xuetong, director of the Institute of International Studies at Tsinghua University, Beijing, is a Chinese realist who studied the pre-Qin era. The key philosophers at this time in history he classified as relevant to one of three levels of analysis: the whole system; the state, and the individual. This may appear a sound allocation, but upon reflection, each philosopher can be seen to inhabit all levels of analysis. Confucius was slotted at the individual level, yet a Confucian state and tianxia global system are also applicable. Laozi was at the global system level; however, Daoist thought applies to the small state preference and a wuwei world beyond the great power political syndrome. Legalism may seem to be the ideology of national interest par excellence. It nonetheless also holds lessons for the personal style of wuwei authoritarianism and the systemic idea of a global empire based on technological surveillance and data-enabled manipulation. Zhao Tingyang (2006) identifies tianxia (All under Heaven) as a global institution. This political aspect unites with the territorial and the human into a cosmological order on earth. Like Yan Xuetong, Zhao Tingyang chooses ancient Chinese philosophy for building a modern Chinese IR theory. Using Chinese classifications rather than ‘characteristics’, Zhao Tingyang goes beyond the derivative act of localizing global thought systems of politics (from Marxism-Leninism to Realism and Liberalism). Tianxia suggests that both the world and China are one system. Chinese political thought must therefore contemplate the irreducible nature of one world (or ‘worldness’)—and China’s role in it. This recalls the dynamic circle of yinyang , its inter-subjectivity, much like Constructivism and a certain special quality which Qin Yaqing, Professor of International Relations at China Foreign Affairs University, finds in Relationalism. He locates the actor’s identity within the relationship—not as an autonomous player. ‘This ontology of relations examines the unfolding processes whereby relations create the identities of actors and provide motivations for their actions’ (Qin 2018, i). His book, A Relational Theory of World Politics, has been described as ‘the first fully developed approach to International Relations (IR) theory from a Chinese scholar to be published in English’ (Summers 2019, 210). Lin and Chen (2020) are disappointed by efforts to create a Chinese School of International Relations, arguing both Zhao Tingyang and Qin Yaqing as leading proponents have failed to instigate a ‘meta-theoretical framework informed by Confucian cosmology’, focussing instead on authenticating the Chinese School in Western terms and thus depriving it of its ‘all-inclusiveness’ as well as not showing how to use these Chinese School concepts in ‘investigating global affairs’ (p. 3). The implications of their critique are such that one can no longer speak of a Chinese contribution to IR. Such a singular name to an all-inclusive system—with ecological and social systems combining as one albeit with interacting sub-systems—is rendered redundant. However, rather than representing the equivalent of yet another ‘Western’ perspective, that of

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the ‘posthuman’, the moral/ethical dimension, the path of spiritual progress, the dao, resides at the centre of this expression of relational politics. Like the Chinese classical schools of thought, a Chinese school of contemporary IR may be better conceptualized as one of many that apprehend the international relations of its time. The Chinese School cannot divorce itself from the others in the relational world. However, when it is in yang mode, on the ascendant, it expands the ‘opportunity space’ of the yin realm, balancing both spheres of activity. The strategic implications are considerable. As China becomes a comparative benchmark in international affairs, not just the advanced West, ‘strategic literacy’ assumes greater importance. It embraces the idea that the understanding of the mindset, doctrine, organizational structure and symbolism of other political cultures is an essential learning tool for twenty-first-century statecraft and strategic policy settings.

Gender and Race/Ethnic Relations How does the Chinese contribution to the philosophical scope and direction of international relations relate to the strengthening issues of gender and race/ ethnic relations? Gender in Chinese Thought: The Visible and the Invisible Whilst the privileges of patriarchy are to be found in traditional Chinese society much like the traditional European, Middle Eastern and other communities, in China’s case it is overwhelmingly associated with Confucian culture. Such culture, however, is not always obedient to Confucianism. This is because in saying very little about women (as distinct from their role in family relations), Confucius has left the topic open. The other topic he relegated to the unspoken, which may also be identified as a method of communication (see Yi 2019) rather than omission, was the world of spirits: ‘Before you have learned to serve human beings, how can you serve spirits? … When you do not yet know life, how could you know about death?’ (Analects 11.11, trans. Bloom, 54). This is remarkable in view of the power and symbolism accorded to the mythical dragon, a deity that continues to be worshiped as well as a myriad of gods, goddesses and spirits found in Chinese popular culture. Confucius did not reject the supernatural but chose to leave it uninterpreted and open to the wider cultural world at work in people’s lives. Thus, for Confucius, performing rituals ‘as if’ the spirits were present (Analects 3.12), imbued those rituals with the depth of feeling—or potency—required for genuine social harmony. The rituals were more important in shaping society’s ethical development than the existence—or not—of the supernatural. So, too, with gender. Here the topic is bigger than one school of thought or the main narrative of what it is to be female in a culture with a history of foot-binding (especially during the Song dynasty, 960–1279 CE). Moreover, females figure prominently in the world of worship and supernatural feats (becoming an ‘immortal’), such as Xiwangmu

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(Queen Mother of the West), indicating more than a coincidence of omission on Confucius’ part. The way in which Confucius did not speak of women suggests a more open verdict than normally accorded to him. On the two occasions when he did speak explicitly about women, in one (Analects 8.20) he points out to King Wu that his ten ‘able ministers’ included one woman and in the other (Analects 17.25) Confucius spoke about the difficulty of keeping women to an inferior position. Both passages are ambiguous. Is he saying women are incapable of exercising the duties of a minister, or just acknowledging that amongst the ten capable ministers one was a woman? In the second passage, is Confucius’ message that women exhibit an unbridled nature or was he making a joke? The Analects of Confucius are replete with humour (see Harbsmeier 1990; WalkerVadillo 2009). Therefore, the second statement may simply be an expression of ironic humour, especially from one with an itinerant lifestyle and, perhaps relatedly, a reportedly unhappy marriage. Is the scant and possibly ironic reference to women also a method of communication, as with the supernatural? In both, Confucius was not concerned with making these topics his forte. This also meant that these understated topics could be subsumed within his overarching concern: the moral and ethical development of a person and thence society. In this, it is helpful that the word for person in Chinese is ungendered. Its extension to describe a morally superior person ( junzi) is also not gender-specific, even though it is commonly translated in English as ‘gentleman’. This would suggest that becoming a fully realized human need not be qualified by gender or masculine-feminine dualism, which then becomes a dichotomy of domination and submission. In the broader view of Chinese thought, there is a complementarity in yinyang fashion between the visible and the invisible, ritual enactment and spiritual potency, outer mastery and inner cultivation, ren and li and a reciprocity in social relations that defies attempts at demarcating one from the other in strict boundaries. Quite apart from philosophy, this was enacted in history. The Biographies of Exemplary Women (Lienü zhuan) compiled in the Former Han dynasty (202 BCE–9 CE) from early Chinese histories, contains accounts of outstanding women in ancient China. The book was even part of the educational texts provided by Chinese envoys abroad, including Zheng He’s Ming voyages, as a ‘civilizing’ influence. ‘This approach’, according to Waley-Cohen (1999, 47), ‘offers a particularly clear illustration of Chinese notions about the centrality of women as the repository of civilized behaviour...’ Race and Ethnicity in Chinese Thought: Tianxia in the Making Mention of Zheng He’s cultural exports suggests a civilizational mission similar to one of the rationales for European colonization. The difference with China, however, was that Zheng He’s voyages in the early fifteenth

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century were not for territorial and resource appropriation or religious conversion but for expansion of China’s sphere of influence in the tianxia system. This was not a case of the assumption of racial superiority but of state power through tribute to the Chinese emperor, who could have been a non-Han one, as occurred most conspicuously when the Mongols and Manchus ruled China. Indeed, one of the better-known non-Han emperors, perhaps the best known in the West, was the Yuan dynasty’s Kublai Khan, grandson of the Mongol conqueror Genghis Khan. The important point here is that the nonHan conquerors ruled as Chinese dynasties: the Yuan and Qing, respectively. Admiral Zheng He, who was entrusted with advancing the empire’s relations abroad—after lowly beginnings as a castrated slave—was himself from the minority Hui (a Chinese Muslim ethnoreligious group) from Yunnan in southwest China. Zhongguo, meaning the Middle Kingdom or Central Kingdom, is one of the historical names for China (compared to Zhonghua as the modern name for China). It is a fitting description for the politico-territorial centre of a set of political relationships that cast China as the head of the international family, and the moral-cosmological centre of harmony that the emperor upheld through ritual and a Confucian bureaucracy. This was not a singularly Chinese concept. Pre-modern ‘international relations’ in the Asian sphere was mandalic in that it functioned and was conceived of as an inter-relational whole. The Confucian family of nations over which China symbolically presided found willing participants in kingdoms seeking to expand their own influence and prestige through China as well as their wealth by securing trading rights with the empire. Often these ‘vassal’ states were recipients of tribute in their own sphere, though in Southeast Asia the centre of tribute often changed hands in accordance with regional politics and not only from the Chinese endorsement of authorized representatives within its tianxia orbit. Indeed, the inherent instability of Southeast Asian political formations meant that China was even less inclined to become involved in the region’s internal affairs. This did not apply, however, to the expansion of the Chinese empire across its strategic borderlands, resulting in the expansive map of China today compared to the smaller area covered in previous dynasties as, for example, in the powerful Ming of Zheng He’s time. Today’s China, by comparison, has expanded well beyond its core region along the Yellow River: 60% of its territory is populated by non-Han minorities of which there are 55 and comprise less than 10% of a population of 1.4 billion—the vast majority being Han. Looking at the restive regions within China, these stretch across a third of the country from Xinjiang in the northwest and Tibet in the west. Xinjiang (meaning ‘new frontier’) was annexed in the eighteenth century by the Manchu rulers of Qing (1644–1912), China’s last dynasty. Xinjiang has become notorious as the site of vast detention camps where the ethnic Uighurs, a Turkic-speaking Muslim people who are suspected of harbouring ‘terrorist’ groups, are held for ‘re-education’. Adjacent to Xinjiang lies Tibet which was forcibly incorporated into the PRC in 1959. Tibetans are Buddhist

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and many still regard the Dalai Lama, who lives in exile in India, as their spiritual leader. In order to counter any secessionist sentiment amongst small minorities in large territories, a process of Sinification of non-Han ethnic groups has been underway. Even in Inner Mongolia, another of China’s ‘Autonomous Regions’ (but less autonomous than the ‘ethnic minorities’ would have liked), there were protests in 2020 against a new language policy. Mongolian-language textbooks were replaced by those in Mandarin Chinese. The use of Chinese as the primary language of instruction had already been instituted in Xinjiang and Tibet. Inner Mongolians had largely been regarded as a model ethnic group without strong religious allegiances; however, their cultural identity as Mongolian served a similar function in terms of diverted loyalties, and a Mongolian education was the conduit for this (Wu 2020). Again, the concerns of state have been the driver in this policy. Language oppression and erasure would seem to be integral to ‘internal colonialism’ practised by China (see Roche 2019). As a response to the inherent political challenges of a multi-ethnic entity, China’s philosophical and historical experience is at the disposal of each generation of leaders. In this case, it is Legalism that comes to the fore, but even a Confucian outlook would see the superiority of a unifying idea, ren rather than ‘race’, come to the rescue. When Confucius was despondent over the loss of cultural awareness in his own homeland, he said he wanted to go and live amongst the Nine Yi (tribes). When asked if he ‘could put up with their uncouth ways’, Confucius replied that where a morally noble person ( junzi) dwells, ‘what uncouthness will there be?’ (Analects, 9.14, D.C. Lau trans.). In another passage from the Analects, Confucius suggests that one’s own behaviour is what matters when dealing with the Other. ‘If in word you are conscientious and trustworthy and in deed singleminded and reverent, then even in the lands of the barbarians you will go forward without obstruction. But if you fail to be conscientious and trustworthy in word or to be singleminded and reverent in deed, then can you be sure of going forward without obstruction even in your own neighbourhood?’ (Analects, 15.6, D.C. Lau trans.). This advice would have saved China from its wolfish diplomatic demeanours in the consolidating Xi Jinping era, compared to the previous ‘peaceful rise’ regime of Hu Jintao, and much of this relates to how the Other is treated internally as well as externally.

Conclusion Chinese philosophy in its continuity has revealed the ability to renew itself through constant adaptation, whilst not losing sight of its longevity and lessons for the future. The upkeep of civilizational values relies on understanding the nature of change as an eternal process. This is the special dao of statecraft. Whilst the dao is directional, as Adler (2016) puts points out in relation to Western belief structures, ‘there is no director’—or God. The pre-Socratic

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philosophers understood this too (Kirk and Raven 1971, 411–413, cited in Adler 2016). Heraclitus of Ephesus, who famously said that ‘you cannot step into the same river twice’, has much in common with the Chinese concept of change as inherent in all things—the actual and the potential. Power, too, is subject to change in its various combinations of actual, potential and relative. Even in meaning it finds fluidity in its expressions as the soft power of virtue (de), the hard power of martiality and economic leverage, the defensive view of protection, and the patient view that comes with an eye to circumstance and timing. This has a huge bearing on how one can understand the Chinese contribution to theorizing international relations. The Chinese classical schools of thought and their common pool of concepts suggest that strategy at the highest level transcends itself. The best strategy takes on the appearance of no strategy. Each of the four leading philosophers sees this as the ideal and the sign of mastery—be it of oneself, of non-action or effortless action (wuwei) to attain the dao (Way), of security through universality rather than partiality (similar in spirit to the current ‘common destiny’ slogan). As Hanfeizi observed: ‘No country is permanently strong. Nor is any country permanently weak’ (Han Fei Tzu, trans. W.K. Liano 1939). This is not only a Legalist view but reflects the wider Chinese philosophical tradition. The syncretic dynamism in Chinese philosophy is accompanied by a processbased reality which today’s IR Constructivists would readily discern. However, it goes beyond the rationality of Constructivism and other Western IR theoretical perspectives through the catalyst of the element of spontaneity. This is informed by the human—and thus political—relationship with the natural world, the flow of the cosmic life force of qi, which in turn is in harmony with the dao. Change occurs through the process of movement-stillness (yinyang ) and thence to transformation in a Chinese dialectic process deemed relational (intersubjective, in Constructivist terms). Apprehending the dao allows for effortless action or wuwei. This is a distinguishing quality of the classical Chinese strategist. Whilst this and related concepts appear Daoist in philosophical orientation, they are not unique to Daoism and are widely recognized in Chinese culture. Their role today is not to be read as lying within the exclusive domain of international relations. Then, as now, they provide an outlet for a stratified society and ensured a vital role for its critics. In this sense, Daoism was the counterculture to Confucianism as well as a critic of the overbearing state. In unison, such philosophies are the political lifeblood of any Chinese contribution to the expanding world of IR theory.

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Note 1. Regional kingdoms had been reintroduced for ease of administration and to reward military allies and royal family.

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CHAPTER 3

Thucydides and Social Processes: Beyond Tragedy Alexandros Koutsoukis

Not only are timing and sequencing important in determining political outcomes, but peoples’ beliefs about timing and sequencing (perhaps learned from scholars) are part of the story. (Jervis 2000, 100)

It is perhaps strange to begin an essay on Thucydides with a quote from a political scientist, but Thucydides has long been considered a father figure of the discipline of International Relations (IR) and of political realism, through his work the History of the Peloponnesian War or the History. The idea of the big fish that eats the small one is a familiar realist trope and seemingly echoed in Thucydides’ notorious Melian Dialogue in which the big fish, Athens, devours the small fish, the island-state of Melos, despite the latter’s moral indignation and warnings about some future form of retribution. Interpreting this dialogue has been the hill on which realists and constructivists have died to advocate the primacy of material power over morality and vice versa in international politics. Were the Melians naïve or were the Athenians arrogant, and thus beginning to commit the sin of imperial overextension, which led to their invasion of the big island of Sicily, and the eventual reversal in their fortunes of war? Expanding one’s period of analysis—to include or exclude Sicily, when considering the Melian Dialogue—has led scholars to see Thucydides as a political realist or as a tragedian of epic proportions echoing A. Koutsoukis (B) School of Psychology and Humanities, University of Central Lancashire, Preston, UK © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_3

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the significance of morality that realists downplay. The way political scientists study events, singularly or interconnectedly, therefore, is central to how we choose to narrate history, the lessons we learn from it, and the way we interpret Thucydides. The Peloponnesian War, according to Thucydides who lived through it, was the most important war in Hellenic history. The great powers of the Greek city-state international society, Athens and Sparta, were at the peak of their power and fought over hegemony in the Greek world. The conflict eroded moral restraints, particularly at times of crisis, and with it, unscrupulous violent behaviour became more permissible. Neutrals could afford less and less to remain neutrals, and the war outlasted the initial contemporary predictions. This war shaped the future of the Hellenic international system, eventually leading to its collapse. It set the ground for the rise of Macedon and Alexander the Great by weakening both Sparta—the winner—and Athens—the defeated party—as well as their allies. This fateful war, almost three-decades-long (431–404 BC), is often used to extract lessons for the present. During the English Civil War Hobbes drew upon it to characterise his state of nature, having himself translated it from the Greek in 1628. More recently, during the Cold War, the US and USSR were seen as the new Athens and Sparta (Lebow and Strauss 1991). Later, it was the Korean War (McCann and Barry S. Strauss 2000) that was discussed through the prism of the Peloponnesian War. More immediately, Thucydides was used to delve into the possibilities of a future Sino-American conflict (Allison 2017). Despite these parallels, the goal of this essay is slightly different. It does not intend to offer the definitive event from the History as the key that unlocks the puzzle of current events. It aims to help us get such comparisons right. It, thus, expands on a unique Thucydidean way of writing history, which is processual, and challenges simplistic decontextualised comparisons between different events across space and time. Thucydides is not amenable to the comparison between seemingly similar events because he does not write an event-centric history, but a history in which the sequences of events play a role, and also—as this chapter argues—the social processes, that are the result of longer-term sequences of events and the gradual transformations of the social and emotional worlds of the people involved. Social processes often defy the limited time frames of simplistic event comparisons and require a more holistic reading of the History. This processual reading is novel for Thucydidean scholars in the discipline of International Relations (IR). Thucydides in IR has tended to reflect the primary concerns of realists or constructivists. Realists have emphasised the importance of national interest and anarchy or the differential growth of power among great powers in the History (Waltz 1979, 186; Gilpin 1984, 1988). Constructivists have challenged this view by pointing out the importance of legitimacy and morality in the History as well as the role of chance events—like uncertain decisions—in the outcomes of the History (Johnson Bagby 1994; Welch 2003). These are the familiar IR concerns with the topics

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of fear versus justice or chance versus determinism at their epicentre. Processual thinkers have more fully incorporated in their analyses the centrality in the History of social processes, such as modernisation (Lebow 2003), state-building (Jaffe 2017), decision-making (Kouskouvelis 2018) and civilising processes (Linklater 2016). These processes structure the possibilities of change in politics and war. This chapter focuses on the military campaign of Sparta in the North of Greece, whose successes depended on a combination of public diplomacy, swift military decisions, a robust strategic vision and the beliefs of the smaller city-states. Thucydides, unlike recent thinkers (Bosworth 1993; Burns 2011), does not offer easy assessments, comparisons and conclusions for that sequence of events. His assessments are ambiguous, and he seems to be doing so by design. Successes and failures, properly contextualised in three of the History’s key social processes—civilisation, war and civil war—defy our tendency for easy attribution of praise and blame. This viewpoint aims more fully to appreciate History’s unique “ability to convey the generic without falsifying the unique” (Finley 1942, 67). It allows us to get closer to Thucydides’ perspective in order to draw lessons from History about the conditions under which past failures can become future successes by focusing on whether or when a leader could tweak the direction or the momentum of these processes to pursue success or prevent disaster; to get to victory or avert defeat; to achieve collaboration or avoid dissent. Thucydides’ revelation of both the generic and the unique exhibits a view of history that is distinctive not only for the discipline of IR at large (Kouskouvelis 2018, 58), but even for interdisciplinary efforts that try to combine IR with other masters of thought on politics and war such as Machiavelli and Clausewitz. Machiavelli, interested in minimising the dangers to the authority of the prince, advised that “there is only one thing more dangerous than being hated, and that is being despised” (Coker 2010a), and anticipated the birth of the Italian nation in his last chapters of The Prince, and the change this would bring to the regional balance of power (Machiavelli 2003). Clausewitz argued that “real war” can develop in time in the direction of the ideal of “absolute war” and included emotions in his trinitarian description of the nature of war, which he saw as the interplay of three fundamental elements: reason, passion and chance. For the Prussian general, “the ineradicable complexity of emotions correlates with the changing culture of societies, and the increasing number of actors”, which is central to his distinction between the nature and character of war (Hughes and Koutsoukis 2019). These arguments about emotions and culture notwithstanding, Thucydides went beyond Machiavelli and Clausewitz. He had deeper insights into our emotional worlds and the monsters that war creates in all of us (Coker 2017, 154). It is these insights about who we are and who we become due to war and politics, as they are interweaved in social processes of variable time frames, that the History illuminates, and the Spartan general Brasidas grasped acutely and reaped the benefits of in Northern Greece.

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The chapter is divided into five sections. Firstly, it demonstrates the problem of event-centric comparisons, such as this between Melos and Brasidas’ campaign, if detached from social processes. Secondly, it engages with Thucydides’ ambiguous assessment of Brasidas to demonstrate the different time frames Thucydides uses in his narrative, that a processual perspective helps illuminate. Thirdly, it argues for a processual reading of the History that is different from the alternative dominant processual reading of it as tragedy. Fourthly, it develops this processual reading by unpacking the processes of civilisation, war, and civil war. Fifthly, it demonstrates how these processes provide a good reading of the campaign of Brasidas in Greece that reconciles the seemingly contradictory elements of Thucydides’ assessment of Brasidas. It concludes that decontextualised comparisons simplify events, misunderstand the challenges of strategy and ignore key ways in which power politics can develop dynamically.

Decontextualised Comparisons: Melos and Acanthus Misrecognising the role of social processes in the History matters for understanding events and for comparing them with other events. Bosworth (1993) has combined the two issues in an evocative illustration of what is problematic in historical comparisons and foreign policy evaluations decontextualised from social processes in Thucydides’ History. Bosworth (1993) argues that the Athenians in Melos were characterised by a humanitarian spirit because they warned the Melians before slaughtering them and faulted the Spartans for not behaving accordingly in the northern Greek city-state of Acanthus. The Athenians, he argues, gave the Melians an honest choice: surrender or die. In contrast, he sees the Spartan general in Northern Greece, Brasidas, as lacking both in virtue (Burns 2011) and in the Athenian humanitarian spirit because he exaggerated representations of his power to the city-states that followed him, and which later led to their destruction, abandonment or return to the Athenian Empire. For Bosworth, the fate of Melos and of Northern Greek city-states are two parallel stories. Indeed, they appear to be so because, when decontextualised, these stories are similar. They are stories about weak states with false hopes suffering perilous consequences. In both cases, Melos and Acanthus, the fault lies with the small states. Melos miscalculated and so did the Northern Greek city-states. What is ignored are the processes involved in Brasidas’ successes, which makes this comparison simplistic and too great-power-centric; that is, it favours the perspective of the powerful Athenians as is often the case with realist accounts of the Melian Dialogue too. This is also reflected in the old, catchy and erroneous translation of the Melian Dialogue by Richard Crawley when he writes: “the strong do

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what they can and the weak suffer what they must” (Thucydides 2020, 1910, 5.89).1 To appreciate the great-power-centrism of the above comparison, and the value of the processual reading of the History consider for a moment the absence of the most long-term social context, civilisation—perceived as a process—when trying to interpret the Melian Dialogue. Realists see the attack of Athens on Melos as a practical strategic decision and constructivists as evidence of the moral deterioration of Athens, which leads to hubris and the invasion of Sicily. In each case, the moral context is ignored or only acknowledged partially. Realists argue about whether the decision was a mistake or a worthwhile calculated risk gone wrong (Novo and Parker 2020; cf. Koutsoukis 2022). Constructivists focus on the hubris of Athens that is too confident and commits itself to an impossible task; the conquest of the island of Sicily— itself bigger than the entire Peloponnese—amidst the biggest war in Hellenic history (Johnson Bagby 1994, 147). Realism tends to reduce morality to what is expedient, and constructivism tends to elevate morality in relation to what the destructiveness of the war permits (Kokaz 2001). The distance between the two viewpoints matters as it creates room for foreign policy choices, but it still misses out further room for choice by not acknowledging the processual context of Thucydides that permeates all of History. The disagreement between realists and constructivists takes for granted two things that the notion of civilisation as a process challenges: (1) methodologically: the centrality of social processes instead of state-centrism (whether in the form of the primacy of the national interest or of domestic politics); and (2) ontologically: the significance of the international and regional context: civilisation and intercommunal ties. For example, the destructiveness of war and the deterioration of civilisation may sometimes be linked linearly; that is, go hand in hand. This is something both realists and constructivists can agree on though they may see different degrees of freedom for different foreign policy choices. The relationship between war and civilisation, however, may be impacted by stigmatisation efforts of one state against another as has been demonstrated by other processual interpretations of Thucydides from historiography and IR (Price 2001; Linklater 2016). Still, at other times, the relationship between war and civilisation may move in a different direction such as when self-restraint and civilisational morality towards some states may serve the purpose of victory against the main great-power adversary. Decentring our explanations from state-centrism and incorporating the role of the international context as it manifests itself in civilisational changes and intercommunal relationships can help us add another layer of analysis, avoid great-power-centrism and get closer to Thucydides’ perspective. This is crucial if we want to get our comparisons right.

1

All other translated quotations are from (Thucydides 2009).

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Indeed, in both the way we understand the event of the Athenian attack on Melos and the comparison between Melos and Acanthus, the limitations in both the analysis of the first and in the comparison between the two have a common source. They do not challenge the linear link between war and civilisation: more war equals less civilisation. What Brasidas achieved and convinced the northern Greeks who followed him was that he would uphold the standards of Greek civilisation—something that Acanthus in particular also set as a term of surrendering (4.88). This made his self-proclaimed restraint on violence to weaker allies more convincing. In fact, Thucydides informs us that Brasidas was able to achieve a longlasting pro-Spartan reputation for this reason (4.81). This was possible because Brasidas’ discourse relied on pan-Hellenic norms of respect and autonomy (4.87), followed civilisational practices, such as oath-keeping, and convinced states of his ability to protect them. In addition, he accelerated the civil war in the Athenian empire and quelled the propensity for civil war in the various northern Greek city-states. Rather than taking these internal divisions for granted, he tried to shape them. In addition, he was sensitive to issues of time and momentum rather than just of culture or domestic politics. He did not manage all of the above in one go, with one move, speech or battle, but sequentially through multiple speeches, battles and proclamations. There was a political plan of unity—a political blueprint as Hornblower calls it (1996, 49)—underpinning his military strategy. Small city-states also helped once they became convinced of Brasidas’ honesty. They showed commitment to this new balance of power in domestic and international politics by devoting symbolic resources, which contributed to their domestic stability and to the long-lasting repercussions of Brasidas’ strategy. The combination of the above set in motion a broad political realignment increased the power of Brasidas and helped him intensify the war between Athens and Sparta. So, civilisation, civil war, and war seen as fluctuating processes dependent and shaped by intercommunal ties provide a richer explanation of Brasidas’ legacy. In contrast, if we examine these changes in a decontextualised manner, they are reducible to flimsy changes resulting from unreasonable miscalculations, persuasive oratory, and “Spartan roguery… a worthy match for the Athenians on Melos” (Allison 1997, 177). More fully contextualised, though, they reflect the ability of Brasidas to influence not just individual states but social processes that are central in Thucydides’ History and create new power and new foreign policy options along the way.

Thucydides’ Ambiguous Assessment of Brasidas’ Military Campaign in Northern Greece The personality and agency of Brasidas loom in Sparta’s northern Greek campaign due to its effects, but also because of Thucydides’ seemingly negative assessment of the Spartan general. Accordingly, this campaign has often

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been ignored by the discipline of IR or judged negatively by historiographers (Bosworth 1993; Burns 2011). On one hand, after the surrendering of the strategic city of Amphipolis to Brasidas, Thucydides criticises the Spartan general because his words that inspired the Northern Greek city-states to rebel from Athens were untrue: They drew confidence too from the recent blow inflicted on the Athenians by the Boeotians, and from Brasidas’ enticing (but untrue) claim. (4.108)

On the other hand, at the beginning of Brasidas’ campaign, Thucydides remarks that his conduct was honourable and that his reputation lasted long after his military campaign: And in the later stages of the war, after the Sicilian affair, the honourable conduct and intelligence shown by Brasidas at this time—directly experienced by some, heard of and believed in by others—played a major part in creating enthusiasm for the Spartans among the Athenian allies. He was the first Spartan sent out to them, he established a reputation for decency in all his dealings, and left in them a firm expectation that the others too were of similar character. (4.81)

The first evaluation of Brasidas may appear to be final as it comes later in the narrative (4.108). However, it is the first Thucydidean judgement (4.81) that extends to a later time frame as it refers to influence and reputations that extend beyond the end of the expedition. The two assessments rather than contradictory should be seen as complementary: one focusing on the particular military results of the campaign and the other on the long-term political results of the strategy. It is important to note here that the connection between war and politics is central in classic thinkers of war, especially Clausewitz, but also in Thucydides (Coker 2017, Chapter 6; Wheatland 2020, 6). It is thus critical to appreciate both the military dimension of strategy and its political dimension. In particular, what Thucydides achieves with his ambiguous assessment of Brasidas is to highlight the impact of strategy at different time frames. Scholars have previously argued that Thucydides’ ability to describe events from multiple viewpoints serves the purpose of making us wonder about the nature of truth and how history is most truthfully told (Greenwood 2005). Similarly, we should also consider that Thucydides’ effort to provide us with multiple time frames serves to make us wonder about what the true or full repercussions of strategy are, and, hence, how history is most truthfully told. Therefore, we need a different way to appreciate Thucydides’ ambiguous assessment of Brasidas. There is a way that does not reduce the History to decontextualised comparisons of events (Bosworth 1993) or to assessments in which the short-term perspective eclipses the long-term perspective (Burns 2011) and thus undermines efforts to account for both the unique and the

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generic. To develop this viewpoint, we now turn to an account of the processual dimension of the History to help us read Thucydides’ Brasidas in the final section. We begin by explaining why we choose to diverge from the more dominant quasi-processual view of the History as tragedy.

The Processual Context: Beyond Tragedy The social context of the Peloponnesian War is often described in insufficiently processual terms as that of the fall of Hellenic civilisation. It has now become a familiar picture to depict Thucydides’ History as a history of the rise and fall of civilisation or as a tragedy (Lebow 2003). Particular examples of military cruelty, such as the fate of the Plataeans or the Melians (3.68; 5.116), are abundant in the History and support this case. The centrality of the art of tragedy in ancient Greek culture, and the Athenian story being told as the tragedy of a state committing the sin of hubris and thus meeting with disaster even though it was initially expected to be victorious support this viewpoint (Coker 2010b, Chapter 5). The capacity of human beings “to fall prey to irrational emotions and false hope” and thus acting foolishly is present in the History and contributes to this understanding (Porter 2022). This tragic view of politics is compatible with the aforementioned linear view between war and civilisation both in constructivism and in realism (Gilpin 1988, 602). Despite their different premises, these perspectives reflect the same narrative: history as tragedy. Yet, Thucydides is rather ambivalent in his historical narrative. The reading of the History as a tragedy is “not purely Thucydidean, but a hybrid of Thucydides and modern opinions, predilections and preoccupations”. (Price 2001, 362) Certain consequential figures succeed in or fail to turn the tide of events such as Hermocrates at Gela or Brasidas in Northern Greece (4.59–4.64; 4.78–5.10). Certain crucial incidents affect the direction of historical developments such as a string of surrenderings in the Spartan campaign in Northern Greece or the battle of Mantineia (4.78–5.10; 5.63–5.81). Certain key factors are continuously in flux even though at times appear to be static such as the meaning of Hellas or who counts as Hellene. We observe the transformation of “Hellas” in the section called Archaeology (1.1–1.19) in Book 1, but also during the Peloponnesian War as in the trial of the Plataeans (3.65). The fluctuation of the agency of all these factors is described in ways that open up space for reconciliation, unification and unity or for a reversal in processes of disunity and disintegration whether in domestic politics or international politics. They do not reveal a history primed for tragedy or one that is centred on contingency (cf: Welch 2003). They reveal how the history of power politics is shaped by the results of sequences of events and processes that may bring about civilisational, regional or allied (dis)unity. This ambiguity in Thucydides is reduced in tragic accounts of the History. For example, Porter (2022) and Lebow (2003) recognise the importance of prudence from a classical realist or realist-constructivist perspective. They

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also recognise the multivocality and multi-causality of Thucydides and that war coarsens emotions. Yet, this does not give History enough air to breathe (Lawson 2006, 415). It gives it a certain tragic telos (Suganami 2008, 349). This realist or constructivist view of History is similar to the progressionof-pessimism narrative attributed to Thucydides, and Doyle (1990) has been insightful in his critique of this argument for being too deterministic. According to Doyle, internal strife is the cause of Athenian defeat: the victory of private factions over public life (2.65). Yet, they result not only from war but also from the plague, the rise of demagogues in Athens, or in cases like Corcyra, civil war. These issues, Doyle argues, “make a state of war in domestic politics” (Doyle 1990, 234), highlighting Thucydides’ comments about the plague in Athens and the civil war in Corcyra in which “[e]thical restraint dissolved as trust and even language changed their meanings” (Doyle 1990, 234; 2.82). What is at stake is the social bonds among people who share a common identification that opens up space for ethical choices. Even the Athenian empire, Doyle continues, provides a kind of connectivity between city-states in which the possibility of justice and thus of ethical choices in international politics are increased (Doyle 1990, 235). Therefore, issues that affect the (dis)unity and ethics within and across states have significant causal gravity and, therefore, challenge the linear link between war and civilisation. Yet, Doyle neither recognises nor explores the role of the pan-Hellenic identity and that of social processes or sequences of events. This omits another level of analysis and a key modality of making sense of the History.

The Processual Context: Civilisation, Civil War and War To appreciate the civilisational level of analysis as a key social process that affects the possibilities of change by being dynamic; that is, not having a fixed relationship with states and people and not having a linear relationship with war—as often portrayed in IR whether as a tragic view of reality or as a progression of pessimism—we need to start by examining Thucydides’ analysis in the Archaeology. The Archaeology is crucial as it has been convincingly argued that it is programmatic. It provides key themes and concepts of the History (Hornblower 1991, 8). We will then ascertain the centrality of the processual modality of contextualisation in Thucydides by examining the manifestation of civilisation and its fluctuation throughout the History. To begin with, what it means to be Greek and who counts as real Greek rather than as a “barbarian” gradually developed and come to life from Greek pre-history till the time of the Peloponnesian War. The rise of “Greekness” suppresses “barbarous” behaviours and impulses (Orwin 1994, 135) though not straightforwardly. Greeks are characterised by common customs, but not all of them have attained this level of development (1.6). They do get their name from Hellene, but they were initially based on different tribes and

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genealogies (1.3). They build up their power and pacify their societies, while obtaining this intercommunal or civilisational identity. The more power they amass, the greater deeds they can achieve. The more they control the seas, develop their economies and fortify their cities, the more robust their citystates become (1.2). They join the war against Troy and Persia and they achieve great deeds in the name of Hellas (1.3, 1.23). The great achievements reinforce this common civilisational identity, and yet this sense of belonging allows for the creation of clear demarcation lines inside and outside the Greek world by separating real Greeks from “barbarians” or Greeks who have betrayed their kin by collaborating with the Persians (3.62). Thucydides notes: it seems to me, that there had not yet evolved any equivalent generic term for the Greeks. However that may be, these various peoples who came to be called Hellenes—either individually…, or, later, collectively undertook no combined action before the Trojan War. But they could only make this joint expedition because by now they had acquired greater experience of the sea. (1.3)

The sense of disunity between Greeks during the Peloponnesian War goes hand in hand with the disintegration of this common identification or sense of we-feeling or we-identity (Linklater 2016, 10). This diminishing sense of we-ness is affected by war, civil war, power and state-transformation processes mediated by decision-making processes (Kouskouvelis 2018). They all shape conceptions of kinship or we-feeling, proclivities or moral restraints towards violence (Linklater 2016, 32–33, 52), and foreign policy decisions. Issues that appear programmatically in the Archaeology or develop during the Peloponnesian War. War, who runs a violent school, loosens up ethical self-restraints against violence (3.82, 4.76). Civil wars also undermine morality domestically, but also across cities as political fractions seek out great-power alliances, which during the Peloponnesian War become available, commit atrocities and see the war accordingly in increasingly ideological terms as a fight for survival between democrats and oligarchs as in the case of the paradigmatic civil war in Corcyra (3.65; 3.82–3.84; Cogan 1981; Linklater 2016, 51). “Civil wars brought every form of depravity to the Greek world” (3.83), yet their severity fluctuated “as dictated by each new permutation of circumstances” (3.82). These remarks by Thucydides depict, firstly, a narrative that focuses both on the particular (the state of civil strife in Corcyra) and the generic (the state of civil strife in Hellas). Secondly, the reversal of the Hellenic civilisation process as social, ethical, legal or religious restraints on violence (Linklater 2016, 31– 32, 49; van Wees 2001), and the associated we-identity or bonds of patriotism that the Greeks built are being undermined. This is particularly important given the socially constructed multi-layered bonds of the Greeks. Loyalties and bonds of kinship were being developed along colonial or ethnic, cultural, civic or pan-Hellenic lines (Fragoulaki

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2013). “[T]this inclusive view of kinship”, Fragoulaki continues, “permits a ‘more flexible and mobile, but also more precise’ exploration of the complex phenomenon of intercommunal relationships and their representations” (Fragoulaki 2013, 10). Unlike realists who privilege the role of power at the expense of ethnic connection or kinship (Porter 2022), there is a different way of understanding kinship, than the quote below seems to indicate: They had come to share either in the conquest of the country or in its rescue, but their particular alignment was not determined by any justifying cause or kindred loyalty so much as by purely contingent factors of self-interest or compulsion. (7.57)

Re-shaping bonds of kinship—civilisational, regional or local—can actually be seen to influence both interests and power. At the Conference at Gela, where the various cities deliberate about whether they would forge a common front against the Athenians by bandwagoning with the mighty Syracusans, kinship is publicly under negotiation. Hermocrates, the Syracusan general, speaks at the Conference and says: They [the Athenians] are the greatest power in Greece; they are here with just a few ships at present to observe our mistakes; they are using the apparent legitimacy of “alliance” to turn our ingrained enmities to their covert advantage. If we start internal wars and call in their support [they will] attempt to bring all Sicily under their control. (4.60)

Hermocrates links alliance and kinship more dynamically than realists appreciate. He uses a discourse in which intercommunal ties at various levels of analysis (city, Sicily, Dorians vs. Ionians) can be allayed or suffer from disunity or civil strife. Fragoulaki (2013, 8–9) notes: “internal dissension is a political phenomenon that closely interacts with intercommunal xyngeneia [kinship], as a factor that either alienates a city from its colonial and racial xyngeneis, that is, its ‘natural’ allies, or brings it closer to them” (emphasis in original). The essence of Hermocrates’ arguments is developmental. Hermocrates, one of the key statesmen in the History, demonstrates linkages between communal ties, intercommunal ties, civil war, and alliances and their dynamic interactions. Thucydides’ remarks about the civil war in Corcyra and its generalisability across Greece also link civil war, alliances, kinship ties and their dynamic interactions in the course of a social process: stasis. Thucydides’ arguments about the civilising process in the Archaeology are also historically determined emphasising social developments and generalisability (Rood 2006, 240–241; Hornblower 1991, 10; Romilly 2012, 145, 172; Finley in Rawlings III 2010, 257). It is the embeddedness of the panHellenic conflict in the Hellenic civilising process, which helps develop the power of the Greeks, that makes us grasp why this war was the greatest of all.

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The civilising process as an account of the broad facts is the key finding: it is important, it is generalisable and it is not undermined if Thucydides got some details wrong (1.21). This process consists of both material and ideational dimensions: the development of states and the embeddedness of a common sense of we-ness. It is built around socially constructed bonds of intercommunal ties at multiple levels of analysis, which are negotiated in public decision-making processes (Cogan 1981), that challenge the traditional “inside/outside” dichotomy (Monoson and Lauriaux 1998, 293) between domestic and international politics. The processual dimension of the History is an integral part of key passages in the History and helps us understand the dynamics of international relations. The civilising process as context that fluctuates is a complex process. It has been approached from a variety of partial perspectives. It has been described as a story of a technology of power that the Athenians had mastered (Ober 2006, 146). It has been interpreted as a state of peace and rest associated with a modernisation process (Lebow 2003, 148–149, 155). The emergent civilisational sense of we-ness has been described as an imagined community (Fragoulaki 2013, 7) or a unified normative space (Monoson and Loriaux 1998, 293). Its development has been seen in terms of statebuilding and national character building (Jaffe 2017). All of these angles are true and indicate the complexity of a phenomenon that is best described as an “expansion-regression” process (Hunter 1982) or as an integrationdisintegration process. Understood in this way we can strike a better balance between the particular and the generic by emphasising both the multidimensionality of the process, and Thucydides’ emphasis on the broad facts of his account. The History’s context is illuminated in these terms by Linklater. He sees “the decline of we-feeling and the changing we–I balance between Hellas and the polis… [embedded into] an investigation [of] ‘integration–disintegration tensions’” (Linklater 2016, 25). “Those points”, he continues, “stress the need for a more complex analysis of the tensions between civilizing and decivilizing processes—and between integrative and disintegrative tendencies—in the Hellenic states-system” (Linklater 2016, 18). Linklater offers a reading that “breaks with the one-dimensional image of the high tolerance of inter-societal violence”, that realist analyses that echo the Athenian discourse in the Melian Dialogue often perpetuate (Linklater 2016, 18). He reveals the “shifting relationships between violence and civilization in classical antiquity” and the possibility this created for the Greeks to learn collectively how to coexist more peacefully (Linklater 2016, 18). Though their humanistic learning remained limited (Linklater 2016, 54), this does not make the civilising process a thin veneer (Hanson 2020) or a “realist” victim of war, but, instead, a parallel process that is being reversed gradually but not inexorably. The civilised veneer can be stripped away (Linklater 2016, 51), but its degree of thinness depends on the degree of its development and regression. Unravelling does not equal constant thinness.

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Changes over time are of the essence as they are dynamically shaped by a sense of kinship that is negotiable and institutionalised in the course of time through parallel processes of state-building as described in the Archaeology with the expansion of the city-state. The linear relationship between war and civilisation can now be seen as complex based on the construction of the narrative of the History rather than based on a principled humanist spirit (cf. Porter 2022). Social processes in the History link states and people across time. Their full impact cannot be simplified by reducing historical comparisons or analyses to the limited time frame of the singular event, as this would ignore the time frame of social processes that have already created cumulative change that shapes the possibilities of change and the chances of success of strategies that emphasise different power resources such as power or influence due to moral conduct. A battle between interpretations that focus on either power or morality, as IR paradigms have done, should make one wonder how the processual context is being integrated in these analyses. In essence, the factors that directly shape events have their impact shaped by a stream of interrelated social processes in the course of their reproduction. We now turn to Brasidas to examine his efforts in Northern Greece from a processual perspective.

Brasidas’ Military Campaign in Processual Context One of the leaders of the Peloponnesian War who is presented as great is Hermocrates, but another one who is depicted in similar, if not more heroic, terms is Brasidas. They are both characterised by intelligence and courage. Brasidas at “Sparta had a reputation for getting things done”, and since being sent abroad, he “impressed the cities with his reasonable and moderate approach” (4.81) and “established a reputation of decency” (6. 81). Similarly, Hermocrates is “a man of unsurpassed intelligence… and exemplary courage in war” (6.72). Even though Thucydides presents Brasidas as a hero (Hornblower 1996, 39), modern scholars have focused on the criticisms of Thucydides and Brasidas’ failures and compared him negatively vis-à-vis Hermocrates. These criticisms become more effective, if we do not contextualise Brasidas in social processes: civilising process, war, civil war in Northern Greek cities, and civil war in the Athenian Empire. Such are the processes which Hermocrates also faced but managed more effectively: civilising process, war, civil war in Sicilian cities, and civil war in the island of Sicily among Sicilians. Focalising on these processes helps to demonstrate Brasidas’ strategic perceptiveness and explain his long-term impact and the generalisable takeaway from his achievements and his situation. Critics such as Bosworth (1993) describe Brasidas as having a problematic character, being dishonest and deluding those who believed in him with the city-state of Scione being the paradigmatic case, which, once captured by the Athenians, they “killed the grown men [and] enslaved the children and women” (5.32). Burns (2011) argues that Brasidas had self-interested motives

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aiming at his “success and reputation” (5.16), overreaching, and ultimately oppressing the cities he liberated from Athens by appointing Spartan governors (4.132). Burns (2011) from an Aristotelian perspective argues that the pursuit of the good is best achieved through truthfulness and that Brasidas was lying to the cities as well as to himself that he could change Spartan policy to support him much more in Northern Greece. As Lebow (2005) argues, persuasion is effective when based on honesty and justice as it can then maintain or repair a sense of community. Other scholars may be more sympathetic and focus on the Spartan rational cost-raising strategy and the goal of dissolving the Athenian Empire by “either encouraging defection or aiding revolts of the Athenian allies (Platias and Koliopoulos 2006, 157), but do not engage with the role of social processes, and thus simplify the complex tasks Brasidas faced and tried to manage. But Brasidas was neither naïve nor can claims about him being an outsider to Spartan politics be so easily supported. Recent scholarship has helped rehabilitate the strategic brilliance of Brasidas without concealing the limitations of his strategy. Hornblower has highlighted the power of religious oaths that Brasidas was able to extort and bind the Spartan authorities in order to pursue a foreign policy of liberation towards the Northern Greek citystates (Hornblower 1996, 47–48; 4.86). So, his liberation manifesto cannot be presumed to be propaganda. Wheatland (2020, 2) further emphasises that “Brasidas has the correct virtues for his station, but that the full extent of his virtue cannot be, and is not supposed to be, measured by Thucydides’ readers because his role in domestic affairs is never shown”. For Wheatland (2020) and Koutsoukis (2017) Brasidas possesses emotional intelligence, which he effectively applies to the service of both generalship and statesmanship. Koutsoukis (2017) also evaluates positively Brasidas’ generalship and potential for influence in the domestic politics of Sparta by focusing on the other Spartan efforts to support Brasidas. Moreover, Brasidas was not so un-Spartan, even though Thucydides presents him with the characteristic Athenian qualities of oratory and of an activist foreign policy. He was made of the stuff of great Spartan generals such as Archidamus (wise action), Sthenelaidas (emotive speeches) and Astyochus (winning over allies). He “possesses many of the same traits as these paradigmatic Spartans, but he wields them effectively, whereas the others are hampered by them” (Sears 2020, 187). In addition, his deception and his combination of coercion with persuasion should not lead to a priori scathing treatments of his character. Wheatland (2020, 4) rightly argues that moderation or measuredness is used prudentially by Brasidas as it allows for greater flexibility in foreign relations by attracting potential enemies and making them open to persuasion. Measuredness… may be necessary when dealing with foreign powers. As a general acting with sole authority far away from his city, Brasidas must balance the tools of diplomacy in a prudential manner.

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Though, positively inclined, Wheatland here is reproducing the “inside/ outside” dualism. One way to reframe Wheatland’s argument is in terms of a struggle for the most prudential pursuit of Spartan interests. Brasidas strives for a prudential balance between the demands for increased Spartan influence by inspiring and mobilising the Northern Greeks, and the necessity to do so quickly to maintain the momentum that he needs to garner advantages for Sparta. In addition, this degree of measuredness allows Brasidas to promote civil peace in most of the city-states he liberates from the Athenian Empire (Wheatland 2020, 4–5). Now contrast this with the Athenians in Melos or in Sicily in Book 6, where the Athenian general Ephemus, like Pericles (2.63) and Cleon (3.37) previously, presents Athens unashamedly as a tyrant city: “For a tyrant or an imperial city nothing advantageous is inconsistent, and the only bond is reliability: in every case the circumstances determine enemy or friend”. (6.85) Had Brasidas acted like an Athenian, his mission would be jeopardised and would reduce the Spartan self-interest to only the second and narrower version of it. Brasidas’ brilliance, ability and struggle emanate from his pursuit of this uneasy balance. Brasidas is in effect combining diplomacy with war and demonstrates the attributes of a general-statesman. He reveals the fruitfulness of combining war with politics and that war and politics are not separate but interweaved. Brasidas had a vision of war, to destroy the Athenian Empire in pursuit of Spartan victory, combined with a political vision of pursuing the Greek civilisational ideal of liberation. Brasidas embodies “that vital Churchillian truth: politics and strategy are one” (Wheatland 2020, 6), and that Clausewitzian notion that different views of politics in war can lead to the pursuit of different types of war: (a) war as the politics of society, (b) war as a struggle for survival, (c) and war as policy (Herberg-Rothe 2007, 153–156). Brasidas combined the latter two. He pursued a war as a policy in Northern Greece to those who were reluctant to surrender, and war as a struggle of survival to destroy the Athenian Empire. As Thucydides notes, after the death of Brasidas, the Athenian Nicias bid for a policy of peace denouncing the politics of chance and risk— attributable to Brasidas and his Athenian nemesis, general Cleon—believing that “lack of risk came with peace”. (5.16) Different types of politics and understandings of the complexity of the political, social and strategic context lead two different generals to two different policies. Hornblower (1996) articulates the political dimension of Brasidas’ strategy in his commentary about Brasidas’ speeches in Northern Greece. Thucydides only mentions the first speech of Brasidas delivered at the city of Acanthus. The rest of the speeches follow the Acanthus blueprint like a good politician would do. Hornblower calls this the periodically adjusted manifesto. He also adds that this is an “innovation, and one not used again for any character other than and after Brasidas”. (Hornblower 1996, 49) This demonstrates the unique treatment of Brasidas by Thucydides and the uniqueness of Brasidas’ political shrewdness.

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The social context of Northern Greece was city-states subjugated to the Athenian Empire, nominally allies, split between pro-Athenian and proSpartan factions with the tendency for civil war, a degree of dissatisfaction with the Athenian Empire, a Spartan underexplored reputation as the liberator of Hellas from past tyrants, shared Hellenic civilisational ideals of morality, religiosity and liberation, and fear of violence. These can be summarised in the following processes: civilising process, war, civil war, and civil war in the Athenian Empire. Starting from the latter, Brasidas accelerated the disintegration of the Athenian Empire by fomenting a civil war in its ranks among its allies. Thucydides has throughout the History contrasted hegemony to arche (illegtimate hegemony) (Lebow and Kelly 2001), and in Northern Greece, he demonstrates how the problems of arche, subjugation of Greeks to Greeks, which is “worse than foreign rule” and with no “pretence to decency” (4.86), can lead to regression and moral breakdown of the city-state that is at the highest point of civilisation to that time through a process of disintegration (Hunter 1982, 160–61). Brasidas, through his mixed strategy of persuasion and coercion towards Athenian allied cities, was able to release or accelerate the sense of dissatisfaction towards Athens and appease, moderate or reduce the pro-Athenian elements. The Athenian Empire was not bereft of appeal, especially to prodemocratic and pro-Athenian populations. The degree of dissatisfaction varied though and was pliable. In Acanthus, for instance, the citizens “debated long, with much said on either side, and then took a secret vote” (4.88) before surrendering and allying with Brasidas. Thucydides informs us that citizens were “[i]nfluenced both by the seduction of Brasidas’ offer [to liberate them, liberate Greece, and not change their regime] and by fear for their crop” (4.88). “Not long afterwards Stagirus too, a colony of Andros, joined the revolt” (4.88); a remark strategically placed in the same paragraph where Thucydides refers to the Acanthian decision to surrender. Thucydides also clearly mentions the possible role of kinship in Stagirus’ decision. Both Stagirus and Acanthus (4.84) were colonies of Andros. Crucially, Stagirus’ rebellion “established momentum for the Spartan cause”, momentum that started growing with the Acanthian decision (Kagan 2005, 173). Thereafter, Argilus declared its rebellion against Athens. Amphipolis, a major city, subsequently fell. Immediately after the crucial surrender of Amphipolis more city-states followed: Myrcinus, Galespus, Oesyne and most of the cities of the Acte peninsula in Northern Greece. Among those cities, Torone was another eminent example. Scione and Mende, smaller cities, also joined Sparta against Athens. When the cities subject to Athens heard of his taking of Amphipolis, of the offer he had made, and of the mild disposition of the man himself, they were more than ever excited by the prospect of revolt, and began secret negotiations with

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him, inviting him to come and help them, each of them keen to be the first to defect. (4.108)

This sequence of events created military and political momentum and accelerated a process of disintegration of the Athenian arche, and an intensification of the war towards Athens that Brasidas favoured instead of compromise. A key strategic idea of Brasidas was to pursue a policy of civil peace and attach it to his pro-Spartan and anti-Athenian international political vision. He notes in his speech in Acanthus: And if any of you have personal fears which make you wary that I might hand over the city to one group or another, you can trust me absolutely in this… That would be worse than foreign rule, and for us Spartans, so far from gratitude for our efforts and an enhanced reputation, the result would be a blackening of our name. We would be manifestly bringing on ourselves the very same charges which are the basis of our continued war against the Athenians. (4.86)

This was crucial as other instances of surrendering in the Peloponnesian War had been precipitated by or had led to regime change, civil war or exile (Price 2001). Brasidas was thus able to pacify or revert the tendency towards civil strife and use it as an accelerator of Spartan influence and anti-Athenian sentiment. His strategy did not end there, but his political manifesto included references to the sense of Greek-ness and the Greek ideal of liberty. I am here for the liberation of the Greeks… I cannot allow you to frustrate the Greeks’ emancipation from slavery… Think carefully, then, and take up the challenge to win first place in starting the liberation of the Greeks, to your everlasting fame. (4.86–87)

As Brasidas’ campaign developed momentum, these ideals inspired more hope and became more believable and inspiring. The intercommunal ties of Hellenic kinship and the ideals of moderation towards fellow Greeks were reinforcing each other. Of course, Athens was being depicted as an unGreek power that was enslaving Greeks and was, thus, excluded. This was a familiar modality of Greek civilisation; stigmatisation of those who are being portrayed as not real Greeks (Linklater 2016; Price 2001). For the rest of the Greeks aligning with Sparta and sticking to their ideals, though, the sense of Greek-ness was proceeding together with an intra-city and inter-city sense of moderation towards violence. The civilising process depicted in the Archaeology was experiencing a growth spurt. The civilising process as described in the Archaeology also consists of the essential unplanned process of state-building over the course of centuries. Similarly, Brasidas influenced the direction of state-formation in some Northern Greek city-states without planning it. The result was the development of symbolic politics in the domestic politics of cities like Amphipolis,

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Acanthus and Scione which were binding the domestic authorities squarely to Sparta, were reinforcing their domestic authority and were institutionalising the legacy of Brasidas that Thucydides mentions lasted even “after the Sicilian affair” (4.81). The Acanthians dedicated a treasury at Delphi with the following inscription: “Brasidas and the Acanthians [sc. dedicated this treasury] from [sc. the spoils of] the Athenians” (Hornblower 1996, 285). The Scionaians welcomed Basidas with a ritualised honorific welcome as if he was a hero or victor in the games (4.121) and the Amphipolitans changed the origins story of their city and institutionalised a cult of Brasidas as a hero and as the founder of their city (5.11). Fragoulaki, sees in these ritualised behaviours “the transformative power of rituals of intercommunal kinship” and “these communities’ negotiation and definition of ethnic identities” (Fragoulaki 2013, 19). These rituals were central in the Greeks’ efforts for the maintenance, or transformation, of their states. The transformation of states and of a sense of Greek-ness are woven together both in the Archaeology and in Brasidas’ campaign. All these processes represent the dynamic social context that Brasidas found himself in and tried to influence by accelerating, quelling or inspiring parts of it. To some extent, the contrasting accounts of Brasidas will persist as authors interpret differently the balance or the right balance between reason and passion, Brasidas’ insider/outsider status, Brasidas’ persuasion and deception, Brasidas’ selfish and enlightened motivations, and Brasidas’ mobilisation potential. However, a better appreciation of the processual context should be able to help reduce the distance between the two opposing assessments.

Conclusion In the international political theory of war, the view of history as tragedy is widespread given the catastrophic results of conflict. Machiavelli emphasises fear at the expense of bonds of love if the Prince wishes to maintain his power. For Hobbes fear is the passion to be reckoned with in both pursuing war and seeking a resolution to it. For Clausewitz war oscillates between real war and the tragedy of absolute war, and even though he does place emotions at the heart of war, his analysis is limited. The incorporation of the Thucydidean international political theory of war in IR has also perpetuated this view of history. Thucydides, often appropriated by realists, appears to display a tragic view of history. Fusions of realism with constructivism have also stressed tragedy whereas other versions of constructivism have overemphasised contingency. A perspective that revolves around the deep contingencies of history embedded not in tragedy, but in social processes, and which can be distilled from Thucydides’ History, has been largely neglected and yet it is important. By focusing on the processual context of the History, this chapter offered an analysis of the processual perspective of Thucydides and a more balanced reading of the significance of Brasidas. It offered a solution to the problem of Thucydides’ ambiguous assessment of Brasidas and Brasidas’ long-lasting

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positive reputation across the Greek world by engaging with the strategic opportunities and challenges that a description of the thick processual context reveals. By explaining the limitations of the comparisons between Brasidas and Melos, this chapter challenges simplistic event-centric or decontextualised comparisons. Horizontal comparisons anchored on the similarity of outcomes flatten the thick historical context and empty history of its meaning and its developmental potential. It is this thick historical context that needs to be understood to grasp the dynamics of politics and produce more refined comparisons. By reading History more didactically rather than tragically, this chapter contributes to the international political theory of war that sees war and politics as intertwined (Coker 2017). Understanding the thick processual context and its complex adaptations is crucial for prudential grand strategy and strategic diplomacy (see also, Prantl 2022). By focusing on Brasidas’ ability to mobilise and inspire the Northern Greeks, and to generate momentum and impact on the civilising process to influence the war between Athens and Sparta, this chapter challenges more static perspectives of international politics. It lends support, instead, to relational and processual perspectives that focus on modalities of relations (Jackson and Nexon 2019). In particular, it contributes to the civilisational lens of Andrew Linklater (2016) by illuminating a variety of social processes and their centrality in the chances of agents to gradually shape power, identity and intercommunal ties at various levels of analysis. It also encourages a view of great-power politics in which weak states do not vanish due to great-powercentrism (Koutsoukis 2017), and instead the politics of collective mobilisation and the struggle for influence among political communities lie at the heart of power politics (Goddard and Nexon 2016). Further work on characters like Brasidas in history, similar sequences of events in the History, and the impact of the interweaving of social processes in the History and in history at large could help develop this research orientation. In conclusion, it is very easy to reduce the History of the Peloponnesian War into ahistorical dichotomies, such as war vs. civilisation, power vs. morality or great powers vs. small powers, that then feed into comparisons between events. Such an insufficiently contextualised and event-centric view of the History ignores the more complex socio-historical processes and struggles for Hellenic we-identifications. Acknowledgements I would like to thank David Boucher, Andrew Linklater, Alex Mack and David Sullivan for reviewing the manuscript and offering advice and suggestions. All mistakes are my own.

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CHAPTER 4

Stoicism, Cicero and Relations Among Nations David Boucher

Introduction What immediately comes to mind for many scholars of international relations at the mention of the Greek and Roman Stoics is a universal cosmopolitanism that transcends other human associations (Brown 1992, 23). Patriotism was, however, just as strong an element in the Stoic tradition as the idea of a common humanity regulated by universal moral principles. There was no fundamental incompatibility between being devoted to one’s patria and acknowledging one worldwide moral community predicated on a common humanity, so succinctly expressed many centuries later in the Ciceronian inspired title of one of Samuel von Pufendorf’s books, On the Duty of Man and Citizen (2008). Indeed, lesser forms of association were required in order for universal principles to be cultivated and flourish, despite the rudiments of morality and the capacity to develop them being implanted in everyone’s soul. Cicero stands in the tradition, exemplified by Plato, Aristotle and the later Stoics, of viewing philosophy as a practical guide for the conduct of life (Wood 2002, 98). The Stoic School of philosophy, which came greatly to influence the ethical and political thought of the Roman Empire during the last century BC and the D. Boucher (B) School of Law and Politics, Cardiff University, Cardiff, UK e-mail: [email protected] Department of Politics and International Relations, University of Johannesburg, Auckland Park, South Africa © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_4

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first two centuries AD, took its name from the Stoa poiklilê, the painted porch in the main square of Athens. It was founded by Zeno (340–265 BC). Only fragments of the writings of the early Athenian Stoics, such as Chrysippus (c. 280–206 BC) who systemised the doctrines of the school, remain, but numerous reports of uncertain authenticity in the writings of others, including Cicero, give us an indication of their writings. Stoicism came to full fruition in Rome during the Imperial Age in the writings of Seneca, Epictetus, the emancipated slave and the Emperor Marcus Aurelius (Boucher 1998; 2009). Even though Cicero was not a faithful follower of Stoicism, no one proved to be as great a populariser of its doctrines as him (Rommen 1998, 18–19). Cicero was typical of the well-educated Roman citizenry who idolised Greek intellectual and philosophical speculation, while at the same time immersed in Roman ancestral tradition and sentiment (Coleman 2000, 234). This tension between the world of contemplation and action is never completely reconciled as Cicero’s writings betray, and as his account of Scipio Africanus the younger demonstrates. Cicero’s Stoic education had been imparted to him at Rhodes by the unorthodox Posidonius and Diodotus who tutored him at home. The philosophical writings of Cicero are immersed in Hellenistic philosophical discussion. He was not himself a Stoic but his tendency in his philosophical dialogues was to put forward the Epicurean and Stoic sides of an argument and reject both as uncertain, but he was more strongly attracted, nevertheless to Stoicism, which he gave a distinctly Roman emphasis (Sharples 1996, 1–2, 9). It is generally conceded that Cicero made no major breakthroughs in ethics and political philosophy, but he was without doubt exemplary in the promotion of Stoic ideas in relation to the later Roman republic, and exemplifies the extent to which Greek ideas influenced Roman thought. Cicero’s writings were one of the principal means by which Stoic ideas were to contribute significantly to the development of Christian ideas of natural law through St. Augustine, Aquinas and jurists whose concerns were with the law of nature and nations (Nederman 2020, 186). He was at once pragmatic and eclectic in that as a lawyer he was prepared to employ those arguments that advanced his case. For Cicero, reason in harmony with nature exhibits a law that is unchanging and universal. It constrains good men from wrongdoing, but cannot restrain the wicked who have abandoned their better selves and who may evade human punishment but not the most severe of consequences deemed by god. It is a law that cannot be annulled, and no act of human legislatures can absolve us from the duty of obedience to it (1986 III, xxii, pp. 215–216).1 In Stoicism, we see the first signs of human equality: of men, women, children and slaves. They acknowledged and respected human dignity, and 1 Because Cicero’s On the Commonwealth is comprised many different sources in its composition different editions contain different materials giving rise to different emphases. In this chapter, I predominantly rely on the Cambridge University Press translation (1991), but where greater emphasis is given to the international element I rely on the Macmillan/ Library of Liberal Arts version (1986).

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believed in a universal moral community in which there are duties to fulfil social obligations. Natural law provides the standard for what is right and wrong and governs all that is human and divine. To possess and exercise reason correlatively amounted to having knowledge of natural law. Reason informed men of their duties to their fellow human beings, the state and to their families. Cicero contended that in the Greek language, the essence of law is justice, giving each his own, and for the Latin language law is equated with choosing and equity (1999, 19, p.112). Equity and good behaviour are desirable in themselves and not for any ulterior motive (1999, I, 48, p. 122).

Reason Because humans are endowed by the supreme god Jupiter with an elevated status above that of all animals, they possess a share of divine reason and thought. It is the capacity to reason that enables humans to participate in and be harmonious with the perfectly ordered cosmos. Cicero argued: ‘What is there, not just in humans, but in all heaven and earth, more divine than reason? When it has matured and come to perfection, it is properly called wisdom’ (1999, I, 22). We share reason with god, and through it, we have a close affinity with him. Cicero contends that the first thing self-knowledge reveals to us is that we are in possession of something of the divine, and that the reason that resides in us ‘is a sort of consecrated image of the divine’ (1999, I, 59). Both gods and humans inhabit the same cosmos and obey the same commands and authorities. Humans alone among earthly creatures are endowed with eternal souls, and alone have knowledge of god. The human race inhabits one universal community: ‘what nation does not scorn and hate people who are proud, or evil doers, or cruel, or ungrateful? From all these things it may be understood that the whole human race is bound together; and the final result is that the understanding of the right way of life makes people better’ (1999, I, 31, p. 116).

The Universal Natural Law We see in the Greek and Roman Stoics the idea of natural law beginning to acquire the character it was to exhibit in Christianity for almost two millennia, distinguishing it from human positive law. Cicero articulates two fundamental features of the rational universal natural law, which he had learnt from some of his predecessors in the Stoic tradition. These were the principles of the universality of natural law and equality before the law. Cicero developed his ideas on Natural Law in his treatise On the Laws (De legibus ). In it, he argues that people tend to think of law as that which is written down, but Cicero maintains that he will seek the root of justice in nature. When used in relation to man, Cicero maintains, the term

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nature means reason. It is because of his reasoning abilities that man is naturally superior to animals, and better able than them to conceive of a wider community. This distinguishing feature of man entails wider obligations extensive with humanity in general. It is law that guides and enables man to discharge his wider obligations. The exemplar for all particularistic laws is the law of nature. This law of nature has its origin in God, and His Supreme Law in relation to which justice may be determined. The Supreme Law existed before any written laws and before any states were established (Cicero 1999, Book I, 19, p. 111). Cicero is at pains to show that just because a law is granted authority by being formulated according to a legitimate procedure, does not mean that it is a just law. Cicero maintains that: ‘we are born for justice and that justice is established not by opinion but by nature’ (Cicero 1999, Book I, 28, p. 115). For that, it has to be based on right reason, and not on mere agreement in the edicts of the people or of princes, nor in the decisions of judges. Although Cicero offers a strong moral condemnation of the injustice of positive laws that are at variance with Natural Law, he does not on that account declare them invalid. The universal element in Cicero is his conception of a natural law that regulates the whole Cosmos and everything within it. Human positive law is subordinate to the law of nature. Cicero rejects the idea prevalent among Greek sophists such as Protagoras, Thrasymachus, Callicles and Antiphon that justice at best is simply convention devised by men to advance their utility, and at worst contrary to human nature (Nicholson 2017, 32–49; Boucher 1998, 56–62). Nature, not in a naturalistic sense, but in a normative prescriptive sense, is integral to Cicero’s conception of reason and rationality, because it is through ‘right reason’ that we are able to comprehend nature’s moral laws. All humans, Cicero maintained, have been endowed by nature with the capacity to reason, and with it ‘right reason’, which is equated with the gift of law. Law, Cicero says, is right reason as it is applied to commands and prohibitions. As recipients of law, all humans have, by implication, received justice (1999, I, 31–33, pp. 116–117). Cicero contends that ‘we are born for justice and that justice is established not by opinion but by nature’ (1999, I, 28, p. 115). True law is consistent with nature and is universal in its application, everywhere and always the same. To alter it is a sin, and no aspect of its can be abrogated. No act of a legislator can release us from its jurisdiction, nor is it open to interpretation. In what is probably the most famous and most often quoted passage from Cicero, he says: ‘There will not be one law at Rome and another at Athens, one now and another later; but all nations at all times will be bound by this one eternal and unchangeable law, and the god will be the one common master and general (so to speak) of all people. He is the author, expounder, and mover of this law; and the person who does not obey it will be in exile from himself’ (1999, III, 33, pp. 71–72). The positing of an absolute standard by which to judge the practices of states, even if the actions of their citizens conform with the laws of those states, is a fundamental principle

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of modern international law and embodied in the concept of jus cogens , that is, acts that shock the conscience of humankind, and in the terms of reference of the Nuremberg trials, the ad hoc tribunals for war crimes, and the International Criminal Court. Natural Law imposes on us an obligation to promote society. To do someone an injury is necessarily a violation of natural law because it is harmful to society. ‘in the first place, it destroys the common life and fellowship of men: for if we are so minded that any one man will use theft or violence against another for his own profit, then necessarily the thing that is most of all in accordance with nature will be shattered, that is the fellowship of the human race’ (1991, III, 21–22, p. 108). It is important to comprehend that Cicero is denying that law, in this sense, is something that is made, or enacted. Instead, it is discovered and declared. In other words, it is the declaratory tradition in law. It is not the creation of human minds, formulated and legislated by assembles. The wisdom of its commands and prohibitions qualifies it eternally to rule over the entire universe. Primary among these eternal laws is the mind of god whose reason compels and forbids what is right and wrong. Cicero argues: ‘the law which the gods have given to the human race has rightly been praised: it is the reason and mind of a wise being, suited to command and prohibition’ (1999, 2, 8, p. 132). What deity is Cicero referring to here? He tells us that natural law is ‘the right reason of Jupiter, the supreme god (1999, II, 10, p. 133). Jupiter, in Roman mythology, was the son of the god Saturn. In his capacity as the protector of Rome, he was called Jupiter Optimus Maximus (‘the best and greatest’). As guardian of the law, he was known as Jupiter Fidius, defender of truth, and the protector of justice and virtue. Jupiter was the Roman equivalent of the supreme Greek god Zeus. With the goddesses Juno and Minerva, Jupiter formed the triad whose worship was the central cult of the Roman state during the Republican and Imperial eras, prior to Christianity. Stoicism, as Rommen contends, prepared the ground for the development of the Christian conception of natural law (1998, 18). Like the Stoics, Cicero believed in a universal fellowship of the human race, but unlike them, did not, confine it to the wise, and in addition, he allied it with the Roman idea of the law of nations (Sharples 1996,127). This universal society encompasses the whole of humanity, which is a natural fellowship based on the unifying principles of reason, speech and natural equality. He maintains that men are ‘reconciled’ with one another through communication, learning, teaching and making judgements which together constitute a ‘natural fellowship’ (Cicero 1991, I, 49–50, pp. 21–22). It is a fellowship established by the gods in which right reason, the royal sovereign power in the souls of men, accords with nature.

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Equality The principles of Natural Law are ideal in that they become manifest only if men attain perfect rationality (Bherki 1977, 57). For example, let us take the principle of equality. Zeno taught that we are naturally equal because we are rational creatures. By the light of reason, there is a natural equality of humankind, and the clear implication of ascribing to humanity the universal attributes of reason and possession of speech is that human beings are fundamentally equal. In contrast with Aristotle (and the Greeks generally), the characteristics of ethnicity, or place of origin, were not pertinent to Cicero’s conception of humanity and its possession of rational and linguistic competence. Humans are so alike to one another that there is no difference in kind between them. Whatever definition of human we may adopt, Cicero argues, will be equally valid for all human beings (Nederman 2020, 16–17). The distinction between Greeks and Barbarians, as it was for the Cynics, was merely conventional. Women are equal to men. They have the same virtue, rendering matrimony much more than a unity of the body, it was also a unity of the soul. The husband finds his other self and his truest friend in his wife. Women were not deemed the property of men to do with as they pleased. The human qualities and the common life of both partners are enhanced in their union. In addition, there is a natural equality of slave and master. Natural slavery is a misnomer, an impossibility contrary to nature. People are only enslaved individuals who find themselves in that condition through folly and wickedness. As human beings, slaves possess reason; are entitled to equitable consideration; and share in the general fellowship of mankind. Through fortune, such as defeat in battle, rather than nature, slaves find themselves in such a lowly condition. Cicero is simply reiterating the view of many Stoics and suggests that we should follow the ‘instructions we are given’ to treat them as employees from whom we require work, and in return, they should be treated justly (1991, I, 41, p. 18). He had no compunction, however, about the sale and purchase of slaves according to the terms of disclosure laid down in civil law. For example, a potential purchaser should be appraised of the health, honesty and propensity to flee, of his prospective purchase (1991, III, 71, pp. 126–127). In a fragment, (Cicero 1999, III, 37b, p. 73) he raises the possibility of an unjust slavery when people who have the capacity to be independent ‘belong to someone else’. In the Stoics, we find the first steps in acknowledging the equal dignity, rights and humanity of other persons, inclusive of women and children. Children, for example, must be allowed to make their own choices in pursuit of their own way of life, including the education they choose (Edelstein 1966, 74). The Stoics also elevated the value of manual labour from the distain in which it was generally held by Greeks and Romans. There is nothing more natural to humanity than manual work, and in no respect does it diminish a person’s capacity for living the virtuous life. Manual labour is part of and is compatible with the moral order. The skills possessed by an artisan are as

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valuable as the money of a businessman. In terms of wealth the artisan and the businessman are equal with each other; the former in the possession of skills or manual strength, the other in terms of capital. For both, moral character must shine through their actions.

Political Communities As well as emphasising conformity to natural law, and natural equality, Cicero also emphasised the patriotic duties of citizenship. There is, then, a common bond of humanity, a universal civitas, but this is only one of many forms of association to which we owe allegiance (Cicero 1991, 1. 53), ranging from the most general to those specific duties to family and friends, but our principal allegiance is owed to our patria, or republic, to which we owe the greatest of moral duties. There is nothing to compare with this human emotional attachment to the republic, except perhaps to our parents, in the benefits bestowed upon us. Cary Nederman suggests that for Cicero: ‘political order rests on rational agreement of the masses to the eloquent persuasion of their leaders, not on intimidation and threats of injury’ (2017, 105). Humans are linguistic beings, naturally social, with a capacity for a communal life, but originally living a brutish and uncivil existence. A condition in which they would have remained had not a primitive orator emerged, and by reason and eloquence persuaded human beings to establish communities, found cities, and institute rights, duties and laws. Cicero maintains that such an orator transformed human beings ‘from wild beasts and savages into tame and gentle creatures on account of heeding speech and reason more diligently’ (1989, 1.2.2). Reason, in itself, is insufficient successfully to persuade one’s fellow human beings of the efficacy and necessity of legal constraints. Ruling over communities requires a judicious combination of reason and rhetoric. Eloquence in speech is equally as important as reason. In an early discussion of such matters, Cicero maintained that wisdom without eloquence was of little public utility, and an excess of either is likely to lead to nothing (Cicero 1989, 1.1.1). It must be admitted, Cicero contends, ‘that neither a knowledge of things, without the ability to express them, nor fluency of words without ideas, be deserving of the name of eloquence...’ (2015, II, xxxv, p. 363). Cicero castigates the Stoics for their lack of attention to rhetoric and praises Plato and Aristotle for realising its significance both in theory and practice, and also for their placing the study of laws and political regimes as central to their political philosophies (Pangle and Ahrensdorf 1999, 58). An orator, Cicero argued, is someone who is more than a good public speaker, he must have command of his subject, argue with forcefulness, and ‘splendour of language’ (Cicero 1801, I, xxi, pp. 47–48). It is an art that must be studied in conjunction with the cultivation of ‘all the branches of human knowledge’ (1801, II, i, p. 130). In order to bring others around to his sentiments the orator must succeed in informing, conciliating and moving

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his listeners (1801, II, lxxvii, p. 273). Cicero was himself an accomplished orator whose practical guides to oratory were derived from his own highly praised practice.

The Hierarchy of Duties The world of human beings is a moral community united in reason and fellowship, but it is not our only sphere of obligation, and although our obligations under the natural law, or law of nations, cannot be renounced, Cicero does seem to suggest that our obligations to the state, our relatives and our fellow citizens have a greater claim upon us in terms of the active discharge of moral responsibilities. The world may be one community, but it is a community comprised of many communities, each of which has claims of loyalty and affection upon those individuals who are socially tied to them. There are different degrees of fellowship, ranging from the unlimited fellowship of the human species, to the strictly limited fellowship of the family. The procreational instinct gives rise to the fellowship of marriage, children and the household that is communally shared. Fellowship extends to other relations who cannot be contained within the one household, and intermarriage extends the bonds of fellowship to a wider circle of relatives, and eventually to the establishment of political communities (Cicero 1991, I, 54, p. 23). The Commonwealth is ‘the concern of the people’ and is a specific type of association in which individuals are united by agreement about law and the desire to associate for their mutual advantage (Cicero 1999, 39a, p. 18). Furthermore, there are bonds of language, tribe and race that are held together by love and goodwill, strengthened by common ancestral memories and religious rites. Of all these levels of fellowship, Cicero makes clear, that ‘none is more serious, and none dearer, than that of each of us with the republic’ (1999, I, 57, p. 23; Cf. III, 95, p. 137). To it, we have a duty of public service because it is not a mere convenience for the better promotion of individual interests, a refuge in a storm, or merely a sanctuary for private learning and undisturbed leisure. The commonwealth claims for itself a great deal of our physical and mental powers, and in return gives back for the benefit of private needs only that which is not necessary for its own. The benefits we receive from the state are so great that it is more venerable than a natural parent, and to it, we are immensely indebted (Cicero 1985, I, fragment 2, p. 152). This, of course, is very like the view that Socrates expresses in the Crito against civil disobedience, and why he resigns himself to administer his punishment of poison by hemlock even though he thought the sentence unjust (Plato 1977). The natural law, for Cicero, may offer strong moral condemnation of unjust laws, but Cicero does not on that account declare them invalid. At the very heart of his republicanism are the principles that obedience to law is necessary in order to secure our freedom, and that liberty necessarily entails imposing legal constraints on individual actions (Viroli 2002, 48). There is a limit, however, to political obligation. Cicero establishes a right to resist an unjust

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ruler. Given that it is only on moral grounds consistent with Natural Law that the exercise of political power may be justified, on this basis he was able to condone the murder of Caesar. In Cicero’s view, it was impossible to maintain fellowship between a people and a tyrant. Tyrants are unjust and arbitrary rulers unconstrained by standards of civilised conduct and common decency. Tyrants, in essence, fall short of being human beings because of their wilful disregard of civilised conduct, and beastly demeanour (Cicero 1986, Book II, xxvi, pp. 178–179). Tyrants are cancerous growths upon humanity that should be cut out with the surgeon’s knife. (Cicero 1986, Book III, 19, p. 107, and Book III, 32, p. 111). In judging whether it is one’s duty to kill a tyrant the law of nature and the law of nations, lays down the same principles for people as well as for individuals. The aim of everyone should be that the benefit of each individual and the benefit of all are one and the same. No one is allowed to harm others for the sake of personal advantage because in doing so the rationale of the laws is undermined. Laws have as their object the maintenance of the bonds between citizens, ensuring that they go unharmed. If one believes that being violent towards other human beings is not contrary to nature, as tyrants do, there is no reasoning with such a person ‘who takes all the “human” out of human’ (Cicero 1991, III, 26, p. 109), and no reason why the tyrant should not be killed. On the analogy between the body politic and the body natural Cicero maintains that an unhealthy limb that endangers the health of the whole body is justifiably amputated for the benefit of the whole.

Duties Reason, articulated in speech, results in wisdom, which in combination with natural sociability generates the three virtues that dictate our duties. First, the virtue of Justice requires that we give others their due. Second, we should exercise a generosity of spirit in our dealings with others. And, third we must act appropriately in different circumstances. In combination, the virtues are more important than the private cultivation of wisdom because they are of the very essence of sociability, and assist our fellow human beings (Onuf 1998, 50). Pace Aristotle, Cicero is emphatic that the active is superior to the contemplative life and those who have the capacity to rule have a duty to do so. He contends that ‘all the praise that belongs to virtue lies in action’ (Cicero 1991, I, 18, p. 9). Honohan argues that for Cicero virtue is not a matter of right thinking, but instead of doing right; actively contributing to the affairs of state (Honohan 2002, 33). What good man, Cicero rhetorically asks, would not lay down his life in the service of his country (1991, 1.17.57–8)? In the famous section of book six of On the Commonwealth, Scipio’s Dream (Somnium Scipionis ), Cicero related an imagined dream attributed to the Roman general Scipio Aemilianus (Scipio the Younger) two years before his soldiers destroyed Carthage in 146 BC. In the dream, he ascends to heaven and witnesses the perfect harmony and ordered

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regularity of the universe, which is the blueprint for human law (Lang 2015, 51). The terms on which humans are created are to look after the earth: ‘and are given a soul from those eternal fires which you call constellations and stars’ (1999, 6, 15. p. 97). Scipio is a principal interlocutor in On the Commonwealth, and in reporting his dream he indicates that public service for the common good has its own rewards in the afterlife when one is released from mortal toil by the immortal gods and permitted to reside with them and indulge oneself in philosophic contemplation and scientific studies of the natural world (1999, 6, 13, p. 96). Valiant deeds done on earth are rewarded: ‘for those who have saved, aided, or increased the fatherland there is a specific place set aside in the sky where they may enjoy eternal blessedness’ (1999, 6, 13, p. 96). Scipio’s view of the necessity for a life of action over the desirability of a contemplative life is consistent with Cicero’s own. Cicero contends that it is impossible to evade political service and its consequent duties as long as one lives, but those who are exceptionally gifted, such as great philosophers, may perform their public service by ‘doing much research and writing about government’ (1999, I.12, p. 6). This is Cicero’s concession to practical or applied philosophy. The philosopher in pursuit of wisdom is of use only to himself, whereas as a citizen devoted to public service is useful to the whole community. Cicero presents a cosmos that is in motion and in perfect harmony, and in which humanity has its place. With this privilege come correlative duties. The special nature of the soul is that it is self-moving and what is self-moving is eternal. While it directs the body, it should be used for the best of activities, the highest of which is the safety of the fatherland. There is a price for rejecting the higher purposes for which the soul is destined: ‘The souls of men who have surrendered themselves to the pleasures of the body and have made themselves into the servants of those pleasures… circle around the earth and only after having been harried for many generations do they return to this place’ (1999, book 6, 28, p. 102). There are degrees of duty arranged hierarchically with obligations to ‘the immortal gods’ placed highest. There are duties commensurate with different levels of social function, or what F. H. Bradley was to call many years later ‘my station and its duties’ (1927, essay 5). As an admirer of Plato, Cicero believed that those less equipped with reason should defer to those of superior intellect. The rational statesman has a duty to rule the republic for the benefit of its citizens. Those who have an aptitude for public affairs must put aside reticence to take on office and readily devote themselves to public life: ‘For only in this way can the city be ruled or greatness of spirit be displayed’ (Cicero 1991, II, 72). Indeed, the opening of the argument of On the Commonwealth is a sustained attack on those who reject involvement in politics and is an unmistakable allusion to the Epicureans (Sharples 1996, 121). Reason, although universal, is not distributed evenly among human beings. Reason is required to discover the precepts of natural law which strengthen

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the bonds between citizens in civil society. Those who excel in reason must exercise it to discover the dictates of natural law required to ensure the moral cohesiveness of communal order by imposing the dictates through wise rulership and codification of law in promotion of the public good. Cicero repeatedly reminds the reader that community is essential to human flourishing. He maintains, following Aristotle and the Stoics, that humans are naturally social: ‘men are born for the sake of men, so that they may be able to assist one another’ (1991, 1.22, pp. 9–10). Wherever you are born is your ‘fatherland’. But it is citizenship that has the highest priority in our affections. The name of commonwealth ‘belongs to the entire citizen body, on behalf of which we have an obligation to die, to which we should give ourselves entirely and in which we should place and almost consecrate everything we have’ (Cicero 1999, Laws Book 2, 5, pp. 130–131). It is the duty of those engaged in public affairs to impose the dictates of reason, through law and governance. The justification of such dictates is that they promote the common good. Cicero conceives of society as an organism whose parts are mutually supportive and in which ‘the benefit of each individual and the benefit of all together should be the same’ (1991, III, 26, p. 109). Selfish actions that benefit one at the expense of others are, in Cicero’s view, unnatural. This is why, as we saw, the actions of a tyrant are not to be tolerated because they upset this natural harmony and delicate equilibrium. The rule of law provides for the common good of members of society and guarantees freedom by conferring the legal, rather than natural status of libertas (Honohan 2002, 36). Because a civil law has authority in being enacted by a recognised legitimate process does not make it just. Valid law has to be consistent with nature and justice, and its justice is not dependent on support from the multitude. The wise are qualified to determine the consistency of law with natural law and justice. The virtuous ruler is guided by the welfare of the people, and not by their wishes. He is not oblivious, of course, to potential conflicts of duties. Cicero argues that in the performance of our various duties we have to weigh up which is to take precedence in each individual case and what each person has the capacity to procure with or without our assistance (1991, 1.59, p. 24). He refers to instances when we might prefer to aid a neighbour rather than a kinsman, and others in which we may prioritise blood relatives over neighbours. He maintains that: ‘Such questions as these must be taken into account in every act of moral duty, in order to become good calculators of duty, able by adding and subtracting to strike a balance correctly and find out just how much is due to each individual’ (1991, 1.59, p. 24).

The Law of Nature and the Law of Nations The idea of a shared world citizenship, not confined to the wise as it had been for the early Stoics, was by Cicero, in particular, conflated with the Roman doctrine of the law of nations. The term was used to refer to both laws at

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Roman, applicable to citizens and non-citizens alike, and in the wider sense of natural law governing the relations among states. Cicero equates this natural law, or ius naturale, with the law of nations, ius gentium, in that it is ordained by nature and gives the substantive content of men’s moral relations with each other, and the relations among the states in which they reside. Ius civile, or human positive law, is not wholly incorporated in ius gentium, but the whole of ius gentium should be incorporated in ius civile (1991, III, 69, p. 126). The meaning and content of these terms are unfortunately not always consistent among Roman writers. How does this natural law, or the law of nations, translate into prohibitions or injunctions to act? Cicero does not go to any great lengths to articulate the duties of men to each other, preferring instead to emphasise the duties of citizens. His main prohibition, however, would be wide-ranging in its effects. There is nothing worse, and therefore nothing so at variance with nature, than benefiting at the expense of another. To do so by theft or violence is totally anathema to the common fellowship of mankind. In other words, respect for property is a basic human duty, the disregard of which ‘is more contrary to nature than death or pain or anything else of the type’ (1991, III, 24, p. 109) because it is destructive of human fellowship and community (1991, III, 22, p. 108 and III, 28, p. 110). At this level of communal ties and obligations, there does not appear to be any duty to make material sacrifices to benefit those peoples of other nations who are in need. We should simply desist from benefiting at their expense: ‘each should attend to what benefits him himself, so far as may be done without injustice to another’ (1991, III, 42, p. 115). Cicero explicitly says that we should not forego personal benefits by surrendering them to others if we ourselves are in need of them (1991, III 42, p. 115). In practical terms, this would exclude ruthless exploitation, but it does not necessarily, rule out imperialism.

Rome and the Wider World Cicero’s conception of the natural law emanates from Stoicism with its cosmopolitan emphasis, but it is tempered by a belief in the civilising mission of Rome. Peace on a worldwide scale could be attained through the pursuit of just wars (Coleman 2000, 251). Cicero, far from aggrandizing military expansion, as Machiavelli was later to do with his emphasis on pagan virtú, prioritises peace over war, and public affairs over military leadership, and believed that the use of discussion and argument were far superior to force in the settlement of disputes. True virtue is not, then, pursued or found in combat and violence. For Cicero resort to war may sometimes be necessary, but only as a last resort. Like everything else in Roman affairs, the declaration and prosecution of war were strictly regulated by law. In On the Commonwealth, (book 3, XXIII) we have a nascent formulation of the principles of jus ad bellum and jus in bello. He argues that there are two types of conflict, one proceeds

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by debate and the other by force. The former is fitting for humans, the latter for beasts. Thus, resort to war is strictly limited. And ought to be undertaken only to ensure peace without injustice. He includes among just causes, however, defending one’s honour, or what may be termed wars of retribution, particularly in defence of one’s allies. The commonwealth must be conceived as an enduring association, Cicero contends, and should be robustly organised to ensure that it will never be in danger of extinction. Death is not a natural end for the state, as it is not only necessary but often desirable for individuals. When a commonwealth is destroyed it amounts to a catastrophe (1986, III, xxiii, pp. 216–217). In fulfilling the purpose of preserving the life of the commonwealth, there can be fewer nobler preoccupations of the soul than the security of the commonwealth (1986, VI, xxvi, p. 267). War may sometimes be necessary to protect the state, but it may only be just if instituted to repel an invader or for the restitution of property for which a formal claim has been advanced. Furthermore, a war must be officially announced and declared (1986, III, xxiii, p. 217, and 1991, I, 36, pp. 15–16). Cicero’s views on war and its conduct reflect the lawful procedures that Rome itself followed scrupulously. Wars were just if their declaration conformed to legally specified conditions. Here Cicero is referring to the wellestablished procedures of the religious fetial laws regulating the declaration and conduct of war. Cicero praises the religiously scrupulous principles that underpin the fetial laws of the Roman people governing warfare and advocates justice in one’s dealings with the enemy. In pursuance of a grievance against another commonwealth Rome despatched ambassadors, directed by a distinguished statesman to demand reparations. They returned to Rome and allowed thirty days to elapse. If no response was received the same ambassadors would return to the offending commonwealth and threaten war. If reparations were not forthcoming the Roman Senate would vote on whether to pursue its demands by warfare. If it was agreed to do so ambassadors would be despatched for a third time, where war was declared by symbolically throwing a javelin on enemy soil. Exceptions to the rule were when enemies were not formally constituted as commonwealths, or if Rome was already under attack (Christopher 1994, 13–15). Reflecting these procedures Cicero believed that resort to war should be avoided until all other avenues of resolution are pursued. Furthermore, combatants were strictly defined according to Roman law, and only soldiers bound by a military oath were permitted lawfully to engage with the enemy. Cicero offers the example of Marcus Cato the younger whose regiment was formally disbanded, but who still wished to serve and fight in the army of the general Marcus Popilius Laenas. Writing to Popilius, Cato reminded him that he was not, with justice, permitted to fight against the enemy because his former oath was now void. Cato implored Popilius to bind him with a new military oath: ‘Such was their extreme scrupulousness when making war’ (Cicero 1991, 37).

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At the point of victory those among the enemy who have conducted themselves honourably, without cruelty or savagery, should be spared. Having concern for those who have been conquered by force, those individuals who seek refuge and surrender their arms should be given sanctity. Even if promises to the enemy are made under duress, but sincerely sworn, they must, for the most part, be faithfully kept. He explains the caveat by contrasting war against an enemy of mankind, such as pirates, with whom we are not obliged to keep faith, with war waged against a legitimate enemy against which the Roman code holds, along with customary laws (1991, 3, 107–8, pp. 141–142). The purpose of war must be the achievement of peace and to eliminate injustices between nations when victory is secured. He was opposed to exacting retribution, except against those who acted cruelly or savagely in war. Cicero contends that the most virtuous and honourable cities undertake war only for the most noble reasons. Honour and safety are legitimate causes. There must be a just cause in order to prosecute a war, either to inflict punishment or repel an enemy. Cicero does, however, acknowledge Rome’s peculiar position. He argues, ‘Our people, however, now holds sway over the whole earth through defending its allies.... Do we not observe that dominion has been given, by nature herself, to what is best—with the greatest consequent benefit to those who are weaker?’ (cited by Pangle and Ahrensdorf 1999, 55; Cf Cicero 1986, III, xxiii, p. 217). Rome, then, has been magnanimous in its actions and in sharing its civilisation with less fortunate peoples. Cicero is at great pains to justify the wars by which Rome acquired her empire and contends that they were just because they were undertaken to defend her allies and embarked upon only as a last resort. Their aim, he claims, was to secure peace and eliminate injustices. Cicero apologetically maintains that in relation to its empire Rome is best understood as a protectorate rather than a conqueror. Cicero was rather disingenuous in putting forward this explanation. He was well aware that the allies which he claims Rome chose to protect were in fact acquisitions of the Empire. He goes to great lengths to affirm that the wars by which Rome acquired its Empire were reverted to only as a last resort in order to secure peace strictly in conformity with the ancestral procedures invoked for determining a just war (1991, I, 35, p.15; I, 38, pp. 16–17; II, 26–7, pp. 72–73). Cicero contends that Rome now has power over the whole world, enjoying immense benefits as a consequence. Lucius Furius Philus, who was appointed consul in Rome in 136 BC, and who is an interlocutor in Cicero’s Commonwealth, appears to have part of his argument summarised by Lactantius in the Institutes (6.9.2–4) written some 200 years later. It is suggested that ‘The Roman people teaches us the distance between utility and justice; by declaring war through the fetials and by causing injury under the guise of law, by constantly desiring and seizing other’s property, they obtained possession of the whole world’ (Cicero 1999, 3, 20a, p. 66). Philus argues that increasing one’s resources; extending territorial boundaries; to enjoy pleasures and to wield great power by ruling over ever-increasing numbers of people,

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are actions that wisdom implores us to perform. Justice, on the other hand, dictates that we should extend mercy to everyone in the interests of humanity, to ensure that each is rendered his own, and desist from violating sacred and public possessions. Obeying wisdom, however, will bring wealth ‘power, resources, offices, commands, rule, whether by individuals or nations’ (1999, 3, 24b, pp. 66–67). He asks rhetorically was it by justice or wisdom that Rome grew from a very small nation to the greatest of all (1999, 24b, p. 66). In what remains of the text, however, we do not have an answer. In apparent disregard of Cicero’s adherence to the principles of just war, and his view that Rome before Sulla was a protectorate, Cicero intimates in one passage of On Duties that he condones whatever means are necessary to increase the power, land and revenues of Rome: ‘Such are the deeds of men who are great; such deeds were achieved in our forefathers’ day. Men who pursue these kinds of duties will win, along with the utmost benefit to the republic, both great gratitude and great glory for themselves’ (Cicero 1991, Book II, 85, pp. 98–99). He nevertheless abhorred ruthless imperialism, holding it responsible for the decline of the state, and certainly would not subscribe to anything like the doctrine of reason of state. For the later Stoics, such as Seneca, the voice of natural law was manifest in reason, and also in one’s conscience. For Seneca, conscience legislates before we act and also judges after the event. Conscience is the expression of humanity’s desire to be at peace with itself, to live in conformity with nature and the world (Edelstein 1966, 84). Conscience is the law to which we must answer for our actions. It is the divine voice of Jupiter that speaks within us. While Cicero did not go this far, his conception of an organic society and the necessity for individual actions to contribute to the common good, nevertheless justified resort to a comparison with nature in the last resort, and justification of the right to resist, along the lines of John Locke’s famous ‘appeal to heaven’.

Conclusion Cicero’s unorthodox Stoicism changes the earlier emphasis of the Stoics from the virtue of wisdom and the community of the wise, to the virtue of justice. Justice is the necessary prerequisite of natural sociability and the nobility of spirit consequent upon a love of learning, and the love of one’s commonwealth. His emphasis upon our natural instinct to associate and form communities not out of fear or the want of necessities, but because we are gregarious and mutually supportive, in pursuit of a common good, has remained at the core of natural law theories throughout the centuries, finding expression in, for example, the great jurists Hugo Grotius, Samuel von Pufendorf and Emerich Vatell. Cicero’s belief that the social duties which strengthen the bond that unites us ‘must be preferred to the duty that is limited to learning and knowledge’ (1991, I, 157, p. 61), is at the core

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of the republican tradition in politics. His lasting legacy for future generations was the connection he posited between natural law, civil law and the republican state. His conception of a mixed constitution in which competing interests represented by different social classes fulfilled different functions based on rank, and subject to the rule of law was an attractive vision for a Europe emerging out of the later middle-ages, and for the newly constituted United States of America in the eighteenth century. Perhaps less acknowledged, but nevertheless enduring, was his conception of the civilising mission of Rome, which was readily adapted to modern imperialism. Modern empires compared themselves with Rome in believing themselves to have a duty to bring civilisation to the savage peoples of the world.

References Bherki, Robert. 1977. The History of Political Thought: A Short Introduction. London: Dent. Cicero 2015 is Cicero 1801. Boucher, David. 1998. Political Theories of International Relations from Thucydides to the Present. Oxford: Oxford University Press. Boucher, David. 2009. The Limits of Ethics in International Relations: Natural Law, Natural RIghts and Human Rights in Transition. Oxford: Oxford University Press. Bradley, F.H. 1927. Ethical Studies, 2nd ed. Oxford: Clarendon Press. Brown, Chris. 1992. International Relations Theory: New Normative Approaches. London, Harvester Wheatsheaf. Christopher, Paul. 1994. The Ethics of War and Peace. Englewood Cliffs, New Jersey: Prentice Hall. Cicero. 1986. On the Commonwealth. Trans. G. H. Sabine and S. B. Smith. New York: Macmillan. ———. 1989. On Invention. The Best Kind of Orator. Topics. Trans. H. M. Hubbel. Cambridge: Mass.: Harvard University Press. ———. 1991. On Duties. ed. E. M. Atkins. Trans. M. T. Griffin. Cambridge: Cambridge University Press. ———. 1999. On the Commonwealth and On the Laws. ed. James E. G. Zetzel. Cambridge: Cambridge University Press. ———. 1801. On Oratory and Orators, with notes and historical explanatory. ed. William Guthrie. London: Lackington, Allen and Co. Coleman, Janet. 2000. A History of Political Thought from Ancient Greece to Early Christianity. Oxford: Blackwell. Edelstein, Ludwig. 1966. The Meaning of Stoicism. Cambridge, Mass.: Published for Oberlin College by Harvard University Press. Honohan, Iseult. 2002. Civic Republicanism. London: Routledge. Lang, Anthony F., Jr. 2015. International Political Theory: An Introduction. London: Palgrave. Nederman, Cary. 2017. Cicero. In Political Thinkers: From Socrates to the Present, eds. David Boucher and Paul Kelly, 103–117. Third edition. Oxford: Oxford University Press. Nederman, Cary. 2020. The Bonds of Humanity: Cicero’s Legacies in European and Social and Political Thought, ca. 1100—1550. Pennsylvania: Penn State University.

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Nicholson, Peter. 2017. The Sophists. In Political Thinkers: From Socrates to the Present, eds. David Boucher and Paul Kelly, 32–49. Third edition. Oxford: Oxford University Press. Onuf, Nicholas Greenwood. 1998. The Republican Legacy in International Thought. Cambridge: Cambridge University Press. Pangle, S. Thomas and Peter J. Ahrensdorf. 1999. Justice Among Nations: On the Moral Basis of Power and Peace. Lawrence: Kansas University Press. Plato. 1977. Euthyphro, Apology of Socrates, and Crito. Oxford: Oxford University Press. Pufendorf, Samuel von. 2008. On the Duty of Man and Citizen. ed. James Tully. Cambridge: Cambridge University Press. Rommen, Heinrich A. 1998. The Natural Law: A study in Legal and Social History and Philosophy. Indianapolis: Liberty Fund. Sharples, R.W. 1996. Stoics, Epicureans and Sceptics. London: Routledge. Stevenson, Tom. 2005. Readings of Scipio’s Dictatorship in Cicero’s “De Re Publica” (6.12). The Classical Quarterly 55 (1): 140–152. Viroli, Maurizio. 2002. Republicanism. New York: Hill and Wang. Wood, Neal. 2002. Reflections on Political Theory: A Voice of Reason from the Past. London: Palgrave.

PART II

Early Christianity and Early Modern Christianity

CHAPTER 5

Augustine, Realism, and Their Revealed Truth Huw L. Williams

One could test all theories of state and political ideas according to their anthropology and thereby classify these as to whether they consciously or unconsciously presuppose man to be by nature evil or by nature good. Carl Schmitt (1996: 58)

In this chapter we will be addressing the ideas and legacy of the predominant figure amongst the Church Fathers, St Augustine of Hippo. The guiding theme will be the philosophical anthropology—or the idea of human nature— that sits at the core of the Augustinian world view, explaining how this links with his ideas around the political community and international relations. The enduring influence of broadly Augustinian assumptions will then be explored and reflected upon, with reference to twentieth century Classical Realism. Generally speaking Realism has been a predominant view in international relations both within and outside the academy, and at least some of its power has issued from appeals to figures of historical note such as Augustine. Further to the more perfunctory business of giving an account of Augustine’s key ideas, the chapter invites the reader to engage critically with the breadth and nature of this influence, and the extent of the continuity between Augustine’s views and Realism. H. L. Williams (B) School of Law and Politics, Cardiff University, Cardiff, Wales e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_5

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Specifically, it will be argued that whilst Augustine’s views tend to be presented as a supposed abiding ‘truth’ of political relations—one which serves as a touchstone and justification for many contemporary assumptions—the account in this chapter reflects on how this truth came to be. A historicized approach that engages with the theological literature on late Antiquity, such as the works of Gerard Bonner (1986) and Brinley Rees (1988) reveals one competing ‘orthodoxy’—or abiding truth—amongst other early Christian doctrines. Attention is given to how Augustine’s ideas formed and developed in a dialectic fashion during the so-called Pelagian Controversy. This reflection on the historically located construction of widely held religious beliefs encourages critical consideration of the supposed pragmatic and historical weight of a Realist, Augustinian-inspired politics—a politics that is often assumed to be the more credible starting point for understanding global relations. The chapter is therefore divided into two parts, the first mapping the emergence of Augustine’s philosophical anthropology with respect to the historical context and the Pelagian Controversy, before setting out his thoughts on politics that sprang from this account of human nature. The second part reflects on the contemporary legacy, first paying attention to Hans Morgenthau’s Classical Realism, then deploying Michael Oakeshott’s analysis of Morgenthau’s work to tease out its Augustinian core. Finally, there will be some critical reflection in view of the foregoing analysis, on the ongoing influence and treatment of this tradition. Whilst Nicholas Rengger (2017) invokes the idea of a contemporary Pelagian politics, the aim here is not to set out either the theoretical or practical possibilities of such a politics, so much as to deploy Pelagius and his key motifs as a critical tool for problematizing some of the apparent certainties of Augustinian politics.

Augustine’s Anthropology and Politics The Pelagian Controversy We begin with the original establishing of Augustine’s conception of human nature, and a sense of the world within which his ideas emerged and came to dominate. This obliges us to recount the Pelagian Controversy, demonstrating the construction of Augustinian truth and also the marginalizing of a competing Christian theology. The final twenty years of the fourth century AD, during which Augustine would convert to Christianity and do much to establish his enduring name, were a tumultuous period in the western part of the Empire. Indicative of this tumult were the events of 383AD, the year that Augustine, a talented and ambitious young scholar and rhetorician, was leaving Carthage for Rome. That same year Magnus Maximus, a Roman General in Britain, was declared Emperor by his troops and usurped Gratian, briefly sharing power in the Western Empire with Valentinian II and Theodosius in the East. The latter would eventually have to defeat Maximus and establish his own authority over

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the entire Empire. Maximus’s bid for supremacy is indeed emblematic of the instability that would face Theodosius as the last Roman Emperor reigning over both West and East, not least in the form of the encroaching Gothic threat. This threat would finally spill over in 410AD when Theodosius’s son, Honorius, faced the indignity of being the first Emperor to witness the sacking of Rome. Of equal significance with respect to Theodosius’ reign—and Augustine’s career—was his decree that meant Christianity would effectively be formalized as the state religion of the Empire. The Edict of Thessalonica of 380AD— with its emphasis on orthodoxy, and decreed in the context of an ever more fragile and overstretched empire—would have far-reaching effects, in particular with respect to the establishment of Augustine’s ideas at the heart of Christianity. To all intents and purposes a state religion with different sects (and which had already undergone a number of controversies and seen numerous synods) was established, at a time of severe political upheaval; in such circumstances religious disputes would inevitably be viewed with suspicion and fear by authorities seeking stability. In Augustine, the Church and Empire had an intellect that could help to establish stability through imposing a new orthodoxy. He was born in 354AD in the modest Roman settlement of Thagaste, in modern-day Algeria, then known as Numidia. After his short stint in Rome he moved to Milan, in many senses at the centre of the Empire, where he won himself a high-profile post as a teacher of rhetoric. He had from a young age been a Manichee—an association that would somewhat cast a shadow over his thought and career in the Church—and whilst he had drifted slowly away from this religion, it was not until 386AD that he finally converted to Christianity. This conversion was later famously documented in his Confessions, which along with The City of God—written over a period of a decade or more in later life—represent perhaps the two most well-known of his numerous texts. Back in Thagaste before the end of the century, he would work his way up to become Bishop of Hippo. There he would ally himself with Bishop Aurelius of Carthage by opposing Donatism, working to establish an orthodox doctrine approved by the leaders of the Empire. Against this landscape of political upheaval and the compulsion to banish religious dissent, Augustine would take on perhaps his most infamous foe, the Brythonic monk Pelagius, the ‘reluctant heretic’.1 He travelled to Rome from the British Isles around 380AD with the assumed purpose of revitalizing the Christian faith, specifically amongst the leaders of Roman society, with his emphasis on asceticism, and the centrality of the free will. Regarded as a Christian Moralist, possibly with some legal training, and with a good grasp of Latin and Greek (and the author of several texts of which only fragments remain because of his heretical status), this interloper from the edges of 1 Taken from the title of Brinley Rees’s book (Boydell 1988), and suggestive of the view that Pelagius harboured little ambition to undermine the Church.

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the Western Empire would meet his match in Augustine, who aligned himself increasingly with the Roman establishment. This drama, that saw Augustine’s influential ideas being developed and reformed over time, unfolded over close to four decades. There is every indication that the first exchanges with Pelagius were amiable and respectful, but by the time Rome had been rocked by the Goths, the tenor of their relationship was very different, and it was a feud that lasted years. Indeed, even after Pelagius and his fellow traveller Celaestius were excommunicated in 418AD, Augustine continued the battle up until his death, as the figure of Julian of Eclanum remained a Pelagian foe. In turning to the theological details and the emergence of the key motifs of Augustine’s philosophical anthropology, it is worth emphasizing not only how their provenance was circumstantial and arose through a process of religious and political foment, but also the historical significance of the controversy and Augustine’s victory. Brinley Rees expresses it so: Augustine and his team won with the help of some questionable decisions made by the referees and touch-judges. And it was victory that counted, since it was the victors who received the cup and the kudos, gave the interviews and were established in the record books as the team of the year, whose style and tactics, stamped with success, would be used as models by future competitors. (1989, 11–12)

Indeed, in her recent book Ali Bonner (2018) builds on long-standing scholarship to claim the controversy was a theological battle contrived to establish the authority of Augustine’s views—suggesting the awareness of those involved of its long-term significance. Rather than him playing the role of a leading figure trying to counter Pelagius’s heresy and increasing popularity, Bonner argues Augustine’s camp was in fact inciting opposition by misrepresenting long-standing and widespread beliefs for its own ends, in what we might describe today as a Christian culture war. This was a campaign of unrelenting effort that would finally see the Church (in the figure of Pope Zosimus) and the Empire (in the figure of Emperor Honorius) excommunicating Pelagius and banishing him from Rome. Bonner’s analysis recalls Rees’s characterization of an unwitting rebel, and goes so far as to suggest that Pelagius was in many senses ‘framed’. Bonner even asserts that Pelagianism (in the sense of a recognized doctrine authored and propounded by Pelagius) was a myth, constructed in order to allow Augustine and his supporters to establish their own new interpretation of scripture as orthodoxy: ‘a deliberately invented fiction’ that was part of a ‘process at work in the condemnation of “Pelagianism” and its supposed heresiarch’ (2018, xiv) (this is a controversial claim disputed by Josef Lossl (2019); as he notes, an effort to misrepresent Pelagianism for rhetorical reasons does not in and of itself imply that the ideas and beliefs of Pelagius and his followers were in any sense made up or mythic).

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Whilst this background partially explains how Augustine established his standing and legacy, and why Pelagius and his ideas would be marginalized in Western history (save for his role as the bogeyman of the Church) the beliefs at the heart of the controversy are of greatest significance in elucidating Augustine’s political ideas and the ties to contemporary Realism. The controversy to a great degree turned around the interpretation of the fall, and the question of the freedom of the will. From this starting point, two very different theological accounts of human nature develop. In the Augustinian view, we are left in a state of total depravity, and it is in this condition that we must hope for salvation through the prevenient grace of God. The evil of human nature is regarded as permanent and inescapable. The account is of course a familiar one, reflecting the influence of Augustine amongst the Church Fathers and his status in Christian thinking. It regards the original sin of Adam and Eve, in rejecting God’s will and eating the forbidden fruit, as an act that left its mark on humankind, in perpetuity. It resulted in what can be described as double jeopardy, whereby their descendants were understood as inheriting both their weakness and lust (the condition of total depravity), in addition to acquiring their guilt as sinners. This fallen condition is then related in an elemental manner to the importance of grace and predestination in Augustine’s schema. Salvation is a matter for God, and God only, and it is for Him to choose the objects of his grace; this is a flat rejection of the idea that the sinner can help to secure their own salvation through their own will. Indeed, one understanding of Augustine’s view of the will would be to suggest that it is properly free only once salvation is secured through God’s grace. Thus salvation is in the hands of God and this is expressed in the doctrine of predestination, where only the chosen few are saved from eternal damnation. Bonner describes the three doctrines at work in Augustine’s vision as ‘the triune’. Firstly, that human nature was ‘damaged by Adam’s sin…because Adam’s sin was passed down physically to all other humans’; secondly, that this interlinks with the idea of prevenient grace in the sense that it alone was ‘prior to, and caused, human inclination to virtue’; thirdly, and associated with the idea that God causes all human goodness is predestination, it is God and God alone that ‘selected to whom he would give his prevenient grace’ and decided therefore who is selected for salvation (2018, xii). Taken together, we have a rather oppressive understanding of our place here on earth; we are sinful, lustful creatures who are born guilty and are incapable in our total depravity of shaping our own lives for the better, relying instead on the hope of a divine grace that leads a select few towards salvation in the eternal life. This ‘triune’ would of course be at the heart of orthodox Christian thought for centuries, its core tenets reinvigorated by the Protestant Reformation and Calvinism in particular. Indeed, it remained a predominant view into the twentieth century and an important influence on the Christian Realism of Reinhold Niebuhr, who himself influenced Morgenthau directly.

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A defender of Augustine might argue that far from being oppressive, such a view affords us a merciful and compassionate understanding of the human condition that encourages us to open ourselves to divine grace, providing us with the hope of redemption in spite of our sinfulness, which to a large extent is to be understood as beyond our control. This might be argued to be in contrast with what may appear to be the rather austere and demanding picture that emerges from the Pelagian perspective, with its emphasis on personal responsibility. In Pelagius’s view, the children of Adam and Eve cannot be born guilty for an act for which they were not responsible. Instead, the fall should be viewed as proof of the human capability for free will and the propensity to misuse this gift; on this version of the story, we come into this world in the same sinless condition as Adam and Eve themselves. The sinful condition of humanity and our propensity towards evil is not an inevitable function of our underlying nature, rather it is a tragic illustration of our tendency to emulate the most original of bad choices. In this sense, Pelagius would emphasize our natural capacity for goodness, but not a naïve belief in the prevalence of this goodness—acknowledging as he does our equal propensity to evil.2 Connectedly, whilst the matter of Pelagius’s exact rendering of grace is open to some debate, it can be understood as the free will that God has endowed us with.3 Significant in this regard is the argument that without this capability, claims regarding human goodness are rendered meaningless—where it is a function of God’s will and not the individual agent (Rees 1991, 38). Pelagius goes so far as to claim the ‘very capacity to do evil is also good’, in making good actions voluntary and autonomous and not pre-determined by external agency (ibid). From the initial rejection of total depravity flows a very different conception of the human condition. We are capable of the radical evil that Kant recognizes, but equally we are capable of attempting perfectionism. Whether we are capable of absolute perfection is perhaps unclear, but we should aspire to a high degree of perfection. What makes it difficult for us to do good is the ‘long habit of doing wrong which has infected us from childhood… so that is seems somehow to have acquired the force of nature’. (Rees 1991, 44). Our capacity for good is then connected to the final oppositional element to Augustine’s triune, namely the notion that salvation is not a fate reserved for the predestined few. Such a doctrine would make no sense in view of everyone’s capacity to lead a good Christian life. Rather, it is our ‘good deeds’ (Rees 1991, 117) that can secure our salvation in the eyes of God, and our ascension to the eternal city. Indeed, rejecting the importance of good works leads to the misconception that God avenges not the criminal but only the lack of faith

2 ‘We do not defend the good of nature to such an extent that we claim that I cannot do evil’ (Rees 1991, 43). 3

‘[A]ll individuals have the capacity for free will’ (Rees 1991, 39).

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(ibid 120), an arguably telling problem for Augustine in terms of his acquiescence to tyrannical political power. Pelagius (1991, 121) quotes the verse: ‘Faith apart from works is barren (Jas.2.20)’ in his avowal that salvation is in our own hands and within the grasp of us all. This is the ‘austere’ message of Pelagius that equally, of course, can be read as an emancipatory doctrine—which to a modern Western reader may bring to mind our everyday understanding of human nature, reflecting the values of Enlightenment. Pelagius’s egalitarianism is centrally important here, in emphasizing how good deeds and living a Christian life is ‘what all of us are capable of’ (Rees 1991, 43 my italics ). The capability is occluded in some, only because of an act of will that refuses to display it, or a conditioned belief that it is not in our possession. Approached from a historical perspective and set out in terms of their dialectic emergence, we are able to appreciate the dynamic nature of the theological ideas at stake, in their particular cultural and political context. Augustine’s triune reflected a distinct and appealing set of ideas for many, which gained traction at least in part as an oppositional doctrine to other widely held beliefs at the time. It also accounted for and made sense of human misery and the shortcomings of the social order, whilst maintaining some sense of hope, which was unconnected to one’s station or accomplishments in life. More pertinently, it emerged within a political and religious context that encouraged the attempt to establish an orthodoxy, which as Rees implies offered significant rewards in terms of stature within the Church and Empire. Whilst many of the ideas and assumptions would later be inherited as revealed, permanent truths—as is arguably the case in twentieth century Realist international relations theory—they were originally established in dialectic, oppositional fashion, through clashes with what were at the time other widely held beliefs. Augustine’s Political Philosophy With the historical context in hand, we can now develop a sketch of Augustine’s key political ideas, which to a large extent emanate from his philosophical anthropology. Famously, Augustine’s political reflections are primarily contained within Book 19 of The City of God, and it is striking the extent to which the commentary is coloured by his sober view of the human condition. The total depravity of our nature, and the consequent trials and tribulations of our earthly existence weigh heavily throughout. In his resignation with respect to the Earthly City, it is for those with faith in the Christian conception of the afterlife to find solace in his reflections; for the rest, there is little in terms of succour. Nevertheless, as writers such as Elshtain (2017) have counselled, the elements of determinism and fatalism should be viewed with an eye to the glimmers of light that break through the enveloping darkness, where there always remains the possibility of love, moral fortitude, and just actions—even if these can ultimately leave no lasting legacy in terms of the reform of society.

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Indeed, one characteristic of Augustine is a degree of toleration of the society as it is, and those within it. In practical terms, this meant the Roman Empire, which was of course a patchwork of numerous religions, sects, and cults, was not a political order that Augustine deemed should necessarily force all its members to convert to Christianity, as the new state religion. For one thing, Christians too are born sinners and so a theocracy lead by the Church is no guarantee of a better, more united society; discretion is the better part of valour. Indeed, for Augustine the real division in society occurs at a far more meaningful and basic level. This is expressed in his famous distinction between the City of God and the Earthly City. The Earthly City refers of course to the political order that we inhabit as mortals in our everyday lives. All individuals within society are members of this city, Christians and non-Christians alike. We will look in a moment at some of the motifs and beliefs that Augustine held with regard to that earthly order (that remain prescient today), but it is the concept of the City of God that is most fundamental. This City has a dual existence, in as much as it incorporates the eternal city of the afterlife, whilst also including Christians in the Earthly City. It is in this division between Christians and non-Christians that segregation is of ultimate significance, because of course those who are not fellow travellers will not be amongst those who may be predestined to the salvation of the afterlife. Because this is the real and lasting concern for Christians—that they should be able to share in the life of the eternal city in the afterlife—the significance of the Earthly City pales in comparison, and explains why life amongst believers can be borne comparatively lightly. After all, why struggle in vain to create a perfect polity on earth when there is the promise of what is to come (especially of course if one is convinced that any genuine progress towards perfection on earth is beyond our fallen nature). It is in this sense that mortal life for the Christian is deemed to be a pilgrimage for Augustine, a mere prelude to the eternal life, where they can console themselves that the conflicts and clashes of the Earthly City are but a test for the glory that is to come. This acceptance of current circumstances is emblematic of the type of conservative thinking that rails against more idealist and utopian thought, and the dangers of political leaders overreaching themselves and falling into authoritarian and tyrannical ways in pursuit of their goals. This was of course the view of the seminal conservative thinker Edmund Burke, in his opprobrium of those such as Richard Price, Thomas Paine, and Mary Wollstonecraft who welcomed the French Revolution. In the case of Augustine, such a utopia can exist only in the afterlife, not here on earth. In contrast to a Conservative like Burke, progress is out of our hands, whilst salvation is individual and otherworldly—an achievement that for idealists is necessarily social and this-worldly (although Christian thinkers such as Price and Joseph Priestley might be seen as combining the social and otherworldly in their Millenarianism (Fruchtman 1983)).

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However, we see the dangers of accepting things as they are in Augustine’s suggestion that, whenever and wherever they occur, we must resign ourselves to the misdemeanours of the state. This acceptance is underpinned by his theology, and a belief in an omniscient and omnipotent God, a consequence of which is that any political order is deemed to be an expression of God’s will. From such a perspective, Augustine would interpret an event such as the sacking of Rome in 410AD as being divinely ordained, and political orders that crumble or are conquered are likewise viewed from this perspective as cleaving to the will of God. One suggestion as to why Pelagius continued to hold influence in his native Britain was that his theology could reject the view of the Brythonic peoples as a people doomed to conquest. Likewise, taken to its extreme, Augustine’s conservatism does not seem to allow for the rejection of even the most tyrannical of rule, and does not provide the Hobbesian justification of self-preservation with regard to rebellion. Although tyranny was of course a very real threat and a lived experience for many in late Antiquity, and despite his dim view of humanity, Augustine was not of the opinion that the Earthly City would necessarily have to be a place of permanent conflict and suffering. Indeed, we must guard against attributing to Augustine too dim a view of humanity and society. Elshtain seeks to emphasize the complexity of his psychology and the emphasis on a person’s desire for love and solidarity—which the Earthly City is also an expression of. Whilst our sinful nature means we exhibit deeply problematic behaviours we also have within a desire for the consolation of others’ company and care, and we exhibit a natural sympathy for others. Mortal life is a reflection of all of these deeply complex and troublesome aspects of the human character, in both our desire to live with others and our propensity towards conflict and violence. Indeed, viewed from a certain perspective, one can pull together aspects of Augustine’s thought in such a way as to present the basis and resources for a rather more hopeful conception of community and common life (Lossl 2020). However, we can never escape from the propensity towards conflict. The lust for domination—the animus dominandi—that is an inherent part of our total depravity means that conflict is a permanent and indelible aspect of the Earthly City. This is despite the desire for peace on behalf of Christians and non-Christians alike, who may have different motivations, but for reasons of self-love or the love of God desire the conditions for a happy existence. Such peace, however, depends in Augustine’s view on ensuring justice, and this is beyond the capability of such fallen creatures. Justice and peace are only possible in the eternal city. This extends to Christians as well, who despite their faith, remain sinners, and are subject to the same tendencies of corruption and vice. This accounts in part for why Augustine sees no value in extending the Church’s influence towards a theocracy, why he views the state as always being limited in terms of the improvements it can afford in people’s lives, why he has no desire to see unlimited power in its hands—and why ultimately his politics has such deeply conservative undertones.

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This perspective is carried through to his view of what we today call international politics, where there is again no escape from conflict, as the lust for domination is as pronounced at this level, if not more so, as it is within the state. This emphasis on original sin and not being able to hope for more, are the fundamentals that carry over into Classical Realism and explain why Augustine is regarded as a forebearer. Augustine invokes the Biblical story of the Tower of Babel as a starting point for his understanding of relations between peoples, understood as a punishment from God for the hubristic act of defiance that was the building of the tower. Thus, our linguistic, cultural differences were interpreted as a consequence of our sinful nature and God’s will—dividing civilization, creating misunderstanding, and provoking conflict. Augustine places a particular emphasis on the idea that inter-cultural communication is difficult if not impossible, claiming that people speaking different languages are no more likely to understand each other than if they were speaking to animals. This propensity towards misunderstanding allied with our lust for domination inevitably leads to a view of politics between people where war is a constant. Considering the current war waged by Russia on Ukraine, this view of the fundamental problems and linguistic dynamics of international relations undoubtedly resonate. Whilst we see here an obvious parallel with contemporary Realism and why Augustine might be identified as a proto-Realist, this dim view of politics also prompts Augustine to develop his influential just war doctrine, whereby certain acts of defensive war are argued to be morally acceptable, where a lasting peace is the aim. Here we find, mitigating against a counsel of despair, a similar dynamic to the tension in Augustine’s view of ‘domestic’ politics. The inevitable is accepted, but it is also bound up with the recognition that we must try to make life bearable in the Earthly City and that we must do what we can to live Christian lives. With regard to war, therefore, we should not just concede it is an evil business and condemn it. We should seek peace, and war should be waged with a peace as its aim—even if we live in the knowledge that peace is at best temporary and always destined to be undermined by the animus dominandi. Moreover, we can seek to make moral distinctions between greater and lesser evils; indeed, this is a motif of Augustine’s wider political thought, where it is accepted that often political reality behoves us to make decisions and take actions that are morally reprehensible, but are less evil than the alternative. In this respect, he argued against the possibility that an offensive war could be just under legitimate authority, and that justness can only apply to defensive war. Equally he emphasized the need to respond to violence, and that not responding can itself be a sin. This moral undertone to his international thought, which is other-regarding in the sense that it sees these issues from the perspective from beyond the personal, does distinguish his views to some degree from typical contemporary Realists. Both Classical and Neorealists alike—perhaps represented most

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commonly by the figures of Morgenthau and Kenneth Waltz (1979) respectively—on the whole regard any moral aspect as limited to the value of self-interest. Moreover, in the Augustinian world view, the Earthly City is of course a prelude for the predestined few and so there is a strong salvific aspect to his theology that is not present in modern Realist thinking. Indeed, this raises some interesting questions for the Christian political realist tradition. The views presented by Morgenthau and others may not appear too austere and pessimistic where there is an accompanying Christian faith in redemption and salvation, but as an empirical and normative theory that is notionally universally applicable, there seems comparatively little consolation for those who are not believers. It is to this contemporary body of thought that we now turn.

The Augustinian Legacy In this second section, the aim is to trace how Augustine, and in particular his philosophical anthropology, has continued to hold an influence in more contemporary debates in the Realist tradition. In first turning to Carl Schmitt and then Hans Morgenthau, we can elicit how Augustine’s presumptions around the continual predisposition to war and the desire to dominate, condition the Realist perspective. In setting out some of their key ideas we can also apply some nuance to the comparisons, demonstrating that Augustine’s emphasis on the moral takes him some way from the more radical Realism of a thinker such as Schmitt and distinguishes him also from a Classical Realist such as Morgenthau. Nevertheless, in considering Michael Oakeshott’s analysis of Morgenthau we see that total depravity in the form of the animus dominandi is the lynchpin of the Realist approach (shorn of course of the two other elements of Augustine’s triune—namely grace and predestination). Finally, we will reflect on the centrality of this philosophical anthropology in light of its status as an underlying truth, and the discussion in section one that provided an exposition of its historical provenance. The reader is invited to reflect critically on the contrast between the two different framings of this idea of human nature and how that might impact on the way we perceive the apparent force and explanatory power of Realist accounts. Classical Realism—Schmitt & Morgenthau For Schmitt, the sphere of politics, and other spheres of human life such as aesthetics, economics, or ethics, are ultimately independent of each other, in the sense that they are defined by their own specific criteria. Whilst aesthetics is explicable in terms of beauty and ugliness, so politics is defined by friends and enemies, driven by a mortal antagonism that implies the possibility of killing the enemy. This is a paradigmatic example of the cleavage between the political and the ethical that is indicative of Realism. Ethical values and their connected clashes only become properly political for Schmitt when they develop the

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potential for mortal antagonism—at which point they are secondary to the political confrontation. This is a form of radical Realism, where politics is reduced to a battle for supremacy that is both grounded in self-interest and the supposed salutary value of power in itself—and where ethical motivations may animate the conflict, but do not define it as a first-order consideration. It is rather the antagonism itself that distinguishes the political. In this regard Schmitt is most helpful in this context in providing a foil for the understanding of Classical Realism, and Hans Morgenthau in particular. Morgenthau, along with other figures that are sometimes characterized as Classical Realists—E.H. Carr, Raymond Aron, and George Keenan for example—share the view that morality is and should be constitutive of politics, albeit in a limited way. In this respect, they arguably occupy a similar space to Augustine in rejecting idealism, as was prominent in their case during the interwar years, but without denying the relevance of moral considerations. Morgenthau’s view is captured in the following pronouncement: A man who was nothing but ‘political man’ would be a beast, for he would be completely lacking in moral restraints. A man who was nothing but ‘moral man’ would be a fool, for he would be completely lacking in prudence. (1954, 12)

This statement is taken from Morgenthau’s addition to the second edition of his magnum opus, Politics among Nations , entitled ‘Six Principles of Realism’—which has since stood as a touchstone for Classical Realism. Whilst this summary clearly departs from Schmitt and a radical form of realism in its admonishment of an amoral political actor, in many other ways we might suggest it steers closer in that direction than any idealist view of international politics. Certainly, there is a constant ambiguity. This ambiguity and closeness to Schmitt’s radical Realism is perhaps at its most obvious with respect to Morgenthau’s conceptualizing of politics as a discrete realm: ‘an autonomous sphere of action and understanding apart from other spheres’, (1954, 4) to quote from his second principle. Whilst seemingly adhering to this Schmittian cleavage between politics and ethics, Morgenthau does not subscribe to the view that it is the friend–enemy distinction which is definitive of the political sphere. Rather, it is power (as the primary interest) that Morgenthau posits as the defining feature, one that paints ‘a picture of foreign policy which presents the rational essence to be found in experience’ (1954, 4). This allows us to build a rational analysis of politics and also provides the possibility of deciding on rational action—Realism for Morgenthau being perhaps most important as an action-guiding theory. It is power which is the rational essence of politics. To understand action, therefore, neither the ulterior moral nor the ideological motives of politics are relevant. It is the quality of the action that is relevant in moral terms, and in this sense Realism is an entirely consequentialist ethic, which judges in terms of politicians’ ability to ensure positive outcomes for the national

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interest—the only moral value which counts in the final analysis. Morgenthau’s approach, whilst reflecting his theological commitments and the post-war climate, should also be understood within the broadly positivist tendencies of the age—especially in the US—that sought to reduce actions to events, and thus to intelligibility within the strict logic of cause and effect.4 Nevertheless, Morgenthau’s circumscribed logic, asserting the pursuit of power on the basis of prudence, is significantly different to the view that Schmitt’s approach tends towards, where any action is justifiable with regard to state interests and conflict, and violence is regarded in some way as salutary and meaning-giving. As well as rejecting the glorification of violence and amoral reasoning, political action is broadly encompassed within a moral understanding. Reference is made in Morgenthau’s principles to the ‘moral law’ to which nations are subject to and the standing ‘under the judgment of God’ (1954, 4). Moreover, his moral aspirations (and a suggestion that political reform is actually possible over time even in the international realm) are clear in his belief that Realism is more likely to bring about positive practical consequences for all, and in his speculation about the future pacifying prospects of political units larger than states. This tension between maintaining a distant ethical goal and facing up to contemporary realities indicates some consistency with the duality in Augustine’s own international thought: on the one hand he maintains the clear (if vain) moral hope of peace and applies specific moral standards through his just war thinking, whilst on the other hand he regards violence as integral to politics because of our sinful nature, tendency towards conflict, and desire for domination. Most importantly for our current concerns, there is no denying that coupled with the underlying and unambiguous commitment to power as the defining aspect of politics, there is also in the Realist perspective a commitment to an attendant Augustinian philosophical anthropology. This is gestured towards in Morgenthau’s statement of the six principles where he begins by stating that politics is governed by laws that are rooted in human nature—a nature that has not changed over time. The primary law, of course, is that of the pursuit of power, and we can infer that if this is rooted in a perennial human nature, that nature is one that covets power and influence. Here, therefore, we return to the premise introduced to us by Schmitt, that any political theory can be understood in its most fundamental sense through reference to its philosophical anthropology. The anthropology that informs Morgenthau’s theory of international relations is most helpfully considered through the analysis of his contemporary, Michael Oakeshott.

4 Thank you to David Reidy for drawing attention to the significance of these developments stateside.

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The Animus Dominandi It is helpful to turn to Oakeshott, not least because as he himself points out with respect to Morgenthau’s philosophical anthropology ‘the reader must be left to discover for himself the whole detail of the argument’. (1993, 103) Oakeshott’s own analysis is taken from Morgenthau’s earlier work, Scientific Man vs Power Politics , in which the arguments about human nature and their ramifications are given a little more attention. Oakeshott describes this book as having the main aim of articulating the fundamental errors of the ‘faith’ from which modern politics springs, chief amongst them the assumptions about the potential goodness of human nature. Indeed, if we are to understand contemporary politics and its puzzles, Morgenthau encourages us to understand the entire edifice as being unsound, particularly the foundation stone that reason can solve political problems; this is ‘the great illusion of modern politics’. (1993, 103) This illusion has become so widespread because of the huge successes of scientific reason in bringing the physical world under our control, which we have incorrectly assumed can be transposed more or less successfully to the world of human activity and suffering: that the proclivities and tragedies of human life can be ‘mastered and controlled’ (1993, 98). That the social world can be susceptible in the same way as the physical world to the control of human reason, and that political problems can be regarded as scientific problems, is to misunderstand fundamentally the nature of humanity. This critique is related directly to Morgenthau’s rejection of modern politics on account of its tendency to proffer universal moral values and abstract ideals amounting to programmatic, utopian politics. The rejection of politics as ‘social engineering’ is a consistent theme and one that Oakeshott himself takes up in his later essay Rationalism in Politics (which clearly takes much unacknowledged inspiration from Morgenthau). This form of politics is premised on a notion of the potential of human nature and the idea that ‘it is only our ignorance… which stands between us and a society incomparably better ordered, more just and more prosperous than any human society that has yet existed’. On the global plain, this form of politics is expressed in the inter-war idealism and the elaboration of ‘a science of peace’ (1993, 101). It is a critique of the illusion—this faith in the science of politics—that Morgenthau locates as the starting point for his Realism, and it is his philosophical anthropology that is at the heart of this critique, which Oakeshott so heartily approves of, and articulates for us: Morgenthau observes that egoism is characteristic of human behaviour, and that egoism involves a desire for power and the exercise of power over other human beings. The faith he is considering assumes that this egoism is a potentially wasting defect in human nature, the eradication of which is within the competence of scientific knowledge properly applied; but the whole of human experience goes to show that this is, in fact, an illusion. (1993, 103)

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Whilst scientific politics is grounded in the idea that egoism and powerseeking can be superseded by reason and goodness, Morgenthau subscribes to what he regards as the empirical truth that these are permanent, indelible aspects of human nature, only confirmed by the failures of this form of politics. These failures are indeed ‘inherent in the faith itself’ and Morgenthau’s argument, in Oakeshott’s words ‘owes something to both Augustine and Hobbes’—two of the major figures in the Realist tradition (1993, 103). The Hobbesian aspect relates to what we might term the inevitability of egoism (relating also to solipsism): in a broad sense structural factors mean that to be capable of moral acts that are not self-regarding a person must retain ‘at least that degree of selfishness in his life which is required to maintain himself’. (1993, 104) All human relations therefore possess the germ of potential conflict where individuals seek the same things. Rather than seek the goodness of altruism, in order to navigate the basic challenges of existence, man ‘must be content with being not too evil’. (1993, 104) Hobbes, it should be noted, was of the view that conflict arising from such egoism might be overcome through rationality and the collective submission to an absolute political authority, capable of creating the conditions for trust and reciprocity. It is in this regard that the Augustinian element is palpably more fundamental, relating as it does, not to how interpersonal relations necessitate egoism, but rather to a familiar quality, more elemental to the human nature— ‘the animus dominandi, the desire for power’ (1993, 104). Unlike egoism, this is not a facet that is related directly to the basic needs of an individual, rather with an individual’s ‘position amongst his fellows once his survival has been secured’ (1993, 104)—which we might more helpfully label egotism.5 Unlike one’s basic needs, one’s lust for power is potentially insatiable: it is ‘the evil spring of all human activity’ (1993, 105) arising from sinful pride and the desire to submit others to our glorification; this sin of course infects politics, which is just one of the spheres where the animus dominandi is expressed. The problem with scientific politics therefore is that it rests on the false hope that this animus can be resolved through the exercise of reason; that social engineering can exorcise it. However, this is ‘absurd; the animus is inherent in the nature of man and human activity and nothing whatever can abolish it’. (1993, 105) We are therefore destined to live in a world defined by power politics as we do not possess the means to escape it. As with Augustine, we cannot hope for peace, because there cannot be justice—although in the case of Augustine, at least the predestined can hope to expunge this lust through grace. Challenging the Creation Myth of Realism In this final section, we can reflect on the manner in which Realism remains popular and rests on what is taken to be a received truth about human nature 5

Thank you again to David Reidy for this suggestion.

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going back to Augustine; we can raise the question of how we should view this truth, in light of the earlier discussion of its original precarity in the face of a competing theological beliefs at the time of the Christian Fathers. Acknowledging the circumstantial nature of its historical provenance is particularly important, I would suggest, because of the presumption in favour of Realism as reflecting the ‘reality’ of politics, and the common propensity amongst the academy, policy makers and wider public to accept this view of international relations as some form of received wisdom or common sense. Questioning a grounding truth may lead us to diminish the certainty that surrounds it. Classical Realism has seen a resurgence of interest and sympathy thanks in part to the writings of authors such as Ned Lebow (2003) and Michael Williams (2007). Studying this form of Realism and its underlying beliefs is arguably, therefore, not just a matter of the history of international thought, but also relevant to contemporary debate around how we understand and think about international relations. By looking at Morgenthau, one of the thinkers most associated with Classical Realism, we see how human nature and the idea of the animus dominandi in particular is at the heart of his conception of international politics. Negatively it is the basis for a critique of progressive politics, because it claims we cannot overcome those characteristics that animate conflict and keep us wedded to current structures (this latter feature is relevant also to the ‘structuralist’ perspective of Neorealism where the underlying assumptions around human nature are further occluded); positively, it is the grounds for a prudential, piecemeal, and relatively sceptical approach to international politics. This deep connection between a philosophical anthropology and a wider theory of politics is not a revelation—Schmitt’s statement is an assumption that most would accept in terms of this intimate relation between a conception of human nature and the attendant theory. What has been emphasized however, is that the Realist view, rather than suggesting this lust for domination is one aspect of human nature exhibited more predominantly by some actors, regards the political realm as one where this aspect dominates thoroughly, and in perpetuity. As such it is posited as a permanent truth of our condition, and this is where Augustine’s theology is taken as a philosophical and historical precedent—and is used to legitimate this view. Such references to Augustine reveal that, as much as Morgenthau may wish to posit it as an empirical truth based on observations, at bottom it may be understood as an article of faith. Once we start to examine this article of faith, which importantly posits the enlightenment, scientific politics, and political rationalism as not only partial, but wrong-headed in their assessment of politics, we discover that there are other historical precedents that are themselves articles of faith—and competing ones at that. So where Oakeshott and Morgenthau might want to argue that we must return to this theological truth to assert that the Enlightenment was mistaken in its attributions to human nature and the form of politics it fostered, then what we find historically is a competing Christian theology in

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the form of Pelagianism (that was in some ways arguably proto-Enlightenment in its emphasis on free will and equality)—and was also posited as a permanent truth. We see that the predominance of the Augustinian, pessimistic view of humanity that has shaped so much of Christian thought was not itself an uncontested, ‘revealed’ truth that was accepted as widespread common sense before the wrong turn of the Enlightenment, but that it was truth widely disputed and which was established as orthodoxy through political machinations during a crucial time in the history of Christianity, and therefore Western thought. As Rees suggested, what might have happened had the match finished differently? In fact, Pelagius (this is putting it somewhat anachronistically) takes a sideswipe at the political Realist’s view of the world in noting that having been conditioned and educated in evil ‘we even strove to be evil, since, to add to the other incentives to evil, innocence itself was held to be folly’. (Rees 1991, 43) This is particularly suggestive of the conditioning tendency of negative views of human nature and how they can become a self-fulfilling prophecy. For Morgenthau, for us to continue to exercise our politics whilst recognizing our total depravity is crucial to the Realist’s philosophy of prudence. As well as these more speculative aspects, especially around how such a dominant motif has shaped our understanding of ourselves over the centuries, shifting the Realist doctrine to what appears to be more precarious foundations, in contrast to what is appealed to as a self-evident, universal truth, opens up new avenues for our contemporary discussions (as well as our understanding of the history of western thought, one might add—where core philosophical beliefs of the Enlightenment no longer appear quite so unprecedented). Indeed, one or two of these avenues were recently pursued explicitly by Nicholas Rengger (2017) in taking up Oakeshott’s lead and engaging in a form of what he would describe as anti-Pelagianism. Rengger was committed to an investigation of those modes of thinking that offered a response to the onset of liberal and ‘progressive’ assumptions in this field of endeavour, believing that approaches such as cosmopolitanism ‘to political theory and international relations echo the claims of the ancient Pelagian heresy in Christianity’. Indeed, it was his view ‘that most of the dominant political traditions of the last century and a half… offer variants of this view and that, in that sense, modern Western political thought, in most of its dominant forms at least, is broadly Pelagian’. What they share, in his view, is the very general belief that, ‘rather than requiring God’s grace for our salvation, we can save ourselves through our own unaided efforts’ (Rengger 2017, 3–4). AntiPelagianism appears in many forms but what draws it together in his view is the rejection of this assumption and an embracing of the darkness of human affairs and character. What is interesting in part about Rengger’s excursions into early Christian thought is that whilst it allowed him to characterize contemporary debates in ways he judged to be fruitful, he also historicized the conflicting, underlying

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assumptions of international political theory in a way that arguably problematizes them—in this case specifically Augustinian polemics (as Rengger himself refers to them) as eternal truth. Concurrently, it brings attention to the central importance of Augustine’s own philosophical anthropology with respect to his wider system of political thought, and enjoins us to understand his concepts and constructs in relation to an interpretation of human nature that was controversial at the time, and regards humanity as so utterly dependent upon God’s will. Whilst his pessimism is tempered by his acknowledgement of our more loving, sociable characteristics, his view of political society is characterized by a radical dualism that posits progress of any permanence can only be achieved through ascension to the eternal city. Moreover, one can at least argue that Augustine’s theology provides a salvific element missing in contemporary Realism, which by comparison may lead us towards a misanthropy, or resignation towards addressing the events of politics in accordance with reason and value. Lastly, a more conscientious and sustained return to the writings of Pelagius himself and Pelagianism more generally offers food for thought in terms of the Realist critique of ‘Pelagian’ international politics. In particular, it encourages reflection on the way in which the tradition is characterized with respect to critiques such as Morgenthau’s and Oakeshott’s that centre on Pelagianism’s supposed perfectionism and assumptions about the expunging of evil and the desire for domination. Even a cursory reading of Pelagius’s original letters illustrates the prominence of other considerations, in particular the exercise of free will, its potential for radical evil, the continual struggle to act morally, and the Herculean challenge of perfection: ‘a matter which calls for intensive study and long practice. That is why so many of us grow old in the pursuit of this vocation and yet fail’. (Rees 1991, 62) Indeed, it is not the rather elusive promise of perfection that is of primary importance, rather what it offers in terms of expanding our possibilities: [t]he best incentive for the mind consists in teaching that it is possible to do anything which one really wants to do. (Rees 1991, 37)

In terms of politics, in the face of multiple crises including climate catastrophe on the global level, the Realist must reflect on whether prudence or possibility is the order of the day.

References Bonner, Ali. 2018. The Myth of Pelagianism. Oxford: Oxford University Press. Bonner, Gerald. 1986. St Augustine: Life and Controversies. Norwich: Canterbury Press. Dyson, R.W., ed. 1998. Augustine: The City of God Against the Pagans (Cambridge Texts in the History of Political Thought). Cambridge: Cambridge University Press.

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Elshtain, Jean Bethke. 2017. Augustine. In Political Thinkers: From Socrates to the Present, 3rd ed., ed. David Boucher and Paul Kelly, 123–135. Oxford: Oxford University Press. Fruchtman, Jack. 1983. The apocalyptic politics of Richard Price and Joseph Priestley: A study in late eighteenth-century English republican millennialism. Transactions of the American Philosophical Society 73 (4): 1–125. Hammond, Carolyn. 2014. Augustine: Confessions Vol. I Books 1–8, MA: Harvard University Press (Loeb Classical Library). ———. 2014. Augustine: Confessions Vol. II Books 9–13, MA: Harvard University Press (Loeb Classical Library). Lossl, Josef. 2019. The Myth of Pelagianism by Ali Bonner. The Journal of Ecclesiastical History 70 (4): 374–376. Lossl, Josef. 2020. Augustine and the Common Good. In Christianity and Global Law: An Introduction, Law and Christianity, ed. Rafael Domingo and John Witte, 31–50. Cambridge: Cambridge University Press. Lebow, Richard Ned. 2003. The Tragic Vision of Politics: Ethics, Interests and Orders. Cambridge: Cambridge University Press. Morgenthau, Hans. 1946. Scientific Man versus Power Politics. Chicago, IL: University of Chicago Press. Morgenthau, Hans. 1954. Politics among Nations: The Struggle for Power and Peace, 2nd ed. New York: Alfred A. Knopf. Oakeshott, Michael. 1993. Scientific Politics. In Religion, Politics and Modern Life. New Haven and London: Yale University Press. ———. 1962[1947]. Rationalism in Politics. In Rationalism in Politics and Other Essays (pp. 1–36) New York: Basic Books Rees, Brinley. 1988. Pelagius: A Reluctant Heretic. Woodbridge: The Boydell Press. Rees, Brinley. 1991. The Letters of Pelagius and His Followers. Woodbridge: The Boydell Press. Rengger, Nicholas. 2017. The Anti-Pelagian Imagination in Political Theory and International Relations. London & New York: Routledge. Schmitt, Carl. 1996. The Concept of the Political. Revised. Chicago: University of Chicago Press. Waltz, Kenneth. 1979. Theory of International Politics. Boston, Mass.: McGraw-Hill. Williams, Michael C. 2007. Realism Reconsidered the Legacy of Hans Morgenthau in International Relations. Oxford: Oxford University Press.

CHAPTER 6

The Roman Empire and the Universal Church Cary J. Nederman

Theories of international political order during the Middle Ages rested on the twin prongs of Christian beliefs about the spiritual unity of the faith represented by the visible church and the related but sometimes conflicting ideal of a single universal empire inherited from ancient Rome. Many political theorists and ecclesiologists espoused versions of a global system of temporal affairs (whether directed by an emperor or the pope) between the thirteenth and the fifteenth centuries. Indeed, the defense of a single universal system of political rule became more widespread and intense in the later Middle Ages, at just the time when localized units of governance such as territorial kingdoms and city-states were growing in power and autonomy and the authority of the papacy was disintegrating. After 1300, the volume of writings concentrating on internationalist themes in Western political thought (whether in the secular or the spiritual spheres) escalated rapidly. Interest in the topic continued to be reflected in the significant quantity of treatises composed well into the Renaissance. On the face of it, this may seem peculiar. After all, the effective power of successive pretenders to the imperial purple had waned considerably following the end of Emperor Frederick II’s reign in the mid-thirteenth century (ruled 1220–1250). Grand gestures by later German emperors (crowned or aspiring) such as Henry VII (1275–1313) and Ludwig of Bavaria (1282–1347) did C. J. Nederman (B) Department of Political Science, Texas A&M University, College Station, TX, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_6

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little to restore the dignity of the Holy Roman Empire. Likewise, the increasingly extensive claims made on behalf of papal plenitudo potestatis (“fullness” or “plenitude” of power) over the temporal possessions as well as the spiritual condition of laity and clerics alike were belied by the historical circumstances of the papacy, whose powers were eroded by successive crises, ranging from the conflict between Boniface VIII and French King Philip the Fair at the very beginning of the fourteenth century to the so-called Babylonian Captivity of 1305–1378 (the move of the papal curia from Rome to Avignon) to the Great Schism (1378–1417). But the persistent attraction of seemingly anachronistic ideals, in light of a countervailing context, was hardly exceptional during the Middle Ages. One often observes a tendency in medieval thought to magnify the authority of an office or institution in inverse proportion to its actual power. In the case of the papacy as of the empire, the divergence of theory from practice may be taken to signal that quintessential medieval longing for renovatio, renewal, and reform of traditional offices and institutions (Ladner 1982). While it doubtless strikes the modern mind as odd, medieval thinkers, when faced with the corruption or degeneration of temporal political structures, commonly responded not by seeking their elimination and replacement but instead by calling for their restoration and enhancement, a return to their original state of pristine purity.

The Papacy This provides much of the explanation for why medieval authors concentrated so heavily on the question of the “origins” of universal authority. To trace historical origination was simultaneously to establish the true authority that properly accrued to an office or institution by virtue of its legitimate foundation, and hence to identify a blueprint for its restoration. Pro-papal thinkers unleashed an arsenal of such justifications on behalf of the dominion of the Roman bishop over all the earth. (For the following see Muldoon 1999, 64– 86.) One argument referred the inception of the papal ascendancy to the so-called biblical “Petrine Commission,” according to which Jesus founded the church specifically upon the “rock” of Peter, and conferred the “keys” to the kingdom of heaven upon the Disciple and his successors. This teaching was pioneered by Pope Gregory I (the Great) (540–604). To the extent that the pope—and the pope alone—held within his grasp the power to “loose” and “bind” souls, all Christians anywhere and everywhere who sought salvation were in thrall to him. And inasmuch as Christianity was itself the one true faith—for infidels as well as believers—the ascription of the “keys” to Peter entailed that papal jurisdiction stretched to the whole of the earth. The universal authority of the church to determine orthodoxy warranted the pope’s status as the head of the international order—earthly as well as spiritual. Another of the papacy’s polemical weapons favoring its primacy stemmed from a document known as the “Donation of Constantine.” The “Donation” purported to be a fourth-century grant of lordship over all the lands under

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the control of the Roman Empire to the bishop of Rome by the first Christian emperor, Constantine I. The Roman bishop then relinquished the day-to-day supervision of imperial administration back to the Emperor. This document, in turn, became the basis for medieval explanations of how the seat of the empire was transferred first to the Franks and later to the Germans. Widely known as the concept of translatio imperii, the conclusion was drawn that it fell to the authority of the pope, as conferred by the “Donation,” to endow one particular dynasty or people with imperial rights and to reassign them as he saw fit. While some medieval critics of the papacy expressed doubts about its authenticity (Renaissance scholarship definitively demonstrated its fraudulence), the “Donation of Constantine” nevertheless provided powerful ammunition for late medieval popes and the writers who served their cause. A third account of the origination of the pope’s superiority over the whole of creation, from which was concluded that secular rulers served at the discretion of the pope, arose from the Gelasian doctrine of the “two swords.” In the early fifth century, Pope Gelasius I (reigned 492–496) posited a (somewhat tortured) dualistic reading of Luke 22:38, which interprets the words of Christ on the Cross as justification for ecclesiatical (and ultimately papal) supremacy. During the Investiture Controversy at the end of the eleventh century, the image of the two swords was revived in support of the church and its Roman head: “In his Passion, the Savior Himself meant the figurative sufficiency of the two swords to be understood in this way: When it was said to him, ‘Lord, behold there are two swords here,’ He answered, ‘It is enough’ (Luke 22:38), signifying by this duality that the spiritual and the carnal swords are to be used in the Church and that by them every hurtful thing is to be cut off” (Tierney 1988, 63). In the context of his dispute with Philip IV of France over clerical taxation, Pope BonifaceVIII issued the papal bull Unam Sanctam in 1302, which defended the Gelasian principle more forcefully than ever: “One sword ought to be under the other and the temporal authority subject to the spiritual power…. For, the truth bearing witness, the spiritual power has to institute the earthly power and to judge it if it has not been good…. If the earthly power errs, it shall be judged by the spiritual power” (Tierney 1988, 188–189). The theme ultimately came to legitimize a papal plenitude of power, meaning that the pope possessed and could exercise absolute lordship over the entire world and all those who resided therein.

Giles of Rome All of these arguments found their way into the political theory of the Late Middle Ages. A prime example of how they coincided is afforded by the highly influential treatise On Ecclesiastical Power by Giles of Rome (c.1247–1316). Despite accusations that the work is wholly derivative, it knitted tother the entire artifice of traditional defenses of an international system with the pope at its pinnacle. As reconstructed by its modern editor and translator Robert

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W. Dyson (Giles 2004, xxi), Giles’s starting point is the Gelasian doctrine, systematized and summarized logically by three main principles: 1) The only valid ruling powers on earth are the two swords, Christ having said in Luke 22:38, “It is enough.” 2) All forms of temporal dominion—physical property as well as political jurisdiction—derive from the Church. 3) The power of the Church is inseparable from that of the pope, so that any ascription of priestly power pertains to him in the uttmost. The inescapable conclusion to be drawn from the two swords teaching is that the papacy possesses and applies absolute power in sub-lunar affairs large and small. Everything is owed to him. The ancient Roman emperors had styled themselves “lords of all the earth.” The proponents of papal authority in essence adapted this maxim to serve their own ends. Giles supplements the two swords with the idea of the pope’s right to transfer political office from one person or dynasty to another (translatio imperii) and the precept that in him ex officio lies the ultimate right to determine who is admitted to the kingdom of heaven and who will be turned away (Giles 2004, 17–19). Giles bolsters these theological doctrines by reference to a conventional Christian hierarchical metaphysic, which holds that nature is ordered according to functional service from lower to higher, starting with inanimate creation all the way to man (and of course from humanity to divinity) (Giles 2004, 59). By analogy, the arrangement of political authority demands that the greater end (salvation) defer and submit to the lesser (physical well-being). The former is realized by the Church and its papal head, the latter by secular rulers. Therefore, the very arrangement of God’s creation supports the plenitude of power assigned uniquely to the pope. It should be noted as well as Giles does not even represent the most extreme version of papal absolutism proposed during the later Middle Ages, although he is more typical of the arguments favoring that position.

The Holy Roman Empire Yet few medieval thinkers, even papal absolutists such as Giles, were willing to deny completely the legitimate status of imperial regimes. St. Augustine’s view that empires were merely robber bands writ large, while often cited, was seldom embraced (e.g., Giles 2004, 23–25). Generally speaking, empire was viewed as at least a necessary evil: it held sinful men, and the groups of them formed into nations or other organized communities, in check against the violence and rapacity that would otherwise manifest itself. In this sense, imperium was equated with something like benign world government under a single supreme judge and executioner of law and justice. By and large, political theorists of the High and Late Middle Ages embraced uncritically the belief

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that the church could not entirely replace imperial power. In other words, hierocrats were emphatically not theocrats. Regardless of how constrained they might countenance an empire’s reach, the church recognized implications flowing from the divinely ordained arrangement of nature. Just as humanity was chief among all God’s creatures, and as mankind alone reigned over all the animals, and as a single deity ruled over the entire universe, so an emperor was destined to stand supreme over lesser political forms, if for no other reason than its reflection of ecclesiastical (especially papal) universality. The defense of an international system with the Roman church as its central organizing institution, however, depended almost exclusively on biblical hermeneutics as its bedrock source. In contrast, theories of secular imperialism during the Middle Ages had at their disposal numerous resources for explicating and analyzing the roots of imperial power—histories, philosophical tomes, and legal texts in addition to scripture. Theorists drew on all of these to validate the existence of imperium both in the past and in current times. Of course, their strategies differed according to the audiences they sought to address and the policies they sought to influence. All of them, however, had the same ultimate goal in sight, namely, the validation of universal empire based on some narrative of origination. Medieval authors were well aware that Rome was by no means the earliest empire to establish its hegemony in the Mediterranean world. They frequently mention the Medes, Assyrians, Persians, and Macedonians as examples of important imperial regimes. Yet the Roman Empire remained during the Middle Ages the paradigmatic instance of imperial government in its greatest glory. The reasons for this were various and not always well-conceived. Rome’s pre-eminence in the medieval mind was often a function of cultural and linguistic continuities as well as the religious significance of the Eternal City itself to Latin Christians, who viewed themselves as in many ways the direct descendants of Roman forebears. Rome had reputedly conquered the known world and hence established its authority over a far greater territory than any previous imperial power. Moreover, the virtues that Rome espoused in the process of conquest were deemed laudable and compatible with the tempered militarism of medieval Christianity: the Romans spread their superior culture and values, brought peace to the globe, and disseminated a universal system of law and order. At their most glorious, the ancient Romans conquered not to aggrandize their power and increase their wealth, but to introduce a higher level of civilization than had heretofore been experienced by the peoples of the world. Among Latin Christians, the superiority of the Roman Empire was signalled decisively by God’s determination to bring to earth His son during the reign of the first Emperor, Augustus, as well as by Jesus’ explicit command to his disciples to submit themselves to the rule of the imperial majesty and his own deference to its rightful power even unto death. Previous empires may have paved the way for Rome, but all the roads of history lead in medieval thought toward the primacy of the Roman Empire.

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Few during the later Middle Ages would have taken seriously the assertion that the contemporary Holy Roman Empire was endowed with universal authority in a literal, factual sense. Commentators realized that even ancient Rome at the peak of its influence did not exert control over the entirety of the globe. The German successors of the classical emperors found it difficult to subdue the more powerful princes in their own lands, let alone to impose effective rule over Italy and the other regions of Western and Central Europe where their supremacy was nonetheless acknowledged in principle. Yet theorists conventionally espoused the view that the Holy Roman Empire was indeed universal in scope and that the emperor was truly “lord of all the world” (dominus mundi). Why, we may wonder, would intelligent and informed authors propound such a position and how could anyone at the time have taken it seriously? Christian faith rested on the idea of the community of believers, a respublica Christiana, whose spiritual dimension was realized in the universal church, and whose temporal aspect was embodied by the universal empire. Denying the property of universality to the empire thereby constituted a serious challenge to the “catholic” pretensions of the Roman confession. Associated with Christian universalism was a lingering neo-Platonic cosmology, already touched upon, according to which good order in natural and supernatural realms alike requires a single supreme head by which all other elements are guided and directed. This supported doctrines both of papal primacy and of imperial majesty, since the power of each was pre-eminent in its own proper sphere of exercise. The universal character of empire also received confirmation from the legal traditions absorbed by medieval Europe. Classical Roman Law styled itself a system of statute applicable to all citizens throughout the imperial territories, and undergirded by a Stoic-tinged cosmopolitanism. Roman Law was codified right reason, which all human beings could equally grasp and would rationally obey. The Christian appropriation of Roman Law doctrines and methods during the High Middle Ages took this argument one step further: it posited the universal validity of law through its conformity with divine decree as discovered through revelation as well as reason. There could only be a single, true set of human laws, consistent with God’s commandments; divine statute found its fullest earthly expression in the Roman legal tradition. But that system rested, in turn, on the authority of the emperor, who promulgated and enforced Roman Law and who was the ultimate guarantor of its efficacy. Hence, the medieval embrace of the Roman legal code simultaneously entailed an acceptance of its concomitant imperialist universalism.

Dante Among medieval treatises well known today, Dante Alighieri’s Monarchy (written c.1314–1321) associated the foundation of the Roman Empire both with a general process of civilizing humanity, in which Rome is accorded a key

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role by spreading virtue and cultural enlightenment, and with a divine dispensation, signified by the historical intersection of the lives of Augustus and Jesus as recognized in biblical accounts. Arguably, Dante surpassed his pro-imperial contemporaries in his insistence on the importance of the independent exercise of temporal power. Proposing that its origin and purpose derives directly from God without any mediation of the church or priesthood, Dante insists that the supreme secular authority should be in no way subordinate to the ecclesiastical; it exercises its authority in order to realize a separate (and superior) goal. Dante, most of all, sought peace. This ultimate aim led him to embrace the view that peace would only come to Europe under the leadership of a world emperor who stood as a separate and equal secular counterweight to the authority of the pope. Monarchy seeks to answer three main questions: 1) Is it necessary for the human race to have a monarch? 2) Did the Roman people take the empire by right? 3) Does the authority of the Roman monarch derive directly from God, or else through some Vicar of God? Dante attempts an authoritative evaluation of each question, with all of his answers supported by arguments from history, authority, and logic in addition to scripture. He arrives at the conclusion that it is, in fact, necessary for the world to have a monarch, and that his power derives directly from God or some lower source, but not through the Vicar of Christ in the person of the pope. Monarchy thus seeks to refute the claims of Boniface VIII and his supporters that both the temporal and the spiritual swords must be vested in the hands of Peter’s successor. Dante recognizes that in order to validate his position, it is necessary for him to refute hierocratic interpretations of scripture such as the Gelasian doctrine. Dante begins Book 3 of Monarchy with the words of St. Augustine about those who look for hidden meanings in scripture where there are none: “It must not be thought that every reported event has a further meaning; but those which have no further meaning are also included for the sake of those which do” (Dante 1996, 70). Contrary to the papalist understanding of Luke 22:38, he rather simply points out the obvious: nothing at all in the text supports a reading in which the two swords refer to temporal and spiritual authority respectively. Indeed, an alternative reading of the exchange with Christ, depending instead upon the account of the same events in the Gospel of Matthew, leads to rather different conclusions. In sum, the entire two swords interpretation is nonsense. On this basis, Dante rebukes Boniface’s claims by explaining that mankind is in need of two separate authorities because there are two separate ends to human life. His assertion does not deny the spiritual jurisdiction of the papacy but makes radical claims for the necessity of independent imperial authority. The papacy confuses its constrained function with universal temporal domination. While the pope may orchestrate salvation in accordance with revealed truth, the emperor guides “mankind to eternal happiness in conformity with the teachings of philosophy” (Dante 1996, 92). The two natures possessed by man are not ordered hierarchically.

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Rather, under the proper conditions, namely, those in which a monarch rules the entire earth, an “earthly paradise” presents itself.

Engelbert of Admont As famous as Monarchy has become, Engelbert of Admont’s fourteenthcentury tract on empire, On the origin and end of the Roman Empire, composed during the early part of the reign of German King (and eventual Emperor) Henry VII, may actually have exercised greater influence on defenders of imperial rule. Engelbert adopted a practical and balanced perspective on empire, which is evident from the prefatory paragraph of On the origin and end. The composition of the treatise, he tells us, was stimulated by a debate among some of his friends about whether the Roman Empire was ever legitimate, as well as about its status in more recent times. Responding to the interlocutors’ requests for him to resolve these dilemmas, Engelbert proposes a set of standards for evaluating the nature and validity of imperial regimes in general, Rome more particularly, and the contemporary Holy Roman Empire most especially. The treatise is divided into four major segments. Chapters 1 through 6 establish the method of inquiry, derived from Aristotle, to be employed in the text, and give an account of the origins of royal governments and imperial systems. The seventh through thirteenth chapters fix an essentially naturalistic scheme of standards according to which various elements of political institutions are to be judged. In Chapters 14 through 19, Engelbert investigates the earthly “ends” or purposes for which political authority exists. Finally, Chapters 20 through 24 concern the supernatural ramifications of the rise (and divinely ordained fall) of Roman dominion over the earth. Engelbert commences his investigation into the contemporary status of the Roman Empire with a preface recounting the circumstances under which On the origin and end was composed. On the face of it, he states that he will employ the Aristotelian investigative method as laid out in the opening section of the Politics in order to establish the basis of natural superiority and inferiority, from which flows the necessity of the subjection of the latter to the former (Engelbert 2000, 37–38). His own justification of the distinction between the inferior and the superior is a matter of reason (Engelbert 2000, 38). Engelbert does not deny, as did Aristotle, that certain peoples’ capacity for the exercise of rational faculties is somehow so defective that they are unable to make judgments about their own condition. Rather, “Those who are inferior in intellect naturally are subjects and obey them [i.e., ‘those who thrive naturally by intellect and reason’] as better, more worthy, and more powerful to save and preserve themselves by means of those men” (Engelbert 2000, 38–39). Precisely such an inegalitarian principle explains the origins of government within human society, according to Engelbert (Engelbert 2000, 39). Human beings voluntarily submitted themselves to a ruler, a man of superior reason and virtue, who would protect them and govern for their well-being.

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For Engelbert, the assembly of human beings in a community, as well as the establishment of a basic system of governance, are the products of the “reason and intellect” of those party to the process of social and political cohesion. Consequently, the governance of the many (who do not live according to the reason they possess) by a wise man—that is, kingship—is a human construct, yet is wholly in accord with nature. Engelbert remarks that “primordial kingdoms seem commendable on account of their origin,” namely, “on account of the goodness of the kings, because they were promoted to being kings not by way of ambition for power but by way of election based on their virtue and probity” (Engelbert 2000, 39). Since the law of God is singular, and “all human law derives its authority and foundation from divine law,” Engelbert concludes that the consent of a people requires that there is “only one republic of the whole Christian people. Therefore, there will be of necessity only one true prince and king of that republic …” (Engelbert 2000, 65–66). Simply put, the logic of agreement by the people to their governance entails that they will, if they employ their reason in a manner consonant with nature, endorse kingship—whether primordial or imperial—and no other form of rule. Engelbert recognizes that differences among various localized political groupings reflect natural, cultural, linguistic, and geographic diversity. But he points out that such differences inevitably generate competition, conflict, discord, and ultimately warfare. The disturbance of the peace and spread of injustice resulting from localized political institutions hence violate the very purposes for which government was created (Engelbert 2000, 66–80). By contrast, the presence of a unitary global regime eliminates intranquility and promotes an established system of justice and rectification. Engelbert carefully considers the counterarguments favoring the emerging territorial political systems in Europe, yet finally refutes them as incongruent with the telos of politics itself. The ordering of both the natural and the supernatural worlds points to the validity of submitting to the rule of a single, universally acknowledged empire and emperor in the political realm as well. Once the submission of all people on earth to a single dominus mundi is accomplished, all of the attendant fruits of peace will be attained. According to On the origin and end, human happiness may only be achieved under world monarchy. Happiness is understood by Engelbert as the greatest good of any regime. A community may be counted happy when its ruler is contented with his possessions and station, and thus has a quarrel neither with his own subjects nor with other countries. Such happiness exists when three conditions are met: sufficiency, tranquility, and security. If a ruler is materially self-reliant, undisturbed by complaints, and assured in his office, the conduct of public affairs will accord with human happiness in the political sphere. The Roman Empire distinctively meets these criteria. Its existence is not, in Engelbert’s view, the consequence of violent domination. Rather, it affords the quintessential example of a regime that fulfilled the dual goals of both justice in the acquisition of power and justice in administration. All Roman territorial expansion

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resulted from either just war, inheritance, or voluntary subjection. Moreover, once acquired, these territories were always governed justly.

William of Ockham A very different rationale for the legitimacy of the Holy Roman Emperor was offered by the Franciscan theologian and philosopher William of Ockham (1287–1349). One element of Ockham’s overall project was the defense of the rights of the Roman Empire and its emperor independent of the Roman Church and its papal head. One strategy employed by proponents of papal primacy was to assert that, prior to the time of Christ, no exercise of political jurisdiction by the great empires of the past (and especially Rome) was legitimate. Instead, their rulers, on account of their infidelity, were by definition tyrants, because they did not and could not hold their authority from God. (The corollary, of course, is that the pope, by virtue of his standing as the successor to Christ, enjoyed absolute lordship over the entire world, and thus determined who might rightfully exercise earthly power.) In a work entitled Short Treatise on Tyrannical Government, composed sometime after 1334, Ockham set out to refute this position. The main argument of the Short Treatise required the demonstration that the Roman Empire even before the lifetime of Jesus had a valid claim to power and, therefore, was not tyrannical. Ockham contends that rightful authority may have been decreed by divine means before the birth of Christ (Ockham 1992, IV.4–7). This may happen in three distinct ways: (1) conferral by God directly (as in the case of Moses); (2) bestowal by God’s direct command, but through human agency (e.g., baptism); and (3) approval by human endorsement alone, with the permission of God (Ockham 1992, IV.5). An instance of the latter, Ockham says, is when imperial potestas is assigned “through men voluntarily subjecting themselves to an emperor and giving him jurisdiction and power over themselves,” that is, “established by human ordinance” (Ockham 1992, IV.8). Interestingly, he ascribes the capacity of human beings to achieve this result to the fact that “from God and nature all mortals born free and not subject to anyone else by human law have the power voluntarily to set a ruler over themselves” (Ockham 1992, IV.10). In other words, the inherent volition that mankind (or at least some subset thereof) possesses permits it, or some portion thereof, to consent to the terms of its own governance without contradicting the divine origin of this authority. Since one of the possible sources of imperium stems from the free approval of subjects, empires in pre-Christian times need not be tyrannical at all. Slightly later in the same section of the Short Treatise, Ockham returns to this point, and couples it to another possible justification for the existence of empire: just war. In his view, either or both readily explain the establishment of Rome’s empire: “Perhaps some provinces, seeing the utility which could come to the whole world from Roman rule, voluntarily submitted to them, and perhaps others

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were subjected by just war” (IV.10). His account of the potential causes for the institution of empire liberates it from the charge of tyranny. But Ockham remains unsatisfied with the edifice that he has constructed. He remarked earlier in the section that imperial power “was sometimes exercised tyrannically” without damage to its legitimacy (Ockham 1992, IV.7). Several chapters later, he repeats his concern that tyranny is not necessarily entailed when “the emperor sometimes abused his true and legitimate power” (Ockham 1992, IV.10). In order to forestall the potential objection that abuse of office equates to tyranny, he posits a hypothetical. Let us suppose, he says, the worse case scenario that the Roman Empire was in fact created as the result of nothing more than the exercise of naked military might without any reference to consent or justice. The conclusion to this postulation would seem to be that if “the Roman Empire was from the beginning tyrannically usurped, it did not afterwards become valid, so as to be judged true and legitimate” (Ockham 1992, IV.9). Incorrect, says Ockham. To draw such an inference is to commit the genetic fallacy, namely, the supposition that something’s history, origin, or source determines its nature in perpetuity. Thus he supplements his contention that no evidence exists to support the view that “in the beginning of their empire the Romans oppressed others unjustly by force” with the further deduction that “even if they had, it could not be inferred from this that they did not afterwards get true empire over those they had previously oppressed …” (Ockham 1992, IV.11). Although Ockham expresses some uncertainty about whether the empire was legitimate from its origins, or whether Rome’s initial conquest later became rightful, he is utterly convinced that, by the time Julius Caesar and Octavius Augustus came to power, not a hint of tyranny tainted it. Perhaps imperium had pertained to Rome throughout its history or perhaps it was a later accretion. It is a matter of indifference to Ockham, so long as he can prove that the empire was no tyranny and the emperor no tyrant even before the birth of Jesus, and thus that any papal claim to temporal authority derived from the alleged injustice of Roman rule in pre-Christian times was unwarranted and false.

Nicholas of Cusa A final illustration of the diversity of the strategies employed by medieval thinkers in the defense of empire is afforded by Nicholas of Cusa’s Catholic Concordance, composed in 1433 and 1434. Cusa was one of the great philosophers, theologians, and churchmen of the fifteenth century, an eclectic intellect who is sometimes regarded to be a pivotal figure in the transition from medieval to early modern thought. Cusa wrote the Concordance in the context of the Council of Basel, which, like several of its predecessors, had been called together to consider matters of church reform, with its authority based in the doctrine of conciliarism, that is, the supremacy of the General Council over the pope in all matters concerning the faith. Not surprisingly, conciliarism had

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produced a rift in the church inasmuch as it directly challenged overweening papal power. The reigning pope, Eugenius IV, decreed that no council could be legitimate without his authorization, which he denied to Basel; the Council responded that it and it alone was infallible and did not require prior papal approval. Cusa addressed these issues in the Concordance, which is composed of three books. The first concerns the harmonious organization of the Christian church; the second contains an explication and defense of the conciliar supremacy over the church and, especially, the pope; and the third investigates the role of the emperor in convoking and participating in a General Council. What has all of this to do with Romanist universalism? To a far greater extent than Dante, Engelbert, or Ockham, Cusa posited explicitly the necessary role played by the Roman Empire in establishing and maintaining the respublica Christiana itself. The imperial form of government, according to him, derives from its spiritual calling. But this does not entail that the emperor was subservient to the pope. In order to make this case, Cusa initially posits a hierarchy of historical regimes stretching from the king of the Tartars— who “is the least worthy because he governs through laws least in agreement with those divinely instituted”—through Islamic governance to Christian monarchs. On top of the pyramid, “according to the standard of holiness of rule, I maintain that the authority of the [Roman] Empire is the greatest” (Cusa 1991, 237). He reasons that the chief purposes of all rulers, and especially of Christian kings, are the maintenance of religion and the promotion of eternal ends; all other goals of government are “subservient.” Thus, “our Christian empire outranks the others, just as our most holy and pure Christian religion in highest in holiness and truth. And as every kingdom and prince should care for his kingdom, so the emperor should care for the whole Christian people” (Cusa 1991, 237–238). Other Christian princes are therefore beneath the Roman emperor and must submit to him in matters concerning the protection of Christ’s church (Cusa 1991, 239). Imperial authority must extend to all Christian believers: “Because he is guardian of the universal faith and the protector of universal statutes [canons] which could not be effectively executed without a ruler over all, and since the universal statutes respecting the Christian faithful bind all faithful Christians to maintain and apply them, all are subject to the emperor’s rule insofar as he is established to maintain those directives” (Cusa 1991, 239–240). Such a universal jurisdiction stems from the fact that “the whole Christian people” transferred power to him to act as enforcer of canon law and “guardian of the faith” (Cusa 1991, 238, 239). In these matters, little room would appear to be afforded for national governments to exist as anything other than local agents of the emperor. Yet Cusa is careful to stipulate that the honor due to the empire, and hence its universalistic character, pertain only to its status and functions in the spiritual realm. To the extent that political rule naturally and necessarily involves non-religious functions that properly pertain to Christian and nonChristian regimes alike, all rulership is legitimate insofar as it performs the tasks necessary for ensuring earthly well-being. In the performance of such

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purely temporal duties, the emperor’s authority derives not from God and the Christian people, but from the natural, rational justification for governance previously discussed. Cusa’s distinction between the spiritual role performed by the emperor and the earthly responsibility of rulers in general undercuts univeralism at the latter level, and even sanctions localized variations in government. The emperor’s “power to command,” Cusa asserts, “does not extend beyond the territorial limits of the empire under him,” citing a decree of the Carolingian Emperor Louis, who, although he “describes himself as emperor,... issues commands only to the inhabitants of the kingdom of France and the Lombards who were his de facto subjects” (Cusa 1991, 235). Even the claim made on behalf of the Roman emperor “to be lord of the world as ruler of the empire that the Romans once conquered by their valor” must be tempered by the fact that Rome never extended its conquests to the larger part of Asia and Africa that, if not heavily populated (to Cusa’s knowledge), are of great geographic expanse (Cusa 1991, 235–236). The only reasonable conclusion is that the phrase “lord of all the world” must be interpreted narrowly and figuratively in its application to the emperor: “If rulership is only rightly possessed through the elective agreement of the subjects as argued above, then he is only lord over those who are actually subject to him and we should conclude that the emperor is lord of that part of the world over which he exercises effective authority” (Cusa 1991, 236). Cusa never questions the legitimacy of the political rights enjoyed by the many kingdoms of the world beyond the boundaries of the Western empire nor does he insist upon a global reach (even potentially) for the temporal authority of the emperor. This is implied, for example, in his explanation of the emperor’s right to arrange the seating of other temporal princes in attendance at a General Council: “The ranking of the secular participants depends on the emperor, since everyone, including those not otherwise subject to him, is under him in the council because of his role as protector of the council. Therefore he has jurisdiction over all of them” (Cusa 1991, 260). But that jurisdiction stems purely from the sacral dimension of the imperial majesty. The emperor’s duty as protector of the Catholic faith has no corollary in a secular responsibility for all the peoples of the earth, because the latter requires public consent that has not been given, whereas the permission of the body of Christian believers authorizes the former. Consequently, Cusa clearly believes that the scope of the imperial jurisdiction in Europe possesses a purely political (that is, historical and conventional) character. In a series of chapters tracing the decay of the empire since the time of Emperor Otto I, the Concordance demonstrates how the extent of the emperor’s authority has both grown and shrunk according to the provinces that have placed themselves under its guardianship. Initially, the domains under Otto I’s command included “the kingdom of Italy and the Lombards, the kingdom of Burgundy” as well as “the kingdom of the Germans of which his father, Henry, is supposed to have been the first king” (Cusa 1991, 287). Gradually, other peoples—Cusa names the Hungarians, Bohemians, Danes,

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Norwegians, Poles, and Prussians—placed themselves under the empire on account of its unparalleled ability to make effective its laws and uphold communal peace and order. Their rulers, on Cusa’s account, became imperial functionaries: “It was also decreed at that time that princes, dukes, and counts should be appointed to public office at the command of the emperor and should be removable at his will with an obligation to give an account of their ministry to the public treasury” (Cusa 1991, 289). He describes virtually a “golden age” of imperial majesty and honor in which “everything tended to the public good” (Cusa 1991, 290). In more recent times, by contrast, the empire is in a state of decline and decay. Not only have those nations that once submitted to the emperor and his laws withdrawn their consent because peace is not maintained, but even the imperial princes within Germany have asserted their autonomy and claimed rights formerly reserved for the emperor. Cusa laments, “A mortal disease has invaded the German empire and unless an antidote is found at once, death will surely follow. You seek the empire in Germany and you will not find it. As a result others will take our place and we will be divided and subjected to another nation” (Cusa 1991, 295). A restoration of a “lord of all the world,” even if such a creature had ever existed, is the least of his concerns. Cusa consequently calls for immediate reform of the (German) empire to promote its recovery. Such a restored empire would still be by no means a universal (or even trans-European) one: it encompasses only Italy, Lombardy, Burgundy, and the whole of Germany—that is, the original extent of Otto I’s jurisdiction—of which Cusa had earlier said “our empire is composed” and which “have maintained fidelity and loyalty to it” (Cusa 1991, 287). Such reform is a far cry from the universalism that has been ascribed to Cusa. And indeed, the closing chapters of Concordance read like nothing so much as a blueprint for the building of a federated nation, with proposals for national and regional assemblies (complete with a sophisticated balloting system), a customs union, fiscal administration and tax-gathering, and a paid national army. Cusa recognizes that the foundation of popular consent to earthly government means that even if such a far-flung empire did once legitimately exist, its validity has been eroded by later patterns of communal choice. While he may value universality as a quality necessary for the sake of the church, he admits that a global system of temporal government cannot be justified as the permanently “best” or “ideal.”

The Waning of Medieval Universalism Cusa perceived very clearly the emergence of more or less autonomous national kingdoms in Northern Europe as well as the growing self-confidence of urban political institutions in Italy. Such developments would seem to mark the death-knell of any serious imperial claims on the part of the Holy Roman Empire, as one finds rulers proclaiming themselves to be “emperors in their own lands.” In fact, however, the situation was more complex than

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this scenario suggests. The office of the emperor still commanded a respect and reverence that probably appears to a contemporary observer to be out of all proportion to the empire’s real political clout. While a territorial king might exercise the powers of imperium in a geographically confined region, this phrase only suggested a kind of analogy to explain the relation of the ruler to his realm: he was like an emperor in his lands, not a replacement for the emperor. No medieval king or his apologists ever dared claim that the emperor was dispensable. Indeed, to do so might lead one to question the basis for the allegedly emperor-like qualities ascribed to national monarchs. It should be evident that the way in which medieval authors conceived of international political order correlated closely with a wide range of other beliefs and assumptions—about religion, nature, law, and the like. To discuss ideas of empire during the Latin Middle Ages without reference to this broader intellectual context produces a caricature of the devotion to imperial ideals that lingered well after their “practical” application (understood in essentially modern terms) evaporated. Is this to reduce medieval theories of imperial government to anachronisms? Surely not. The terms under which empire was discussed by medieval thinkers continued to shape European thinking into the seventeenth century and beyond. Not merely in the work of such perceived eccentrics as Thomas Campanella (Headley 1997), but even in the writings of serious philosophers on the order of Leibniz and Wolff (Muldoon 1999, 7– 8), adherence to some doctrine of universal empire, couched in recognizably medieval terms, is evident. Many in recent times who have sought to formulate models of global governance owe more than they usually realize to the discourses of empire emanating from the Latin Middle Ages.

References Cusa, Nicholas of. 1991. The Catholic Concordance. Trans. Paul E. Sigmund. Cambridge: Cambridge University Press. Dante Alighieri. 1996. Monarchy. Trans. Prue Shaw. Cambridge: Cambridge University Press. Engelbert of Admont. 2000. On the Rise and End of the Roman Empire. Trans. Thomas M. Izbicki and Cary J. Nederman. In Three Tracts on Empire, ed. Thomas M. Izbicki and Cary J. Nederman, 37–94. Bristol: Thoemmes. Giles of Rome. 2004. On Ecclesiastical Power. Trans. R.W. Dyson. New York: Columbia University Press. Headley, John M. 1997. Tommaso Campanella and the Transformation of the World. Princeton: Princeton University Press. Ladner, Gerhart B. 1982. Terms and Ideas of Renewal. In Renaissance and Renewal in the Twelfth Century, ed. Robert L. Benson and Giles Constable, 1–33. Cambridge, MA: Harvard University Press. Muldoon, James. 1999. Empire and Order: The Concept of Empire, 800–1800. New York: St. Martin’s.

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Ockham, William of. 1992. A Short Discourse on Tyrannical Government. Trans. Arthur Stephen McGrade and John Kilcullen. Cambridge: Cambridge University Press. Tierney, Brian, ed. 1988. The Crisis of Church and State 1050–1300. Toronto: University of Toronto Press.

CHAPTER 7

Crusader–Muslim Relations: The Power of Diplomacy in a Troubling Age Suleiman A. Mourad

The span of two centuries between 1095 and 1291 is generally called the Crusader period.1 It witnessed a series of clashes between European2 and Muslim powers in the coastal eastern Mediterranean. The Crusaders, as they were later dubbed, were driven by a variety of motives and exploited by the Papal See (or factions within) to assure Rome’s domination over European politics and society. Nevertheless, far from being a passive or obedient flock, the Crusaders had their own ambitions, which played out in the course of the period’s history, be that in Europe or the Mediterranean world. Likewise, the Muslims’ reactions to the Crusades varied from animosity to indifference to amity, and were impacted by internal dynamics and rivalries. Warfare was one of the realities at the time but it was not between two camps: Muslims vs. Crusaders. It is not common to find instances when 1 Leading scholars of the field today realize that this time span is incorrect, since “crusading” persisted well after the thirteenth century, and crusader attacks against the coastal eastern Mediterranean remained a reality throughout the fourteenth century (on these issues, see Housley 2006; and Jotischky 2014). I use it here to mean the period that witnessed a heightened level of military confrontation between Muslims and Crusaders. 2 My use of “Europe” and “European” are simply for convenience. The reader should not give them any specific meanings other than as a geographical reference.

S. A. Mourad (B) Smith College, Northampton, MA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_7

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Crusaders and Muslims fought each other without having members of one side fighting alongside or in alliance with the other. It is also the case that Muslim chiefs spent much more time contesting each other than they did fighting the Franks, as Muslim sources referred to them. Similarly, the Crusader leaders sometimes sought alliances and truces with the Muslims in order to fend off rivalries within. Therefore, when we speak of the two sides (Muslims and Crusaders), the designation is neither absolute nor concrete. It should be understood in a very general sense of two groups, with a vague notion of nominal unity and an abundance of internal divisions and rivalries. This chapter examines the channels of diplomacy between Muslim and Crusader leaders, which resulted in countless treatises and truces concluded between them during the twelfth and thirteenth centuries, and their impact on Crusader–Muslim relations. It argues that the treatises and truces were motivated by a variety of factors and helped establish a pattern of diplomatic relations, which observed the rulers’ legitimacy, territorial sovereignty, and subject citizens, and which often placed legal and political restrictions on military conflict. In some ways, we can call that international relations in a very broad sense. This diplomacy also gradually led to more European actors unwilling to join or participate in campaigns against the Muslims in the eastern Mediterranean, which was one of the factors that made the Crusaders’ presence there unsustainable, resulting in the collapse of their territories in coastal Syria3 and Palestine in the late thirteenth century. This chapter, therefore, aspires to open up a new way of studying and thinking about the period that scholars of the Crusades have not considered in any serious manner. Instead of seeing it as a period of continuous warfare and as a model of the clash of civilizations, we ought to study the period as one of war and peace, whereby certain principles of diplomatic and political relations between the different powers started to emerge and be recognized by the various actors. The chapter will focus on the most important aspects of this diplomacy as discussed in Muslim sources from the period: the religious and legal justification for peace, examples of negotiations and diplomatic missions and their outcomes, the image of the Crusaders, and the question of sovereignty of Crusader territories.

Conceptual Issues First The topic of this chapter can be controversial. It is always risky to apply modern concepts to the events of the distant past, for that raises the problem of anachronism. The issue lies in the legal and theoretical meanings of the modern concepts, and it is here where the inadequacy lies. So, if we refrain 3 At that time, Syria referred to the geographical span that included what is today Syria (except the northeastern part which at the time formed part of northern Mesopotamia or al-Jazira in Arabic: today northern Iraq, northeastern Syria, and southeastern Turkey), as well as Lebanon, Israel, Palestine, and most of Jordan.

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from imposing the strict legal or theoretical signification of a concept, and use it in a broad and general sense, it might help draw our attention to certain aspects of historical events that were never examined as such, leading to a more nuanced and complex understanding of them. The notions of diplomacy and international relations can be tricky if one understands them in a narrow sense. As we all know, nation states are modern phenomena, with their roots in the Treaty of Westphalia in 1648 and did not exist as such before that, unless, of course, we are willing to take the concept of “nation state” in a broad meaning. This can be a useful tool to examine the Crusader–Muslim relations because all the actors at the time belonged to political entities, each having its own understanding—however flexible—of its legitimacy, sovereignty, apparatus, territory, subject citizens, and relations with the political entities around it and beyond, and this understanding was often reciprocated. There is as well the problem of measuring diplomacy and international relations at that time with the conceptual and legal parameters that were fashioned around them in the modern world. Here I am talking about international law, court of human rights, the UN, and similar legal structures or vehicles, which, in theory, are meant to assure certain level of compliance and deterrence. However, none of this actually means an existing reality in the absolute sense in as much as it is a desire to create it (albeit one might say that, since postWorld War II, the laws of international relations systematically exist among the countries of the Global North, who do not generally observe them in their relations with the Global South). After all, international relations in modern times have been exploited by powerful countries, even though many individuals and entities might condemn the exploitations as illegal, but often they lack enforcement and are powerless to stop them, as was made evidently clear during the administration of the American President Donald Trump. One can also raise the issue of the adequacy of modern approaches to the study of the period, which often result in imposing modern ways of thinking and academic conventions on past events. If we take Islam as a case in point, scholars today invariably insist on defining Islam in order to determine its position vis-a-vis certain issues or groups and subsequently envisage the Muslims’ behaviors and reactions. Such a tendency exposes a conceptual confusion about Islam and the Muslims very common among modern historians and scholars of religion, and other fields as well. We often forget that there was/ is never an Islam, but rather many Islams, and that the use of “Muslims” as an analytical tool is problematic to say the least. How would a modern definition of Islam help us, for instance, determine a priori if the Muslims were to accept or reject the Franks at the time? If they had a disposition for peace or war with them? Etc. It is not my intention to say that we cannot use “Muslims” and “Islam” as analytical tools, but rather that the more we presuppose in them specific meanings and assumptions, the more they become distorting instead of constructive for our purposes, and worse they engender stereotypes and false generalizations.

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Moreover, Islamic thought and legal reasoning reflected the views of scholarly and political elites who were exclusively men. A common mistake is to assume that their views represented the entire society, were uniform and thus definitional of what is Islamic. Major variations and differences not only existed/exist between the different sects and subsects, but within each one. Furthermore, Islamic Shari⊂a law was varied.4 We cannot take the teachings of a specific group, say Sunni Shafi⊂is,5 and presume they should apply to all Muslims, such as the Shi⊂i Fatimids,6 and assess the latter’s relations with the Crusaders from the perspective of Sunni law. In this respect, disagreement regarding peace and diplomacy with the Crusaders cannot be explained on the basis of sectarian division within Islam, for every branch of jurisprudence has conflicting religious teachings as to how to react to an invading enemy. These questions are very relevant to the way we should study and understand diplomacy and treaties between Muslims and Crusaders. Muslim leaders who were involved in them never thought that Islam banned negotiation, diplomacy, or peacemaking with the Crusaders. What proves this simple fact beyond any shadow of doubt is the enormous number of diplomatic missions, truces, and alliances (on this, see Köhler 2013), which featured the quintessential contribution and involvement of Muslim religious jurists and scholars who knew well and practiced Islamic law. Certainly, there were jurists and scholars who insisted that such contacts with the “infidels” were un-Islamic. If we say the former group were not good Muslims whereas the latter group were the good Muslims (e.g., Mallett 2014), then we impose our own essentialist views on past events and people (on this problem in modern scholarship on the Crusades, see Mourad 2020a). As far as we can judge, all of these groups represented this collective that we call Islam and Muslims, and each group drew on Islamic religious sources to justify its actions and beliefs, which were not always coherent. Similarly, the question of the duration of truces signed between Muslims and Crusaders can be misconstrued if we only look uncritically at Islamic Shari⊂a law manuals, many of which give the maximum length of a truce with non-Muslim states as ten years (e.g., Ibn Qudama, al-Mughni, 9: 297). What is often missed is whether the ten years can be renewed indefinitely and 4 Islamic Shari⊂a law was a complex legal system devised by the Muslims over the centuries, which addressed religious and secular matters. Each sect or branch developed its own understanding of what it is and on what it is based: sources, theoretical framework, and practical application (including courts, judges, notary publics, etc.). Shari⊂a law today is not practiced by the overwhelming majority of Muslims except for some very private matters. 5 The Shafi⊂is were one of the five official branches of law in Sunnism. They are the Hanafis, Malikis, Shafi⊂is, Hanbalis, and Zahiris. The other main Islamic sect, Shi⊂ism, divides into several subsects as well. 6 The Shi⊂i Fatimid dynasty ruled Egypt and parts of greater Syria and western Arabia between 969 and 1071. They promoted a subsect of Shi⊂ism called today Isma⊂ilism. They are different from the Twelver Shi⊂is of countries like Iran, Iraq, and Lebanon, or the Zaydi Shi⊂is of Yemen. Their rule of Egypt ended in 1171.

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whether the historical practice gives us different understandings of those limits. The Hanbali7 scholar Ibn Qudama (d. 1223), for instance, who was one of the most influential Sunni jurists in Syria during the Crusader period, argued that the notion of maslaha (what is in the best interest of Muslims) allows a truce to be renewed beyond the ten years, like in the case of rent (Ibn Qudama, al-Mughni, 9: 297). Moreover, in truce documents (as discussed below), we find a limit close to 11 years. Therefore, the issue that a treaty can only be for a fixed number of years does not mean that the Muslims did not have a concept of permanent peace or no such thing exists in Islamic law. We misinterpret our sources if we assume otherwise, by giving them meanings they do not necessarily have (on this problem, see Köhler 2013, 291–312). Finally, we do not possess any of the original documents of the treatises and truces signed between Muslims and Crusaders during the period under examination. The evidence for them comes from Muslim and Crusader chronicles, letters, and other sources, which often discuss diplomatic missions, truces, and treatises, though mostly without reproducing their terms fully. In some cases, one can piece together the details of a certain truce or treaty from different sources. Yet, this does not disqualify our effort to study them, for we have enough information to address some of the questions this chapter tries to answer, and determine the impact of diplomacy on the relations between Muslims and Crusaders.

Justifications for Peace During the Crusader period, an active diplomacy took place between the various Muslim rulers in Syria, Egypt, and northern Mesopotamia, and the different Crusader leaders in the Middle East and Europe (for some examples, see Köhler 2013). It addressed many issues that needed to be resolved, such as conflicts, ransoming of captives, commercial, and financial grievances, and also featured in some cases exchange of knowledge and gifts. The justifications Muslim scholars gave for peace with the Crusaders have not been studied in modern scholarship in any serious manner. It is an aspect that requires an extensive inquiry in order to fully understand its religious and legal reasoning, impact and ramification. Nevertheless, a preliminary examination of a few contemporary Muslim sources might give us some ideas of how truces and treatises concluded between Muslim and Frankish rulers were explained and their legal bases. As noted earlier, the notion of maslaha, that is what a Muslim leader deemed to be in the best interest of the Muslims (collectively or as a community in a specific area), was ground for concluding peace with an enemy, as we 7 Sunni Islam generally emphasizes orthopraxy namely the need to live one’s Islam by fulfilling the correct religious practices and rituals and heeding Islamic Shari⊂a law. Since the ninth century, Sunnism was shaped around five branches (Hanafi, Maliki, Shafi⊂i, Hanbali, and Zahiri), with each branch having its system of jurisprudence and legal apparatus.

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saw earlier in the position of jurist Ibn Qudama. In some cases, we come across the cognate notion of “the wellbeing of the Muslims” invoked or alluded to in the recorded deliberations among Muslim religious and military elites regarding peace treatises or truces with the Crusaders. For instance, Saladin’s advisors urged him to conclude a truce with King Richard the Lionheart because “the troops are exhausted and discontent of fighting, and they have consumed or lost most of their arms, rides and wages” (Ibn al-Athir, al-Kamil, 10: 111; Chronicle, 2: 401–402). Another Muslim chronicler, Ibn Wasil (d. 1298), quoted the letter Richard wrote to Saladin asking for peace, in which the King made it a point that he was not doing so out of weakness, but rather he was seeking what is in the best interest of both parties, and that it is not permissible for either monarch to insist on war and risk killing or wounding his own followers (Ibn Wasil, Mufarrij 2: 390–391). Similarly, at the end of the Fifth Crusade (1218–1221), whose initial target was the capture of the town of Damietta and conquest of Egypt, the Muslim generals pressured the Ayyubid Sultan al-Kamil (r. 1218–1238) to attack and slaughter the helpless Crusader army. Al-Kamil, however, refused and explained that letting the Crusaders go was a better strategy because it is in the best interest of the Muslims: These here are not all the Franks. If we were to kill them, we would not be able to liberate Damietta except after prolonged fighting. Their kings beyond the sea and their Pope would get the news of what happened to them and will dispatch against us manifold the number of these ones. Our troops are discontent of war and exhausted. (Ibn Wasil, Mufarrij al-kurub 4: 97)

Theoretical discussions in Islamic law manuals from the period give the legal basis that sanctioned the settlement of conflicts by recourse to negotiations and truces, and which would have been known to the actors involved. Ibn Qudama, for example, argued that peace with the enemy is permissible and can be achieved on the basis of a mutual agreement without payment of money or entails money paid by the enemy to the Muslims. As for money paid by the Muslims to the enemy in return for peace, he contended that: It is only permissible if necessity (darura) requires it, such as fear that war might lead to Muslims being killed or taken hostages. For paying money to the enemy is a humiliation, which might be tolerated in order to avoid a worse humiliation, such as killing, imprisonment, or enslavement which leads to unbelief. (Ibn Qudama, al-Mughni 9: 297–298)

Similarly, Zayn al-Din al-Razi (d. after 1267), who was a notable Hanafi jurist and lived in Egypt and Syria, argued that the leader of the Muslims has the authority to conclude peace with the enemy, either for no money, for money paid to the Muslims or by the Muslims. He also argued that it is not permissible to sell the enemy weapon and horses, even during peacetime, yet

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it is permissible to sell them food and clothes (Zayn al-Din al-Razi, Tuhfat al-muluk 181). It is important to emphasize that such juristic sources constituted scholarly studies of the legality of peace in Islam similar to what we might call today scholarly research. They were not written in direct reference to or because of the Crusades. Yet, they formed part of the theoretical and legal knowledge of contemporary jurists and were consulted as sources of Islamic Shari⊂a law. They also furnished the textual basis of the legal reasoning of the jurists who were involved in diplomacy and negotiations of truces and treatises at the time. Aside from the notions of maslaha (what is judged to be in the best interest of the Muslims) and darura (necessity), verse 8.61 of the Qur⊃an—If they seek peace, accept and put your trust in God—was often invoked to legitimize and substantiate not fighting the Crusaders and seeking peace with them. For instance, when Saladin decided in 1179 to attack the fortress that the Crusaders had built in Bayt al-Ahzan near Mount Hermon in northeastern Palestine, his advisors told him: “if they ask you for a truce, agree, for God said: ‘If they seek peace, accept’” (Abu Shama, Kitab al-Rawdatayn 3: 19). Saladin, however, did not heed the advice. In another instance, he obliged. It was in 1188 when Prince Bohemond of Antioch proposed a peace to Saladin, and the generals and jurists urged the Sultan to accept it by invoking the said verse, even though he was inclined to the contrary (⊂Imad al-Din al-Isfahani, al-Fath al-qussi 141). Similarly, during the negotiation with King Richard, Saladin’s court advisors pushed him to accept peace, by saying: It is more advisable that we accept what God had said in the verse which he revealed, namely “If they seek peace, accept it.” For only then people could go back to their lands and raise crops. Troops could replenish their supplies and get respite from the vicious conflict. Should war resume, we will be ready and well prepared, with food and fodder, not exhausted or penniless. For it is during the days of peace that we get ready for war and prepare the instruments of fighting. It is not an abandonment of religious duties, but rather a period of renewal and improvement. As for the Franks, they are deceitful and do not observe their oaths. Make truce with their leaders so that they leave and disperse. (⊂Imad al-Din al-Isfahani, al-Fath al-qussi 315)

It is clear from these examples that Muslim rulers recognized that their best interest (and that of their subjects) was by achieving peace with the Crusaders, even in instances when the Franks initiated violence. It was not purely pragmatism and realpolitik though. For instance, historian Ibn al-Athir (d. 1233) reported on the Crusaders’ siege of Damascus in 1148, which was the major actual target of the infamous Second Crusade. He said that when the siege toughened, the de facto ruler of Damascus Unur wrote a letter to the local Franks to remind them that what he and they had in common was more than what they had with the freshly arriving Germans. He penned:

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By what logic do you assist these against us? You know well that if they were to capture Damascus, they would too seize the coastal lands that you control. As for me, if I weaken in defending the city, I will turn it over to Sayf al-Din.8 And you know well, if he were to capture Damascus, you will not keep a foothold in Syria with him. (Ibn al-Athir, al-Kamil 9: 158–160; Chronicle 2: 21–22)

Unur was subtly reminding the local Franks of the alliance between Damascus and the Kingdom of Jerusalem, which was based on a long truce, albeit not always enforced. He also urged them that unless they aid each other, more powerful rulers will dominate the region. To sweeten the deal for the local Franks, Unur gave them the castle of Banyas (Belinas) in northeastern Palestine. The next day, they withdrew, which led to the collapse of the siege and the angry withdrawal of King Conrad and his German army. A few weeks after that, Ibn al-Athir informed us, Unur and Nur al-Din9 marched with their troops to lend a vital hand to Count Raymond II, who was on the verge of losing his base in the city of Tripoli (in Lebanon today) to a Frankish opponent. Jointly, they were able to crush the force of Raymond’s challenger and assured the Count remained in power (Ibn al-Athir, al-Kamil 9: 160–161; Chronicle 2: 22–23). One might be tempted to dismiss each one of these examples as an absurdity, except that when we examine the entire period with an open mind, not with preset judgments, we find many such rapports between Crusader and Muslim rulers. The reports discussed above and countless ones like them in Arabic (and also in European) sources point to the open channels of diplomacy that existed at the time. They also record the many alliances that were formed between actors on both sides, and the reality that some rulers realized they were like smaller fish in comparison to much more powerful sovereigns, and therefore they stood to lose should the latter ones manage to get their way. Thus, sometimes, diplomacy was an effort to save resources in order to fend off much bigger threats. This extensive diplomacy led to truces and amicable treatises between the Muslims and the Franks that opened up space for trade, exchange of knowledge, and security to travel in each other’s dominion. Spells of alliances, quasi-peace, and truces between the supposed two camps were stunningly frequent. This was only possible because the terms of these treatises that Crusaders and Muslims drew called for the cessation of hostilities for a fixed period of time, reaching more than 10 years, and sometimes they were renewed. Their impact was evident on the reduction of hostilities, and even on curtailing the efforts of several Popes to make new calls for Crusader campaigns, as we will see below. Indeed, the Popes were often forced 8

Sayf al-Din son of Zangi (d. 1149) was the most powerful ruler at the time in the region. He ruled from the city of Mosul and controlled a major part of northern Mesopotamia. 9

Nur al-Din son of Zangi (d. 1174) was Sayf al-Din’s younger brother, and became the undisputed Sultan of Muslim Syria and northern Mesopotamia after he captured Damascus in 1154.

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to command the Crusaders who heeded their calls to wait until truces with the Muslims expired before initiating war. In other words, Rome felt obliged to respect the truces, even when the Church was against them, which points us to an understanding about the power of medieval diplomacy in setting up certain rules in terms of compliance without ever having a force or body (like today’s UN) to assure compliance.

Sultan Al-Kamil and Emperor Frederick II The negotiations conducted between Sultan al-Kamil and Emperor Frederick II and the subsequent treaty they signed are probably the best example of this pattern of medieval diplomacy and relations between the powers at the time. The fascinating thing about them is that they established a truce that endured after al-Kamil died in 1238 and Frederick in 1250, as if the actors involved realized they were between “states” and not between individual monarchs. Open diplomatic contacts between al-Kamil and Frederick started in 1226 when the Sultan dispatched his closest advisor and general Fakhr al-Din Ibn al-Shaykh to Sicily to try to negotiate a treaty with the Emperor. The offer Fakhr al-Din brought featured a peace between the two camps in return for handing over the city of Jerusalem; it was similar to one al-Kamil had earlier proposed to the leaders of the Fifth Crusade but the dominant faction therein rejected it (see below). Frederick warmed up to the idea and reciprocated by sending his confidants Count Thomas of Acerra and Archbishop Berard of Palermo to Cairo to meet with al-Kamil. Frederick had instructed the same delegation to proceed to Damascus to meet its ruler al-Mu⊂azzam, who was al-Kamil’s brother and controlled most of central and southern Syria, including Palestine. The Emperor was eager to secure that the two main powers in the eastern Mediterranean were on his side. Al-Mu⊂azzam met with Thomas and Berard and accepted to cede to Frederick all the land around Jerusalem, from the Jordan River to the Mediterranean (Sibt Ibn al-Jawzi, Mir ⊃at al-zaman 8.2: 654; al-Nuwayri, Nihayat al-arab 151–152). His infamous words to Frederick’s envoys—“tell your master I only have for him the sword” as repeated by some chroniclers (e.g., Sibt Ibn alJawzi, Mir ⊃at al-zaman 8.2: 643)—were nothing more than public posturing (Mourad and Lindsay 2013, 96). When Frederick finally reached the Palestinian coast in autumn of 1228, allegedly on a “crusade”—popularly known as the Sixth Crusade—a few new things have transpired, none of which though undermined the broader terms of the understanding that he had with al-Kamil. The main change was the death of al-Mu⊂azzam the year before, whose son al-Nasir Dawud took over in Damascus, though his inexperience was apparent and lacked in competence and security. The new dynamic strengthened the hand of al-Kamil, allowing him to request during the last phase of the negotiations with Frederick that the Muslims retain control of the Haram sanctuary (Temple Mount) in Jerusalem and most of the surrounding countryside (Ibn Wasil, Mufarrij al-kurub 4:

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241–242; Abu al-Fida, al-Mukhtasar 141–142). Frederick acceded, and the two signed a treaty. Frederick’s visit to Jerusalem in March 1229 displays further diplomatic ties between the two monarchs. According to two contemporary sources, Frederick asked the permission of the Sultan to tour the Temple Mount. AlKamil approved and instructed the chief-judge of Nablus to meet Frederick in Jerusalem and assure that the Emperor received all due courtesy during his visit and stay in Jerusalem, including the banning of the call for prayer (adhan) in order not to offend him, which actually angered Frederick when he knew about it for he liked listening to the call for prayer (Sibt Ibn al-Jawzi, Mir ⊃at al-zaman 8.2: 655–657; Ibn Wasil, Mufarrij al-kurub 4: 233–235). Frederick brought with him to the Temple Mount a Muslim entourage, including his Muslim bodyguards. With the type of communication existing then, the preparation for the visit and securing the approval of al-Kamil must have taken some time. This points to types of channels of contacts between Frederick and al-Kamil, about which we do not have any details (i.e., how it was done and who was involved). Moreover, what transpired during the visit itself indicates deliberate planning on the parts of al-Kamil and Frederick and their court advisors, so that there is no inadvertent offense caused by or to either party. More importantly, the negotiations between al-Kamil and Frederick were not conducted in secrecy. They were known to all the main actors at the time, including Pope Gregory IX, who was kept abreast of them (see for example the letters of the Master of the Teutonic Knights Hermann of Salza, and Patriarch of Jerusalem Gerold of Lausanne to Pope Gregory IX in Barber and Bate 2010, 125–133). They also involved a large apparatus of religious scholars and military advisors. They included on al-Kamil’s side, his most trusted advisor Fakhr al-Din, who had been knighted by Frederick and carried the Emperor’s emblem on his flag until his death in the battle against the Seventh Crusade in 1250. They also featured al-Salih al-Irbili (d. 1234) who was al-Kamil’s chamberlain, and Shams al-Din al-Urmawi (d. 1252) who was chief-judge of the army and professor of Shafi⊂i law at Saladin College in Cairo, as well as other Ayyubid rulers or their representatives. This latter fact points us to the reality that, even though al-Kamil was the Sultan of the Ayyubid state, nevertheless, he realized he could not negotiate on behalf of other Ayyubid sovereigns who ruled other areas. Their participation was therefore indicative of the limits and rules that existed at the time as well as the importance of proper representation when it came to the negotiations and signing of treatises, even though we might never find them spelled out as such in any written theoretical source on government and governing. The truce al-Kamil and Frederick signed remained in effect until it expired in 1239 (it was later renewed as we will see below). All the main actors respected its duration and made sure it was not violated by their followers. For instance, when Pope Gregory launched a call for a new crusade, he made sure to remind the leaders of those who responded favorably not to proceed

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to Palestine or not to initiate any hostilities until the treaty had expired (RileySmith 2005, 154). This is rather stunning given the fact that Gregory IX was against it and had excommunicated Frederick for hesitating to lead a crusade to fight the Muslims and reclaim Jerusalem by force (as contrasted with peaceful negotiation). Similarly, on the Muslim side the main actors observed the treaty, even though some were against it when it was signed. Al-Nasir Dawud orchestrated a campaign to undermine the authority of his uncle al-Kamil for signing the treaty and giving part of Jerusalem to Frederick, and commanded some local Damascene scholars to criticize the Sultan in public (Mourad and Lindsay 2013, 98–99). Even when al-Nasir Dawud lost his grip on Damascus in 1229 and became the ruler of Transjordan, he waited until the expiration of the treaty in 1239 to attack and capture Jerusalem. But three years after that, he gave the city over to the Crusaders alongside other towns in return for an alliance with them against his cousin the Sultan in Egypt al-Salih Ayyub (r. 1240–1249) (Richard of Cornwall, Letter and Armand of Périgord, Letter in Barber and Bates 2010, 136–140 and 140–142; Ibn Wasil, Mufarrij al-kurub, 5: 332–333). As noted earlier, that these truces were respected by the main actors at the time, even when some of them disapproved of them, shows that there were limits on violence, which might suggest a fascinating level of compliance as if there existed a sense of international law that the actors felt they must observe and respect. Moreover, the peace between al-Kamil and Frederick laid down a lasting alliance between them. The treaty they signed was eventually renewed between Frederick and al-Kamil’s son al-Salih Ayyub who dispatched his court logician and jurist Siraj al-Din al-Urmawi (d. 1283) to Palermo on a diplomatic mission to Frederick, and al-Urmawi stayed there for a year. Similarly, following his accession to power the Mamluk Sultan Baybars (r. 1260–1277) sent several embassies, one of which was led by the famous jurist, logician, and historian Ibn Wasil to Barletta in Apulia in 1261, to renew the truce with Frederick’s son Manfred (r. 1254–1266), and Ibn Wasil stayed there for more than a year (Ibn Wasil, Mufarrij al-kurub 4: 234–235; and Abu al-Fida, al-Mukhtasar 141). We also know that Emperor Conrad (r. 1250–1254), son of Frederick II, hurried an envoy to al-Salih Ayyub to alert him that King Louis IX of France was preparing a crusade against Egypt (the famous Seventh Crusade in 1249–1250). Again, we do not know the exact details of these missions or if each one led to the signing of a new treaty. Nevertheless, what we see here is a pattern over several decades between 1226 and 1266; 1266 was the year when Manfred was killed and the rule of the Hohenstaufen dynasty over Sicily and southern Italy came to an end. More importantly, what we also see here is that this sustained diplomacy involved different monarchs who felt they represented in one way or another a continuity with those who came before them, and were therefore “reaffirming” the accords that were agreed before their time.

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The Third Crusade It can be argued that the deal that al-Kamil and Frederick II worked out had its origin in the treaty of Jaffa in 1192 between Saladin and Richard the Lionheart that brought a conclusion to a period of intensive warfare. Indeed, the events which unfolded from 1187 to 1192 could be described as a crisis in the relations between Muslims and Crusaders that was gradually restored through diplomacy. When Saladin rallied his troops and marched against the Crusader army in 1187, the main reason that drove him to do so was the violation of the truce he had signed with the Kingdom of Jerusalem. It was mostly the acts of one person, Reynald of Châtillon, who regularly attacked Muslim trade and pilgrim caravans in Transjordan from his base in Kerak. Despite Saladin’s appeals to Frankish leaders that Reynald’s actions compromised the truce and good will that had been built between them over the years, they failed or refused to stop him (Cobb 2014, 185). War was the only option, and it resulted in the surprise demolition of the Crusaders’ army at Hattin, which left almost all of their possessions in Palestine and elsewhere along the Syrian coast practically defenseless, including the city of Jerusalem. Saladin captured it in October of that year. The catastrophe of 1187 led to the Third Crusade. Here too, war gradually gave way to diplomacy, especially between Richard the Lionheart and Saladin, and in September 1192, the two signed a truce—the treaty of Jaffa— that lasted for 3 years and 8 months (Riley-Smith 2005, 118; and Cobb 2014, 199–203). The negotiations between them were long and, at times, clouded with suspicions, yet, there were instances when they revealed a stunning level of trust. For instance, Richard proposed to his main Muslim interlocutor, al⊂Adil, who was Saladin’s brother and right-hand man, a resolution for the question of who controls Palestine and the city of Jerusalem. It involved that al-⊂Adil marry Richard’s sister Joan, and the two would rule over Palestine. Al-⊂Adil and some of Saladin’s closest advisors relayed the offer to the Sultan and he approved of it. It did not work, however, because the priests in Joan’s entourage blocked it (⊂Imad al-Din al-Isfahani, al-Fath al-qussi 291). That such an offer was in the cards demonstrates that the Muslims and Franks at the time did not consider each other as eternal enemies. There is no doubt that Richard’s precarious situation forced his hand in the negotiations and he could not attain what Frederick II later achieved. Nevertheless, the treaty of Jaffa protected the Crusaders’ possessions in Palestine and their right of access to Jerusalem, to visit it year-round as pilgrims. Saladin knew all along, as a matter of principle and not might, that he could not stop them, which is something we see clearly in the debate about the fate of the Church of the Holy Sepulcher following the capture of Jerusalem in 1187. According to Saladin’s secretary ⊂Imad al-Din al-Isfahani, the Sultan convened a court to determine what to do with the building. A group urged him to destroy it. However, he sided with the opinion of the majority, which ⊂Imad al-Din described as such:

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The majority of his advisors declared that it should not be demolished or razed, and its gates should not be locked barring the infidels from making the pilgrimage to it. Their target of worship is the spot of the Cross and the grave (of Jesus), not the building itself. Even if it were to be shattered to pieces, the Christians in all their diversity will keep coming to the site. When Commander of the Faithful ⊂Umar, may God be pleased with him, conquered Jerusalem in the early years of Islam, he confirmed their right to the place and did not order the structure to be demolished. (⊂Imad al-Din al-Isfahani, al-Fath al-qussi 82)

It is rather clear that those who thought the Church of the Holy Sepulcher should not be harmed saw the issue from the perspective of the Muslims’ duty as rulers of Jerusalem to protect the right of the Christians to come to the Church for worship, even though it is evident that they considered the Christians as heretics. That they cited Caliph ⊂Umar—who supposedly visited Jerusalem in 638 to oversee its surrender to the Muslim army—points us to the legal basis of their opinion. ⊂Umar’s confirmation of the Christians’ right to their places of worship in Jerusalem enshrined it as a legal precedent, which most rulers and jurists later on accepted (Mourad 2019).

Post-Third Crusade Diplomacy between Muslims and Crusaders went up a notch when al-⊂Adil gradually eased his way to power, and became the Sultan a few years after Saladin’s death. In the meantime, the treaty of Jaffa expired, and Pope Celestine III issued an appeal for a new crusade. The Holy Roman Emperor Henry VI was supposed to lead it in 1197, but no sooner had it started, it was called off due to Henry’s death. The local Franks in Acre made a truce with al-⊂Adil, and Henry’s troops who had already reached coastal Palestine and occupied a few towns, left back to Germany (Riley-Smith 2005, 118–119; and Cobb 2014, 205). Efforts to mount further Crusades did not lead to any serious outcomes, especially with the infamous Fourth Crusade whose original target was Egypt, but which was redirected to capture Constantinople (which fell in 1204). The few troops who reached Palestine in April 1203 were banned by King Aimery (now based in Acre) from attacking the Muslims on account of the truce that was supposed to expire in November of that year. The hostilities that ensued between the two sides following the expiration were short and ended with the renewal of the truce in 1204 between King Aimery and Sultan al-⊂Adil for the duration of six years (Ibn al-Athir, al-Kamil 10: 200–201; Chronicle 3: 79). However, in 1207, the truce was violated when Franks from Cyprus seized a few Muslim ships. Al-⊂Adil demanded from the leaders in Acre (who controlled Cyprus) to resolve the matter, writing to them: “We are at truce. Why have you acted treacherously towards our men?” (Ibn al-Athir, al-Kamil 10: 263; Chronicle 3: 137). The tone, like in other cases, shows an understanding that each party was responsible toward the other side for what his subjects did.

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Hostilities were about to reignite, but the truce was confirmed and the issue resolved. Then again, in 1211, a new truce was signed between al-⊂Adil and John of Brienne (now King of Jerusalem on account of his marriage to Queen Maria of Montferrat, the step-daughter of Aimery), and it lasted for six years (Perry 2013, 53–58). In 1213, Pope Innocent III started the preaching for a new crusade, and the Fourth Lateran Council was convened in 1215 to plan it. His death in 1216 turned things over to his successor Pope Honorius III, and the notorious Fifth Crusade of 1218–1221 was launched. Here as well, hostilities were not allowed to go ahead until the truce between al-⊂Adil and King John had lapsed. The successes that the Crusaders achieved at the beginning, especially the capture of the strategic town of Damietta in 1219, faltered when their gamble to proceed inland toward al-Mansura turned out to be their worst nightmare. Al-Kamil could have easily annihilated the Crusader army, but instead he halted his final attack and reached out with a peace proposal. He even sent the Franks food and supplies that saved them from assured starvation (al-Dhahabi, Ta ⊃rikh al-islam 44: 30; Oliver of Paderborn, The Capture of Damietta, 88– 89.). As noted earlier, the Sultan decided to do so against the advice of some generals and jurists in his court who urged him to destroy the Crusader army. Al-Kamil’s strategy defies any simplistic explanation, especially if we were to dismiss it as purely motivated by realpolitik. At the beginning of the Fifth Crusade, the Sultan proposed a truce, and the terms were initially very favorable to the Crusaders: giving Jerusalem and its territory back, paying for the rebuilding of its fortification, and returning the relic of the True Cross, among others. The dominant faction of the Franks, thinking they could easily conquer Egypt, rejected the offer. Al-Kamil renewed it several times but without success. One might explain that these peace overtures were made under duress when al-Kamil’s forces were in retreat and his position as sultan was in danger. This, however, does not explain why he paused the attack against the Crusaders when fortunes turned in his favor and his army could have wiped them out. It is precisely this last act that shows his motives were not shaped by opportunistic realpolitik alone, and that there were other motives which we do not know. In other words, realpolitik cannot be used as a blanket label to explain the motives of actors such as al-Kamil to opt for peace instead of war. The course of the Fifth Crusade actually shows that an extensive level of diplomacy was conducted between the two camps, even as they were fighting. War was finally settled with a truce that assured the withdrawal of the Crusader army from Egypt. But the original terms that al-Kamil had initially proposed were no more an option. He later offered them to Frederick as we saw earlier.

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The Image of the Other Muslim medieval sources are full of negative portrayals of the Crusaders. It was customary for many Chroniclers and religious scholars to invoke such statements as “may God curse them” or “may God abandon them” when they mentioned the Franks and Frankish leaders. But to take this as indicative of all Muslim perceptions would be a mistake and contradict the evidence in our possession. For instance, the famous scholar-diplomat-army commander Usama ibn Munqidh (d. 1188) made frequent remarks of the Franks, which range from admiration to denunciation. In one instance, he declared “the Franks (may God confound them) have none of the human virtues except for courage” (Usama ibn Munqidh, Book of Contemplation 76). But he also recounted many instances where he developed close friendships with some Franks (Usama ibn Munqidh, Book of Contemplation 144 and 147). He cursed them for their primitive and irrational medicine, yet praised them for having skilled physicians who cured complex illnesses (Usama ibn Munqidh, Book of Contemplation 145–146). Usama also differentiated between Franks who “recently arrived from the Frankish lands” as “rougher in character than those who have become acclimated and have frequented the company of Muslims” (Usama ibn Munqidh, Book of Contemplation 147 and 153–154). Therefore, to look only at the curses and condemnations as indicative of “true” Muslim sentiments toward the Crusaders is itself a stereotype. It is obligatory, here as well, that we treat this issue as a complex issue, requiring understanding of contexts, motives, and purposes. The images Muslims held of the Franks varied, and sometimes the same authors who hurled curses at them also praised them in other contexts. Usama ibn Munqidh was not an exception. Indeed, when King Amalric died in 1174, Saladin sent a letter of condolences to Amalric’s son and heir King Baldwin IV. It included the following: We are sending the new King our letter and greetings, for it pleases us that he is the heir of his father. May he reciprocate our gesture and respond well so that it is known he is a man of goodness. Let him know that he has from us what his father had: a true friendship, a sincere bond, an affection that endured in life and in death, and a loyal heart despite our differences in religion. So, may he trust us confidently and feel he can depend on us like the son depends on his father. May God preserve his land, guard his rule, destine that he remains on the path of success, and inspire him to find confidence in his friends. (al-Qalqashandi, Subh al-a ⊂sha 7: 115–116)

In this letter, Saladin acknowledged the legitimacy of Baldwin as king, asked for his gesture of goodwill to be reciprocated by the new King, and assured him of the same bond of friendship that the Sultan extended to Amalric, even going so far as to offer himself as a father figure. Saladin also recognized the legitimacy of Baldwin’s realm. One might say that this was an anomaly or a mere diplomatic formality that did not necessarily convey Saladin’s true

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intentions. For all practical purposes, this could have been the case, but as historians we do not have ground to assert that Saladin was insincere, especially given the extensive diplomacy he conducted with the Franks. The issue here is not either-or. Rather it is the many shades in between that we must take into consideration: Saladin befriended some Frankish leaders and hated others. Some he hated at one point but gradually came to respect, others he grew to hate. Similarly, Ibn al-Athir made the following remark about Count Henry of Troyes, who became King of Jerusalem between 1192 and 1197, and his relation with Saladin. He said that Henry “was a man of good character, not a troublemaker, and he was gentle towards the Muslims and liked them” (Ibn al-Athir, al-Kamil 10: 112; Chronicle 2: 402). Ibn al-Athir also reported that Henry wrote to Saladin asking him for a garment and a Kurdish-style bonnet to wear in public as a sign of respect and admiration for the Sultan, and that “Saladin sent him a splendid gift, including a garment and a Kurdish-style bonnet which Henry wore in Acre” (Ibn al-Athir, al-Kamil 10: 106; Chronicle 2: 397). Another example that conveys a positive perception of the Franks is seen in the comment by Ibn al-Athir that when Saladin was negotiating a deal with the army of the Third Crusade to pay them a large sum of money in return for the release of the Muslim prisoners from Acre, he made it a condition that the Templars guarantee the agreement because “they are people of religious integrity and hold their oaths” (Ibn al-Athir, al-Kamil 10: 97; Chronicle 2: 389). There is no point discussing here the horrible image of the Templars in Muslim literature from the period. What is surprising is that despite all the negative sentiments that Muslim leaders and authors supposedly upheld about the Templars, nevertheless, some still admired them for being devoutly religious and honest, and trusted them. The image of the Franks as religiously pious is also attested in the words of scholar and traveler al-Harawi (d. 1215), who once visited Hebron on pilgrimage to the cave where the biblical legend locates the tombs of Abraham, Isaac, Jacob, and some of their wives.10 Al-Harawi said the following: The knight Byron, who was living then in Bethlehem and was known among the Franks for his courage and old age, told me that he had entered this cave with his father and saw Abraham the Friend of God,11 Isaac, and Jacob and their faces were bare. I asked: “How old were you?” He replied: “Thirteen years.” …. The author of this book says: “If that is true, then I have seen someone

10

The Byzantines built a church on top of the cave, and the Muslims later turned it into a mosque. Today it is half mosque, half synagogue. 11 The expression “the Friend of God” is a translation of Abraham’s Arabic nickname al-Khalil, on account of the biblical legend that Abraham was visited by God and two angels and he made a feast for them (Genesis 18:1–15); al-Khalil literally means a person’s drink/food companion. It is also the name of the city of Hebron in Arabic.

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who had seen Abraham, Isaac, and Jacob – peace be upon them – while awake and not in his sleep. (al-Harawi, A Lonely Wayfarer’s 80–81)

Through the medium of an old Frankish knight, al-Harawi was able to “visualize” the three patriarchs in ways that he could not have otherwise been able to. Many have seen prophets in their dreams, but here al-Harawi is proud for having seen someone—a Crusader knight—who saw the biblical patriarchs while he was awake. The religious landscape at the time was saturated with symbolism and sacred sites for Christians and Muslims (and Jews as well), and led them at times to fight over it, and at other times to seek peace and share it. The former fueled negative images of the other. The latter generated positive images. Both are indicative of their collective experiences. At any rate, the evidence I examined here demonstrates that Muslims’ perceptions and images of the Franks were mixed and cannot be reduced to one form of stereotype.

Issue of Sovereignty The diplomacy that we see at the time shows an interesting level of acceptance of the sovereignty of rulers—be that in terms of legitimacy of rule and sovereignty over their territories. This is seen very clearly in the examples discussed above, such as in Saladin’s letter of condolences to King Baldwin IV, in which the Sultan acknowledged the sovereignty and legitimacy of Baldwin as king and of his territory. Similarly, the treaty of Jaffa of 1192 between Saladin and Richard the Lionheart affirmed the sovereignty of each monarch over the lands they control in Palestine and elsewhere in Syria. Even in the exchange between Commander Unur of Damascus and the rulers of the Kingdom of Jerusalem in 1148 subtly appeal to sovereignty. The best example of this pattern is the treaty concluded on 3 June 1283 between the Mamluk Sultan Qalawun (r. 1279–1290) and the Frankish leaders of coastal Palestine for a period of 10 years, 10 months, 10 days, and 10 hours. We do not have the full text of the treaty, but the oaths that were sworn by both sides to honor and apply the treaty, and which reflect most of its terms, are preserved in an archival sourcebook from the fifteenth century (alQalqashandi, Subh al-a ⊂sha, 13: 311–315; English translation in Lindsay and Mourad 2021); according to al-Qalqashandi, the text of these oaths mirrored the language used at the time in other treatises and oaths between Muslim and Frankish rulers. The following sums up what each side swore on: 1) to honor the terms of the treaty even if the individual ruler making the oath was replaced. In other words, each ruler was acting as a representative of his “state,” and that the treaty was concluded between political entities not between individuals. 2) The signatories also swore to respect the territorial integrity and subject citizens (be they persons or their belongings) of each other, and that any violation to that was considered a violation of the treaty. That this treaty between Qalawun and the Franks was violated by Qalawun’s son and successor Sultan al-Ashraf Khalil (r. 1290–1293) when he pushed to

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eliminate the last Crusader outposts along the eastern Mediterranean coast does not undermine this observation. What concerns us is the fact that diplomacy conveyed this understanding. The violations of treaties, which happened then and happen today, have to do with other ambitions, and do not mean that the actors involved did /do not seriously acknowledge the sovereignty of each other.

Concluding Reflections This chapter has focused on the ways we can study the Crusader period from the perspective of diplomacy and relations between the powers at the time. That modern scholarship has not done so is not because of the lack of diplomacy and truce making between the Muslims and the Crusaders. It is rather due to a convention that most modern scholars share, namely that the actors involved were driven by greed, violence, opportunism, and religious fanaticism, and nothing else. In fact, we see this as a foundational assumption even in the few studies about peacemaking (e.g., Friedman 2011). Therefore, we have judged that we could learn very little by examining the period in any way other than as one shaped by religious violence and warfare. Indeed, Modern scholars who admit the existence of cases of peacemaking dismiss them as instances of opportunistic realpolitik, suggesting a deceitful stance on the part of those involved in them (e.g., van Cleve 1972, 213–220; Powell 1986, 175–194; Madden 2005, 146–153; Friedman 2011, 229; Cobb 2014, 210–212). But the same can be said of the actors who promoted war and used religion, or any other vehicle for that matter, to justify violence. No doubt, there could have been cases of opportunistic realpolitik, but not all instances of peacemaking should be labeled as such. Some could have been influenced by other factors, and it is prudent to think of diplomacy and peacemaking between Muslims and Franks at the time as necessitated by a complex web of interests and values shaped by the political, military, cultural, economic, and religious environments. In other words, there were instances of political realism and instances of principled realism (on these issues as they relate to modern international law, see Morgenthau 1973). Moreover, this blend of realism and idealism can help us better explain how Muslim and Crusader actors pursued diplomacy as an alternative to war without necessarily speaking of precise motives (on the problem of seeking to determine precise motives, see Morgenthau 1973, 5–6). That modern historians have not done so has to do with the research categories and conventions they have imposed on the period. Indeed, the scholarly and public perceptions of the Crusader era revolve around the atrocities committed at the time, which is the result of the misreading of medieval history and somehow a fascination with violence (even when we condemn it). An example of that is when modern scholars write about the “massacre” of tens of thousands of Muslims in Jerusalem following its capture by the army of the First Crusade in 1099. The number—often

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given as 70,000 or 100,000 people—is a misleading exaggeration. In other words, modern historians generally failed to realize the hyperbole in medieval chronicles, whose purpose was propaganda and self-aggrandizement, and not factual reporting. When the narratives of the conquest of Jerusalem were put to the test, it became clear that at most we can speak of 3,000 people killed (Kedar 2008; Hirschler 2014). The number remains large, yet the reality is that the Crusaders allowed the overwhelming majority of the Muslim and Jewish inhabitants of Jerusalem to remain alive, for they could fetch more money by selling them as slaves or receive ransom for their liberation. Angels they were not, nor were they villains that we modern readers of history made them to be. The diplomacy and interactions between some Crusader leaders and Muslim counterparts led to long spells of truces that the main actors at the time often felt obliged to respect, even if they were against them and never approved of them. In the broader sense, this shows the power of diplomacy and that it established certain rules of inter-state relations and interactions between the two sides. Moreover, the truces and treatises were justified by Muslim rulers and scholars by recourse to religious, legal, and moral teachings, as in the case of the concepts of maslaha (the public interest of Muslims) and darura (necessity), and verse 8.61 of the Qur⊃an. If we allow this evidence to lead us, rather than imposing on it the meanings that we would like it to have, we can better recognize the various forms of interactions that existed between Muslims and Franks at the time: diplomacy, truces, alliances, cooperation, etc., as well as warfare, conflict, hatred, barbarism, etc. Consequently, what is needed is a new scholarly convention to rethink the period with fresh eyes and minds, all the while careful that when using modern concepts, we do so for convenience and not in a narrow sense. As such, when I speak of diplomacy and negotiations, the truces and treatises that resulted did not necessarily involve a process of mandatory subsequent ratification by a legislative body that we find today. Finally, the modern ramifications of such an exercise could be worth discussing but with some restraint in order not to impose a reverseanachronism. It is true that the Crusader period is the example par excellence that many advocates use in order to promote the theory of the inevitable and somehow preordained clash of civilizations between Islam/Muslims and Christianity/West12 (see for instance Spencer 2005; Weidenkopf 2014; Al Jazeera 2016). Irrespective of the criticism that is raised (e.g., Gabriele 2017; Mourad 2020b), many scholars, film makers, and the general public directly or unintentionally reemphasize the clash of civilizations theory in the way they insist on portraying the period by focusing only on war and conflict. In other words, we frame ourselves and our readers/viewers and lead them to specific conclusions 12 My use of the term “West” is made not to its complex reality but rather to its political legacy as reflective of specific empowered groups in the Global North (mostly in Western Europe and North America) who are attached to a specific cultural and religious history and an explicit understanding of ancestry.

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when we only focus on the military aspect of Crusader–Muslim relations to the exclusion of all other aspects, some examples of which have been discussed in this chapter. Whether such an exercise could infuse positive thinking about current conditions (such as countering Islamophobia and West-phobia) is not easy to predict, for the simple reason that thought is always the outcome of the context in which it is generated. In other words, we need to ask first if there is a need today to employ such a rereading of Crusader–Muslim relations in order to combat and counter those voices that stereotype the Muslims and the Westerners as two exclusive groups who can never live together in peace, such as the rhetoric of White supremacy and Islamic jihadism. The question is therefore political, and history has systematically been deployed in order to legitimize and “explain” political strategies and social behavior. As for the relevance of this chapter to current understandings of Islam’s view on diplomacy and international law, this is an issue too complicated to address here. After all, Islam is what the Muslims (as small communities or collectively) make it to be, and we have seen in this chapter ample evidence of that, namely that the Muslims were divided about the legitimacy of diplomacy and peacemaking, and each group invoked religious, legal, and moral teachings in order to legitimize what it was pursuing. Acknowledgements I would like to thank David Sullivan (Bangor University), Howard Williams (Cardiff University), Griselda Gaiada (former fellow at the IEA Nantes), and the anonymous readers for reading a draft of this chapter and sharing their valuable remarks.

References Classical Sources Abu Shama. 1997. Kitab al-Rawdatayn fi akhbar al-dawlatayn al-Nuriyya wa-lSalahiyya. 5 vols. Ed. I. al-Zaybaq. Beirut: Mu⊃assasat al-Risala. Barber, Malcolm, Keith Bate, and (Trans.). 2010. Letters from the East: Crusaders, Pilgrims and Settlers in the 12th–13th Centuries. Farnham: Ashgate. al-Dhahabi. Ta ⊃rikh al-islam wa-wafayat al-mashahir wa-l-a ⊂lam. 53 vols. Ed. ⊂U. ⊂A.-S. Tadmuri. Beirut: Dar al-Kitab al-⊂Arabi, 1990–2004. al-Harawi. A Lonely Wayfarer’s Guide to Pilgrimage: ⊂Ali ibn Abi Bakr al-Harawi’s Kitab al-Isharat ila Ma⊂rifat al-Ziyarat. Ed. and trans. J.W. Meri. Princeton: The Darwin Press, 2004. Ibn al-Athir. 1997. Al-Kamil fi al-Tarikh. 10 vols. Ed. ⊂U. ⊂A.-S. Tadmuri. Beirut: Dar al-Kitab al-⊂Arabi. ________. The Chronicle of Ibn al-Athir for the Crusading Period from al-Kamil fi’lTa⊃rikh. 3 vols. Trans. D.S. Richards. Farnham: Ashgate, 2006–2008. Ibn Qudama. Al-Mughni. 10 vols. Eds. T.M. al-Zayni and M. Fayid. Cairo: Maktabat al-Qahira, 1968–1970.

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Ibn Wasil. Mufarrij al-kurub fi akhbar bani ayyub. 5 vols. Eds. J.-D. al-Shayyal and H.M. Rabi⊂. Cairo: Dar al-Kutub, 1958–1977. ⊂Imad al-Din al-Isfahani. 2004. Al-Fath al-qussi fi al-fath al-qudsi. Cairo: Dar alManar. al-Nuwayri. 2002. Nihayat al-arab fi funun al-adab. 33 vols. Cairo: Dar al-Kutub wa-l-Watha⊃iq al-Qawmiyya. Oliver of Paderborn. 1948. The Capture of Damietta. Trans. J.J. Gavigan. Philadelphia: University of Pennsylvania Press. al-Qalqashandi. Subh al-a ⊂sha fi sina ⊂at al-insha. 14 vols. Cairo: Dar al-Kutub al-Misriyya, 1913–1919. Sibt Ibn al-Jawzi. 1951. Mir ⊃at al-zaman fi ta ⊃rikh al-a ⊂yan. 2 vols. Hyderabad: Da⊃irat al-Ma⊂arif al-⊂Uthmaniyya. Usama ibn Munqidh. 2008. The Book of Contemplation—Islam and the Crusades. Trans. P.M. Cobb. New York: Penguin Books. Zayn al-Din al-Razi. 1997. Tuhfat al-muluk fi fiqh madhhab al-imam Abi Hanifa al-Nu ⊂man. Ed. ⊂A.N. Ahmad. Beirut: Dar al-Basha⊃ir.

Modern References Al-Jazeera TV. 2016. The Crusades: An Arab Perspective (Episode 1—Shock: The First Crusade and the Conquest of Jerusalem; Episode 2—Revival: The Muslim Response to the Crusades; Episode 3—Unification: Saladin and the Fall of Jerusalem; Episode 4—The Legacy of the Crusades in Contemporary Muslim World). https://www.aljazeera.com/program/the-crusades-an-arab-perspe ctive/2016/12/28/liberation-acre-and-the-end-of-the-crusades (accessed 6 January 2021). The four episodes were first aired in November–December 2016. Cobb, Paul M. 2014. The Race for Paradise: An Islamic History of the Crusades. Oxford: Oxford University Press. Friedman, Yvonne. 2011. Peacemaking: Perceptions and Practices in the Medieval Latin East? In The Crusades and the Near East, ed. C. Kostick, 229–257. London: Routledge. Gabriele, Matthew. 2017. Islamophobes want to recreate the Crusades. But they don’t understand them at all. The Washington Post (6 June). https://www.washin gtonpost.com/posteverything/wp/2017/06/06/islamophobes-want-to-recreatethe-crusades-but-they-dont-understand-them-at-all (accessed 6 January 2021). Hirschler, Konrad. 2014. The Jerusalem Conquest of 492/1099 in the Medieval Arabic Historiography of the Crusades: From Regional Plurality to Islamic Narrative. Crusades 13: 37–76. Housley, Norman. 2006. Contesting the Crusades. Malden: Blackwell. Jotischky, Andrew. 2014. Crusading and the Crusader State. Abingdon: Routledge. Kedar, Benjamin Z. 2008. Religion in Catholic-Muslim Correspondence and Treaties. In Diplomatics in the Eastern Mediterranean 1000–1500: Aspects of Cross-Cultural Communication, eds. A. Beihammer, M. Parani, and C. Schnabel, 407–421. Leiden: Brill. Köhler, Michael A. 2013. Alliances and Treatises between Frankish and Muslim Rulers in the Middle East: Cross Cultural Diplomacy in the Period of the Crusades. Trans. P.M. Holt, rev. and ed. K. Hirschler. Leiden: Brill. Lindsay, James E., and Suleiman A. Mourad. 2021. Muslim Sources of the Crusader Period: An Anthology. Indianapolis: Hackett Publishing.

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Madden, Thomas F. 2005. The New Concise History of the Crusades. New York: Rowman & Littlefield. Mallett, Alex. 2014. Popular Muslim Reactions to the Franks in the Levant, 1097–1291. Farnham: Routledge. Morgenthau, Hans. 1973. Politics among Nations: The Struggle for Power and Peace. New York: Alfred Knopf. Mourad, Suleiman A. 2019. Too Big to Be Owned: Reflections on Jerusalem in Islamic History. Review of Middle East Studies 53 (1): 1–14. https://doi.org/10. 1017/rms.2019.3. Mourad, Suleiman A. 2020. A Critique of the Scholarly Outlook of the Crusades: The Case for Tolerance and Coexistence. In Syria in Crusader Times: Conflict and Coexistence, ed. C. Hillenbrand, 144–160. Edinburgh: Edinburgh University Press. ______. 2020b. War of the Worlds? BBC History Magazine (June): 62–68. Mourad, Suleiman A. and James E. Lindsay. 2013. The Intensification and Reorientation of Sunni Jihad Ideology in the Crusader Period: Ibn ⊂Asakir (1105–1176) of Damascus and His Age; with an edition and translation of Ibn ⊂Asakir’s The Forty Hadiths for Inciting Jihad. Leiden: Brill. Perry, Guy. 2013. John of Brienne: King of Jerusalem, Emperor of Constantinople, c. 1175–1237 . Cambridge: Cambridge University Press. Powell, James M. 1986. Anatomy of a Crusade, 1213–1221. Philadelphia: University of Pennsylvania Press. Riley-Smith, Jonathan. 2005. The Crusades: A Short History. New Haven: Yale University Press. Spencer, Robert. 2005. The Politically Incorrect Guide to Islam (and the Crusade). Washington: Regnery Publishing. Cleve, Van, and C. Thomas. 1972. The Emperor Frederick II of Hohenstaufen: Immutator Mundi. Oxford: Clarendon Press. Weidenkopf, Steve. 2014. Were the Crusades Just Wars? Catholic Answers (4 November). https://www.catholic.com/magazine/online-edition/were-the-cru sades-just-wars (accessed 6 January 2021).

CHAPTER 8

The Conceptual Challenge: Europe and the New World Camilla Boisen

Introduction This volume invites us to consider the historical depth of core ideas in international political theory. The main purpose of this chapter is to demonstrate that the particulars of the religious, juridical, and political conceptual challenges of the European encounters with a world previously unknown to them is indicative of the more general paradigmatic challenge that political theory, including international political theory, as a critical mode of inquiry, must face for its continued critical renewal. Central to political theory is always the question of whether there is a right and a wrong way of accomplishing something. In fact, resistance and conflict in areas of freedom, justice, distributive justice, or other fundamental issues like them, require that the ideas which motivate them recognise their politicisation (Hegel 1991; Weber 1949; Arendt 1998). Invariably, questions of politics shape the way that institutions of order, cooperation, and coercion function for their ascribed purpose. For political theorists, this is perhaps the chasm that forms the ideal and non-ideal theory divide (Mills 2005), and seeking to resolve which has primacy or how one informs the other is still an active fault line within the discipline. However, few would deny the observation that the social order manifest in different societies requires legitimation. Many of

C. Boisen (B) New York University, Abu Dhabi, UAE e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_8

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the great works of political theory have sought to determine what justifications were the primary in ensuring that order was created and maintained. The battle ground of the primacy of ideas is evident in the early Spanish debates about the imperial right to dominion over the Americas. Early Europeanisation of the Americas is an apt illustration of the gap between what Koselleck called the space of experience and the horizon of expectation (Koselleck 2004, 257) in the extraordinary violent means used to achieve European domination in ‘the New World’, whilst at the same time reaffirming a normative Christian order. Usually, contestations about order are manifest during moments of crisis, and, arguably, political theories that have come to define the scholarly discipline itself all emerged in these moments of crisis, such as Plato’s Republic at the time of the decline of Athens or Hobbes’ Leviathan during the English Civil War. Insofar as ‘krisis ’ means ‘decision’, one role for the political theorist is conceptually to arm those in power to make crucial and ‘justified’ decisions whose repercussions will affect entire communities but also evaluate, critique, and contest those decisions that are being made. But, therein lies the problem. Political theory has to be continuously reconsidered, recast, and remade. A crucial juncture in the Europeanisation of the world, 1492 saw both the affirmation of old political theories and the generation of new ones. With the ending of the crusades and the expulsion of the Moors from Spain a new global horizon opened for Europe with the ‘discovery’ of the Americas and the opportunities for adventurism it presented. But this global horizon also brought with it a conceptual crisis. The significance of the European encounter with the Americas is that it forced philosophers, jurists, theologians, and politicians to interrogate the foundations of their convictions, and to ask questions that stretched traditional natural law and natural rights theories to their conceptual limits. Questions arose concerning who or what were these creatures resembling humans; about the capacity to qualify fully as members of humanity; how they should be treated; and whether they had the ability to comprehend and receive the word of God. And, if so, how was it to be instilled in them: through education or by force? One question that seems to have been on everyone’s mind by way of justification was: ‘by what right’ do Europeans exercise dominion over the New World? One answer was the religious argument of the ‘Requirement’ (1513)— a public declaration and assertion of Spanish right in the Americas, which was contested by Francisco Vitoria (1483–1546), the doge of the School of Salamanca, who went through the common justifications including the papal donation transferring secular authority over the Americas to the kings of Spain and Portugal. Vitoria concluded that the only justification that withstood scrutiny was the just war argument regarding the violation of the rights in resisting the Spaniards’ right of passage. The Aristotelian philosopher and imperial humanist Juan Ginés de Sepúlveda (1490–1573) also framed Spanish Christian-infidel relations in the just war tradition but went further and demonstrated his intellectual prowess and creativity by applying Aristotle’s normative category of natural slavery to the Native Americans, and then

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changing his justification for enslaving them to that of the Augustinian idea of punishment for sin. Whilst his great 1550 Valladolid adversary, the Dominican bishop of Chiapas, Bartolomé de las Casas (1484–1566), condemned the brutality of the Spanish against the Native Americans, he never questioned the innate superiority of the European civilisation to its colonial dependencies, nor did he deny the responsibility of imparting European civilisation to the natives. There are essentially two crucial duties imposed upon Christians. The first is to labour, which meant to cultivate the soil to make it productive. The second was to propagate the word of God and convert heathens to Christianity. Both provided opportunities to claim just cause for war if the natives failed to cultivate the soil efficiently, and if they rejected the word of God. Hugo Grotius (1583–1645) and John Locke (1632–1704) developed these ideas by extending the natural law argument (as did Sepúlveda to a large extent). God gave the earth in common for humans to prosper. Under-use of arable lands were thus in direct violation of His tenets, and preventing any other group of peoples from fulfilling their obligation to God to prosper through working the land conferred a just casus bello. Natural law was a shared framework that yielded ever-revealing truths of natural design to create rules and establish the just and right conduct of individuals and governments. Its content and prescriptions changed, but it was always presented as a set of transfixed immutable laws sanctioned by God. What is remarkable is the flexibility with which these supposedly (and overbearing) transcendent universal categorical concepts and theoretical views were deployed and reformulated in the Americas. The conceptual challenge for the Europeans was in some sense a deeply existential project—of reasserting a universal perspective of humankind, whilst stalwartly defending its moral boundaries. But in so doing was this kind of European adventurism manifesting a new normative world order, or was it a reassertion of the old? This chapter provides only a partial answer to this question by focusing on three main areas of conceptual contestation and development that marked the European encounter with the Americas namely, the recognition of nonChristians (infidel rights); Just War (right to missionary war); and legitimacy of indigenous political authority (right to colonise). It argues that the conceptual challenge of Europe’s encounter with a New World lay in stabilising the old-world view, signifying a moment for the development of the idea and practice of world order that ultimately allowed for a reorganisation of our thinking about the ideal possibilities and limitations of that order.

The Recognition of Non-Christians (Infidel Rights) The ‘discovery’ of the Americas challenged the received cosmology of the Catholic Church, and its explanation of how the three continents of Europe, Asia, and Africa were donated by Noah to his three sons Japheth, Shem, and Ham. The conceptual challenge of incorporating a fourth continent with hitherto unknown inhabitants required an explanation of where they had come

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from and indeed if they could be described as human. Debates about the humanity of the indigenous peoples were formally settled by Pope Paul III Sublimis Deus in 1537. However, the question of how to explain the appearance of millions of peoples within a religio-political system lingered, as did questions about their rights. Answers were sought in familiar theological and philosophical spaces. Usually, Christian-infidel rights were framed in the just war tradition, which were only exacerbated in the extra-European context on account of ‘the ambivalent legal category of [infidels]’ (Lantigua 2020, 189). Christian-infidel relations were central to those discussions and were formative for international relations in the West, not least because questions of the practice of world order had to either be settled, challenged, or reimaged (see Lantigua 2020). Questions surrounding the relationship between infidels and Christians were pertinent before the discovery of the Americas elevated them to greater significance. Pope Innocent IV (1160–1216) concluded that it was indeed lawful for Christians to invade lands of the infidel if they violated or rulers sanctioned the violations of inviolable rules of natural law. He also determined that infidels had a right to constitute their own governments and to rule themselves, but their souls remained under the spiritual care of the Vicar of Christ. Thus, part of his authority, and therefore the prerogative of the church, was to ensure the spiritual well-being of those under his rule; this included the duty of missionaries to preach the gospel to all nations. However, the bishop of Ostia, Henry of Susa (d. 1271), better known as Hostiensis, disagreed with the concept of indigenous self-rule because with persistent violation of the natural law and denial of the divinity of Christ, infidels lost the right to exercise sovereignty over themselves. He argued that ‘every office and all government authority and sovereignty and jurisdiction was taken from every infidel lawfully [….] and granted to the faithful through Him who has supreme power and who can never err’ (cited in Peters 2005, 147). These positions framed the terms of reference when the rights of indigenous peoples in the New World was discussed. For instance, the infamous ‘The Requirement’ implicitly invoked the constellation of ideas to which both Innocent IV, and indirectly, Hostiensis belonged in discussing the capacity of Native Americans to exercise dominion (Muldoon 1980, 303, 312). It was a serious attempt by the Spanish government to conform to its legal obligations, demonstrable to other European monarchs, but particularly to the papacy on whose authority it acted, with respect to establishing the conditions of a ‘just war’ (Green and Dickason 1993, 190). However, if looked at in terms of the relationship between the conqueror and the conquered it is indeed an absurd document. It was often read cynically and took little account of linguistic incomprehension (Faudree 2013, 183). The ‘Requirement’ acknowledged that the Native Americans had the right of dominion and justification for acquisition was that the Church had responsibility for native peoples, who were obligated by natural law to permit missionaries to preach the Gospel to them. The witnessed reading of the

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‘Requirement’ did this by offering the Native Americans the alternative of subjection, or to take responsibility for the devastating carnage of the brutal consequences (Green and Dickason 1993, 190). Vitoria challenged the contentions of the ‘Requirement’, claiming that neither St. Peter nor his successors had the authority in temporal affairs to be able to donate it to the Spanish and Portuguese over the Americas. Vitoria and other members of the School of Salamanca placed dominion at the centre of their moral theory. This concept extends not only to private property, as it was later conceived by Pufendorf and Grotius, but also to goods, actions, and one’s body (Pagden 1987, 80–81). This concept of dominium therefore implicated an authority whose reach was not only simple ownership, but the right to dispose of something or give it away. However, this did not preclude the Europeans’ right to acquire property in the New World and assert their own dominium through just war. Vitoria, for example, provided a robust defence of indigenous property rights, but left the door open for European acquisition of these rights through just war (Vitoria 1991, 280). Vitoria, and after him, the Italian protestant Alberico Gentili (1552–1608), acknowledged a series of claims to dominion which, if invoked, provided justification of the use or force and subsequent colonisation. Amongst these claims was the unimpeded universal right of peaceful travel and communication. Europeans had a universal right along with all other peoples to travel and trade, in addition to announcing the Gospel, in order to enjoy things held in common with indigenous peoples. These rights had a religious basis, since God gave the earth to all humans in common; and they are reinforced by the law of nations, according to which things not appropriated as private property belong to the ‘first taker’ (Vitoria 1991, 280). To impede the enjoyment of these rights gives cause for war, with the spoils becoming the property of the victor by right of conquest (Vitoria 1991, 231–292). The exercise of dominion over the Native Americans and their lands could only be justified on the grounds that they had in some way violated the rights of the Spaniards. Vitoria was clear that the case of the Native Americans was not related to the jurisdiction of the Pope nor the emperor, but was rather one of natural law and the natural rights of the Native Americans. He considers the claim that they did not enjoy possession of their lands and whether the Spanish on this account can wage just war. However, for these justifications to have any validity, he argued, the Native Americans had to be sinners, infidels, or idiots, and he found no evidence to support such claims. Vitoria rejected the sinners and idiots arguments by expounding a central claim, namely, that the authority of a prince did not depend on God’s grace but on God’s law. This was important for this was one of the main arguments that the crown’s apologists had used for the legitimate occupation of America. Vitoria stated that dominium must be independent of God’s grace, and derived instead from humans as rational beings, made in God’s image, a fundamental characteristic which could not be lost through sin. However irrational it might seem no act could make you forfeit your natural right to property. Thus, sins such as

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cannibalism, human sacrifice, sodomy, and incest were not sufficient grounds to justify intervention to subjugate the Native Americans and deprive them of their property (Vitoria 1991, 272–275). Indeed, Vitoria’s views were radically supportive of the right of indigenous peoples to exercise dominium, in contrast to the views of Innocent IV. He argued that inhabitants of the New World were rational beings who had natural rights to property and ownership. Aristotle’s distinction between potentia and actua is pertinent to his claim, a claim that Las Casas was also to make. They were evidently capable of apprehending and interpreting the natural law of God. In that case they could not be devoid of rationality or they could not have built such fine cities, and developed religious and civil administrations. Both the Mexica, the Maya and the Inca, Vitoria observed, clearly demonstrated that they were capable of creating for themselves ‘culture’. The question that both thinkers toiled with: If they possess rationality, however, what could account for the practices of human sacrifice, cannibalism, primitive agricultural techniques, and the imitative nature of their arts? For Vitoria, the formal structure of the universe provided the answer. All matter, including human, had within itself potentiality and actuality. The key point that Vitoria was making was that if reason is present in potential, then it would not be long before it reaches actuality. Like Vitoria, Las Casas believed that culture was the primary experience through which humans acquire knowledge of how to exploit the God-given potential of nature (see e.g. Las Casas 1967, vol 1, 212).1 From this, the social order of each race grows in complexity, developing towards the level of civility prior to the ultimate achievement, conversion to Christianity, which facilitates the acquisition of true Scientia and the potential of a fully evolved cultural world. Therefore, Vitoria concluded, it would be wrong to deny them natural rights of property that other infidels were also granted, such as the Saracens and the Jews (Vitoria 1991, 250; Tierney 2001, 270.). However, the question was not simply whether the indigenous population of the New World could own property, it was also whether or not they could be owned and become property themselves. Many theologians and jurists of the sixteenth and seventeenth centuries found that slavery was a human institution acceptable as an alternative to death following successful conquest, the death penalty, or life imprisonment. This form of slavery was essentially chattel slavery, where individuals could be bought, sold, and traded. Others went farther and argued that the indigenous population were ‘natural slaves’ according to Aristotle’s definition, who lacked practical reason in that they could carry out orders but were incapable of formulating them. John Major (1467–1550), a Scottish Dominican, applied this Aristotelian argument and concluded that the Native Americans lacked practical wisdom (phrón¯esis) and were therefore incapable of the natural property rights that accompany dominium (Pagden 1987, 85).

1

I am indebted to both David Boucher and Hari Nair for this reference.

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Sepúlveda mounted a similar Aristotelian argument against Las Casas at Valladolid in 1550, the juridical and theological debate about the moral justifications of Spanish colonial endeavours in the Americas. Sepúlveda has a somewhat tarnished legacy and has emerged as a controversial theorist since Lewis Hanke brought the Valladolid debate to an Anglo-American readership in the late 1940s. This has not only obscured his philosophical oeuvre for our times, but also inextricably and uncritically fixed him to his intellectual opponent Las Casas, whose legacy as the father of human rights fares better for us today.2 The two met at the imperial capital of Valladolid in August 1550 to debate the morality of the Spanish colonial enterprises in the Americas. Las Casas eventually persuaded Charles V to seek a resolution of the issue and was thus able to convince the Spanish Court momentarily to stop the continuation of the infamous encomienda system, whereby the Native Americans were allocated to the Spanish settlers on the understanding that they would attain the Christian faith in return for their labour. There was much agitation in the days leading up to the Valladolid debates for the revocation of the New Laws. These laws owed much to the tireless work of Las Casas in petitioning for the encumbering limitation of the power of the colonial elite and the Spanish royal assertion of authority in the Indies. These laws were to prohibit the enslavement of rebellious Native Americans captured in war and severely restrict the use of the natives as purely ‘working animals’ and indeed deprived the worst of the encomenderos of their Native American labourers (Lupher 2003, 112). So naturally there was much intense dissatisfaction about the implementation of these rules and regulations. In this tense atmosphere, Sepúlveda had been encouraged by the president of the Council of the Indians to compose a treaty against Vitoria and other Salamanca theologians, and of course against Las Casas’ treatises on the Native Americans, who were already winning the public relations war over the immorality of the conquest. By seeing the Native Americans as barbarians in need of being saved from themselves, Sepúlveda was adamant that in the event that there were no other means available to constrain those ‘whose natural condition is such that they ought to obey others’, they could be subjugated by war if necessary (Sepúlveda cited in Adorno 2007, 128). The contours of his argument can be stated simply: Native Americans were barbarians by habit and by nature, tainted by their barbarous vices, and by right of nature people in this state must obey the more civilised and prudent. If they resist they may ‘be forced with arms and that war would be justified by right of nature according to the authority of Aristotle and Aquinas’ (Sepúlveda 1973, 9). Here, Sepúlveda takes Innocent IV’s position seriously. The pope, in Sepúlveda’s opinion, not only had the power to force people to observe the laws of nature, but he could also compel them to hear the Gospel. Las Casas rejected this position by invoking the language of subjective rights. He 2 There are exceptions of course, see Fernández-Santamaria (1975). See also Pagden (1982, Chapter 5). Most recently, Lantigua (2020).

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speaks of the powers and jurisdictions of the Native Americans, referring to them as rights (iura) conferred by natural law that cannot be extinguished by civil law (Tierney 2001, 300–301; Las Casas 2004, xiv–xv). The Native Americans, Las Casas insisted, possessed the attributes of free human beings, indeed, free subjects of the Spanish Crown. Hence the Spanish had no claim to dominium rerum in the New World, and if they were to have any claim at all it must be on grounds that the Native Americans had chosen to be vassals of Charles V, who exercised, as Vitoria had suggested, dominium iurisdictionis (Pagden 1987, 95). There is a shift in emphasis of Sepúlveda’s argument in Democrates Secundus from slavery to the Augustinian idea of punishment for sin in the Apology (see Pagden 1982). Nevertheless, Sepúlveda already had a strong position in Democrates Secundus on viewing the Native Americans as idolaters meriting punishment for their sins against natural law through war and enslavement. His sources were Augustine, but especially Pope Innocent IV’s crusade letter. When Sepúlveda argued at Valladolid, he maintained this viewpoint but no longer appealed to Aristotle’s natural slave, which appeared to serve for him a rhetorical device as it did for many of the first-generation Spanish colonisers (Lantigua 2020, 145, 151).3 In the end, the debate at Valladolid was inconclusive, but its lasting consequence, with few residual lingering doubts, was that the capacity of the Native Americans to hold property rights ceased to be the central issue as it had been following the early days of the conquest. But one crucial issue remained: determining what constituted a violation of natural law, and thus what gives cause for recourse to war. After Valladolid, an important shift concerning the capacity of indigenous peoples to exercise property rights took place. The question became whether or not the indigenous peoples had exercised their rights properly in accordance with the obligations imposed by natural law. As we shall see in the final section, husbandry and cultivating the land became crucial benchmarks for ownership as they were God’s instructions to Adam.

Just War (Right to Missionary War) If the issue for the ecclesiastics, who accompanied the Spanish conquistadors, had been how the indigenous peoples could be changed from what they are into what they ought to be, for the conquistadors the issue boiled down to that of when just war was permissible to force the Native Americans to submit to God, the king, and the conquerors (Hanke 1959, 8). There are universal rights and duties for which peoples must qualify, the contravention of which gives just cause for war; war has attached to it specific rights and duties, which range from the suspension of the constraints of natural law, to prescriptions regarding reparations and seizure of property and goods; violations of the natural law may even justify third party interventions on humanitarian grounds; that God gave the earth to humans in common, requiring them to 3

I am indebted to David Lantigua for further clarifying this point.

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cultivate it effectively and efficiently that there is a hierarchy of civilisations, the lower of which fail to fulfil this requirement and in consequence have not availed themselves of the rights, and duties associated with cultivation. All this is seen in the context of the advancement of civilisation, an attempt to bring light to the dark places of the earth. Few Europeans would deny that there were natural rights, and that all humans had them by the fact of being human: what was at issue was whether non-Europeans met the qualifying criteria, or fell short in some way, of being fully human. If they qualify then like every human they possess natural rights, and participate in the universal community of humankind. This, however, was a double-edged sword. Far from offering the Native Americans, for example, unqualified protections against violations by Europeans, it presented a set of criteria from which deviation constituted a just cause for war, during which time many of these rights were in abeyance. There were disputes as to the circumstances that gave rise to just cause, or about practices that invited what we would now call humanitarian intervention, but few would argue that there were no conditions that could not give rise to the justifiable acquisition of territories, and dominion in the Americas, on the principle of violations of natural rights by the Native Americans themselves against their own peoples or against Europeans. Vitoria’s De Indis provides us with a useful point of reference to denote the boundaries of using war as a legitimate means of initiating relations with Native Americans. For Vitoria as it was for Las Casas (1992, 27, 38) the only legitimate justification for war is the violation of rights and punitive wars have to have a defensive character. Although we have certain obligations derived from our common rights, these obligations do not extend to waging war on the Native Americans, for example, either to punish them for transgressing the natural law or to bring them eternal salvation by forcibly converting them to Christianity. The natural rights of the Native Americans were inviolable, and for the Spanish to act with impunity in violating them would be unjust (Vitoria 1991, 219). Vitoria contemplates the possibility of saving innocents by warring against offenders: ‘in lawful defence of the innocent from unjust death, even without the pope’s authority, the Spaniards may prohibit the barbarians from practicing any nefarious custom or rite. The proof is that God gave commandments to each man concerning his neighbour’ (Vitoria 1991, 288). In doing so, Vitoria attaches strict qualifications to military humanitarian enterprises, and stipulates that such acts must be motivated by ‘right intention’. To punish in order to save innocents from cannibalism is a worthy intention, but to intervene as a pretext for war is unjustifiable. Gentili would put this point more forcefully by contending that ‘it is ordained by nature herself that all sinners should be punished’ (Gentili 1933 [1612], book III, Chapter 9, §538). Vitoria ultimately considered the Spanish claim to jurisdiction in relation to the jus gentium. The claim of jurisdiction applied to the Spanish by something he called ‘right of society and natural communication’ (Vitoria 1991, 280). Seashores and natural harbours are absolutely necessary for humans’ survival;

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these have therefore, under God, been exempted from the original division of property. This contention gave the Spanish the right to travel into the lands of Native Americans. This right under the label ‘communication’ also gave them the right to trade and to preach their religion without interference; although this did not entail acceptance. Denial of these rights would give the Europeans a just cause for war. Vitoria thus concluded that a violation of these natural rights and subsequently the enforcement of them by just war were the only legitimate grounds for the Spanish presence in America. The suggestion is that this ‘natural communication’ amongst people gave rise to certain mutual rights and obligations which preceded the rights and obligations established within civil societies as they sprang from the universal sociability of individuals in the state of nature (Aguilar 1946, 205). Unlike Vitoria, Las Casas refused to engage in arguments of ‘ideal possibilities’ about establishing the rights of Spanish ‘travellers and visitors’ to enter the Indies without impediments (Lantigua 2020, 309). Thus, rather than abandoning the state of reality (of the horrors of conquest) over the imagination of a universal rights ideal, Las Casas embraces it. In fact, and undoubtedly to the surprise of some of his contemporaries as it might do for his current readers, the Dominican friar contended that the debate over the justice of the Spanish conquest raised a lingering question of the desirability of ‘the total abandonment of the Indies’ (Lantigua 2020, 309). Quite extraordinarily, Las Casas proposed an ‘exit solution’ for Spain with the ‘full restoration of Inca sovereignty and possession’ (Lantigua 2020, 310). Las Casas was not a moral relativist, and he found some of the practices and behaviours of the indigenous populations abhorrent, such as human sacrifice, but some of these practices could be morally justified (see e.g. Las Casas 1992, chap 33–37; Lantigua 2019). He was wary of the kind of solutions, such as war, that could be employed to correct undesirable behaviours that occasionally caused offence to moral decency or transgressed natural law. Las Casas invariably sought to limit just causes of war through his realisation that the affording of moral consideration to non-Europeans also entails accepting the limits of how that can be done. In discussing whether human sacrifice is proof of the Native Americans’ barbaric practices and if such culturally entrenched practices should give moral recourse for action, Las Casas leans on St Augustine maxim that ‘profitable correction by many is impossible except when the person corrected does not have a large number of allies. When the same disorder seizes many people, the good have no recourse but sorrow and sighs’ (Augustine cited in Las Casas 1992, 215). Sepúlveda was left in no doubt that the practice of human sacrifice proved the Native Americans’ barbarousness. As mentioned, he went as far as to state that they were barbarians by nature. Undoubtedly, Sepúlveda’s application of Aristotelian ethics arguing that the Native Americans were Aristotle’s

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natural slaves of a sort, is troubling (as it was for his own times).4 Designating this supposed natural defect in the capacity for rational thought to the Native Americans cemented a strict God sanctioning order of classification. The resisting of this natural order of dominion gave their Spanish overlords, according to Sepúlveda, grounds for waging just war against them. The Native Americans, Sepúlveda insisted, had to be saved from themselves and subjected to their masters to bring them into the fold of Christianity to save their souls (Sepúlveda 1973, 17–19). Sepúlveda grounds this enlargement of just war theory beyond a principle of self-defence assuredly on natural law arguments. Whilst Las Casas emphasised the indigenous peoples’ natural propensity for religion (see e.g. Las Casas1992 , Chapters 33–37), Sepúlveda impresses on his reader a scepticism towards cementing a universal moral order independent of religious convictions. Good citizenship is that which prepared you for eternal life. Although humans’ natural capacity for moral discernment— that is their knowledge of natural law, was not solely limited to Christians, Sepúlveda contends, and ‘is what makes a good man able to discern between goodness and justice and evil and injustice […]’ (Sepúlveda 1984, 89), such ‘light of right reason’ inscribed ‘in the hearts of pagans’ can be darkened by ‘depraved conduct’ to the extent that it corrupts any means of natural rectitude (Sepúlveda 1984, 87–89). Sepúlveda insisted that the Native Americans’ unabashed crimes against nature give just cause for war and justify the right of the Spanish to punish them. As far as he was concerned, war would also be the remedy to put them on the right path to salvation and in forcing them to follow the natural law. In fact, he argued that even if the Native Americans possessed natural rights, they had so blatantly misused them that they are now forfeited. The result is that they have no private property rights, and indeed no inviolable exclusive use-rights as a result of their ungodly practices (Boucher 2009, 172; Hanke 1959, 35–42). Wars, Sepúlveda insisted, had to be waged ‘in order to uproot crimes that offended nature’. Thus, war was a necessary mean to combat their resistance in obeying the natural law. Sepúlveda took crimes against natural law to be a direct affront to God and it was incumbent upon the Spanish to avenge and restrain such crimes. Despite his cavalier use of St Augustine (Lupher 2003, 114), Sepúlveda invoked the common Augustinian just war maxim: The end of just war is to live in peace and tranquillity, with justice and virtue, and eliminating the opportunity for evil men to harm and sin: in sum, to provide for the public good of humankind. This is the end of all laws rightfully passed in accord with a state founded on a natural basis.

However, there was not unanimous agreement amongst the early modern natural law theorists to sanction punitive actions against violators of the natural 4

There is some scholarly debate about this point. See Fernández-Santamaria (1975).

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law. The German jurist and philosopher Samuel von Pufendorf (1632–1694) was sensitive to the sort of pretexts adduced to promote colonial expansion. He contested Vitoria’s presumption that the Spaniards had a right to live in the lands of the Native Americans, providing no harm was perpetrated against them. Pufendorf argued that such a contention weakened the very idea of property rights. He also denied the contention of both Vitoria and Gentili that if the Native Americans restricted access to foreigners engaged in free trade, or expelled guests and strangers, that such actions would constitute a just cause for war (Pufendorf 1934, book III, Chapter iii, §9). Christian Wolff raised similar concerns by noting that barbarism and an uncultivated way of life did not constitute grounds for war. Against Grotius’ justification of punitive wars, he contended ‘the source of the error is found in the fact that the evil seems to him [Grotius] of such a nature that it can be punished and that it is quite in harmony with reason that it may be punished by him who is not guilty of it’ (Wolff 1934, Chapter II, §169, 89). Another of Sepúlveda’s stipulations for just war was that the Native Americans killed innocents amongst themselves, hailing their salvation as a just enterprise. To protect ‘innocent persons from such injurious acts’ would give the Spanish ‘the right, already granted by God and nature, to wage war against these barbarians to submit them to Spanish rule’ (Hanke 1994, 86). Providing barbarians with salvation through warfare was to be encouraged because their souls were in grave danger. ‘If anyone doubts’, Sepúlveda contended, ‘that all men who wander outside the Christian religion will perish in eternal death, he is not Christian. Therefore, the barbarians are rightfully compelled to justice for the sake of their salvation’ (Sepúlveda 1973, 18). And second, that these depraved acts of indecency were sanctioned and systematised by their own public customs and political institutions—a point, which arguably caused Sepúlveda greater concern than the individual acts of depravation (Sepúlveda 1973, 16–18). This institutionalisation of evil required nothing less than a regime change through war and forcible subjection ‘which is the most expedient and suitable for accomplishing these things and securing the salvation of souls’ (Sepúlveda 1973, 29). The Spanish duties to humanity was irrefutable as far as Sepúlveda was concerned, and they were morally obligated to civilise and Christianise the Native Americans. It seemed obvious to the humanist that the Native Americans were not reasonable enough to be left to their own devices. The common bond of humanity established by divinity and the natural law considers all men as our neighbours, Sepúlveda asserted, if ‘we can do so without disadvantage to ourselves’ (Sepúlevda 1973, 22). God had given human beings commandments concerning his or her neighbour, and we have a duty to obey such divine laws. If we do not, then we commit heresy. Sepúlveda was adamant that Las Casas could not have the Native Americans’ best interest at heart: I would contend that those who attempt to obstruct this expedition so the barbarians would not come to this Christians’ terms do not humanly favour the

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barbarians as they themselves wish to seem but cruelly begrudge them most of the greatest goods, such goods that are either altogether removed or for the most part hindered by their cowardly and churlish proposal. (Sepúlveda 1973, 40–41)

Sepúlveda considers momentarily future circumstances where ‘we would have to restrain ourselves from the subjugation of the barbarians’ but as it stands the vicissitudes which are characteristic for human affairs encourage rather than deter us from providing salvation to the barbarians (Sepúlveda 1973, 40–41). Las Casas had put forward the strong belief in the common origin of humankind and God’s will for the perfection of man and this had to be extended over the whole world (oikumene). If this was to be so all peoples had to have sufficient enough intellect to grasp Christian teachings, otherwise the obligations God had given Christians would have been contradictory. Questioning whether the Native Americans were anything else than humans endowed with reason, that they were slaves by nature, was heretical. How Aristotle’s doctrine of natural slavery applied to the Native Americans and whether Sepúlveda was ever fully understood on this point shall not concern us further here. Others have considered these questions satisfactorily (see e.g. FernándezSantamaria 1975). What is of interest here, is the fluctuating ideological take-away of the Valladolid debate over the course of history from promoting the Evangelical project of inclusivity, stoking up Anti-Spanish sentiment in England in the 1580s (the Spanish Black Legend), and later to validating human rights for non-Europeans. The questions this debate holds for us today seem to revolve more around interventionism and forcing a particular moral community into conceptual conformity, rather than questions of slavery or liberation. If we want to continue to denote Sepúlveda as a racist figure then, arguably, that epithet is equally befitted to most Western leaders, who decry certain members of the international society as rouge states and bemoan their systematic human rights violations and sanctioning of acts of genocide and even call for forceful regime changes in the name of the humanity. Without convergence with Sepúlveda’s errors, in an argument presented with great conceptual rigour, it should not be surprising that these attitudes persist.

Legitimacy of Indigenous Political Authority (Right to Colonise) There are many reasons for which theologians and jurists debated the right of indigenous populations in the New World to own and alienate their property. Scripture and natural law were used to either include or exclude indigenous peoples from membership in a moral community, as well as to justify titles to land and European settler colonialism. This questioning of indigenous ownership of land delegitimised their governmental structures and critiqued the latter’s ability to protect and secure universal human rights. This ties in to

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broader ideas of property in medieval and early modern Europe. The biblical story of Noah granting dominion to his sons became the basis for the stratification of the races. Another biblical story, the expulsion of Adam and Eve, became the basis of the mandate to cultivate the Earth and make it productive. Even in the Garden, Adam ‘till[s] and tend[s] it’ (Genesis: III). The natural state of humankind is one focused on labour, and more specifically, on the cultivation of land, and tilling the soil. John Locke took this idea and developed it, arguing that human beings are obliged to maximise the productivity of the land, and that through such activity one could establish ownership. Unlike Grotius, Locke’s theory of private property in the state of nature does not require the context of civil society. Locke wanted to go further than Grotius’s primitive form of property in which each has the right to the fruit he or she picks, and of the animals hunted and killed and establish ownership in land. The problem was how to do this without conceding that the Native Americans already owned the land. The device he used was to employ a very restricted definition of labour. The earth requires long and sustained labour in order to yield its fruits and make it productive. Mere occupancy or appropriation, that is, taking possession, does not qualify. Land that is not cultivated is vacant or waste, and literally no man’s land. The world was indeed given to humans ‘for their benefit. And the greatest Conveniences of Life they were capable to draw from it’. (Locke, Second Treatise, §309; Lebovics 1986, 577). Therefore, the land that was not explicitly enclosed and cultivated to its maximum capacity was still common land, open for the taking by European settlers. Locke contends that: ‘As much Land as a man Tills, Plants, Improves, Cultivates, and can use the Product of, so much is his Property’ (Locke, Second Treatise, §32, 290–291; Waldron 2002, 164–170). The crucial point is this: Locke makes explicit that activities such as roaming over the uncultivated land, hunting and gathering, or grazing one’s sheep, is excluded from securing a title to property. What is of more significance is that not only does labour provide a title for the ownership of property in the state of nature, but Locke also wanted to establish the moral obligation to engage in labour. It is not enough to mix one’s labour in the land, say by enclosing it and planting trees, but we are obliged to develop it to its greatest productive capacity as industrious and rational creatures. This moral obligation to engage in making the land productive also extends to a moral obligation to protect such industry. Indigenous peoples could not safeguard their property rights merely by living according to natural law; they needed to take possession of the land through cultivation and establish civil societies if Europeans were to be prevented from taking ownership. The implication of Locke’s discussions of the Native Americans is that they fall short of adequately discharging their obligations to God. They still live outside of political society in a state of nature and they fail to add to the common stock of mankind by improving the productivity of the land. In so doing they have no claim on vast territories in the Americas that ‘lie waste’. By this Locke means more than land that is simply left barren. Land that was not efficiently utilised, and whose produce

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was allowed to rot, regardless of its being enclosed, ‘was still to be looked on as Waste, and might be the Possession of any other’ (Locke, Second Treatise, §38, 295). Locke’s defence of right to colonial expansion proved immensely influential, and version of it can be found in subsequent eighteenth century discoursing about European expansionism. Emer de Vattel (1714–1767), the Genevan born eighteenth century international jurist, likewise argued ‘[t]he cultivation of the soil … is … an obligation imposed upon man by nature’ (Vattel 2008, book I, Chapter 7, §81). It might have been acceptable in primitive times to live the life of hunting and gathering, but with the increase in population each nation ‘is obliged by the law of nature to cultivate the land that has fallen to its share’ (Vattel 2008, book I, Chapter 7, §81). What this analysis shows is that the definition of private property itself has proved contentious enough, and it never was an absolute and universal right without qualification. In Athens, for example, one had to be a citizen to hold property, which brought into play considerations of mental fitness, age, and sex. In twentieth century South Africa, for example, under the Apartheid regime, what could be owned, and where, depended on racial classification— white, Asian, coloured, or black (see also Boisen and Boucher 2017). Problems also arise from the conditions under which property may be alienated or transferred to someone else. Indeed, each society determined what, how much, and to whom; and so, the transmission of property is not itself part of the definition of private property, but a contingent aspect of such a definition (Waldron 1988, 29). Furthermore, disputes over the territory, or estate, or a ruler were a constant source of antagonism in international relations. Not only were boundaries disputed, but also whether a ruler was fit to possess such rights.

Conclusion Lewis Hanke, the influential American historian of colonial Latin America, argued ‘that the discovery of America was the true beginning of the modern world, because for the first time in history serious attention was paid to people of other languages, other religions, other colours, and other cultures’ (Bushnell and McAlister 1988, 673). This is undoubtedly true, but it also marked the beginnings of raising questions about indigenous property rights and the legitimacy to claims of vast areas of Mexico and Peru and later the British acquisition of territories in North America—questions that needed answers, and answers that needed justifications, not necessarily to indigenous peoples themselves, but to other European powers that coveted these territories. The conceptual challenge, as this chapter demonstrates, laid in affirming a world view that underpinned those question/answer constellations. For some of the Dominicans, Las Casas in particular, a possibility emerged for the affirmation of a New World order—a juridical unity of humankind with a moral basis in the mystical Body of Christ (Lantigua 2020, 10). By all accounts, that reimagination must have been short-lived. The brutality of

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the Spanish conquest was a moral abomination to Las Casas. Not only did it bring (and continues to do so) devastation and ruin to millions of indigenous peoples in the Americas, it was also a ‘scandalous pairing of evangelisation with violence’ (Lantigua 2020, 124). What it also did, was to establish Las Casas and his associates as witness bearers and reactionaries to the moral outrage that lay before them. There is an argument to be had, although not one I have made here, that Las Casas favours non-idealising approaches to ethical theory and might even, with the late Charles W. Mills, think of ideal theory as ‘ideological, in the pejorative sense of a set of group ideas that reflect, and contribute to perpetuating, illicit group privilege’ (Mills 2005, 166).5 If not, he is, at the very least, troubled by it. Ideal theory both excludes and marginalises the actual in its reliance on idealisation (Mills 2005, 168). As Mills asserts ‘[i]t is no accident that historically subordinated groups have always been deeply sceptical of ideal theory, generally see its glittering ideals as remote and unhelpful, and are attracted to nonideal theory […]’ (Mills 2005, 170). Las Casas’ work involved in mapping non-ideal realities of injustices committed against the American indigenous population to present an alternative path to how we might go about transitioning towards the ideal, but also raise doubts whether we even can or should. As such, Las Casas casts doubt on whether a world community is even achievable (in an earthly life at least). The interventionism favoured by his intellectual adversary, Sepúlveda, is certainly less than an ideal starting point for such a world order as countless of recent conflicts and interventions evidences. There is no need to restate the subsequent ideological underbelly of the invocation and application of ideas of property rights, political authority, and war that were developed, tried, and tested in the wake of the European conquest of the Americas and beyond. These encounters have implicated luminaries of Western thought to the project of empire (and all that it entails) and the verdict is still out, whether international political theory can extricate itself from such a project. In fact, much of international political theory has been ex-post facto rationalisations and justifications for events that have already occurred, such as the occupation of the Americas. When asking the question ‘by what right’, we state as much as what we aspire to. In doing so, we also limit our discussion of such aspirations and their moral possibilities through the history that has led us to such a discussion. Our divisions in thought require an inspection of these projects of domination that have preceded our moment, and one of the more seminal of these moments was the discovery of the Americas, whose long shadow casts itself in a lingering way over our contemporary international environment.

5

Mills ultimately claims ‘that a nonideal approach is also superior to an ideal approach in being better able to realise the ideals, by virtue of realistically recognising the obstacles to their acceptance and implementation’ (2005, 181).

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References Adorno, Rolena. 2007. The Polemics of Possession in Spanish American Narrative. New Haven, CT: Yale University Press. Aguilar, Jose Manuel, and de. 1946. The Law of Nations and the Salamanca School of Theology. The Thomist: A Speculative Quarterly Review 9: 186–221. Arendt, Hannah. 1998. The Human Condition. Chicago: The University of Chicago Press. Bain, William. 2013. Saving the Innocent, Then and Now: Vitoria, Dominion and World Order. History of Political Thought 34: 588–613. Boisen, Camilla, and David Boucher. 2017. Medieval and Early Modern legacy of rights. In Medieval Foundations of International Relations, Ed. William Bain, 148– 165. London: Routledge. Boucher, David. 2009. The Limits of Ethics in International Relations: Natural Law, Natural Rights and Human Rights in Transition. Oxford: Oxford University Press. Bushnell, David, and Lyle N. McAlister. 1988. An Interview with Lewis Hanke. The Hispanic American Historical Review. 68 (4): 653–674. Casas, Las, and Bartolomé de. 2004. A Short Account of the Destruction of the Indies. London: Penguin. ———. 1992. In Defense of the Indians. Trans. Stafford Poole. DeKalb, IL: Northern Illinois University Press. ———. 1967. Apologetica Historia Sumaria. 2 Volumes. Ed. Edmundo O’Gorman. México City: Universidad Nacional Autónomia de México. Faudree, Paja. 2013. How to Say Things with Wars: Performativity and Discursive Rupture in the Requerimiento of the Spanish Conquest. Journal of Linguistic Anthropology 22: 182–200. Fernández-Santamaria, José A. 1975. Juan Ginés de Sepúlveda on the Nature of the American Indians. The Americas 31 (4): 434–451. Gentili, Alberico. 1933 [1612]. Three Books on the Law of War. Trans. John C. Rolfe. Oxford: Clarendon Press. Green, L.C., and Olive P. Dickason. 1993. The Law of Nations and the New World. Edmonton: University of Alberta Press. Hanke, Lewis. 1959. Aristotle and the American Indians: A Study in Race Prejudice in the Modern World. Bloomington and London: Indiana University Press. Hanke, Lewis. 1994. All Mankind is One: A Study of the Disputation Between Bartolome De Las Casas and Juan Gines De Sepúlveda on the Religious and Intellectual Capacity of the American Indians. DeKalb IL: Northern Illinois University Press. Hegel, Friedrich. 1991. Elements of the Philosophy of Right. Ed. Allen W. Wood. Cambridge: Cambridge University Press. Koselleck, Reinhart. 2004. Futures Past: On the Semantics of Historical Time. New York: Columbia University Press. Lantigua, David. 2020. Infidels and Empires in a New World Order—Early Modern Spanish Contributions to International Legal Thought. Cambridge, Cambridge University Press. Lantigua, David. 2019. Religion within the Limits of Natural Reason: The Case of Human Sacrifice. In Bartolomé de las Casas, O.P.: History, Philosophy, and Theology in the Age of European Expansion, Eds. David Thomas Orique O.P. and Rady Roldán-Figueroa, 280–309. Leiden: Brill.

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Lebovics, Hernan. 1986. The Uses of America in Locke’s Second Treatise of Government. Journal of the History of Ideas 47: 567–581. Locke, John. 2002. Second Treatise. Cambridge: Cambridge University Press. Lupher, David. 2003. Romans in a New World: Classical Models in Sixteenth-Century Spanish America. Ann Arbor MI: University of Michigan Press. Mills, Charles W. 2005. “Ideal Theory” as Ideology.” Hypatia 20 (3) (Summer): 165–184: 166. Muldoon, James. 1980. John Wyclif and the Rights of the Infidels: The Requeriminto Re-Examined. The Americas 36 (3): 301–316. Pagden, Anthony. 1982. The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnography. Cambridge: Cambridge University Press. Pagden, Anthony. 1987. Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate Over the Property Rights of the American Indians. In The Languages of Political Theory in Early-Modern Europe, Ed. Anthony Pagden, 79–98. Cambridge: Cambridge University Press. Peters, F. E. 2005. The Monotheists: Jews, Christians, and Muslims in Conflict and Competition. Princeton, NJ: Princeton University Press. Pufendorf, Samuel von. 1934. Of the Law of Nature and Nations. Trans. C. H. Oldfather and W. A. Oldfather. Oxford: Clarendon Press. Sepúlveda, Juan Ginés de. 1973. Apology for the Book on the Just Causes of War: Dedicated to the Most Learned and Distinguished President, Antonio Ramirez, Bishop of Segovia. Trans. Lewis D. Epstein (unpublished manuscript). Bowdoin College. ———. 1984. Democrates Segundo: o de las Justas causas de la guerra contra los indios. Trans. Angel Losada. Madrid: Consejo Superior de Investigaciones Científicos. Tierney, Brian. 2001. The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625. Grand Rapids, MI: Eerdmans. Vattel, Emer de. 2008. The Law of Nations. Or the Principles of Natural Law, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on The Origin and Nature of Natural Law and Luxury. Eds. Béla Kapossy and Richard Whatmore. Indianapolis, IN: Liberty Fund. Vitoria, Francisco. 1991. Political Writings. Eds. Anthony Pagden and Jeremy Lawrence. Cambridge: Cambridge University Press. Waldron, Jeremy. 1988. The Right to Private Property. Oxford: Oxford University Press. Waldron, Jeremy. 2002. God, Locke, and Equality: Christian Foundations in Locke’s Political Thought. Cambridge: Cambridge University Press. Weber, Max. 1949. On the Methodology of the Social Sciences. Trans. and Ed. Edward A. Shils and Henry A. Finch. Chicago: The Free Press of Glencoe. Wolff, Christian. 1934. The Law of Nations Treated According to Scientific Method in which the Natural Law of Nations is Carefully Distinguished from that which is Voluntary, Stipulative and Customary. Trans. Joseph H. Drake. Oxford: Clarendon Press

PART III

The Westphalian Moment

CHAPTER 9

Dynamic Cosmopolis: The “Westphalian World Order” and Beyond Georg Cavallar

Pauline Kleingeld’s differentiation among various types of cosmopolitanism has become widely accepted. She distinguishes moral cosmopolitanism from commercial, legal or cultural versions (Kleingeld 1999, 2012). I propose an additional distinction, namely between static cosmopolitanism, which holds that all humans already belong to some sort of community, and dynamic cosmopolitanism, which holds that this community is a goal in the future, and that it should be formed, cultivated and promoted. I claim in this essay that dynamic cosmopolitanism is a version of cosmopolitanism that can be found in some authors of early European modernity from 1500 to 1800. My goal is to offer a brief outline of the historical developments and to point at the dynamic elements in selected philosophical and cosmopolitan theories since Vitoria. My focus is on dynamic legal cosmopolitanism and dynamic commercial cosmopolitanism. It seems like madness to cover three centuries in one chapter. And madness it may be, though I hope that some patterns will emerge and my systematic considerations are insightful rather than fanciful. I start with the concept of the “Westphalian world order”. Here and elsewhere, I try to tackle a key philosophical problem: how to think about coherence and diversity together. I posit the coherence of the epoch from the 1650s to 1800 (the Age of Enlightenment, of absolutism, of the Westphalian G. Cavallar (B) Department of History, University of Vienna, Vienna, Austria e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_9

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system). I suggest that the term “Westphalian system” should only be used for the era of European politics from 1648 to the Congress of Vienna. A better term for our current international order would be “the nineteenth-century inter-state system in transition”. So-called international legal theory in Europe from roughly 1450 to 1800 can be divided into four different “schools”: the imperialist school, the Christian-commonwealth school, the society-ofstates school and the cosmopolitan school. In the later sections of this essay, I argue that various types of cosmopolitanisms undermined the very notion of a “Westphalian world order” and the tenets of the society-of-states school.

The “Westphalian World Order” and International Legal Theory Some historians, political scientists and sociologists have referred to the “Westphalian world order” as a proper description of the modern international society of sovereign and equal states, where order is established by a new European law of nations, le droit public de l’Europe, and the balance of power. Rules and cooperation such as diplomacy and trade were designed to guarantee peaceful coexistence and a precarious balance of power while keeping state freedom or sovereignty intact. States were not supposed to interfere in other states’ domestic affairs. This “Westphalian principles” are sometimes seen as the basis of the current world order (Lyons and Mastanduno 1995). According to this narrative, the “Westphalian order” was founded with the Peace of Westphalia, a series of peace treaties signed in Osnabrück and Münster in 1648, thus ending the Thirty Years’ War. The concept of a “Westphalian order” has its own history. In 1948, the international lawyer Leo Gross (1903–1990) claimed: “Instead of creating a society of states, the Peace of Westphalia, while paying lip service to the idea of a Christian commonwealth, merely ushers in the era of sovereign absolutist states which recognised no superior authority. In this era, the liberty of states becomes increasingly incompatible with the concept of the international community, governed by international law independent of the will of states” (Gross 1948, 39). In this short passage, Gross distinguished between three types of international arrangements: the society of states forming an international community; the coexistence of sovereign states; and the Christian commonwealth apparently positioned in between those two stark alternatives. In Gross’ account, “Westphalia” stands for absolute freedom, sovereignty, the will of states and their independence. The Westphalian system is seen as incompatible with the idea of any community of states. Subsequent authors have referred to international relations since the end of the Cold War as a “post-Westphalian era”. It is, so the story runs, characterised by non-state actors, global corporations, porous borders, the waning or demise of the sovereign nation state, and a new emphasis on international human rights. International relations are no longer exclusively inter-state relations (see for instance Linklater 1998).

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Several legal and diplomatic historians have attacked the very notion of a “Westphalian order” and challenged the centrality of the peace of Westphalia, especially since the commemorations of 1998 (Arndt 2010; Duchhardt 2010). This criticism has two aspects (for the following see Duchhardt 1999; 2012; Lesaffer 2004b, 9–10). First, it is asserted that long before Westphalia, many European states were in fact sovereign, even if the term had not been used. Pope and emperor had lost their predominance towards the end of the socalled Middle Ages. The Peace of Westphalia shaped future peace treaties, but it also had its roots in a long European tradition. “While it cannot be denied that Westphalia is a benchmark in the history of the law of nations, the Peace Treaties of Westphalia as well as later treaties drew on a tradition of peace treaties and law that was older” (Lesaffer 2004a, 3). In addition, Heinz Duchhardt asserts that even after 1648, some non-state actors remained (partly) sovereign—or states were stripped of their sovereignty, like Poland after the 1770s. Secondly, some historians of international law claim that the crucial changes shaping our current international (dis)order took place much later, namely in the nineteenth century (Vec 2012, 655). In short, historians tend to qualify most of the claims made about the “Westphalian system”. The answer they give is a “Yes, but”. The Peace of Westphalia was indeed the key text for inter-state relations up to the 1790s (Duchhardt 2012, 630). However, these historians also qualify the concept of legal equality or the balance of power allegedly enshrined in the peace treaty. There were long-term processes that cannot adequately be described with reference to a “turning point” or “starting point” in the year 1648. History is, after all, a dynamic process. Finally, it is very dubious if the Peace of Westphalia started, or even triggered anything close to a “system”. Obviously, it did not (Duchhardt 1999, 308–309, 313–314). This kind of criticism or qualification is of course a pattern familiar in academic discourses: the experts in the field warn about oversimplifications, distortions, misleading buzzwords and pigeon-holes, whereas scholars outside the discipline of the history of international law favour convenient and handy concepts. I suggest that the term “Westphalian system” should only be used for the era of European politics from 1648 to the Congress of Vienna. A better term for—or description of—our current international order would be “the nineteenth-century inter-state system in transition”. With the familiar caveats in mind, international legal theory in Europe from roughly 1450 to 1800 can be divided into four different “schools”: the imperialist school, the Christian-commonwealth school, the society-of-states school and the cosmopolitan school (Cavallar 2013, 2015a, 55–59). My story has two conceptual starting points: the imperialist school and the Christian-commonwealth school, focusing on the respublica christiana, or the idea of a “Christian republic” or “commonwealth”. The story begins with the “crisis of the European legal order” (Lesaffer 2004b, 10–13) since the late Middle Ages around 1450. This crisis was caused by events which eventually led to the breakdown of the mediaeval European order. Most mediaeval

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theologians and scholastics had defined Europe as a kind of Christian “republic” with shared religious, cultural, juridical and political ideas, thus forming a unity under the leadership of pope and emperor. Several factors contributed to the collapse of this legal order: the gradual emergence of the sovereign state, the conquests of the Turks on the Balkans, the struggle between France and the Habsburgs over hegemony in Europe, the crisis of the church, the Reformation, and the discovery and conquest of non-European territories and peoples (Grewe 2000, 37–74; Ziegler 1994, 107–137; Lesaffer 2004b, 11– 13). In spite of these changes, it seems that the idea of a “Christian republic” was—implicitly or explicitly—referred to well into the eighteenth century. The Abbé de Saint-Pierre might be a case in point (Mastnak 1998). Representatives of the imperialist school promoted the idea of a universal monarchy, of empire or of hegemony of one state, which trumped the rights of a community or another state in case of conflict. Emperor Charles V and his chancellor, Mercurino Arborio di Gattinara, most famously attempted to establish a monarchia universalis in the 1520s in the aftermath of the victory over the French king (1525) and the conquests in the new world. They could rely on a tradition going back to Roman jurisprudence which referred to the emperor as dominus mundi or “lord of the world” (Lesaffer 2004b, 31– 32; Bosbach 1988; Muldoon 1999). The young Dutch lawyer and humanist Hugo Grotius (1583–1645) can be seen as a fairly typical representative of the imperialist school. In De Jure Praede (1604–1608), he defended Dutch colonialism, in particular the interests of the United Dutch East India Company (the VOC or Vereenighde Oostindische Compagnie), employing the language of natural law and natural rights and drawing on various philosophical, theological and humanistic sources. Commercial goals replaced theological goals. Grotius used—and distorted—the language of Stoic philosophy to vindicate Dutch interests in free trade and navigation. “Grotius developed his rights and contract theories for eminently practical purposes. De Jure Praedae was a brilliant vindication of the VOC’s privateering campaign in the East Indies” (Ittersum 2006, xix). Mare Liberum was not an impartial advocacy of the freedom of trade, but a political tract published at the request of the VOC directors (Ittersum 2006; 2010). As already mentioned, Mediaeval theologians had defined Europe as a kind of “Christian commonwealth” with shared religious, cultural, juridical and political ideas, thus forming a unity under the leadership of pope and emperor. After the Reformation, Protestants also came to use the term, but with different meanings. The concept of spiritual sovereignty of the pope was of course dropped. The notion of a Christian commonwealth was invoked in the context of the wars with the Ottoman Turks, for example. A recurrent theme was the sad fact of the disunity of this Christian community in the face of Turkish conquests on the Balkans. Sometimes the term referred exclusively to one country like England (Lockey 2015), or, more traditionally, to the “theological supremacy of the pope”, as in the writings of the Catholic theologian Robert Bellarmine (Tutino 2010, 36).

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Catholic theologian Francisco de Vitoria (1486–1546), often seen as one of the “fathers of international law”, could perhaps be interpreted as another representative of the idea of the Christian commonwealth (Cavallar 2002, 84– 119; 2015a, 56). Although he asserted that the Native Americans had “true dominion”, the goal of his famous lecture De Indis (1539) was to justify preaching the Gospel—in its Catholic version—and bringing salvation to the aborigines. According to Vitoria, the Spaniards were the “ambassadors” of Christ, protected by the right of nations or ius gentium (Cavallar 2002, 62–65 on the various dimensions of this term). The rights to travel, to contact others, to trade and to settle were means to a particular end, namely the spreading of the Gospel, not something valuable in themselves. Only the Catholics were entitled to communicate their religious ideas, which were considered the only true ones. In addition, Vitoria considered the right of hospitality as a perfect, enforceable right of the “visitors”—that is, the Catholic Spaniards—who had the consent and the sanction of “the whole world” on their side (Vitoria 1991 [1528], 40). However, there were also cosmopolitan elements included in Vitoria’s approach (see below). Neither the pope nor the emperor had jurisdiction or a claim over Native American territories and persons. Vitoria posited universal obligations towards the human species and thus went beyond the narrow confines entailed in the idea of the Christian commonwealth. The third school endorsed an international legal theory which is closest to so-called classical, that is, nineteenth-century international law. It was state-centred, and emphasised sovereignty, positive legislation and the secularisation of politics. Thomas Hobbes and Samuel Pufendorf were the relevant authors establishing this tradition (Armitage 2006; Hüning 2009;Schröder 2001; 2010). There were crucial and long-term changes. Eventually, a dualistic concept of right developed, in particular after the Peace of Westphalia. Jurists and legal experts came to distinguish more clearly between natural right and positive right (lex). The latter was gradually identified with the will of the legislator or of the prince and seen as fairly independent of the ideas of natural justice and natural right (s). Jurisprudence became an independent and autonomous science, distinct from moral theology, for instance. A third change was the secularisation of politics. The concept of secularisation is difficult to define. Sociologist José Casanova has distinguished among three dimensions (Casanova 1994). In the first place, it refers to the functional differentiation between religious and secular spheres. This is “a process of functional differentiation and emancipation of the secular spheres—primarily the state, the economy, and science—from the religious sphere and the concomitant differentiation and specialization of religion within its own newly found religious sphere” (Casanova 1994, 19; Danneberg 2002). Secondly, secularisation could coincide with the privatisation of—organised—religion. It loses its dominant position in public life. Thirdly, secularisation can refer to the end or demise of religion. In early modern European history, secularisation as the “functional differentiation and emancipation of the secular spheres” was a gradual process. The society-of-states school was part and parcel of this development.

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The consequences of this new legal philosophy were profound. Traditional jus gentium as a source of right “almost all gentes or peoples—especially the socalled civilized ones—had in common” came to end. In its stead, the concept of Ius Publicum Europaeum, of the public law in Europe, became more important. Another change was a clear distinction between internal and external sovereignty (Lesaffer 2004b, 13–14). The law of nations was usually conceptualised as part of the sphere of natural right, a distinct field applying to a unique set of legal subjects, namely, to sovereign rulers or states (civitates ). In the course of the eighteenth century, the society-of-states school gradually gained the upper hand. The cosmopolitan school promoted an international society characterised by peaceful interaction and exchange and based on reciprocity and equal spheres of external freedom. Sometimes it emphasised individuals and their rights rather than states or communities. Representatives tried to avoid the imperialist and hegemonic implications of the first school. They went beyond the Christian underpinnings of the second school as well as the state-centred approach of the third school. By contrast, they emphasised natural rights with a global reach. The German philosopher Christian Wolff (1679–1754) should be seen as the first important representative of this school (Cavallar 2004; Cheneval 2002, 132–213; and Sect. 9.3 below). He developed a new concept of right (lex) as a binding body of rules no longer connected with the defining feature of the legislator. The decisive element was the obligatory force of right, with the right of nature based on the essence of humans, and not on God’s will (Schröder 2008, 66–67). According to Wolff, natural right logically preceded the society of sovereign states. This resulted in the civitas maxima, an ideal of reason and the idea of a hypothetical international legal commonwealth based on tacit consent. Some authors are of course difficult to pigeonhole. For instance, Grotius presented a more impartial and less imperialist account of the law of nations in his major work of 1625, De Jure Belli ac Pacis (Cavallar 2002, 121– 151). Most international lawyers after Wolff belonged to the mainstream society-of-states school, for instance, Gottfried Achenwall (1719–1772) and Johann Stephan Pütter (1720–1807), Emer de Vattel (1714–1767) and Karl Anton Freiherr von Martini (1726–1800), whereas the cosmopolitan school remained marginal. Most famously, Vattel replaced Wolff’s juridical concept of a civitas maxima with the moral concept of the société humaine. According to Vattel, humans were only bound by conscience to assist each other, on condition that this imperfect duty of mutual assistance was compatible with the perfect duties towards oneself (Vattel 2008 [1758], “Introduction”, §§ 10–13 and 3.12.189). These four schools are clearly distinct from each other. Yet I argue in the next section that they shared some concepts and assumptions that can be summarised under the heading of “modernity”.

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The Early Modern European Background: Transcending or Dissolving Boundaries Hans Schelkshorn characterises modernity as a process of going beyond or dissolving boundaries (Schelkshorn 2009; 2012; Brett 2011; Cavallar 2017 , x-xxiii). Schelkshorn defines modernity as a complex interplay of secularisation (primarily understood as the functional differentiation between religious and secular spheres), the process of enlightenment (defined as critical selfreflection), of cultural innovations, of European expansions and of their impact on mentalities. According to Schelkshorn, the key modern ideas are curiositas, the vis creativa of the human being, perfectibilité, and—at a later stage, since roughly the 1750s—progress. This approach also helps us to understand the dynamic and cosmopolitan dimension of early modernity. In Schelkshorn’s narrative, the beginnings of modernity can be traced back to three sets of ideas of Renaissance philosophy. The first crucial ideas were those of a universe without boundaries and of insatiable curiosity, the desire to know about the world. These concepts played a crucial role in the philosophy of Nicholas of Kues (1401–1464; also known as Nicholas of Cusa or Nicolaus Cusanus) in particular. Greek and Roman antiquity tended to have strong reservations about curiosity, since the care for the soul was considered more central. Cusanus, as he is also known, broke with this tradition and developed a new philosophy of the mind since De coniecturis (1442/ 43). Kues argued that the human mind could be compared to a city with five gates (the five senses). He compared human reason with God’s creative power and asserted that the human being was similar to a mapmaker ”who, through his inventive art, creates his own visualisation of the order he observes in the external world” (Watts 1982, 213; Flasch 1998; Schelkshorn 2009, 145–162). Cusanus rejected traditional arguments against curiosity with the help of his theological doctrine of God’s self-revelation in the world. Some intellectuals of the Renaissance, in particular Giovanni Pico della Mirandola (1463–1494), developed the second crucial idea: the creative power of human beings. Pico characterised in his major work Oratio de hominis dignitate the individual as a designer and creator of oneself (Mirandola 2012). Humans were God’s creatures, but not determined by God’s will. They had many possibilities at their hands which made self-formation possible. They could free themselves from the immutable laws of nature. God addresses humans with the following speech in Mirandola’s text: ”Once defined, the nature of all other beings is constrained within the laws We have prescribed for them. But you, constrained by no limits, may determine your nature for yourself, according to your own free will, in whose hands We have placed you […] so that you may, as the free and extraordinary shaper of yourself, fashion yourself in whatever form you prefer” (Mirandola 2012, 117). There is a clear theological background. Human creative freedom was the result of God’s wisdom and charity. God wanted humans to be free and to exercise their free will as a faculty to go beyond boundaries set by nature. Human

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”germs” or dispositions were given, but they had to be formed, cultivated and transformed. Human dignity was no longer something static, but dynamic, the realisation of human potential, achieved through creative powers. Anthropological essentialism—the concept that humans have a set of natural attributes that do not change—was replaced with a dynamic conception of human nature (Schelkshorn 2009, 190–205; Gröschner 2008). In all likelihood, Pico and other Renaissance philosophers influenced the thinking of subsequent generations. The “idea of global moral responsibility” and of a global “community of communication” was the third major idea of the Renaissance (see the next section). The sphere of theoretical knowledge was also conceived in evolutionary or dynamic terms. Francis Bacon’s Instauratio magna and Novum Organum are cases in point. He held that the human condition could partly be improved and that the power over nature could be increased, in spite of the limits set by the fall of man. Two additional major developments occurred in the wake of Renaissance philosophy. The concept of normative individualism and the idea of morality as autonomy or self-legislation gradually evolved in the writings of theologians, canonists, humanists, philosophers and lawyers. Normative individualism is the conviction that humans and their natural rights are the morally relevant units of concern. Debates had started in the Middle Ages and focused on the roles of the individual’s conscience, personal will, moral equality and natural rights. The work of the canonists reached a climax with Gratian’s Decretum (around 1140), which “amounted to a reversal of assumptions in favour of human equality”. For, in effect, it stipulated that all “persons should be considered ‘individuals’, in that they share an underlying equality of status as the children of God” (Siedentop 2014, 218). This new concept of normative individualism had far-reaching consequences at the time of the Spanish conquest of the Americas (see the next section). The idea of morality as autonomy or self-legislation is the second major development since the Renaissance. Traditionally, morality was understood as obedience—towards God, the Deity, the cosmos or nature. The result at the end of the gradual intellectual and cultural change was very different. “The new outlook that emerged by the end of the eighteenth century centred on the belief that all normal individuals are equally able to live together in a morality of self-governance” (Schneewind 1998, 4; Brender and Krasnoff 2004). According to Jerome Schneewind, the turning point in the development occurred in the early eighteenth century, when the theory became “self-conscious” (Schneewind 1998, 5). The key authors were the Protestant theologian Christian August Crusius (1715–1775) and the British philosopher Thomas Reid (1710–1796) together with well-known scholars like Rousseau, Kant and Bentham (Cavallar 2015a, 121). Another crucial concept was added to the discourses in the 1750s. The concept of the vocation (Bestimmung ) of the individual as well as of the human species was developed, by writers like Johann Joachim Spalding, Rousseau, Moses Mendelssohn or Kant. Rousseau referred to the ”perfectibilité de

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l’homme”. Sometimes this notion was combined with nascent cosmopolitan theories of history (Cavallar 2017, 1–30). In general, the ontological question about the essence of the human being was complemented or even replaced by teleological considerations. What are human purposes and ends? What should be our goals, ends and purposes? As Kant has coherently argued, the concept of vocation or Bestimmung contains three dimensions (Louden 2014; Brandt 2009). The first level refers to human beings as part of the natural world, as animals who are endowed with germs that in turn are determined to develop in a certain way. The second dimension relates vocation to the human capacity of self-reflection, deliberation and the freedom of choice. Kant called these capacities skilfulness and prudence, and it is also our task to cultivate them. The third level interprets humans as beings with moral predispositions and the capacity of moral freedom and moral autonomy as self-legislation. ”The human being shall make himself better, cultivate himself, and, if he is evil, bring forth morality in himself” (LP, 9: 446).1 This dynamic understanding of anthropology probably had repercussions on legal, political and cosmopolitan theories. The new concept of morality as autonomy or self-legislation bestowed dignity on each human regardless of class, education and intellectual capacities, since self-governance was a capacity all humans shared equally. Kant famously held that “common human reason” guaranteed that ordinary humans have an implicit—though often vague— moral knowledge, and philosophers like Socrates merely make them attentive to their own reason’s principle (G, 4: 404; Munzel 1999). This contrasted with the traditional concept of morality as obedience. In addition, ancient thinking in the Greek and Roman world assumed a natural inequality among humans, with the pater familias, the priest and the male full citizen on top of the social hierarchy. Reason or logos usually referred to an unchanging order or cosmos and was unequally distributed. The crucial unit was not the individual but the clan, the extended family and later the polis or the patria. Cicero, for instance, developed the idea of societas humani generis, of a global moral society based on recta ratio and common, shared feelings. However, there was a clear hierarchy with family and patria coming first, and the cosmopolitan elements of Cicero’s philosophy were inextricably tied to his enthusiasm for the Roman Empire and his defence of Roman imperialism (Schelkshorn 2009, 249–256). According to Siedentop, Christian theology since late antiquity caused the crucial changes in European culture. Humans of antiquity lived in a “moral enclosure”, which was broken up by the New Testament. Christianity 1 Kant’s works are cited according to the abbreviations given in the list below. This is followed by the volume and page number in Kant’s Collected Works (Gesammelte Schriften) with the Academy Edition (Akademie-Ausgabe), unless otherwise indicated. The English translations are from the Cambridge Edition of the Works of Immanuel Kant (1992-). The abbreviations used are the following: G = Grundlegung zur Metaphysik der Sitten/ Groundwork of the Metaphysics of Morals; CPJ = Kritik der Urteilskraft/ Critique of the Power of Judgment; TPP = Zum ewigen Frieden/ Towards Perpetual Peace; Anth = Anthropologie in Pragmatischer Hinsicht / Anthropology from a Pragmatic Standpoint; LP = Vorlesung über Pädagogik/ Lectures on Pedagogy.

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combined Jewish monotheism with the universalism of ancient Greek philosophy and “changed ‘the name of the game’, emphasising the moral equality of humans, quite apart from any social role” (Siedentop 2014, 352 and 33–57, 217, 351–352; Gräb and Charbonnier 2012). Morality became procedural: moral maxims were the result of personal reflection and approval; the moral agents looked for inner coherence and consistent principles as opposed to self-contradictory ones. Moral knowledge was meta-knowledge of one’s own mode of thinking, not metaphysical knowledge of a pre-established moral order. The upshot was the dynamic idea of perfection, especially in the area of morality. According to my narrative, there was a paradigmatic change from static and material natural law theories to the procedural rational law of modernity also (but not exclusively) based on communication, deliberation and popular sovereignty. As Kant put it, humans “feel destined [or called] by nature to [develop], through mutual compulsion under laws that come from themselves, into a cosmopolitan society (cosmopolitismus ) that is constantly threatened by disunion but generally progresses toward a coalition” (Anth, 7: 331). It might be argued that the contrasting juxtaposition of static ancient or mediaeval philosophy with dynamic modern philosophy is unfounded. However, it is obvious that the Stoic idea of a universal community “to which human beings already belong to”, and which is thought of ”as a metaphysical given”, is very different from the modern version “presenting a way of accomplishing this” (Kaldis 2013, 599). In dynamic and modern cosmopolitan theories, the universal community is neither something given nor a metaphysical entity, but a goal that humans should try to realise in the future. As Reinhard Brandt put it, dynamic cosmopolitans like Kant differed from the Stoics insofar as they conceived of “the individuals as members and citizens not only of the kosmópolis contemporary to them, but as members and citizens of the human species in its historical dimension as well. The human being becomes thereby a member of and means to the future humanity” (Brandt 2003, 98). This historical and dynamic dimension is missing in ancient forms of cosmopolitanism. We should keep in mind, however, that dynamic change to a different state of affairs does not necessarily imply moral progress.

Dynamic Legal Cosmopolitanism In this account, I am going to leave out dynamic moral and religious cosmopolitanism. I focus on dynamic legal cosmopolitanism as well as dynamic commercial cosmopolitanism (Cavallar 2017, 1–11; 2002). My contention is that both types of cosmopolitanism undermine the very notion of a “Westphalian world order” and the tenets of the society-of-states school. Following Hans Schelkshorn, I interpret Francisco de Vitoria as one of the key authors contributing to the breaking down of geographical boundaries and the birth of cosmopolitan morality: the third major idea of the Renaissance was the “idea of global moral responsibility” and of a “global community

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of communication” (Schelkshorn 2009, 89, 283–284). The idea was triggered by modified perceptions in the wake of the discovery, conquest and exploitation of new continents by the Europeans. The discoveries challenged traditional geographical and cosmological worldviews, especially the idea of world empire. In actual politics, this boiled down to attempted hegemony over the known world or the oikumene (Schelkshorn 2013). Rejecting the idea of world empire in his Relectio de Indis (1539), Vitoria asserted that both imperial and papal claims were unjustified. Rejecting this idea strengthened the moral universalism of the Christian tradition that had been distorted by numerous distinctions and qualifications. Examples are the differences between pagans and Christians or the concept of natural slavery among Aristotelians (Schelkshorn 2013, 181–188; Cavallar 2002, 80–119; 2017, 2–6, 71–72). The Stoic idea of the society of the human species was no longer limited to the oikumene or the extension of the empire. It had become truly global. In the previous section, I have referred to the new concept of normative individualism. This is the second new element in Vitoria’s philosophy. Vitoria distinguished between two concepts of ius (Cavallar 2017, xvi). The traditional understanding, defining ius as an objectively given iustum, was still dominant. However, it was complemented by, and coexisted with, the new concept of ius being a personal potentia or faculty. The relationship between individual rights and objective natural law was understood as symbiotic and correlative (Brett 1997; 2011;Siedentop 2014, 80–84; Cavallar 2002, 80–84). The doctrine of individual rights was embedded in a framework of natural law. Right was a faculty and described a sphere of free choice allowed by permissive natural law. Subjective right was grounded in, derived from, and limited by natural law, the standard of what was objectively right. The distinction between objective law and subjective or personal natural right was a basic assumption of Vitoria’s lecture on the Native Americans. The distinction itself and the emerging theory of human right were not revolutionary. Vitoria’s originality should be located in his uncompromising application of the theory to a new context, that of the Native Americans, the so-called barbarians. As Brian Tierney put it, “Vitoria […] was not using a new language of rights; he was deploying an old language in a new context” (Tierney 1997, 262; 2014). Finally, this global community was—more conventionally—based on natural law and the traditional norms of ius gentium. However, Vitoria also added a third source, namely the presumed consent of the human species, since “the whole world, which is in a sense a commonwealth, has the power to enact laws” (Vitoria 1991 [1528], 40). This added a dynamic element: the global community had to be actively promoted. Humans should establish peaceful relations with each other, cultivate and perfect this society and further universal solidarity. This could be done with the help of communication, which encompassed the exchange of ideas, but also commerce or trade and the right to migrate. Vitoria himself was also often vigorously criticised, even by his own pupils. He seemed to condone the Spanish conquista, did not keep jus and ethos apart,

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namely legal and moral spheres. Communication seemed nothing but a fig leaf, an instrument to propagate and spread the Catholic faith. Publications sometimes challenged European attitudes of superiority over non-Europeans. Examples can be found in the writings of Michel de Montaigne, Denise Diderot or Johann Heinrich Gottlob von Justi (Schelkshorn 2009, 397–405; Muthu 2003; Osterhammel 1998, 72–75). Vitoria’s idea of a dynamic global commonwealth was, among others, taken up by Christian Wolff, who developed a culturally sensitive law of nations (Cavallar 2002, 208–15; 2011, 30–33). While the natural or necessary law of nations was the application of natural law to nations, the volitional or voluntary law of nations was based on right reason and the presumed or implicit consent of nations or gentes. While it had to be compatible with natural law, it could also gradually evolve towards the ideal (in Wolff’s terminology: the “fiction”) of the civitas maxima or the global or universal commonwealth. While described as “democratic”, Wolff seriously hampered his own conception of this commonwealth by taking recourse to a culturally contingent element, namely the approval of “the more civilized nations” (Cavallar 2002, 214–15). On the other hand, Wolff improved on Vitoria’s concept of communication. In contrast to Vitoria, he saw that communication had to be reciprocal. Along these lines, Catholic missionaries had indeed the right to propagate their faith in China, provided they behaved peacefully. By the same token, Chinese sages were entitled to communicate their ideas in Catholic countries. This process of formalising juridical principles like the concept of communication was continued by Kant. In the case of Kant, interpreters are confronted, as in Vitoria and Wolff, with the task of separating the rational, formal or universal from cultural elements. The current debates concerning Kant’s statements on race are a case in point. If this issue is bracketed, and the focus is on Kant’s cosmopolitan legal theory, then it can be argued that the idea of a dynamic evolution of the global commonwealth is formulated quite coherently. One crucial factor was the new philosophy of history, which argued reflectively for a telos or goal in history, namely a “progressive organization of citizens of the earth into and toward the species as a system that is cosmopolitically united” (Anth, 7: 333). This hypothesis is not cognition in a strict sense, but a postulate based on our moral obligation to promote this cosmopolitan or cosmopolitical union (“Cosmopolitical” would refer more specifically to dynamic juridical cosmopolitanism, not to cosmopolitanism in general). Along these lines, Kant’s international and cosmopolitan right can be interpreted as a philosophical theory with an incorporated dynamic element. The second definitive article would simply mediate an idea of reason with historical and cultural contingencies. It would argue for the gradual evolution of world society from mitigated anarchy to a permanent congress of states, then to a free federation, and finally towards a world republic (Cavallar 2020). In a similar vein, the famous article on cosmopolitan right would outline the basic formal and rational principles (such as prevention of injury), but also envision gradual legal progress. What would this possible

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legal progress consist of? First, humans could continue to delineate ever more precisely mutual spheres of juridical freedom of individuals as well as states or communities. Secondly, interaction or “communication” could be deepened, which also—but not only—included trade (Byrd and Hruschka 2010, 188–218; Cavallar 2015a, 49–75).

Dynamic Commercial Cosmopolitanism In early modern European history, commerce coincided with trade (the narrow meaning) or included all forms of interaction, such as the exchange of ideas or commodities (the wider meaning). Starting with the Renaissance, intellectuals reflected upon historical change and the dynamics of nascent economic globalisation. They would eventually develop theories that would survey the framework of debates up to the present. In the late seventeenth century, several natural lawyers divided history into economic stages and developed the outlines of a historical theory of property and law (Cavallar 2002, 237–240). The German jurist and historian Samuel Pufendorf (1632–1694) is a case in point. First, he assumed that human interdependence was a historical fact. Secondly, human needs were neither uniform nor finite, but malleable and dynamic. These two assumptions resulted in Pufendorf’s theory of commercial sociability. In terms of contemporary language, sociability was a “social construct” as well as a historical phenomenon, not something ontologically given. Reason, language and fitness or “aptitude” for society could be trained and cultivated by discipline, so that “full development which nature intends” was achieved. This also went beyond traditional conceptions of the “natural”. In the course of history, so goes Pufendorf’s central claim, humans came to realise that sociability was part of their self-interests. The “natural law” which specified that we should cultivate a sociable attitude was “natural” in a very specific sense. Contingent historical factors, especially population growth and the subsequent necessity to use of the world’s resources efficiently, required the introduction of private ownership. As a possible source of conflict, it had to be regulated by civil laws. In the wake of Pufendorf, English and Scottish thinkers developed early forms of the four-stage theory: human history gradually progressed from nomadic forms of life via agriculturally based economies to eighteenth-century money economies and commercial societies. The stages scheme introduced the new paradigm of historical change and development into the framework of natural law thinking. By the middle of the eighteenth century, the new philosophy of history had replaced previous forms of theologies of history and was in full bloom (Sommer 2006, 65–268; Scuccimarra 2006). John Locke provided a novel justification of a modern money economy that transcended borders and could potentially become truly global (Locke 1994 [1689]; Schelkshorn 2009, 529–593). Locke’s starting point was the notorious labour theory of property: property rights are established if persons mix their labour with objects like trees or the soil. Humans are proprietors

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of their own bodies, of their ideas, their actions and their labour as well as the products of their labour (Locke 1994 [1689], part II, § 27 and § 44). Their creative power also includes their capacity to change nature. According to Locke, pleonexia (greed, avarice, the desire to own what belongs to others) and amor sceleratus habendi (immoral greed) should be limited by natural law. However, he advocated unlimited economic growth, based on a developed money economy and on imports and exports on a global scale (Locke 1994 [1689], II, §§ 36–37 and §§ 47–51). Unlimited trade relations motivated people to produce commodities not limited to supporting one’s clan or family. Locke justified a market-oriented agriculture which produced for a world market. This in turn presupposed the acquisition of huge tracts of land and the introduction of “larger possessions”—usually at the expense of native nomadic populations (Locke 1994 [1689], II, § 36; Cavallar 2002, 260–262). Like Locke, David Hume, Adam Smith, Thomas Paine and Jeremy Bentham all favoured brands of economic cosmopolitanism, though they focused on the state as the key unit, and on the advantages it would gain from transborder interaction (see Cavallar 2002, 43–52 for more). By the end of the eighteenth century, three distinct positions had developed. The first position—termed “free-market cosmopolitanism” by Pauline Kleingeld (2012, 124 and 124–48 for the following)—was endorsed by the German Dietrich Hermann Hegewisch (1740–1812). Like Smith, Hegewisch attacked mercantilist protectionism, the guilds, tariffs and any form of trade restrictions. Going beyond Smith, he even argued for the freedom of movement and the freedom to choose one’s occupation. He believed that eventually market liberalisation on a truly global scale would lead to what is now termed ”the waning of the sovereign state “, to more tolerance and peaceful ”brotherly harmony” (Hegewisch 1795, 66, translated in Kleingeld 2012, 131). Hegewisch was realistic enough to know that this dynamic change on a global scale was fraught with numerous problems. He realised that the key problem was the transitional phase from the present condition—which included unequal power relationships—to the envisioned cosmopolitan future (Hegewisch 1792, 515–517). On the other side of the spectrum, Rousseau (to some extent) as well as Johann Gottlieb Fichte developed a theory diametrically opposed to Hegewisch’s. Fichte deeply distrusted the benefits of a global free-market economy, and advocated a “closed commercial state”. Foreign trade would be exclusively conducted by the state (rather than by its citizens), and transborder economic interaction would be reduced to an indispensable minimum (Fichte 1800; Nakhimovsky 2011; Kleingeld 2012, 136–148). Inspired and influenced by Smith, Kant espoused a middle position between Hegewisch and Fichte. Kant interpreted Nature reflectively and tentatively as a ”moral facilitator “, enabling the human species to educate itself (CPJ , 5: 425–436; Cavallar 2015a, 21–48). According to Kant’s reflective philosophy of history, eventually, all nations might develop towards commercial societies according to the four-stage theory. Global integration, peaceful relations and

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mutual self-interest might prevail over the traditional warrior spirit (CPJ , 5: 262–263; TPP, 8: 368; Goldman 2012). In contrast to Hegewisch, Kant did not endorse free trade unconditionally, but held that it should be compatible with the formal principles of justice. In contrast to Fichte, Kant did not see an inevitable contradiction between modern commercial societies in a globalising world on the one hand and morality and natural justice on the other. Randall Lesaffer has argued that “[t]he peace treaties of the early sixteenth century show the quite sudden collapse of the medieval system of European legal order. The Reformation was the main factor directly causing this breakdown” (Lesaffer 2004b, 42). This chapter has tried to characterise some of the changes, new concepts and new mentalities that evolved after this collapse. Early modern European history was characterised by the “conflicts of schools”, also in the area what might today be called “international legal theory”. We get the impression of endless debates about crucial issues revolving around the roles of individuals, states and the idea of a cosmopolitan community. Since the Renaissance, there have been conscious attempts to reform international and cosmopolitan norms. Many have hoped for legal progress and for dynamic changes for the better (see for instance Fassbender 2009). Dynamic change to a different state of affairs does not necessarily lead to moral progress. Others are worried: has there been too much change? Their key word is “deceleration” or “slowing down”: the world has seen too much change over the last centuries or decades. We should preserve our planet now and leave it alone. However, even this conservative goal would require more—dynamic—change.

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Muldoon, James. Empire and Order. The Concept of Empire, 800–1800. Basingstoke: Macmillan 1999. Munzel, G. Felicitas. 1999. Kant’s Conception of Moral Character. The ‘Critical’ Link of Morality, Anthropology, and reflective Judgment. Chicago and London: University of Chicago Press. Muthu, Sankar. 2003. Enlightenment against Empire. Princeton: Princeton University Press. Nakhimovsky, Isaac. 2011. The Closed Commercial State: Perpetual Peace and Commercial Society from Rousseau to Fichte. Princeton: Princeton University Press. Osterhammel, Jürgen. 1998. Die Entzauberung Asiens. Europa und die asiatischen Reiche im 18. Jahrhundert. München: Beck. Schelkshorn, Hans. 2009. Entgrenzungen. Ein europäischer Beitrag zum Diskurs der Moderne. Velbrück Wissenschaft: Weilerswist. Schelkshorn, Hans. 2013. The Change of Geographical Worldviews and Francisco de Vitoria’s Foundation of a Modern Cosmopolitanism. In Between Creativity and Norm-Making. Tensions in the Later Middle Ages and the Early Modern Era, Eds. Sigrid Müller and Cornelia Schweiger, 165–188. Leiden and Boston: Brill. Schneewind, Jerome B. 1998. The Invention of Autonomy. A History of Modern Moral Philosophy. Cambridge: Cambridge University Press. Schröder, Jan. 2001. Recht als Wissenschaft. Geschichte der juristischen Methode vom Humanismus bis zur historischen Schule (1500–1850). München: Beck. ———. 2008. The Concept of (Natural) Law in the Doctrine of Law and Natural Law of the Early Modern Era. In Natural Law and Laws of Nature in Early Modern Europe, Eds. Lorraine Daston and Michael Stolleis, 57–71. Aldershot: Ashgate. ———. 2010. Rechtswissenschaft in der Neuzeit. Geschichte, Theorie, Methode. Ausgewählte Aufsätze 1976–2009. Eds. Thomas Finkenauer, Claes Peterson, and Michael Stolleis. Tübingen: Mohr Siebeck. Scuccimarra, Luca. 2006. I confini del mondo. Storia del cosmopolitismo dall’ Antichità al Settecento. Bologna: Mulino. Siedentop, Larry. 2014. Inventing the Individual. The Origins of Western Liberalism. London: Penguin. Sommer, Andreas Urs. 2006. Sinnstiftung durch Geschichte? Zur Entstehung spekulativuniversalistischer Geschichtsphilosophie zwischen Bayle und Kant. Basel: Schwabe. Tierney, Brian. 1997. The Idea of Natural Rights. Studies on Natural Rights, Natural Law and Church Law 1150–1626. Atlanta: Scholars Press. Tierney, Brian. 2014. Liberty and Law: The Idea of Permissive Natural Law, 1100– 1800. Washington, D. C.: Catholic University of America Press. Tutino, Stefania. 2010. Empire of Souls. Robert Bellarmine and the Christian Commonwealth. Oxford: Oxford University Press. Vattel, Emer de. 2008 [1758]. The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. Eds. B. Kapossy and R. Whatmore. Indianapolis: Liberty Fund. Vec, Miloš. 2012. From the Congress of Vienna to the Paris Peace Treaties of 1919. In The Oxford Handbook of the History of International Law, Ed. Bardo Fassbender, Anne Peters, and Simone Peter, 654–678. Oxford: Oxford University Press. Vitoria, Francisco de. 1991 [1528]. On civil power. In: Political Writings. Eds. Anthony Padgen and Jeremy Lawrance. Cambridge: Cambridge University Press. Watts, Pauline Moffitt. 1982. Nicolaus Cusanus. A Fifteenth-Century Vision of Man. Leiden: Brill. Ziegler, Karl-Heinz. 1994. Völkerrechtsgeschichte. Ein Studienbuch. München: Beck.

CHAPTER 10

The Cosmopolitan Challenge: Cosmopolitan Ideas in the Eighteenth and Nineteenth Century Oliver Eberl

Political and Philosophical Cosmopolitanism in the Eighteenth Century Characteristic of the radical philosophers in the Age of Enlightenment is the idea of world citizenship. The idea of being a citizen of the world (from Greek kosmopolites ), and not from a single political unit, occurred already in the ancient philosophy (Kleingeld and Brown 2019). Pauline Kleingeld distinguished a wide range of literary and philosophical cosmopolitan positions in Kant’s time (Kleingeld 1999) and described Kant’s late position in these debates as a radicalization of cosmopolitanism (Kleingeld 2012). Kant developed from the moral ideal of cosmopolitanism political and practical proposals which were discussed during the next 200 years. In the Idea for a Universal History with a Cosmopolitan Aim of 1784, Kant justifies the hopes that “a universal cosmopolitan condition, can come into being, as the womb in which all the original predispositions of the human species are developed.” To this end, it is necessary to create a “future great body of the state” which promotes democracy and peace (IUH , 8: 28).1 In On the Common Saying: That May Be Correct in Theory, but It Is of No Use in Practice of 1793, the cosmopolitan perspective is treated in the law of nations; and in Toward Perpetual Peace of 1795, Kant formulates an independent cosmopolitan law. While international law stands for peace between states, cosmopolitan law is an anti-colonial O. Eberl (B) Goethe University Frankfurt, Frankfurt, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_10

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right of (mostly) non-European peoples to reject unwanted visits of European traders and colonizers. According to the cosmopolitan perspective, cosmopolitanism decentres the Eurocentric perspective which viewed the non-European world as uninhabited terra nullius or territories inhabited by “barbarians” (Eberl 2019). Cosmopolitanism can be understood as the Enlightenment’s moral reaction against colonialism (Muthu 2003). Where unjust domination prevails, cosmopolitanism drives critique of that domination and self-critique. Immanuel Kant’s cosmopolitan law is the missing link between an enlightened democratic state and a global peace order. At the end of the Third Definitive Article of Perpetual Peace, Kant emphasizes the necessity of a cosmopolitan law for a complete legal pacification of conflict relations: Since the (narrower or wider) community of the nations of the earth has now gone so far that a violation of right on one place of the earth is felt in all, the idea of a cosmopolitan right is no fantastic and exaggerated way of representing right; it is, instead, a supplement to the unwritten code of the right of a state and the right of nations necessary for the sake of any public rights of human beings and so for perpetual peace; only under this condition can we flatter ourselves that we are constantly approaching perpetual peace. (TPP, 8: 360)

Cosmopolitanism, understood as a “necessary complement” of a “public human right,” also promotes peace because cosmopolitan peace is permanently threatened and broken not only by interstate wars but also by colonial wars of robbery and conquest waged under the guise of just war. Cosmopolitanism expands the spectrum of peacekeeping and international law to include the global perspective that has become necessary after the spread of colonialism over the world. In a cosmopolitan perspective, peace among states, the fate of distant peoples and stateless groups, as well as the plight of slaves in the colonies must all be considered. This gives rise to three themes of political cosmopolitanism in the nineteenth century: war, colonialism, and slavery. Cosmopolitanism in the nineteenth century consists in the demands for the democratization of states, an international Peace Organisation and international law with arbitration courts, disarmament, and the abolition of slavery. These demands are part of a minority view even in liberal states—no British or French government in the nineteenth century was cosmopolitan in this sense. Cosmopolitanism was always an opposition to the policies of the governments of the day. Cosmopolitan activists in the nineteenth century were often part of the elites, which may obscure this. Also, official politics used the language of cosmopolitanism or even realized—like the Geneva League of Nations—some of its ideas. Of course, this does not mean that the implementation of these demands did not produce other forms of domination such as the mandate system of the Geneva League of Nations, debt bondage in the colonies, or a clandestine rearmament (Mazower 2012; Anghie 2007). Hegemonic ideas of internationalism in the nineteenth century or imperial liberalism (Pitts 2005)

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should not be identified with cosmopolitanism. Against this confusion, it is important to recognize that cosmopolitanism articulated a radical questioning of Europe’s position of domination.

Cosmopolitan Law and Kant’s Critique of Colonialism The Kantian cosmopolitan program stands for democracy, peace, and the end of colonialism. While in the Preliminary Articles of Perpetual Peace, Kant postulated the idea of disarmament, in the Definitive Articles, he specifies the idea of the republic and an international organization in the form of a league of nations which is designed to manage conflicts through multilateral decisions or arbitration courts. With cosmopolitan law, he developed a right to protect non-European peoples against colonialism by limiting the right to stay as a guest to a right to visit (Cavallar 2002; Niesen 2007; Flikschuh and Ypi 2015). With the cosmopolitan law of his Perpetual Peace, Kant added a new element to cosmopolitanism. Kant saw as the difference of international law to the cosmopolitan level “that in the rights we have to take into consideration not only the relation of one state toward another as a whole, but also the relation of individual persons of one state toward the individual of another, as well as toward another state as a whole.” (MM , 6: 343–344 § 53). Here Kant follows his system of juridification: democratic states control individuals, international law controls states and, cosmopolitan law controls transnational relations between individual persons or groups and states which have hitherto not been legally regulated. Kant unequivocally condemns colonialism, whose protagonists in the newly discovered countries perceive the inhabitants “as nothing” (TPP, 8: 358) “while they drink wrongfulness like water” (TPP, 8: 359). Kant opposes not only colonial interests, methods, and consequences, but also any justification of violent cultural ambassadors (TPP, 8: 357–359; MM , 6: 265 § 15; MM , 6: 353 § 62). Even the introduction of a legal state of affairs for the benefit of mankind in distant parts of the world cannot justify the violence used, since “all these supposedly good intentions cannot, after all, wash away the stain of injustice in the means used for this purpose” (MM , 6: 353 § 62). European expansion undergoes a radical transformation during Kant’s lifetime: the “discovery” of America, accompanied by the conquest of South America in the fifteenth and sixteenth centuries, is followed by expanding trade with East Asia and India in the seventeenth and eighteenth centuries. This is associated with the rise of new trading nations. While Spain and Portugal had previously dominated the world’s oceans and Europe’s colonial territories, the Netherlands, Britain, and France now sought to enter these—in some cases already occupied—spaces for the purpose of trade. With the increased global shipping traffic for trade and whaling, infrastructure such as provisioning places, water points, and the reception of ships in distress and shipwrecked

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people becomes crucial (Parry 1971). Kant approaches a wide range of issues within cosmopolitan law: the conquest of “discovered” inhabited land, the occupation of “ownerless” land (Fisch 1984, 308), the establishment of trading posts in dominated territory, the treatment of merchants and desperate seafarers, the abuse of the right of hospitality, and finally the right of visitation and the meaning of contracts between inhabitants and strangers. Kant regulates all of these aspects with cosmopolitan law, formulating them as a right which restricts transnational freedom of movement to the “conditions of universal hospitality” (TPP, 8: 357). Kant thus defines cosmopolitan law as restricting the freedom of movement to conditions of universal visitation. This can be explained by his concern to restrain the abuse of hospitality rights which justified colonialism (Pagden 1991) and also the abuse of just war which is a feature of violent self-empowerment of states (Williams 2012; Maus 2015; Eberl 2021). The fact that Kant explicitly welcomed the isolationist policies of China and Japan against European traders can also be explained by these efforts (TPP, 8: 359). The anti-colonial function of cosmopolitan law as a right to reject unwanted people from staying in a country derives from Kant’s distinction between the right to visit and the right of being a guest. Cosmopolitan law marks a turning point in Kant’s cosmopolitan conceptions. Until then, he had advocated the achievement of a “cosmopolitan state” in a world state or in a confederation of states endowed with cosmopolitan competences, which he elaborated above all in the 1784 writing Idea for a Universal History from a Cosmopolitan Perspective and—already wavering— in 1793 in the Common Saying. In Perpetual Peace, the notion of a world state is finally abandoned and instead international law is supplemented by cosmopolitan law. As ius cosmopoliticum, Kant introduces cosmopolitan law for the first time in a footnote in Perpetual Peace (TPP, 8: 349) and retains the term in The Metaphysics of Morals (MM , 6: 352 § 62). It denotes in these writings the third part of the legal edifice of a global peace order formed by state law, international law, and cosmopolitan law. In the Idea, Kant still formulates the task “to abandon the lawless state of savagery” (IUH , 8: 24) and to enter into a League of Nations, which has a “united power” and establishes a “cosmopolitan condition of public security” (IUH , 8: 26). This version of the League of Nations is strongly related to Saint-Pierre’s world state design and understands the establishment of peace in a “future political body the likes of which the earlier world has never known” (IUH, 8: 28)—the world republic—as the possibility of republic formation in the first place. In this context, Kant still determines the connection between trade and state policy in a purely positive way: the “civil liberties may hardly be encroached upon without negative effects in all industries, primarily in trade, which would also lead to a decrease of the powers of the state in its external relations” (IUH , 8: 27). This is the same assumption Kant makes in the peace pamphlet: The “spirit of commerce” leads states, when war threatens, to seek

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mediation, “just as if they were in a permanent league for this purpose” (TPP, 8: 368). The spirit of commerce is also very important for the relations of Europe to the non-European peoples. When Kant ascribes peace-promoting effects to the spirit of commerce, he refers to the “mutual self-interest” of states. Cosmopolitan right is supposed to protect “against violence and war” (TPP, 8: 368). From this it follows that cosmopolitan right is supposed to avert “violence and war” between those states and groups which are not connected by mutual self-interest, but by a precarious (colonial) interaction that can always turn into violence and exploitation. Kant believes that trade between Europe and the distant parts of the world promotes war in the interconnected regions. This can be seen very clearly in the preparatory work for the peace treatise: Considering the situation, “one realises with horror what evils the violation of the limits of hospitality […] has brought upon Europe through wars which it […] has brought upon itself and which, with the increase of trade, threaten to become even more frequent and to follow one another more quickly. […] The invasions […] began with seemingly peaceful settlements and ended with the subjugation of a considerable part of the old inhabitants. Even more terrible, however, are the internal wars which the powers of Europe stir up in such distant territories which finally turn on themselves in their own countries.” (Vorarbeiten und Nachträge, 23: 173–174, my translation). With cosmopolitan law, Kant also has in mind a protection against stronger “trading partners,” delineating a special class of states. “For the perpetrators Kant mentions, Britain and the Netherlands were the most advanced liberal capitalist states at the time—not the absolutist states of the First Definitive Article.” (Jahn 1995, 192) Morally, Kant even considers it best “that all these trading companies are on the verge of collapse” (TPP, 8: 359). In line with this critical view, the third definitive article on the definition of the new cosmopolitan law states: “Cosmopolitan right shall be limited to conditions of universal hospitality.” “‘Hospitality (hospitableness)’ means the right of a foreigner not to be treated with hostility because he has arrived on the land of another” (TPP, 8: 357–358). The foreigner can, therefore, be turned away as long as this does not endanger his life. “What he can claim is not the right to be a guest […], but the right to visit; this right to present oneself for society, belongs to all human beings” (TPP, 8: 358). Trade is only peacekeeping where societies of equal strength and similarity trade with each other. But where asymmetrical relations exist, for example regarding culturally and militarily inferior nomads, trade promotes the use of military force. Such asymmetries also extend to empires such as China and Japan of equal civilizational, but inferior military strength. And it is precisely to these relations that cosmopolitan law applies. Kant thus formulated a comprehensive program for cosmopolitanism: limitation of colonialism, disarmament, democratization of states and especially of war related decisions, international law, and an international organization including dispute settlement and an International Court of Justice.

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Cosmopolitanism follows tortuous paths in the nineteenth century: after the victory over Napoleon and the Congress of Vienna, there was little progress concerning the democratization of states, disarmament, and the limitation of colonialism. But efforts to abolish slavery intensified and at the Congress of Vienna the slave trade is already condemned, and its abolition was demanded. This process lasts well into the second half of the nineteenth century. In 1816, the British Peace Society is founded, calling for disarmament and international arbitration. These two strands—abolitionism and arbitration—characterize the future path of cosmopolitanism in the nineteenth century.

The Abolition of the Slave Trade and Slavery Colonialism introduced international and domestic legal systems that sought to legitimize the seizure of land and the subjugation of the population. The lifeblood of the colonial economy was slavery. Parallel to the French revolution and the anti-colonial struggles in Haiti, an anti-slavery movement developed in Anglo-Saxon countries. Here, feminist and abolitionist positions, for example in Mary Wollstonecraft, enter into a connection (Brace 2016; Ehrmann 2013). Abolitionism understood the prohibition of the slave trade as leading to the abolishment of slavery itself. Therefore, usually, a distinction is made between prohibition of the slave trade and slave ownership. The strong economic interests of the plantation owners made it difficult to reach both aims at the same time. The slave trade began with the colonization of the Americas and is directly linked to the establishment of sugar and tobacco plantations in the Caribbean islands, southern North America, and Brazil. Between 1501 and 1866, an estimated 12,521,000 people were forcibly shipped from Africa to the two Americas. Nearly two million of them did not survive the crossing (Eltis and Richardson 2008, 1–60). The Americas, Europe, and Africa formed the infamous triangular trade. Manufactured goods were shipped to Africa from Nantes, Bordeaux, Liverpool, Bristol, Barcelona, Cadiz, and other cities, and then exchanged for slaves at collection points on the Gold Coast, in the bays of Benin and Biafra, and especially in West Central Africa (Wirz 1984). The captives came from the interior of Africa, where they were captured and abducted by African slave traders during raids. Many had already died on the forced marches to the port cities, which they had to cover bound in chains. It is estimated that for every prisoner who reached the coast alive, one person died in connection with the immediate capture and on the march to the coast, which often lasted several months (Meissner et al. 2008, 62). It often took weeks for the ship to be fully loaded on the African coast; two prisoners per ship ton were usually taken on board. Then followed the middle passage to slave ports on the Caribbean islands, Brazil, and North America (Harms 2002). Once the captives arrived in America, they had to endure total uprooting and physical debilitation, only to be introduced to the ruthless, brutally violent

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system of plantation labor. With the help of this economic system, which soon accounted for forty percent of European exports, Europe succeeded in outstripping its Asian competitors India and China for the first time in the eighteenth century (Meissner et al. 2008, 80). The colonial conquerors, settlers, and planters increased Europe’s prosperity at the expense of the exploited and led to new consumption habits in Europe. For example, sugar became a mass consumer item and shaped European culture. By its very nature, the transatlantic slave trade is a matter of international law. In 1701, the monopoly of slave trade became the subject of an international treaty for the first time. Spain, Portugal, and France settled on the so-called Asiento de negros, which guaranteed the maintenance of supplies and divided profits. With the Peace of Utrecht in 1713, it became part of the negotiating mass within a comprehensive international agreement. The English South Sea Company was granted the monopoly for the slave trade with the Spanish colonies in America for 30 years, legally affirmed by international law (Weindl 2008). The international movement for the abolition of slavery, which became known as abolitionism and was particularly successful in Britain at the turn of the eighteenth and nineteenth centuries, made the question of slavery tangible in Europe. Its campaigns tirelessly pointed to the fate of slaves and pushed for slavery to be condemned on the grounds of morality, natural law, civilisation, and Christianity. English abolitionism was ultimately successful with its agitation; in 1807, the slave trade was banned by Britain; in 1815, it was condemned in the Final Act of the Congress of Vienna; and in 1833, slavery was abolished in British colonies. The few dedicated activists of the Society for Effecting the Abolition of Slavery, founded in 1787 by the “Twelve Uprighters,” Thomas Clarkson and other Quakers, used new mobilization techniques over a period of years including mass agitation and mass petitions, boycotts, parliamentary lobbying, literary education as well as judicial action. The eventual change in policy was made possible by their political assertiveness while maintaining personal integrity (Hochschild 2000). Between 1788 and 1792, they organized 519 petitions which involved around 400,000 people (Clark 2007, 40). Buoyed by a sense of philanthropy, William Wilberforce and his fellow campaigners consistently made appeals to the masses, mobilized them, and recruited members of parliament until finally, after several unsuccessful attempts, a parliamentary majority voted to abolish the slave trade in the British Empire in 1807 (Farrell et al. 2007). In Haiti, after a rebellion in 1791, slaves were freed in 1793 which was confirmed by the French National Assembly in 1794, but the decision was withdrawn a year later. Haiti then liberated itself in a world-historical liberation struggle in 1804. Cosmopolitans believed that this proved that the human rights of the French Revolution are—if taken seriously—universal (James 1989). France recognized Haiti as a state in 1825, but only after Haiti promised compensation payments to former plantation owners, which Haiti

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made throughout the nineteenth century. From a cosmopolitan perspective, the discourse of the French Enlightenment directed against despotism could thus either lead to the universalization of human rights, as in 1794, or, in the case of their denial, to the self-liberation of slaves in 1804. After 1807, Britain used the law of naval warfare to stop the slave trade, but this option lapsed with the end of the war against France, leaving Britain with only the “internationalization of the slave trade prohibition” (Berding 1974, 276). As part of the peace negotiations in Vienna, Britain obtained the Declaration of February 8, 1815, from eight European courts on the abolition of the slave trade. The Declaration followed the wording of the abolitionists and held that the trade had been “recognized by just and enlightened men of all ages as conflicting with the principles of humanity and general morality” (Grewe 1992, 367, my translation). Thus, the Declaration not only “elevates a natural law-humanitarian idea to a principle of international law,” but also introduces the concept of “civilized nations” into international law, making it the defining feature of nineteenth-century international law (Gong 1984; Anghie 2007, ch. 2). However, the slave trade was not banned, merely outlawed, and slave traders were not considered pirates and declared hostis humanis generis, as Britain demanded. Subsequently, Britain accelerated its efforts to provide the outlawry along with the instruments to enforce it, proposing at the Aachen Congress of 1818 “a system of maritime police against slave smuggling” which was, however, rejected by the great powers (Grewe 1984, 657). At the Congress of Verona in 1822, Britain made another unsuccessful push for such an agreement. Already after the Congress of Vienna, Britain had begun to conclude bilateral agreements in parallel. In 1817, a right of visit and search was agreed with Portugal even during times of peace. Merchant ships suspected of slave trading could now be searched by the parties. Similar treaties followed with Spain and the Netherlands, with Sweden in 1824 and with France in 1831. In 1841, the Quintuple Treaty between Prussia, Austria, Russia, Britain, and France agreed on a mutual right to search merchant ships by authorized warships in certain areas. Furthermore, the Quintuple Treaty declared in Article 1 that any ship trading slaves would lose the protection of its flag. As with pirates, such ships could be considered denationalized, which even allowed for the visit and search of ships sailing under the flag of non-treaty parties. Parallel to these events, European powers and the USA struggled against piracy in the Mediterranean Sea, which originated from the so-called Barbary States under Ottoman rule and engaged in a slave trade with Christian captives. This was likely to lead the governments of France (Tocqueville 2001), Britain (Hume 1980), and the USA (Elena 2003) to intervene in Tripoli, Tunis, and Algiers, which led to the end of Ottoman rule and marked the beginning of European colonization of North Africa (Finnemore 2004, 66–73). There is a long and detailed controversy over whether material or moral reasons brought about abolition (Clark 2007, 44–47). Clark emphasizes that

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the movement was first directed at the British public and British politicians, but in the run-up to the Congress of Vienna, it specifically sought to influence foreign diplomats, governments, and scholars (Clark 2007, 50–1). In this process, Clark argues, emerged the interplay of world society and international society which became crucial to the later course of normative influence on politics: First, the declarations of the early nineteenth century, whatever they lacked by way of concrete enforcement, were principally important in delegitimizing the slave trade, and their very issuance contributed to that end. Secondly, this delegitimization occurred within the bounds of international society, taking as it did the archetypal form of multilateral interstate declarations, but international society was responding to a normative logic that had its origins in world society, not in its own strictly conceived activities. (Clark 2007, 55)

Cosmopolitanism thus found its ground, so to speak, in world society, the view as world citizens, from which it could exert influence on international society, the citizens of states. It is thus more than a national movement; it takes up the perspective of humanity. However, this does not preclude new imperial goals to be connected with cosmopolitanism. Clark’s distinction between world society and international society can explain the perpetuation of slavery in the face of cosmopolitan arguments at the level of international society. As all forms of politics, abolitionism did not follow straight paths and was only successful via detours. Fundamentally, the role played by slaves in the struggles against slavery must not be forgotten (Davis 2006). Brazil, the last country to abandon slavery, did not do so until 1888 (Alonso 2021). Europe skilfully used the idea of abolishing slavery to further its imperial goals. When Leopold II, king of neutral Belgium, set out to implement plans for his own colony in the 1870s, he promoted his entire project using antislavery rhetoric. He told the political world and critical public that his goals in Africa were to combat the slave trade, raise morale, and promote science. A carefully prepared conference in Brussels in 1876 led to the foundation of the International African Society, electing Leopold II as its first president. In his welcoming address, he expressed his intentions to bring civilization to “darkness” (Hochschild 2000, 66). Even before the Congo Conference in Berlin, he was able to get the USA to recognize the International Society of the Congo as a quasi-state. This way, he managed to seal negotiations naming the Congo not a Belgian colony, but the “Free State of the Congo” and thereby his private property. The representatives at the Congo Conference, convened by Bismarck in Berlin in 1885, “believed they were giving their consent to a kind of international colony” with a free trade zone (Hochschild 2000, 124). The final Congo Act of 1885 stipulates free trade and free access to the areas of the Congo now divided among the European powers. The Additional Declaration on the Slave Trade in Ch. II, Art. 9 of the Congo Act declares the signatory powers responsible for ending the slave

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trade and for punishing the traders. The steps to do so are detailed in the General Act of the Brussels Anti-Slavery Conference of 1890. In order to suppress the slave trade, the powers pledged mutual aid, and this is done, they felt called upon to declare “with purely humanitarian intent” (Art. III). However, these entitlements to take measures against the slave trade could be transferred to non-state societies such as King Leopold’s individual Congo company (Art. IV). At sea, the agreement adopts the existing arrangements of mutual search (Art. XXII) and agrees to establish the International Maritime Bureau (Chapter V). Cosmopolitanism had achieved the abolition of slavery, but this did not end Europe’s imperialism. In the hands of the powerful, cosmopolitan vocabulary becomes an instrument of power. The notion of civilizational imperialism for humanitarian reasons united Europeans once they understood themselves as the most civilized because they were slave-free. Organizationally, however, civil society had learned to form transnational advocacy networks which could develop great campaign strength (Keck and Sikkink 1998). This unites the abolitionist and feminist movements. Scandalizing, making injustice experiential, and condemning moral atrocities have brought the cosmopolitan condition to the public’s attention and put pressure on politics. This experience is inherent in liberal currents of movements such as abolitionism, feminism, and the peace movement.

Peace Societies and the War Referendum While abolitionism was strongly influenced by Christian and humanist motives, the Peace Societies that emerged internationally after 1815 tended to be supported by liberal elites whose motivations were more diverse. After the Vienna Conference and the Restoration period, the idea of the Peace League was appropriated by the absolutist monarchists as a Holy Alliance. But Kant’s legacy lived on. According to Easley, “a majority of interpreters writing about Perpetual Peace during this period were British” (Easley 2005, 128). This led to the fact that, according to John Pinder, “federal proposals above the state were very much a part of the British intellectual and political context from the mid-nineteenth century to World War 1” (Easley 2005, 129). Two ambitions can be distinguished: the demand for an international organization with arbitration and the demand for disarmament. According to Eric S. Easley, the first phase of the demand for a supranational organization stretches from the middle of the nineteenth century to the middle of the twentieth century. It was carried by liberal internationalists. The second phase, preferring horizontal international organizations, began in the middle of the twentieth century and directed its demands increasingly at the state level (Easley 2005, 128). For Germany, one can, in contrast, identify an anti-militaristic impetus of the peace movement. In 1850, the Peace Society in Kant’s city Konigsberg (today Kaliningrad) was founded by non-conformist Protestants (among them Robert Motherby, whose grandfather was part of Kant’s dinner tables). This

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Peace Society was a provocation in times of reactionary politics and therefore forbidden after only six months (Holl 1988, 29–31). After this, it took over thirty years for new Peace Societies to be founded, as they depended on inspiration from outside. The British pacifist Hodgson Pratt and the Danish pacifist Fredrik Bajer traveled in the 1880s through West and South Germany and inspired the founding of Peace Societies in Stuttgart, Darmstadt, and Frankfurt, where Franz Wirth, the son of one of the organizers of the democratic Hambach Festival in 1832, became the leader of the society. This engagement was directed against the Prussian-German militaristic and annexionist politics (for example of Alsace and Lorraine) and was carried by only few hundred men (Holl 1988, 38–40). In 1889, Bertha von Suttner published her novel Die Waffen nieder!, which became an international success (published in English in 1892 as Lay Down Your Arms ) and her engagement led to the foundation of the German Peace Society (Deutsche Friedensgesellschaft– DFG) in 1892 as a Germany-wide association. It was a reaction against the German armament and the more and more obvious imperial ambitions of the German Reich and the resulting international tensions. The political aims of the DFG were disarmament and international arbitration. In 1894, Ludwig Quidde published a pamphlet against the militarism of the new Kaiser Wilhelm II (Der Militarismus im heutigen Deutschen Reich). Still, only a few thousand activists were members of the different German peace societies. But they organized the World Peace Congress 1897 in Hamburg which was a good preparation for the upcoming Hague Peace conferences (Holl 1988, 47). The system of conferences, which developed from the Congress of Vienna to the Hague Conferences of 1899 and 1907, served as a point of contact between the Peace Societies from different countries. In Great Britain, as early as 1816, the Society for the Promotion of Permanent and Universal Peace was founded. After Henry Richards took over as secretary of the Peace Society in 1850, he organized a series of peace congresses in European capitals which made him famous. He combined his work for the Peace Society with advocacy of abolitionism and secured its inclusion in the Treaty of Paris in 1856. Martin Ceadel explains that the International Arbitration and Peace Association (IAPA), founded in 1880, accepted, unlike the Peace Society, defensive war and was not restricted to Christians (Ceadel 2000, 113). In his 1884 work The Institute of the Laws of Nations, international law scholar James Lorimer proposes a supranational government with reference to Kant. Scholars such as J.A. Hobson and writers such as H.G. Wells advocated for an organization with a supranational government, too (Easley 2005, 131). In 1914, the Union of Democratic Control was founded against militaristic influences in the British government. The founding member of the Union of Democratic Control , Norman Angell, was a respected and theoretically sound scientist who argued for disarmament and international organizations. In 1910, his book The Great Illusion had been published in which he argued for limiting the military in a coalescing Europe (Ceadel 2009). In 1933, he was awarded the Nobel Peace Prize.

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The Hague conferences of 1899 and 1907 served as an important point of hope and controversy for the different Peace Societies. To contemporaries, raising the issue of disarmament was either perceived as a success, or like activist Bertha von Suttner, as a failure because war itself was not outlawed (Clark 2007, 63). The Hague conferences took up the topics of the Peace Societies: “The work of the 1899 conference, as has been mentioned, was divided into three conventions. These concerned disarmament, weapons and laws of war, and arbitration. Its outcomes were mixed. The discussions on disarmament, as expected, made very little headway, and issued merely in a resolution of no binding force.” (Clark 2007, 65) The 1907 conference was even less of a success. But even if the resolutions achieved little, the mobilization of the activities of Peace Societies and their transnational interconnectedness was directly linked to the conferences. Peace Societies and states both used the language of humanitarianism: W. Evans Darby, the secretary of the Peace Society in London, was at pains to make this more general point. He portrayed the conference as marking ‘a progressive step in the self-consciousness of mankind to a higher realm of truth, to a better idea of humanity, to a closer bond of sympathy and to a more imperative form of duty’. It edged us towards the Republic of Nations ‘in which all mankind shall be members’ (Darby n.d.a: 64). (Clark 2007, 78)

The Hague Conferences also strengthened the Peace Societies in other respects: women’s societies were founded, such as the International Council of Women (ICW) in 1888. “In 1899 the ICW adopted, in an extraordinary move, peace politics as a principal element of its international agenda” (Zimmermann 2015, 189). Arbitration was a major goal of the ICW and it advocated for it internationally. The ICW saw itself as impartial and thus took a “higher”— cosmopolitan—standpoint. But this standpoint of the Peace Societies did not extend to questioning the international imperial order. “First, warlike situations and violence in the colonial and imperial context were implicitly classified as being beyond the scope of peace work pursued by the ICW.” (Zimmermann 2015, 194) Therefore, second, the mutual respect of nations only covered the “civilized nations” at the time, which at the Hague Conferences also included some Asian and South American states, but “denied non-European and nonWestern countries and communities sovereign internationals status, with the result that in imperial and colonial contexts violent acts and occupation by foreign powers were not considered to be war” (Zimmermann 2015, 194). In other parts, the ICW was more progressive. Especially for the ICW, the question of suffrage was discussed as part of the peace question. Here it differs from the male organizations. The ICW’s position is a good example of the difference between Kant’s anti-colonialism and how cosmopolitan ideas can be used to support imperialist ideas.

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In the USA, the peace movement also influenced public opinion and politics as a modern civic movement. It relied on collaboration with other groups and strived for international cooperation within the framework of a renewed international law. The influence of Kant’s work on the peace movement and its call for a League of Nations is evident: “Of all the early planners for an international organization, Kant had the greatest influence upon American thinkers.” (Kuehl 1969, 10) Kant was simply an excellent fit for US republican principles and for the questions of reason, ethics, and morality which preoccupied American journalism. In 1830, the American Peace Society, founded two years earlier, held a prize competition for the best essay on the subject of the “congress of nations.” Unfortunately, only a few submissions were received, and prizes for the five best entries were only awarded ten years later. William Ladd, the president of said peace society, wrote a summary and also published a synopsis of the remaining thirty-five submitted drafts for a Congress of Nations (Kuehl 1969, 15). His general interest in and careful study of the many proposals finally led him to submit a draft of his own, which carefully distinguished between the Congress of Nations and the Court of Arbitration and, furthermore, introduced public opinion as the enforcing authority of arbitral awards (Ladd 1916). It marked the beginning of the American peace movement and firmly established the idea of the League of Nations, arbitration, and the importance of public opinion in the discourse on peace. Edwin D. Mead was a leading disseminator of Kant’s political ideas in the USA. For him, too, the League of Nations is proven possible by the experience of American unification. After the first Hague Conference, Mead developed the argument that the USA of 1776 could serve as a model for a union and, moreover, that the Supreme Court presents an archetype of an international court. The latter contention is justified with the highest court’s power to settle conflicts between states as well as between states and the federal government and, furthermore, with its authority to determine its own jurisdiction (Mead 1889). Mead published a translation of the peace treatise for the American Peace Society in 1897 (Kant 1897). In 1909 and 1913, he and his wife Lucia Mead visited Germany on lecture tours. The combination of the American experience and the search for a way to secure peace resulted in the American peace movement’s specific interest in Kant: the USA could be understood as a model case for the development toward an ever more solid union, while the constitutionalization of states in the nineteenth century raised hopes for a future peace union (Kuehl 1969, 54). During World War I, cosmopolitanism influenced President Wilson, but progressive internationalists could be found above all in the Woman’s Peace Party, which had its outstanding representative in Jane Addams, and among the socialists of Eugene Debs and liberal democratic groups such as the Union for Democratic Control. These groups represented the democratic-progressive moments of the peace movement and unequivocally called for a League of

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Nations (Knock 1992, 57). In 1916, after Wilson’s swing to a policy of “preparedness,” they joined forces in the American Union Against Militarism, though it lasted only a little more than a year. For the first time, pacifists and socialists were united in an organization that was not based on accidental personal overlap between the two tendencies. The American Union Against Militarism “represented one of the outstanding collaborations of liberal reformers and socialists of the Progressive Era” (Knock 1992, 63). Democracy played a special role in the debate on the League of Nations and the prevention of war: “Many internationalists had often quoted Kant’s observation on the need for self-government.” (Kuehl 169) Even before World War I, there was an unmistakable rift in the American peace movement regarding the use of force, bringing into focus the question of democracy in future League of Nations members as well as in one’s own country as a result. Among progressive internationalists, a radical group cutting across all organizations called for a constitutional amendment in favor of a so-called war referendum. Research recognizes Kant’s influence in these matters: In his treatise on remedies for imperialism in 1795, Immanuel Kant asserted that every state’s constitution‚ ‘ought to be republican’ and that‚ ‘the assent of every citizen is necessary to decide the question‚ whether war shall be declared or not.’ His theory that, if given the power, the people would‚ ‘certainly beware of plunging into an enterprise so hazardous‘ became typical of most later American war referendum advocates. They, like Kant, believed that the people would always vote against‚ ‘all the calamities of war’. (Bolt 1977, xiii)

If one understands Kant’s demand that citizens “consent” to war as individual consent—which translates as “assent” rather than “consent”—it is possible to deduce practical proposals from this formulation. The fact that a political movement demanded a constitutional amendment which would enable referenda on war on these grounds should be seen as an outstanding American feature of Kant’s reception. A significant role in the elaboration of the war referendum plans was played by German immigrant Richard Bartholdt. He was president of the GermanAmerican Peace Society and chairman of the American Movement for an Inter-Parliamentary Union. He was also a journalist and German teacher to President Theodor Roosevelt, whom he influenced with his ideas. Bartholdt’s peace program included an international court of arbitration, disarmament, and a world federation, among other points. In 1914, he advocated the War Referendum and drafted a resolution for Congress to amend the Constitution accordingly (Bolt 1977, 3–4). Overall, a radical trend in the peace movement evolved and the War Referendum plan gained more and more support among politicians. Robert L. Owen, Democratic Senator from Oklahoma, was the first member of Congress to introduce a resolution on a War Referendum Constitutional Amendment. He held a general skepticism of the representative system and understood

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the people to be sovereign in the very literal sense of popular sovereignty (Bolt 1977, 16). Owen’s resolution became a model text and encouraged the drafting of more resolutions. Senator La Follette, for example, introduced a detailed plan for a consultative referendum. His explanation of it clearly takes up Kant’s argument: “[W]hen the people, who always pay the full price, are going to have the final say over their own destinies, […], [t]hey who do the fighting will do the deciding.” (Follette 1916, 1 cited in Bolt 1977, 20). Other politicians, such as former Secretary of State William Jennings Bryan, took up the idea. This provoked a break with Wilson, whose Preparedness policy became a bone of contention for his supporters. Bryan, who advocated the War Referendum, was simultaneously opposed to the League of Nations because he feared it would transfer the right to declare war to foreign nations (Bolt 1977, 22). While Bryan called for an amendment “to submit every declaration of war to a referendum to the people, except in case of actual invasion of the country” (Bryan 1916, quoted in Bolt 1977, 24), US President Wilson was moving closer to the position of collective security.

The Geneva League of Nations and the End of the Right to War While the call for a War Referendum was backed only by a radical minority, the demand for a League of Nations was universally shared by internationalists, but there was often intense debate among them over what form the international law and law enforcement should take. Kant was very often a point of reference for them, and President Wilson seems to have been influenced by Kant when he took up the cause for a League of Nations. In fact, it is very likely that Wilson also read Kant (in the original German) during his studies, as Beestermöller (1995, 101) has demonstrated. In the American Peace Society, of which Wilson was a member, Kant was very popular: the books published by the aforementioned Edwin D. Mead as well as the translation of “On Perpetual Peace” by the Society’s secretary, Benjamin Trueblood, first appeared in the Society’s organ “Advocate of Peace” before being turned into a book in 1897. According to Beestermöller, Wilson developed his program “in an intellectual milieu in which the Kantian federation paradigm prevailed without competition” (Beestermöller 1995, 104). The first five points of Wilson’s famous 14-point speech of 8 January 1918 were familiar to internationalists: a ban on secret treaties and diplomacy, freedom of the seas, freedom of trade, disarmament to the extent necessary to maintain internal security, and a compensation for colonialism. Karl Vorländer (1919) discovers further similarities in a speech by Wilson on 12 February 1918, in which the second demand is “that peoples and provinces not be pushed around from one state sovereignty to another as if they were merely objects or stones in a game.” There is an obvious parallel here with Kant’s Second Preliminary Article which is justified in similar terms: “For a state is not (like the land on which it resides) a belonging” (TPP, 8: 345). Moreover,

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Vorländer detects a correspondence between the “so-called balance of powers” as expressed by Wilson in a speech on September 27, 1918 and the Common Saying by Kant (Vorländer 1919, 74). Besides these certainly striking similarities, after Wilson’s points 6 to 13 concerning territorial questions, the main point calling for the establishment of the League of Nations is formulated: “A general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike.” (Wilson 1918, 55). Looking back at the optimism of the cosmopolitans of the nineteenth century—and the enthusiasm which surrounded the creation and early years of the League of Nations—with the hindsight of the twenty-first century, it might well be thought that such optimism was seriously misplaced. However, what this chapter suggests is that a more consistent and serious application of cosmopolitan principles drawn from Kant might provide a strong foundation for a cosmopolitan theory of world order. Far from disproving the theory of cosmopolitanism, the nineteenth and early twentieth centuries show that it needed to be much better understood and its implications for policymaking more comprehensively worked out. The failures of the end of World War I peace conferences and the League of Nations led to a more circumspect, and possibly better executed, emergence from the ravages of World War II. What we learn from the history of cosmopolitanism is that politics always has to be corrected by activist movements. The cosmopolitan ideas of the eighteenth and nineteenth centuries can thus serve as a source of experience and inspiration as well as an example of the difficulties to grasp ideals in realpolitik. Acknowledgements I am grateful for the very helpful comments by Howard Williams, David Sullivan, and the participants of the online seminar “Political and International Theory” at “Cardiff School of Law and Politics.” Florian Skelton discussed this chapter intensely. They all helped me to sharpen the points about cosmopolitanism.

Note Kant’s works are cited according to the Academy Edition (Akademie-Ausgabe) of his collected works (Gesammelte Schriften) (Berlin 1900-), volume, and page number. The translations are taken from The Cambridge Edition of the Works of Immanuel Kant. The following abbreviations are used: Idea for a Universal History with a Cosmopolitan Aim = IUH; Toward Perpetual Peace = TPP; The Metaphysics of Morals = MM.

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CHAPTER 11

The Positivist Challenge, the Rise of Realism, and the Demise of Nationalism Felix Rösch

Introduction In 1962, the American monthly Commentary included a short piece on ‘Love and Power’ in its March issue. The author was Hans Morgenthau. For some readers of Commentary, this essay did not match the image they had about Morgenthau. There was no mentioning of states or anarchy, and the notion of power in this piece was very different from the absolute end that Morgenthau allegedly had proposed in his most well-known book Politics among Nations . One concerned reader even wrote to the editors, asking what they had ‘done to Hans Morgenthau?’ (Fink 1962). He continued, ‘since joining your pages the old hard-boiled political realist has turned mushy-headed dreamer.’ Just two months later, in the May issue of Commentary, Morgenthau also spoke out against American involvement in Vietnam. Like his interest in emotions, this role of a dissenter of American foreign policy equally seemed at odds with perceptions of Morgenthau that people had gained in his numerous radio and TV interviews: a Realpolitiker with a heavy German accent and a Schmiss (dueling scar), a lifelong sign of his membership to the Thuringia fraternity, on his left cheek. Despite Morgenthau’s criticism of the Vietnam War being central for reconsidering his work (Zambernardi 2011; Klusmeyer 2016; Molloy 2020), this conservative, even reactionary image of Morgenthau still prevails in the discipline. F. Rösch (B) School of Global Studies, University of Sussex, Brighton, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_11

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Hence, short pieces like the ones in Commentary may be glossed over as rather obscure episodes in Morgenthau’s work. However, as this chapter demonstrates, such pieces are in fact brief rays of light in which the thought of scholars that we now call classical realists shines through. This chapter uses classical realism because it is today the most commonly found term in the literature. It is to be understood, however, in line with William Scheuerman’s (2011, 7) progressive realism in the sense that we are talking about a largely mid-twentieth century group of scholars which is to be set apart from ‘the politically and institutionally conservative Realism’ and is characterized by ‘institutionally reformist and oftentimes left-leaning … body of thought.’ To exemplify classical realist thought, this chapter focuses on Morgenthau, arguably the most well-known representative of this group. While Morgenthau may not be the most original thinker among classical realists, his work allows us to condense many of the aspects that we find throughout classical realist scholarship. As Duncan Bell (2017, 3) writes, ‘realists insist on the importance of contingency, historical context, prudence, and the limits of moral argumentation.’ Indeed, this is what Morgenthau’s scholarship stood for. As recently argued by Hartmut Behr and Hans-Jörg Sigwart (2018, 32; emphasis in original), ‘Morgenthau was convinced that positivism could not deal with, much less negotiate, political questions for which he regarded the individual human being as the ultimate ontological reference.’ Focusing on Morgenthau also allows to consider realists’ intellectual situatedness within European humanism. Most of them were intellectually socialized in early to midtwentieth-century European humanities and even American representatives of classical realism like George Kennan and Reinhold Niebuhr were very well versed in Central European political thought. While not all of them had to, many realists were forced to leave Europe with the rise of fascism. Morgenthau’s vita from a ‘double exile’ (Frankfurter 1937) rising to a professorship at one of the most prestigious American universities exemplifies a fortunate outcome of this forced migration; a fate not all émigrés enjoyed (Rösch 2014, 2020a). However, despite many of these European realists having brilliant careers, they often struggled to regain the clarity their voices previously had in their European writings. In the case of Morgenthau, despite repeated requests, he let possibilities to clarify his thoughts pass (Stullerova 2021), causing even excellent recent commentators to omit his European pre-World War II work (McQueen 2018, 162). By surveying the by now substantial literature that reconsiders classical realism in International Relations (IR) (Guzzini, 1998; Frei 2001; Schmidt 2005; Molloy 2006; Williams 2005, 2007; Sylvest 2008; Tjalve 2008; Bell 2009; Oren 2009; Scheuerman 2009; Neacsu 2010; Rösch 2015; Guilhot 2017; McQueen 2018; Navari 2018; Reichwein and Rösch 2021), the present chapter does not intend to provide a historical-sociological investigation of the intellectual integration of classical realists in American academia with the help of their local interlocutors (Guilhot 2008; Rösch 2014, 2020a). It also does

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not ask how they transferred their knowledge (Rösch 2020b). Rather, it aims to show how realist thought evolved by being ‘caught between the epistemologies of European humanities and their geisteswissenschaftliche traditions and American positivism’ (Behr and Sigwart 2018, 31; emphasis in original). To do so, this chapter proceeds in three steps. The first section employs the persona of the ‘credentialed social scientist,’ as conceived of by Joel Isaac (2009, 397), and the persona of the ‘critical international theorist,’ as we find it in the writings of Richard Devetak (2018, 3), as ideal-types. Using these personae to ‘make intelligible the myriad of interactions which take place in historical processes,’ as George Lawson (2010, 220) writes, they allow to highlight the different intellectual lived realities in which realists pursued their scholarship. The next section focuses on Morgenthau’s approach to knowledge, scholarship, and public discourse to exemplify wider classical realist positions. Others already have highlighted in this regard the importance of (self-)reflexivity (Steele 2007; Hamati-Ataya 2010; Hom and Steele 2010; Molloy 2020) and elsewhere this approach has been identified as guided for Morgenthau by an ‘ethics of anti-hubris’ (Behr and Rösch 2013). The final section further contributes to this by contextualizing aspects of Morgenthau’s realist approach that have so far received limited consideration: emotions as central to the human condition and the political as well as art history as a source for reflecting on questions of historical reflexivity.

Credentialed Social Scientists vs. Critical International Theorists After arriving in the United States in 1937, Morgenthau regularly encountered a type of scholar-cum-policy maker that Isaac (2009, 398) describes as ‘hardnosed, suit-wearing, business-like.’ While this type of public intellectual was not that common in Europe, the ontological and epistemological foundations that made these intellectuals portray ‘themselves as possessors of tools and programs designed for precision social engineering’ (Isaac 2009, 398) were not unfamiliar to Morgenthau. In Europe, a disconnected, but largely Vienna-based group of legal positivists, empirical sociologists, and logical empiricists (‘Vienna Circle’) promoted a kind of scholarship that resonated with American positivist thinking. Later, after having been forced to migrate after the so-called Austrian Anschluss in 1938, this helped many of these Viennese scholars like Rudolf Carnap and Paul Lazarsfeld to find their feet relatively easily in American academia. In fact, many leading proponents of positivism in the United States like Harold Laswell, Charles Merriam, and Talcott Parsons had built strong relations with European positivist scholars during academic sojourns in interwar Germany and Austria (Rösch 2020a, 611). Their intellectual encounters helped them to further popularize positivism upon their return to the United States. Morgenthau, however, was already uncomfortable with this intellectual position in Europe. In his inaugural lecture at the Graduate

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Institute of International Studies in Geneva, in which he surveyed German Staatslehre, Morgenthau (1932) took issues with legal positivism and particularly Hans Kelsen’s Pure Theory of Law found his disapproval for its intellectual sterility. As he further expounded in other works (e.g., Morgenthau 2012), some conflicts cannot be settled by legal means alone, as they are of a political nature and therefore contingent, ephemeral, and relational. Pace Oren (2009), classical realism as we find it in Morgenthau did try to capture the ‘real world,’ but this real world is imagined in fleeting human relations, situated in a multitude of assemblages to speak in a more contemporary IR parlance. In the United States, Morgenthau re-encountered this kind of thinking, but on a much larger scale and with more influence on (foreign) policy making. The rise of positivism in American academia and beyond, however, was not primarily the result of close relations between some European émigrés and American scholars but was mainly expedited by World War II and its push for a rationalized and planned for war economy. The United States also proved to be a fertile soil for positivist thought due to its relative insularity until the end of World War I. Living in Central Europe, recurrent conflicts had been a constant reminder to people of their own contingency and ephemerality. By contrast, people in North America were somewhat lacking this experience, meaning that during their lifetime they never had to and never encountered a challenge to their basic ontological assumptions. As a consequence, for Morgenthau liberalism had turned static and transformed into an idealism with absolute truth claims that only provided for a singular narrative of (inter)national affairs (Rösch 2015, 116). Morgenthau’s fellow émigré, the educationalist Robert Ulich put it in an interview with a German radio station in 1958 as follows: ‘The American is living with an eighteenth century conscience: for him, some things are simply true and … others are wrong; and since democracy is right in America, everything else has to be wrong’ (Radio Bremen 1962, 47–48).1 And Louis Hartz (1955, 100) summarized laconically that ‘[i]t is only when you take your ethics for granted that all problems emerge as problems of technique.’ The influence over (foreign) policymaking that the persona of the credentialed social scientist wielded in the United States did not purely emerge from the academic realm. More common than in Europe, some academics became policy advisors and even held political offices. During the midtwentieth century, when Morgenthau rose to nation-wide prominence as a public intellectual, Henry Kissinger and Walt Rostow belonged to this group of scholars-cum-policy makers but also Robert McNamara exemplifies this persona, even though he never held an academic position. Most important for Morgenthau, however, was McGeorge Bundy. The former dean of Harvard’s Faculty of Arts and Sciences was the national security advisor under Presidents Kennedy and Johnson (1961–1966). In fact, it was Bundy’s interpretation of this role that gave the national security advisor the standing it enjoys today (Preston 2001).

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Morgenthau met Bundy during a televised interview at Georgetown on June 21, 1965. Surveying newspaper reports from that time, Molloy (2020, 330) ascertains that this interview led to a ‘caustic exchange’ about the war in Vietnam. Bundy’s not getting along with Morgenthau however went further than that. He had already filed a memo with President Johnson in April that year, compromising among others Morgenthau for criticizing the American involvement in Vietnam. This prompted an ‘Operation Morgenthau’ or ‘Project Morgenthau,’ in which the government tried to collect compromising materials against him (Oren 2009, 293; Rösch 2015, 126; Molloy 2020, 330–331). According to Morgenthau (1984b, 383), the government even had assigned one of the White House fellows to go through all of his writings. These ferocious personal attacks against Morgenthau suggest that their disagreements were the result of two different intellectual worlds. Operating with a positivist epistemology and a liberal ontology with a strong conviction in social planning, Bundy could not reconcile his worldview with the one of Morgenthau that argued for (self-)reflexivity and acknowledged human contingencies. For Bundy, this was all too pessimistic. Calling it simply pessimistic, however, would not do justice to Morgenthau’s position. Rather, it was closer to the persona of a critical intellectual theorist (Devetak 2018). To be sure, Devetak conceived of this ideal-type mainly in reference to the impact that Frankfurt School scholars like Theodor Adorno and Herbert Marcuse had on IR and Morgenthau was not an uppercase Critical Theorist, as Daniel Levine (2013) rightfully argues. Indeed, Morgenthau (1984a, 14) thought of himself as not being a Marxist. However, classical realism and lower-case critical theories share affinities, as a recently concluded Leverhulme Trust research network established (Behr and Williams 2017; Scheuerman 2009). Particularly Morgenthau, who was personally acquainted to some of the members of the Institute of Social Research while studying in Frankfurt and writing his doctoral thesis there, was influenced by its intellectual air (Rösch 2015, 147). Like the credentialed social scientist also the critical intellectual theorist is ‘enmeshed in social and political life’ (Devetak 2018, 156). Unlike argued for by the former, however, Morgenthau did not believe in the ability of scholarship being an objective bystander in this process. In an earlier, pre-American manuscript, Morgenthau (1934, 2) labeled this type of scholarship ‘immanent,’ criticizing it for ‘only engag[ing] in empirical, policy-oriented studies that do not question the sociopolitical and cultural life-worlds they are operating in’ (Rösch 2016, 26). Hence, this kind of scholarship does not consider one’s own spatio-temporal situatedness and that of one’s research object. It consequently lacks the criticality and (self-) reflexivity of what he called back then ‘transcendent’ (Morgenthau 1934, 2) scholarship. Instead, pursuing a positivist scholarship eventually ends up being reduced to an acclamation of the status quo or as Morgenthau (1934, 55) put it, positivism turns ‘into an ideological doctrine of justification.’

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Reflexivity and an Ethics of Anti-Hubris For Morgenthau, the rise of positivism and the transformations it caused on (foreign) policymaking ultimately challenged ideas of republicanism and liberalism the American democracy was established upon. Although Morgenthau (1966a) was hopeful until the 1960s that this transformation would only be temporary, fears that Morgenthau (1947) expressed twenty years earlier in publications like Scientific Man vs. Power Politics were not ill-founded. As Nicolas Guilhot (2017, 197) writes, ‘[t]he ascendancy of a scientific and technological elite in the process of government and the increasingly esoteric nature of the knowledge it possessed had displaced the sites of decision-making and circumvented entirely democratic control.’ The belief in the power of science did not allow for leading better lives, but provided the basis for apocalyptic politics, as Alison McQueen (2018, 173) recently established. Paired with what Morgenthau (1947, 86) called ‘the method of the single cause,’ he feared that liberalism in the United States would turn into idealism. Liberalism meant for Morgenthau having the freedom to contribute to political debates, knowing that they would evolve in an antagonism of interests. As people’s opinions about what would be best for society diverge, political decisions based on these debates are choices of lesser evil (Morgenthau 1945). Liberalism, therefore, also meant for Morgenthau that these decisions are a reflection of the contingency and context-dependency of human relations. Consequently, they are not perpetual, but always reversible. By contrast, uncritical acceptance of scientific methods creates illusions of being able to find ultimate truth. Any critique of such illusions is seen as an act of heresy. With the increasing American involvement in Vietnam, Morgenthau experienced the deadly consequences of this ideologization of liberalism first-hand. As he put it in an interview toward the end of his life, the war in South Vietnam was primarily a civil war, not a war of foreign aggression; that the domino theory was a literary invention with no correspondence in historic experience; that counterinsurgency was not a military tactic which could be applied indiscriminately and with any chance of success in a situation in which large masses of indigenous people took to arms for deeply felt national and social objective. (Morgenthau 1984b, 382)

Morgenthau’s role of a public dissenter was not restricted to the Vietnam War or even American foreign policy but he also frequently commented on politics in Europe. Particularly one comment caused heated debates in his native country. Nine years before Willy Brandt’s Kniefall von Warschau (Warsaw Genuflection), Morgenthau (1961), giving a lecture in Bologna, spoke in favor of a unified Germany accepting the Oder-Neisse line as its border to Poland. As mentioned before, by perceiving critique as heresy, Morgenthau had to endure personal and professional attacks for his public engagement. His archive in the Library of Congress contains numerous anti-intellectual, xenophobic, and anti-Semitic letters, serving as a testament that, to pursue

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his understanding of scholarship, Morgenthau had to pay a high price. ‘The genuine intellectual’, Morgenthau (in Molloy 2020, 328) claimed, ‘has … always been lonely, for he must be “the enemy of the people”.’ Elsewhere, he noted that [p]olitical science which is true to its moral commitment ought … to be an unpopular undertaking … it cannot help being a subversive and revolutionary force with regard to certain vested interests – intellectual, political, economic, social in general. For it must sit in continuous judgment upon political man and political society, measuring their truth ... By doing so, it is not only an embarrassment to society intellectually, but it becomes also a political threat to the defenders or the opponents of the status quo or to both; for the social conventions about power, which political science cannot help subjecting to a critical – and often destructive – examination, are one of the main sources from which the claims to power, and hence power itself, derive. (Morgenthau 1955, 446–447; emphasis in original)

Consequently, Morgenthau (1958) not only criticized positivism for having contributed to a ‘theoretical irrelevance’ of the social sciences but also caused their ‘political impotence’. Acting as a public dissenter to address this impotence, Morgenthau was informed by an ethics of anti-hubris, i.e., ‘a position of constant (self-)reflectivity, ethical self-restraint, and humility in both political theory and practice, a position that avoids universalistic and rationalistic fabrications of social and political spaces’ (Behr and Rösch 2013, 112). In contrast to the immanent understanding of scholarship that Morgenthau saw exemplified in positivism, this position asks for transcendence, in the sense that scholarship has to act as ‘an interpreter of the imaginable’ (Morgenthau 1934, 69) ‘by making people aware of the myriad sociopolitical and cultural constellations that submerge into their specific life-worlds at a given time’ (Rösch 2016, 27). In other words, in agreement with the sociologist Karl Mannheim, Morgenthau understood knowledge as spatiotemporally conditioned that prevents humans from making absolute truth statements. While not all classical realists were influenced by Mannheim to the same extent than Morgenthau (although many like E. H. Carr were), there is agreement across the classical realism spectrum to consider the contingency of historical context of knowledge (Bell 2017; Hvidsten 2019; Karkour and Giese 2020). It, therefore, requires scholars—and indeed people in general—to be (self-)reflexive, willing to constantly challenge their own perspective and those of others in light of the ever-changing, sociopolitical constellations they are situated in. This does not mean, however, that for Morgenthau objectivity would have been impossible to achieve or that he favored radical relativism. Rather, his was a position of limited relativism, as Molloy (2020, 326) calls it, or of perspectivist objectivity (Behr 2013). Guided by what he termed eternal questions of politics, such as the quest for peace or a good life, people can find temporal answers to these questions, while being situated in specific interpersonal relations. ‘The commitment to speak a truth consistent with fundamental

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principles, principles that themselves muse be rooted in a legitimate political philosophy, is a collective responsibility not for the individual’ (Molloy 2020, 335; emphasis in original). The intellectual contributions of others therefore cannot be dismissed right away. Rather, they have to be acknowledged as legitimate attempts to provide meaning to lived realities and therefore deserve careful assessment in often arduous, long-term processes. Initially, Morgenthau (1934, 79–80) hoped that scholars could provide this task, helping society at large to regain a capacity to act. To re-instill this capacity in people, however, Morgenthau’s transcendent understanding of scholarship had to be followed. Scholarship guided by positivism would only face the danger of providing intellectual justification to enforce ideological constraints. Pace Molloy (2020), at later stages of his life and through his thinking partnership with Hannah Arendt in particular (Rösch 2013), Morgenthau no longer conceded such a fundamental role to scholars alone. Rather, he saw the ethics of anti-hubris as part of wider societal efforts that would involve everyone taking responsibility for their actions in life collectively in their relations to other people with whom they share their life-worlds.

Emotions and Art History To further investigate Morgenthau’s realist approach to elucidate the human condition of politics, the final section of this chapter focuses on one aspect of the human condition and one methodological inspiration in Morgenthau’s work, both of which have received so far relatively limited consideration (Solomon 2012; Ross 2013; Rösch 2015). While only scattered throughout Morgenthau’s work, the frequent mentioning of emotions suggests that Morgenthau considered them of relevance for the study of (international) politics. As the final part of this section demonstrates, in order to study emotions and get a comprehensive understanding of the human condition, Morgenthau found inspiration in art history; in particular the works of Jacob Burckhardt. Studying Heinrich Wölfflin also helped him to reflect on the question of contingency in developing his own understanding of the political. In contrast to other émigré scholars like Hans Speier (1975), who wrote extensively on the politics of happiness, folly, and laughter, Morgenthau never coherently elaborated the influence of emotions on politics. The closest we have is the Commentary piece on love and power (Morgenthau 1962a), mentioned in the introduction to this chapter. Throughout his work, however, he frequently referred to questions of emotions. In his first American monograph, Scientific Man vs. Power Politics, for example, he lamented that ‘[i]n this world of rationalism, emotions, whenever their existence is recognized at all, have only a subordinate role to play’ (Morgenthau 1947, 20). Shortly thereafter, he further acknowledged in Politics among Nations that the rise of nationalism in the nineteenth and twentieth centuries is linked to it providing for a powerful emotional outlet (Morgenthau 1948, 113). That several émigrés were interested in emotions, however, cannot only be

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explained through their experiences of the rise of Nazism, the downfall of the Weimar Republic and the subsequent Shoah and World War II. Rather, it is linked to discourses of Central European interwar-period humanities, during which many of those that we call classical realists today were intellectually socialized. For example, in Selbstmord mit gutem Gewissen (Suicide with a Good Conscience), one of Morgenthau’s earliest writings that remained unpublished to date, Morgenthau (1930a) critiqued pacifist discourses for not understanding that imperial Germany actively sought opportunities for a ‘great war’ due to its specific ‘emotional community’ (Rosenwein 2006), to use a more contemporary term. Following Morgenthau, a masculinist, militarist worldview had prevailed in this community. More important for detecting the importance of emotions in Morgenthau’s (1930b) work, however, is another unpublished manuscript from the same year: Über die Herkunft des Politischen aus dem Wesen des Menschen (On the Derivation of the Political from Human Nature). As detailed by Robert Schuett (2010), Morgenthau derived from the study of Sigmund Freud that the human condition is guided by two drives: the drive for self-preservation (Selbsterhaltungstrieb) and the drive to prove oneself (Bewährungstrieb). While the first drive is more essential, as it seeks to secure life by searching for food and shelter, the second one is more important for politics. Particularly in challenging situations, this drive comes to the fore, as it requires people to use all of their abilities to master this situation, promising to be rewarded with affection from others (Morgenthau 1930b, 26–27). Rooted in ‘existential loneliness,’ as Ty Solomon (2012, 205; emphasis in original) puts it, this second drive concerns itself therefore with finding love, as Morgenthau (1962a) referred to it in this contribution to Commentary. As ‘[n]othing can sustain the ephemeral moments of the transcendence of love’ (Solomon 2012, 206), experiencing love, therefore, requires constant engagement with others, as only through human relations opportunities to find love arise and temporary satisfaction of this drive can be achieved. In other words, for Morgenthau reason alone could not help to understand the human condition. Love makes people strive to pursue one’s desires in life, it gives people the courage to overcome obstacles, and love searches for opportunities to communicate with others. From this follows that, as Solomon (2012, 217) rightfully argues and further demonstrated by Andrew Ross (2013), Morgenthau’s notion of emotion is very much in line with current discourses on affect and international politics. While emotions are individual physical intensities that are experienced by every human across time and space, the way they are experienced is affected by time and space. Hence, affect captures the collective dimensions of emotions, permeating in the contingency and ephemerality of human relations in specific (in)tangible contexts. To be able to understand how to affect impacts on politics and vice-versa, Morgenthau and other classical realists turned to history to learn about the specific contexts that brought current realities into being and they even turned to the past to reflect on

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future realities in an attempt to unlearn a modernity that they criticized for having caused a depoliticized and dehumanized present (Neacsu 2010; Rösch 2013, 2017; Paipais 2014). Therefore, ‘classical realism was guided more by changing historical context than fixed ontological blueprints’ (Ross 2013, 277). To study these changing historical contexts, from his earliest work, Morgenthau found inspiration in art history and references to art are present throughout his work. Even the very subject matter of his métier—the political—was identified by him in his early works as a ‘coloring’ and ‘tonality’ (Morgenthau 1929, 67; 2012, 101). Perhaps most famously, however, Morgenthau (1947, 16) claimed in Scientific Man vs. Power Politics that ‘[p]olitics is an art not a science, and what is required for its mastery is not the rationality of the engineer but the wisdom and the moral strength of the statesman.’ A few years later, he again made reference to art in order to capture the differences between theory and practice by writing that: [t]he difference between the empirical reality of politics and a theory of politics is like the difference between a photograph and a painted portrait. The photograph shows everything that can be seen by the naked eye. The painted portrait does not show everything that can be seen by the naked eye, but it shows one thing that the naked eye cannot see: the human essence of the person portrayed. (Morgenthau 1955, 456; also 1963)

Morgenthau, however, not only considered art suitable to visualize claims that he made in his writings, but for him, art was also political. What is more, these references to art also provide a clue as to where his understanding of and approach to the study of politics originates from. While other sources that have influenced Morgenthau’s work, such as psychoanalysis, sociology, and jurisprudence, have been studied extensively during the revival of classical realism, art history as a further source of his political thought has received almost no consideration (Rösch 2015). Morgenthau’s first encounter with art history must have been while studying Nietzsche’s work during his adolescence. In Nietzsche’s works, frequent reference was made to art (history) and particularly to Jacob Burckhardt. Nietzsche not only knew of Burckhardt’s work but he also knew him personally, as both, albeit Nietzsche only briefly, were working at the University of Basel. Morgenthau was further able to satisfy his interest in art history during the beginning of his university studies. After having had a disappointing semester studying philosophy at the University of Frankfurt, he transferred to the University of Munich to pursue a degree in law (Frei 2001). In 1928, Morgenthau would return to Frankfurt to finish his dissertation, but during his time in Munich Morgenthau embraced the intellectual opportunities university life offered to him. He took ‘courses whose subject matter and … whose professors interested me,’ as he later recalled (Morgenthau 1984a, 5). This

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included taking classes with a former student of Burckhardt, the Swiss art historian Wölfflin. Both art historians promoted a scholarship that helped Morgenthau later to criticize positivism for being unrealistic. Burckhardt (1963) spoke out on what can be called a ‘quagmire of facts’ (Große 1999), meaning that what appears to be facts have no social meaning themselves. Attempts to construct deterministic histories, therefore, have to be repudiated. Rather, facts only gain meaning in the sociopolitical and cultural contexts in which they originated. A careful study of these specific contexts provides the basis for identifying communalities through recurrent themes, artistic methods or tools, and objects, enabling to what Morgenthau (1962b, 110; 1971, 77) later identified as perennial problems in the sphere of politics. In Wölfflin, a similar approach is to be found. Like Burckhardt, Wölfflin did not see history merely as a discipline to collect facts. Rather to understand them, spatio-temporal conditionalities have to be taken into account. Again similar to Burckhardt’s Potenzen (forces), Wölfflin’s approach was guided by a set of concepts to give meaning to the myriad of interactions that make up reality. In Morgenthau’s (1984a, 5) words, Wölfflin’s ‘theory of ‘prefiguration,’ covering not only form but also content. Thus he [Wölfflin] accounted for changes in style … in terms of the transformation of fundamental forms rather than of mere chronological sequence.’ Employing several binaries—linear/painterly, plane/recession, closed/open, multiplicity/unity, and absolute/relative clarity—enables scholars to classify art into different epochs. Following Wölfflin (1950), epochs are characterized by different pronouncements of these binaries, but, borrowing the term Zeitgeist from Burckhardt, he acknowledged that the individual influence of these binaries is spatio-temporally conditioned and not universal. While several Morgenthau interpretations suggested affinities to Max Weber’s ideal-type (Barkawi 1998; Breiner 2004; Williams 2004; Turner and Mazur 2009), the initial stimulation to develop an epistemological position that recognizes perennial questions, but approaches them with contextsensitivity and a hermeneutics guided by clearly developed concepts came from art history. Morgenthau became familiar with Weber’s work only at the end of his studies in Munich, when he took classes with Karl Rothenbücher, a former student of Weber (Rösch 2015, 103). For Morgenthau, the purpose of such an epistemology was to account for the contingency and ephemerality of human life. Politics is always in flux and every engagement with it can merely provide a snapshot of the knowledge-power relations that are continuously being renegotiated in what William Galston (2010, 391) called an ‘arena of contestation’. Like Burckhardt, Morgenthau (1955, 456; 1959a, 17; 1959b, 132; 1971, 75) frequently referred to the trope of a map to capture this approach to the study of (international) politics: [a] central concept, such as power, then provides a kind of rational outline of politics, a map of the political scene. Such a map does not provide a complete description of the political landscape as it is in a particular period of history.

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It rather provides the timeless features of its geography distinct from their ever changing historic setting. Such a map, then, will tell us what are the rational possibilities for travel from one spot on the map to another, and which road is most likely to be taken by certain travelers under certain conditions. Thus it imparts a measure of rational order to the observing mind and, by doing so, establishes one of the conditions for successful action.

Conclusion The realist approach to IR, as we find it in Morgenthau, did not exhaust itself in pursuing a spatio-temporal context-sensitivity and a critique of positivist scholarship but it also promoted a normative agenda that challenged the political status quo. Having to live in a world of nation-states was a ‘tragedy’ (Kostagiannis 2014) for classical realists, as the nation-state was perceived by classical realists like Morgenthau (1962c, 61) as a ‘blind and potent monster’. Morgenthau’s characterization of the nation-state was not merely a historical-theoretical reflection but lived experience. They had experienced the effects of the global economic recession at the end of the 1920s, the rise of fascism throughout the same decade, and the eventual downfall of constitutional monarchies and republics in Germany, Italy, and Spain. Many of them still had vivid memories of World War I, having experienced it as children, and all of them remembered the horrors of World War II, causing the death of tens of millions of people across the world. They were also often forced to emigrate and had lost family members and friends in the Shoah. Finally, at the end of the war, they also experienced with the deployment of nuclear bombs over Hiroshima and Nagasaki that for the first time people now had a weapon at hand that could eradicate humanity altogether (Munster and Sylvest 2018; Beardsworth et al. 2019). Despite this potency, Morgenthau left no doubt in his writings and public appearances that the nation-state was no longer a suitable political community. In the mid-1950s, Morgenthau asserted that ‘[t]he the traditional nation state is obsolescent in view of the technological and military conditions of the contemporary world is obvious’ (in Scheuerman 2011, 39). Twenty-five years later, Morgenthau (1979, 42) repeated this claim, boldly declaring while delivering the first Council on Religion and International Affairs (CRIA) Lecture on Morality and Foreign Affairs that ‘we live in a dream world’ because the nation-state is ‘no longer [a] viable economic, political, or military unit’ (Morgenthau 1979, 34). Neither would nation-states be able to maintain economies that suffice human needs in a globalized world without extensive trade relations, nor would they be able to provide security to their people. Natural catastrophes, the effects of climate change, or nuclear weapons do not stop at national borders. In fact, these developments reduced them to mere artificial lines on a map (Morgenthau 1966b, 9; 1970, 61–62). While

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not being able to prevent them, dealing with natural and human-made catastrophes would require concerted efforts across borders through international cooperation. Being critical to a world of nation-states, however, does not imply that classical realists would have given in to this tragedy. On the contrary, classical realists remained optimistic about the prospects of humanity. This optimism was not based on American pragmatism, as Morgenthau (1984b, 379) acknowledged. Rather, as Scheuerman (2011) demonstrated, it was based on a sober assessment of twentieth-century political realities. This assessment was influenced by their personal experiences with the inaptitude of the League of Nations, but also guided by having been socialized intellectually into European humanities discourses of the conditionality of knowledge and the contingency of life. This means that classical realists did not accept these realities as given, but tried to overcome them and promoted a world community, and eventually a world state, hoping that people could become emotionally attached to a community beyond the nation-state. However, Morgenthau never found an answer that would have satisfied him as to how to solve this conundrum of helping people to shift their emotional allegiance away from the nation-state. Other classical realists found more elaborate answers (Scheuerman 2011). At times, Morgenthau had hoped to have found an answer in traditional forms of diplomacy, but quickly became dissatisfied with it (Frei 2016). At others, he put hope into international organizations and political unions under the influence of David Mitrany’s functionalist approach (Ashworth 2014). For Morgenthau, these organizations and unions could turn into international fora that enable people to identify commonalities, while being sensitive enough to learn to deal with differences that separate people. Still, Morgenthau’s work is a strong and timely reminder that nation-states no longer provide the economic, political, and military security their proponents claim they would and we should be cautious of market criers of nationalism. Their intentions do not lead to a more secure or peaceful world.

Note 1. All translations are by the author.

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PART IV

Colonialism, Decolonisation and Postcolonialism

CHAPTER 12

Amílcar Cabral and the International: Race, Colonialism, Liberation Branwen Gruffydd Jones

Introduction This chapter explores the international political thought of Amílcar Cabral. Cabral was the Secretary General of PAIGC, the national liberation movement of Guinea-Bissau and Cabo Verde. He played a leading role in the liberation of the Portuguese colonies in Africa and, as such, was a key figure in the liberation of the African continent from colonial rule. Though widely recognised as an anticolonial leader of considerable stature, Cabral’s thought has not generally been taught in the disciplinary area of Politics and International Relations. Attention to Cabral has been more the concern of Postcolonial Studies (Young 2001). The disciplines of Politics and International Relations have tended to be eurocentric in theory, method and content, focusing largely on Western traditions of political thought and analysing the politics of nonWestern regions through existing, apparently universally applicable, theoretical and conceptual frameworks (Krishna 2001). The times are irreversibly changing, however. There is now a vibrant literature probing the centrality of colonialism and race to the constitution

The original version of this chapter was revised: Author’s last name has now been corrected in online. The correction to this chapter is available at https://doi.org/10.1007/978-3-031-36111-1_27 B. Gruffydd Jones (B) School of Law and Politics, Cardiff University, Cardiff, Wales, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023, corrected publication 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_12

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of politics and the international, and exploring traditions of non-Western and anticolonial thought with fresh postcolonial and decolonial approaches (Shilliam 2015, 2011; El-Malik and Kamola 2017; Grovogui 2006). This chapter explores three dimensions of Cabral’s thought which speak to the international: the question of race; the conceptualisation of colonialism and imperialism; and the idea of liberation. The concluding section draws on recent debates to offer some reflections about the specific character of anticolonial political thought.

Cabral and the International Amílcar Cabral is one of the most well-known of the African political thinkers of the anticolonial generation. From the time of the wars of national liberation (1961–1974) to the present, his thought and practice has been studied and his writings widely translated and published. His trajectory from student of agronomy in Lisbon in the late 1940s and 1950s to charismatic anticolonial revolutionary in the 1960s and 1970s is well-known. Cabral’s international renown as a thinker as well as military leader, diplomat and revolutionary began in the 1960s during the liberation struggle. He is considered a charismatic and shrewd leader and diplomat (Chabal 1983), skilled in the crucial work of establishing international support for his movement (Telepneva 2020; Sousa 2020). Part of this was the friendships that he developed with scholars and journalists such as the American political scientist Ronald Chilcote and the British journalist Basil Davidson, both of whom published important works analysing his thought and the PAIGC’s struggle (Chilcote 1968, 1991; Davidson 1969; see Cliffe 2010; Sivanandan 2010). Cabral was trained as an agronomist and produced a body of scholarly scientific publications in the field of agronomy (Cabral 1988; César 2018; Neves 2017). Cabral was not a scholar of International Relations in a formal disciplinary sense. He was, however, more than just a ‘man of action’ who only wrote ‘analyses of the events in which he was involved’ (Chabal 1981, 31). As the leader of an armed national liberation movement fighting for the independence of Guinea and Cabo Verde, and a leading member of the collaborative organs representing the main liberation movements of all the Portuguese colonies in Africa, Cabral had to address questions of international history and international politics. He needed to analyse the imperatives, possibilities and difficulties of developing a political and military struggle within GuineaBissau, a small, very poor and largely rural country composed of a diversity of peoples (Cabral 1974b). He needed to examine the historical and international situation of colonialism and the African predicament. He needed to address an international audience, to establish the legitimacy of the armed struggles of the national liberation movements. His writings address many questions ranging from military strategy and forms of resistance to education. His ideas were articulated in speeches and texts oriented to varied audiences, local, continental and international, formal and informal. He spoke to international journalists, he spoke at the United Nations, he addressed global revolutionaries

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at the Tricontinental conference in Havana, he addressed PAIGC cadres in the forest, he addressed his fellow anticolonial leaders at the CONCP conference in Dar Es Salaam, he gave a lecture at Syracuse University, he met with African American solidarity groups in New York. Few of his political writings were academic in form. This is characteristic of anticolonial thought as a specific strand of international political thought. Instead of taking as a starting point existing disciplinary approaches or concepts of the international, therefore, the following examines three elements of his thought which together amount to an important contribution to the international thought of the twentieth century. Race Cabral’s engagement with the question of race was part of a collective endeavour. Cabral travelled from Cabo Verde to Portugal in 1945 at the age of twenty to begin his degree in agronomy at the Instituto Superior de Agronomia. The young Cabral joined a group of African students studying in different faculties in Lisbon and Coimbra, including Mário Pinto de Andrade, studying classics and philology; Marcelino dos Santos, studying engineering; Noémia de Sousa, training to be a teacher; Agostinho Neto, studying medicine. These and others including Lúcio Lara, Alda Espírito Santo, Guilherme Espírito Santo, became friends. When they dis-embarked in Lisbon these young men and women did not necessarily come with a clearly formed sense of themselves as African, or black, or Guinean, Mozambican, Angolan, São Toméan and so on, nor did they have a clear anti-colonial consciousness (Barros 2021). Some, more so than others, had already started to articulate such questions of identity and belonging, especially in poetry, before moving to the metropole. However, it was whilst they were in Portugal that they confronted their African being and African condition. The initial interactions amongst these African students were based around accommodation, leisure and cultural activities, typical of students anywhere. Activities of reading and writing poetry, talks, dances and other events were organised by the student association Casa dos Estudantes do Império which was the main institutional focus for students from the colonies. Originally set up by students, the association was formalised by the Estado Novo in 1944 with a view to consolidating the legitimacy of the empire (Laranjeira 1996). The Casa later became a centre of anticolonial consciousness but in the early years the institution and its publications were largely dominated by white students of colonial settler families, and were under the surveillance of the Estado Novo (Castelo and Jerónimo 2017; Reza 2016). In order to be able to discuss their situation more freely, Cabral and his fellow students set up their own clandestine research group, the Centro de Estudos Africanos. Andrade recounts that Cabral was the principal instigator of this initiative (Andrade 1997, 69–80). They established a programme of collective study, taking turns to research a topic and present to the group according to their interests and areas of academic study. The schedule of their research was as follows (Andrade 1997, 71–72):

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Land and Man; African socio-economics; Negro thought; The problems of the Portuguese Empire, and the rest of black Africa; The negro in the world; The central problems for the advance of the black world.

This group of students framed their enquiries within reference to both ‘Africa’ and the language of race. The terminology employed in devising this schedule of research reflected the international currents of discourse of the mid twentieth century. The set of themes, however, demonstrates their collective response to their own situation and to their previous experiences of education. This was a shared response to the overwhelming lack of any knowledge about their own or any other African cultures and histories that they had received through the Portuguese educational system. In most of the Portuguese colonies in Africa, the Estado Novo instituted the regime of ‘indigenato’ which categorised the African population as either assimilado or indígena (Moutinho 2000). The assimilados , a tiny proportion of the population, had greater rights than the majority indígena, including access to primary and secondary education. As assimilados , Cabral and his fellow students had been educated solely in Portuguese, about Portuguese geography, culture and history (Andrade 1997; Borges 2019). This shared research and debate was an intense activity for Cabral and his friends during their time in Lisbon from the late 1940s to the early 1950s. These young students read as much as they could get hold of (Andrade 1997). They were influenced especially by African American writers of the Harlem Renaissance, such as Langston Hughes and Countee Cullen; writers of Brazil and of the Caribbean such as Jorge Amado and Nicolas Guillén; and by writers of negritude, especially Aimé Césaire and Léopold Senghor. Their cultural and intellectual inquiry involved shared reading, organising talks, translating works and writing poetry, as well as their research papers. They organised the publication of a collection of poetry, Caderno de Poesia Negra de Expressão Portuguesa [Notebook of Black Poetry in Portuguese] published in 1953, conceived explicitly as a successor to Senghor’s Anthologie de la Nouvelle Poésie Nègre et Malgache de Langue Française of 1948. At this time in the early 1950s they embraced negritude, a literary movement whose concerns resonated very much with their own. Andrade recalled ‘there is a letter from Amílcar to his fiancé at the time, Maria Helena, where he talks of his fascination with the poetry of negritude’ (Andrade 1982a, 7). They understood their poetry to be a contribution to the movement of negritude (Andrade 1951). Negritude spoke to them, as alienated assimilados in the heart of a fascist colonial empire. By the late 1950s, however, Cabral and his fellow militants had arrived at a more radical position in terms of the politics of anticolonial struggle, which explicitly rejected a racial framing of their culture and identity and of their struggles. Central to this was their acute awareness of the contradictions

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of the relationship between the minority assimilados and the vast majority of indígenos (Gruffydd Jones 2020). Their critique was articulated by Agostinho Neto in a talk given in Lisbon in 1959, in which he characterised negritude’s search for a black African cultural identity as the project of the alienated assimilado elite, not the masses, calling it a ‘poetry of the uprooted’ which ‘only had distant links with the true problems of social reality’ (Neto 1960, 50). The rejection of a racial framing is found repeatedly across Cabral’s writings from the early 1960s onwards. In a speech to the CONCP (Conferência das Organizações Nacionalistas das Colónias Portuguesas, the collaborative organisation linking the PAIGC, FRELIMO and MPLA) in 1965, Cabral refused the imperialist terminology of ‘Black Africa’, and stated ‘we do not confuse exploitation … with people’s skin colour’ (Cabral 1965, 3, 8). In 1972, in a text prepared for a UNESCO meeting about race and identity, he confirmed an objective analysis of cultural reality denies the existence of racial or continental cultures. … culture – the creation of a community … is a social reality independent of man’s will, of the colour of his skin or the shape of his eyes. (Cabral 1972, 21)

In his lecture on the question of culture and national liberation, given in 1970 at Syracuse University, Cabral made no specific mention of negritude by name, as, for example, Frantz Fanon had in his own critique elaborated in Black Skin, White Masks (Fanon 1986). However, familiarity with the content and style of negritude, as well as acknowledgement of Cabral and his colleagues’ own previous embrace of these ideas, would suggest that there is a strand elaborating a critique of negritude running through this lecture. Cabral observed that ‘The time is past when it was necessary to seek arguments to prove the cultural maturity of African peoples’ and disparaged the irrationality of the ‘racist’ theories of European scholars such as Gobineau and Levy-Bruhl (Cabral 1980b, 148). He goes on to elaborate his objection to a racialised understanding of culture: A profound analysis of cultural reality removes the supposition that there can be continental or racial cultures. This is because, as with history, culture develops in an uneven process, at the level of a continent, a ‘race’ or even a society. The coordinates of culture, like those of any developing phenomenon, vary in space and time, whether they be material (physical) or human (biological and social). The fact of recognizing the existence of common and special traits in the cultures of African peoples, independently of the colour of their skin, does not necessarily imply that one and only one culture exists on the continent. In the same way that from the economic and political point of view one can note the existence of various Africas, so there are also various African cultures. (Cabral 1980b, 149)

Cabral concludes that, whilst ‘without any doubt, underestimation of the cultural values of African peoples, based upon racist feelings and the intention

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of perpetuating exploitation by the foreigner, has done much harm to Africa’, nevertheless various forms of response would be no less harmful, such as ‘unselective praise’ and, above all, the ‘absurd connexion of artistic creations, whether valid or not, to supposed racial characteristics’ (Cabral 1980b, 150). These arguments amount to an explicit rejection of a racialised framing for understanding and conceptualising the identity and culture of African peoples and their struggles. Colonialism and Imperialism Cabral had to engage with the character of the international order in the course of leading the struggle for national liberation from colonial rule. In his writings analysing the predicament of the Portuguese colonies and their liberation movements Cabral foregrounded the colonial and imperial character of the international order, in terms of the longer history which had brought them to the position they were in, and the imperial international relations which sustained Portugal in fighting colonial wars against the liberation movements of Guinea, Angola and Mozambique. His analyses of international relations, located in numerous speeches, reports and political documents, articulate a specific characterisation of the international with three important features: attention to the colonial and imperial constitution of the international; an original conceptualisation of the effects of imperialism on colonised people; and a non-eurocentric practice of historical materialist method. First, in Cabral’s various writings we find a clear analysis of the international order of the twentieth century and preceding centuries as an order structured by colonialism and imperialism. Amílcar Cabral, together with Lúcio Lara and Mário de Andrade of Angola, Marcelino dos Santos of Mozambique, and Guilherme Espírito Santo of São Tomé and Príncipe, wrote the Manifesto of MAC, the Movimento Anti-colonialista, in Paris in 1957 (Andrade 1997; MAC 1960). This crucial early document formulated the collective position of the group who would go on to lead the national liberation movements, and established the legitimacy of their cause of independence from Portuguese rule. The Manifesto examined the principles on which colonial occupation of Africa had historically been legitimised in international law: the notion of historical right; the right of ‘effective occupation’ claimed at the Berlin conference; and the demand for the progress and material and moral development of colonised peoples, proclaimed by the League of Nations after the First World War. All of these principles, the Manifesto observed, had been successively negated, the last by the Charter of the United Nations of 1945 which recognised the right of all peoples to dispose of themselves and affirmed the desirability of the restoration of rights of sovereignty and self-government to those peoples from whom such rights had been removed by force. MAC affirmed, ‘all the legal principles of the right to colonies are, thus, negated and destroyed’ (MAC 1960, 5). They continued, however, with the fundamental assertion that none of these previous justifications of colonialism had

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been legitimate from the point of view of the colonised: ‘In any case, our peoples never gave their prior free consent to these principles’ (MAC 1960, 5). Although a brief statement of position set out in a political manifesto, rather than a lengthy theoretical engagement with and critique of existing literature in International Relations and International Law, this nevertheless outlined a radical position in opposition to current strands of liberal international law (Gathii 2011, 2008; Gruffydd Jones 2023). In subsequent writings, Cabral repeatedly contrasted the continuing imperial character of the international order in practice with the principles of international legitimacy proclaimed by the United Nations. This was manifest in the NATO countries’ support for Portugal’s illegal colonial wars. He characterised Portugal as a ‘semi-colony’ of Britain, a ‘rotten appendage of imperialism’ (Cabral 1973b, 82). Employing Europe’s own terminology of ‘development’ he argued that Portugal was a poor, underdeveloped, backward, agricultural and semi-literate country. It was waging wars to retain rule over its colonies in Africa because, he argued, unlike other European powers, Portugal was too poor to be able to afford the neo-colonial option. Too poor to manufacture toy aeroplanes let alone military planes for its own air force, Portugal had to rely on the military and financial support of its NATO allies— the United States, West Germany, France, Italy and the United Kingdom (Cabral 1973b). Second, Cabral elaborated a theoretical understanding of the consequences of colonialism and imperialism for colonised peoples, as the violent interruption of a people’s historical process. Cabral sets this out in his address at the Tricontinental conference in Havana in 1966, ‘The Weapon of Theory’. In this address to revolutionary forces from around the world gathered in Cuba, at what he termed an ‘epoch-making event in the history of mankind’ (Cabral 1980c, 119), Cabral emphasised the need for theoretical analysis of the specific situation in each context of revolutionary or liberation struggle. He set out an analysis of imperialism and of the social and political contradictions within a society under imperialist domination, urging the need for careful attention to the specificities of social relations and conditions within society for the conduct of political struggle against imperialism. After developing an understanding of the historical process of a society as rooted in its social relations of production, he went on to specify the effect of imperialism: both in colonialism and in neo-colonialism the essential characteristic of imperialist domination remains the same – denial of the historical process of the dominated people, by means of violent usurpation of the freedom of the process of development of the national productive forces. (Cabral 1980c, 129)

This characterisation is repeated later: ‘the principal and permanent characteristic of imperialist domination, whatever its form, is the usurpation by violence of the freedom of the process of development of the dominated socio-economic whole’ (Cabral 1980c, 130).

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This conceptualisation was elaborated further with respect to the question of culture and international legitimacy, in his lecture ‘National Liberation and Culture’ of 1970. Cabral argues that a society’s mode of production, productive forces and social relations of production are at the heart of its historical condition and dynamics of change, and constitute the material base of the social and cultural life of a society. By taking control of a society’s productive forces, imperialism takes control of the social and cultural life of a people: ‘imperialist domination, denying to the dominated people their own historical process, necessarily denies their cultural process’ (Cabral 1980b, 142). Cabral used this formulation as the basis for re-asserting the inherent injustice of imperialism and the inherent legitimacy of struggles for national liberation in terms which directly echo the position first set out in the Manifesto of MAC in 1957. Referring to the legal reasoning of the United Nations international order, he argued: ‘it is often said that national liberation is based on the right of all peoples to decide their destiny freely and that the aim of this liberation is to gain national independence’ (Cabral 1980c, 130). He then proposed a more precise formulation: Although we might agree with this vague and subjective way of expressing a complex reality, we prefer to be objective. For us the basis of national liberation, whatever the formulas adopted in international law, is the inalienable right of every people to have their own history; and the aim of national liberation is to regain this right usurped by imperialism, that is to free the process of development of the national productive forces. (Cabral 1980c, 130; emphasis added)

This powerful argument refuses an ahistorical rendering of the rights of all people to self-determination as being valid because rooted in prevailing doctrines of international law. Instead Cabral insists on a notion of justice which acknowledges the illegitimate, violent and unjust prior denial of history of those peoples subject to European imperial domination. Cabral’s analysis of imperialism, historical process and the effects of imperialist domination on colonised societies is, evidently, a materialist analysis. The third point I wish to highlight, regards the originality of Cabral’s deployment of a historical materialist method. Many early analysts of Cabral’s thought emphasised its Marxist nature (Chabal 1981, 1983). By instinct, Western scholars tended to situate Cabral’s thought within already existing strands of thought and theory rooted in the West, specifically Marxism and nationalism. Ronald Chilcote, for example, observed that ‘Hegel’s dialectic, Marx’s historical materialism and Lenin’s notions of imperialism have unquestionably influenced Cabral’s revolutionary ideology and theory’ (Chilcote 1968, 385). This approach sees political thought which develops in Africa and other non-Western regions as influenced by, comparable to or derivative of already existing traditions which first developed in Europe (Chatterjee 1986;

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Grovogui 2006), but rarely considers how these strands of thought might have provided original contributions to international political thought. During their time together in Lisbon and thereafter Cabral and his fellow militants read whatever they could get hold of in the context of the Estado Novo censorship. They read whatever was relevant to them, to learn about themselves and about struggles in other parts of the world. This included Marxist and other revolutionary theories, alongside literature from the Caribbean, the Harlem Renaissance, Russia, Brazil and so on. Most of Cabral’s political writings do not provide references and bibliography—they were written as political texts, as manifestos, reports, speeches to his colleagues in the liberation movements, to international audiences, to the UN. There is a clear use of Marxist terminology and historical materialist method in some of his work, which is obvious without bibliographic references, especially in ‘The Weapon of Theory’ and ‘National Liberation and Culture’. However, in these works there is also an explicit rejection of the eurocentric vision which characterised much of the Marxist thought of his times. Cabral puts into practice what his contemporary Frantz Fanon explicitly called for: the stretching of Marxism when it comes to the colonial situation (Fanon 1967). Cabral, Fanon and other anticolonial figures learned from existing theoretical materials, but they had to put them to new use, in new combinations and with new formulations and emphases, in order to address the specificity of the colonial situation. In ‘The Weapon of Theory’ Cabral rejects the argument that class struggle is the motor of history, proposing that the process of class struggle needs to be rethought to include the effects of colonial domination. He refuses the possibility of a generalised theory of history as class struggle because of the diversity of social relations within actual societies: ‘in the general evolution of mankind and of each of the peoples in the human groups of which it is composed, classes appear neither as a generalized and simultaneous phenomenon throughout all these groups, nor as a finished, perfect, uniform and spontaneous whole’ (Cabral 1980c, 123). He does so because such a position, widely accepted as the standard foundation of a Marxist theory of history, implies that societies which do not manifest class struggle are therefore outside of history. Cabral’s concern in this address to an audience of global revolutionaries was not to establish the originality of his academic or theoretical contribution nor to elaborate a lengthy critique of other positions, but to set out a careful theoretical analysis of, and method for confronting, the situation of liberation movements fighting against colonialism. We might note, however, that his analysis effectively refuses Hegel’s notorious placing of ‘Africa proper’ (a term which has echoes in the routine and unquestioning use of ‘Sub-Saharan Africa’ today) explicitly outside of history (Hegel 1975, 173–189), and anticipates Eric Wolf’s seminal Europe and the People Without History (Wolf 1982):

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does history begin only from the moment of the launching of the phenomenon of class and, consequently, of class struggle? To reply in the affirmative would be to place outside history the whole period of life of human groups from the discovery of hunting, and later of nomadic and sedentary agriculture, to cattle raising and to the private appropriation of land. It would also be to consider – and this we refuse to accept – that various human groups in Africa, Asia and Latin America were living without history or outside history at the moment when they were subjected to the yoke of imperialism. It would be to consider that the populations of our countries, such as the Balanta of Guiné, the Cuanhama of Angola and the Makonde of Mozambique, are still living today – if we abstract the very slight influence of colonialism to which they have been subjected – outside history, or that they have no history. (Cabral 1980c, 124)

Instead of accepting the standard Marxist assumption of class struggle as the motive force of history, Cabral qualifies that if this is the case, ‘it is so in a specific historical period’ (Cabral 1980c, 124). More broadly, Cabral proposes, it is the mode of production that is the central focus for understanding the historical dynamics of change within specific societies: ‘the level of productive forces, the essential determinant of the content and form of class struggle, is the true and permanent motive force of history’ (Cabral 1980c, 125). With this stretching of historical materialist method, Cabral observes, we ‘avoid for some human groups in our countries (and perhaps in our continents) the sad position of being peoples without history’ (Cabral 1980c, 125). Liberation A third theme in Amílcar Cabral’s engagement with the international is the question of liberation. One of Cabral’s most well-known arguments was that the struggle for national liberation was in itself an act of culture. This position directly echoed the argument set out by Fanon at the Congress of Black Artists and Writers in 1959 in Rome (Fanon 1967). Cabral met Fanon in Rome and certainly would have had discussions with him (Andrade 1982b). But Cabral and his colleagues elaborated this idea in their own way, which emerged from the context and imperatives of their struggles—of having to think through the actual process of mobilising disparate peoples of various ethnic groups to form a unified liberation movement, with a clear understanding of who they were fighting, how and why. There are several elements to Cabral’s argument about national liberation as an act of culture. Cabral understood culture to be a dynamic social form, the expression of a people or society in specific historical circumstances. Culture ‘is the result, the more or less awakened consciousness, of economic and political activities, the more or less dynamic expression of the type of relations prevailing within that society’; it is the ‘vigorous manifestation, on the ideological or idealist level, of the material and historical reality of the society that is dominated or to be dominated’ (Cabral 1980b, 141). Externally imposed

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domination requires the ‘permanent and organised repression of the cultural life of the people concerned’ (Cabral 1980b, 139): to take up arms to dominate a people is, above all, to take up arms to destroy, or at least to neutralize and to paralyse their cultural life. For as long as part of that people can have a cultural life, foreign domination cannot be sure of its perpetuation. (Cabral 1980b, 140)

This relationship between colonialism and culture, the necessity for colonial oppression to paralyse the cultural life of a people, entails that for a people to struggle against colonialism is to struggle for their culture, it is itself a cultural act, a direct manifestation of culture: ‘if imperialist domination has the vital need to practise cultural oppression, national liberation is necessarily an act of culture … we may regard the liberation movement as the organized political expression of the struggling people’s culture’ (Cabral 1980b, 143). The very possibility of the national liberation struggle was rooted in culture (Cabral 1973c). Echoing Fanon (1967, 170–179), Cabral observes that in the history of liberation struggles, the formation of organised political struggle tends to be preceded by an upsurge in popular cultural manifestations (Cabral 1980b, 142). This is because, despite all attempts, colonialism failed to entirely destroy the cultural life of the dominated peoples (1973c, 60). This, Cabral asserts, was the greatest error of the colonialists: ‘One of the most serious mistakes, if not the most serious mistake, made by the colonial powers in Africa, may have been to ignore or underestimate the cultural strength of African peoples’ (Cabral 1980b, 147). But Cabral also analyses the complexity and diversity of popular culture amongst and between different peoples or ethnic groups, different classes and social positions, as well as the cultural alienation of the minority assimilados . His theoretical proposition that national liberation is an act of culture means more than just that the struggle is a manifestation of the existing cultural life of a people. Perhaps more importantly, Cabral proposes the process and experience of the national liberation struggle to be in itself a vehicle for the emergence of culture, the culture of the liberated people. Shared participation in the liberation struggle makes possible the transcendence of two divisions forged by colonial rule: the gulf between assimilados and indígena, and the divisions between ethnic groups. Cabral analyses the cultural alienation of the assimilado elite both in the colony and metropole, educated and socialised into Portuguese culture and yet still oppressed and marginalised. He considers their desire at a certain point to overcome their distance from their own people through rejecting European culture and instead embracing their own African culture, a response he terms ‘return to the source’ or ‘reafricanisation of the spirits’: ‘It comes as no surprise that the theories or “movements” such as Pan-Africanism or Negritude (two pertinent expressions arising mainly from the assumption that all black Africans

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have a cultural identity) were propounded outside black Africa’ (Cabral 1973c, 62–63). This is an understandable and necessary response to colonial racism, to ‘the pretended cultural supremacy of the culture of the dominant power over that of the dominated people’. It is ‘not a voluntary step, but the only possible reply to the demand of concrete need, historically determined, and enforced by the inescapable contradiction between the colonized society and the colonial power’ (Cabral 1973c, 63). But, Cabral argues, this understandable and necessary response on the part of the small alienated elite of the colonised society is of no historical consequence for the liberation struggle unless this mode of appreciation of African culture brings, to the elite, ‘complete and absolute identification with the hopes of the mass of the people, who contest not only the foreign culture but also the foreign domination as a whole’. The rejection of colonialism can never remain at the level of rejection of cultural supremacy and the endorsement of the culture of the colonised, because cultural oppression was only part of a far broader order of oppression and exploitation. It is the masses, not the elite, who have suffered colonial oppression most and therefore an adequate response to colonialism on the part of the elite must involve their complete identification with the masses. Participation of the assimilado alongside the indígena in the armed liberation struggle is what makes possible the transcendence of this divide (Cabral 1980b, 150–152). For their part the indígena, the worker and peasants, also ‘break the fetters of the village universe to integrate gradually into the country and the world’ through participation in the national liberation struggle, which demands and enables ‘the gradual elimination of the remnants of tribal mentality… and the rejection of social and religious rules and taboos contrary to the development of the struggle (gerontocracy, nepotism, social inferiority of women, rites and practices which are incompatible with the rational and national character of the struggle, etc.)’ (Cabral 1980b, 150–152).

Cabral and Anticolonial Thought I will conclude by considering Cabral’s thought in relation to the specificity of anticolonial thought. During the 1960s and 1970s, many essays and books about Cabral, as well as collections of his writings, constituted a literature of explicit solidarity, an extension of anticolonial discourse as such (Cabral 1969, 1973a, 1974a, b, 1976, 1977, 1980a; Chilcote 1968; Davidson 1969). An academic literature also developed about Cabral’s thought which could be considered an extension of the broader field of comparative politics analysing developments in the ‘new states’ (Clapham 1970). This academic literature was often quite eurocentric in method, seeking to locate the thought of Cabral and other African political leaders within existing strands of thought originating in the West, especially nationalism and Marxism. Today the literature of solidarity continues with, for example, Reiland Rabaka’s formulation of ‘Cabralism’ and Africana political theory (2014, 2016), and Bill Fletcher

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and Firoze Manji’s Claim No Easy Victories: The Legacy of Amílcar Cabral (2013). Others, seeking to avoid embracing Cabral as a hero, contextualise Cabral within the international and regional context of his times (Lopes and Barros 2020; Almada e Santos and Barros 2020), confront the limitations of his work as much as the achievements (Tomás 2008, 2016, 2021), and address the relationship between colonialism and knowledge and the problem of eurocentrism. The most prominent strand of current theory addressing the relationship between colonialism and knowledge is the decolonial literature which emerged in Latin America and has been embraced widely including in Africa (Mignolo and Escobar 2010; Mignolo 2021; Ndlovu-Gatsheni 2019, 2013; Pillay 2021). Decolonial theory foregrounds the centrality of knowledge in colonial oppression and the longevity of colonial legacies in epistemic, political and economic structures which continue to shape the present (Quijano 2000). Against the coloniality of power and knowledge, these scholars endorse ‘epistemic disobedience’, ‘decolonial delinking’ and ‘border thinking’ (Mignolo 2010; Grosfoguel 2007). This ‘de-colonial epistemic shift’ would bring ‘to the foreground other epistemologies, other principles of knowledge and understanding’ (Mignolo 2007, 453) from the ‘negated side of the epistemic colonial difference’ (Mignolo 2007, 453, 487). The search is for ‘multiple projects of epistemic decolonization grounded in the geo- and body-politics of knowledge’ (Mignolo 2007, 453, 487). They seek to elaborate a more radical critique of eurocentrism than was achieved by postcolonial theory, through a rejection of Western epistemology: ‘decolonization of knowledge would require to take seriously the epistemic perspective/cosmologies/ insights of critical thinkers from the Global South thinking from and with subalternized racial/ethnic/sexual spaces and bodies’ (Grosfoguel 2007, 212). Walter Mignolo characterises ‘border thinking’ as ‘an epistemology from a subaltern perspective’ (Mignolo 2002, 71). Boaventura de Sousa Santos shares similar concerns in his project elaborating ‘epistemologies of the South’, a notion which entails a social and epistemological rather than geographical ‘south’ (Santos 2016, 2018). These approaches consider the significance of knowledge in terms of the ‘locus of enunciation’ of the producer of knowledge (Mignolo 2010; Grosfoguel 2007). Ramón Grosfoguel explains that ‘epistemic location’ does not mean social location: ‘The fact that one is socially located in the oppressed side of power relations, does not automatically mean that he/she is epistemically thinking from a subaltern epistemic location’ (2007, 213). He explains that ‘subaltern epistemic perspectives are knowledges coming from below that produce a critical perspective of hegemonic knowledge in the power relations involved’ (2007, 213). Strong contrasts are drawn in the emphasis on the broad and enduring character of hegemonic universal Western coloniality against a diversity of subaltern contexts, politics and knowledges, signified through concepts such as ‘the axis of colonial difference’ (Mignolo 2000; Grosfoguel 2002), or the ‘abyssal line’ (Santos 2018).

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It is not clear how African anticolonial thought, and in particular Cabral’s thought, fits within the various terms of this project. The contrasts between different forms of knowledge are specified in terms of epistemology (‘a task of decolonial thinking is the unveiling of epistemic silences of Western epistemology and affirming the epistemic rights of the racially devalued’ [Mignolo 2010, 162]) as well as a ‘geo-politics’ and ‘body-politics’ of knowledge which foregrounds the ‘locus of enunciation’. Some decolonial scholars foreground subaltern, indigenous and non-Western knowledges in contrast to elite nationalist knowledge informed by Western epistemology, and this distinction would place the anticolonial thought of Cabral on the wrong side of the divide (Grosfoguel 2002, 209; Ndlovu-Gatsheni 2019, 213). Others, however, have included Cabral and other African anticolonial thinkers of the twentieth century as instances of decolonial thinking and epistemologies of the south (Santos 2018). Cabral’s international thought cannot be considered ‘non-Western’ in an epistemological sense (Seth 2021). He had a modern colonial school and university education, and whilst he came to be highly critical of Portugal’s colonial ideology of assimilation Cabral did not reject Western science (Cabral 1974b). Several scholars have explored the importance of the relationship between Cabral’s training as an agronomist and the development of his political thought and practice (César 2018; Neves 2017; Idahosa 2002). A similar point could be made about Fanon, who is also often taken as a central inspiration in the decolonial literature. Fanon had a modern Western school and university education in the colonial context, and, whilst he made important contributions to his discipline of psychiatry and elaborated a major critique of colonial medicine, he did not wholly reject the field on the grounds of its Western epistemology. To acknowledge the modernity of anticolonial thought does not, however, entail that it was either continuous with or derivative of modern Western thought or Enlightenment thought. Scholars have used concepts of autonomy, counterpoint and rupture to delineate the discontinuities between anticolonial thought and Western thought on grounds other than epistemology. Rather than posing strong epistemological contrasts between Western and non-Western thought, Brent Hayes Edwards urges attention to ‘the autonomy of black radical groups and to their theoretical grappling … toward a position and a praxis that would attend to both class and race in promoting social transformation’ (Edwards 2001, 2). This autonomy can be delineated by exploring ‘the methodologies and strategies embedded within key works’ (Edwards 2001, 2). Several scholars have focused precisely on the contents and method of anticolonial thought, and on the historically specific relation between ideas and their context (Scott 2004). António Tomás’s recent critical engagement with the work of Cabral is concerned to situate the questions posed and answers provided by political thought within its historical horizon of possibilities: ‘key to understanding earlier political thought, then, is to determine what

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the authors were doing by advancing, or not, a given position. … political interventions are answers to very particular questions posed by a given age’ (Tomás 2016, 23). Focusing on his understanding of culture, Tomás argues that Cabral under-estimated the effects of the colonial creation and strengthening of the ethnic, and the endurance of these identities in a way which would both undermine the unity of the liberation movement during the liberation struggle, and continue to profoundly shape the contours of Guinea-Bissau’s postcolonial condition (see also McCulloch 1983). Anthony Bogues, emphasising the modernity of the practices of the black radical political intellectual, employs the concepts of counterpoint and rupture in his exploration of black radical and anticolonial thought. He argues that ‘Black radical intellectual production is not simply reducible to an application of Western modernity … instead it is a critique of, and oftentimes a counterdiscourse about, the nature of Western modernity’ (Bogues 2016, 9). The black experience of colonial modernity constitutes a counterpoint to the universalist and progressive claims of Western thought (Bogues 2016, 3), and it is this experience which is the ground for the ruptures achieved by radical black and anticolonial thought: Radical African thought is obviously engaged in the creation of counterhegemonic texts. However, the critical question is: At what moment does rupture begin? The contestation typically begins as dialogical; there is intertextuality, and then rupture. The study of black radical intellectual production requires us to be historically concrete not so much in very carefully tracing its original sources as in finding the critical points of rupture and understanding the new categories when they are thrown up. (Bogues 2016, 3)

Conclusion Anticolonial thought was an autonomous form of modern international political thought. It was not derivative of existing Western thought. Cabral drew widely, creatively and critically on an array of existing international thought. He used this to reflect critically on the specific situation and conditions of himself, his fellow students and the peoples of Guinea-Bissau and Cabo Verde and the other Portuguese colonies in Africa. Forged in but against colonial modernity and informed by the experiences of colonial racism, marginalisation, violence and oppression, his thought contributed to and achieved ruptures from Western political thought. Cabral and other anticolonial thinkers employed existing methods and concepts drawn from elsewhere but had necessarily to stretch, reconfigure or ultimately reject them. Rejecting the European colonial discourse of race, Cabral and his colleagues initially embraced Negritude’s assertion of black African culture and identity. They later reached a radical rupture with all racialised thought, refusing the category of race as a basis for understanding African or any other identity, culture and political struggle. Rejecting

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the historical complicity between European international law and colonial violence, they claimed for themselves the mantle of international morality on the grounds of radical humanism, whilst refusing eurocentric philosophies of history and developing an original analysis of the meaning of imperialism for colonised peoples. Finally, Cabral developed a radical and historically situated understanding of culture in the context of the anticolonial struggle for liberation. The modern idea of ‘culture’ was an invention, in the context of modern Western knowledge about Western societies (Seth 2021). The idea of ‘culture’ was also employed by Western colonial powers to define non-Western peoples as inferior and uncivilised. Cabral refused not just the hierarchy of racial inferiority but the content and method of defining racial, continental and national cultures, instead proposing a radically new understanding and form of culture to be forged through anticolonial national liberation. If his ideas achieved counterhegemonic rupture, however, the social ruptures from colonial legacies have proved far harder to achieve.

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Edwards, Brent Hayes. 2001. The “Autonomy” of Black Radicalism. Social Text 19 (2): 1–13. El-Malik, Shiera S., and Isaac A. Kamola, eds. 2017. Politics of African Anticolonial Archive. London: Rowman & Littlefield. Fanon, Frantz. 1967. The Wretched of the Earth. Harmondsworth: Penguin. ———. 1986. Black Skin, White Masks. London: Pluto Press. Fletcher, Bill, and Firoze Manji. 2013. Claim No Easy Victories: The Legacy of Amílcar Cabral. Dakar: CODESRIA and Daraja Press. Gathii, James T. 2008. A Critical Appraisal of the International Legal Tradition of Taslim Olawale Elias. Leiden Journal of International Law 21 (2): 317–349. ———. 2011. Mapping African International Law. Transnational Legal Theory 2 (3): 429–441. Grosfoguel, Ramón. 2002. Colonial Difference, Geopolitics of Knowledge and Global Coloniality in the Modern/Colonial Capitalist World-System. Review 25 (3): 203– 224. ———. 2007. The Epistemic Decolonial Turn: Beyond Political-Economic Paradigms. Cultural Studies 21 (2–3): 211–223. Grovogui, Siba N. 2006. Beyond Eurocentrism and Anarchy: Memories of International Order and Institutions. Basingstoke: Palgrave Macmillan. Gruffydd Jones, Branwen. 2020. Race, Culture and Liberation: African Anticolonial Thought and Practice in the Time of Decolonisation. The International History Review 42 (6): 1238–1256. ———. 2023. Placing the West Before a Tribunal: Strategies of Critique in African Anticolonial Discourse. In Amílcar Cabral and the PAIGC’s Binational Struggle for Independence of Guinea-Bissau and Cabo Verde, ed. Víctor Barros and Aurora Almada e Santos. London: Routledge. Hegel, Georg W.F. 1975. Lectures on the Philosophy of World History. Introduction: Reason in History, trans. H. B. Nisbet. Introduction by Duncan Forbes. Cambridge: Cambridge University Press. Idahosa, Pablo L. 2002. Going to the People: Amílcar Cabral’s Materialist Theory and Practice of Culture and Ethnicity Lusotopie 2: 29–58. Krishna, Sankaran. 2001. Race, Amnesia, and the Education of International Relations. Alternatives: Global, Local, Political 26 (4): 401–424. Laranjeira, Pires. 1996. Introdução: Uma casa de mensagens anti-imperiais. In Mensagem: circular dos Serviços de Cultura da Casa dos Estudantes do Império.1.o Volume, ed. Manuel Ferreira. Edições ALAC, XVII. Lopes, Rui, and Víctor. Barros. 2020. Amílcar Cabral and the Liberation of GuineaBissau and Cape Verde: International, Transnational, and Global Dimensions. The International History Review 42 (6): 1230–1237. MAC. 1960. Manifesto do MAC (Movimento Anti-colonialista) aos povos das colónias portuguesas. Fundação Mário Soares / Arquivo Mário Pinto de Andrade. Disponível: http://hdl.handle.net/11002/fms_dc_83405 McCulloch, Jock. 1983. In the Twilight of Revolution: The Political Theory of Amílcar Cabral. London: Routledge and Kegan Paul. Mignolo, Walter D. 2000. Local Histories/Global Designs: Essays on the Coloniality of Power, Subaltern Knowledges and Border Thinking. Princeton: Princeton University Press. ———. 2002. The Geopolitics of Knowledge and the Colonial Difference. South Atlantic Quarterly, 101 (1): 57–96.

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———. 2007. Delinking: The Rhetoric of Modernity, the Logic of Coloniality and the Grammar of Decoloniality. Cultural Studies 21 (2–3): 449–514. ———. 2010. Epistemic Disobedience, Independent Thought and Decolonial Freedom. Theory, Culture & Society 26 (7–8): 159–181. ———. 2021. The Politics of Decolonial Investigations. Durham, NC: Duke University Press. Mignolo, Walter D., and Arturo Escobar. 2010. Globalization and the Decolonial Option. London: Routledge. Moutinho, Mário. 2000. O Indígena no Pensamento Colonial Português (1895–1961). Lisboa: Edições Universitárias Lusófonas. Ndlovu-Gatsheni, Sabelo J. 2013. Empire, Global Coloniality and African Subjectivity. New York: Berghahn Books. ———. 2019. Discourses of Decolonization/Decoloniality. Papers on Language & Literature 55 (3): 201–226. Neto, Agostinho. 1960. Introdução a um colóquio sobre Poesia Angolana. Mensagem: Boletim – Órgão Mensal da Casa dos Estudantes do Império Março-Abril, Ano III no. 5–6: 45–51. Neves, José. 2017. Ideology, science, and people in Amílcar Cabral. História, Ciências, Saúde – Manguinhos 24 (2): 333–347. Pillay, Suren. 2021. The Problem of Colonialism: Assimilation, Difference, and Decolonial Theory in Africa. Critical Times 4 (3): 389–416. Quijano, Aníbal. 2000. Modernidad, colonialidad y América Latina. Nepantla: Views from South 1 (3): 533–580. Rabaka, Reiland. 2016. The Weapon of Critical Theory: Amílcar Cabral, Cabralism, and Africana Critical Theory. In Resistance and Decolonization, trans. Dan Wood, 3–42. New York and London: Rowman & Littlefield. Rabaka, Reiland. 2014. Concepts of Cabralism: Amilcar Cabral and Africana Critical Theory. Lanham, MD: Lexington Books. Reza, Alexandra. 2016. African Anti-colonialism and the Ultramarinos of the Casa dos Estudantes do Império. Journal of Lusophone Studies 1: 37–56. Santos, Boaventura de Sousa. 2016. Epistemologies of the South: Justice against Epistemicide. London: Routledge. ———. 2018. The End of the Cognitive Empire: The Coming of Age of Epistemologies of the South. Durham, NC: Duke University Press. Scott, David. 2004. Conscripts of Modernity: The Tragedy of Colonial Enlightenment. Durham, NC: Duke University Press. Seth, Sanjay. 2021. Beyond Reason: Postcolonial Theory and the Social Sciences. Oxford: Oxford University Press. Shilliam, Robbie, ed. 2011. International Relations and Non-Western Thought: Imperialism, Colonialism, and Investigations of Global Modernity. London: Routledge. ———. 2015. The Black Pacific: Anti-colonial Struggles and Oceanic Connections. London: Bloomsbury Academic. Sivanandan, A. 2010. Basil Davidson: Soldier in the People’s Army, 1914–2010. Race & Class 52 (2): 1–2. Sousa, Julião S. 2020. Amílcar Cabral, the PAIGC and the Relations with China at the Time of the Sino-Soviet Split and of Anti-Colonialism. Discourses and Praxis. The International History Review 42 (6): 1274–1296.

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ˇ Amílcar Cabral, Czechoslovakia Telepneva, Natalia. 2020. ‘Code Name SEKRETÁR’: and the Role of Human Intelligence during the Cold War. The International History Review 42 (6): 1257–1273. Tomás, António. 2008. O Fazedor de Utopias: Uma Biografia de Amílcar Cabral. Lisboa: Tinta-da-China. 2a ed. ———. 2016. Cabral and the Postcolony: Postcolonial Readings of Revolutionary Hopes. Postcolonial Studies 19 (1): 22–36. ———. 2021. Amílcar Cabral: The Life of a Reluctant Nationalist. London: Hurst. Wolf, Eric. 1982. Europe and the People Without History. Berkeley: University of California Press. Young, Robert J.C. 2001. Postcolonialism: A Historical Introduction. Oxford: Blackwell Publishers.

CHAPTER 13

Imperialism and Its Critics Demin Duan and Howard Williams

In this chapter we look at the views on modern imperialism of two distinctive groups of political theorists in the late eighteenth and nineteenth centuries whose ideas both contrast and overlap. The German philosophers Kant, Hegel and Marx form the first group and the English philosopher J. S. Mill and the Frenchman Alexis de Tocqueville the second. All five are key political theorists in the modern period. The influence of their ideas has spread well beyond their own time and context. Mill and Tocqueville are foundational for liberal thought, Marx has the distinction of giving rise to an ideology, Marxism, which keeps his thinking at the forefront of politics particularly on the left. Kant and Hegel are more difficult to categorise, though it can be said of Hegel that he made his mark both on state-centric and realist thought, whereas Kant also influences today’s liberalism and is a particular inspiration for cosmopolitan thinking. None of these five theorists places imperialism entirely at the centre of their political thinking but all present assessments of D. Duan (B) Department of Political Science, School of Government, Peking University, Beijing, China e-mail: [email protected] H. Williams School of Law and Politics, Cardiff University, Cardiff, Wales, UK e-mail: [email protected]; [email protected]

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its impact which are of lasting significance. Kant and Marx present powerful critiques whereas Mill and Tocqueville (with some caveats) and Hegel draw a positive picture of its role.

Two Critics and a Realist, from Kant to Marx Kant,1 Hegel2 and Marx’s3 accounts of modern imperialism have had a remarkable influence upon discussions of imperialism in the twentieth and twenty-first centuries. Commentators who debate colonialism and imperialism often take their theories either individual or collectively as starting points in their discussion. The influence of these thinkers is still live in political theory and international relations as is easily testified by looking at recent publications on this topic. Kant and Marx are, in a variety of ways, critics of colonialism whereas Hegel provides a strong defence which rests upon a superior view of European peoples and civilisation. Kant strongly influenced Hegel’s outlook on moral and political questions and Marx’s intellectual development was in his formative years overshadowed by Hegel’s philosophy. Thus, the ideas of the later thinkers are interwoven with those of their precursor(s). One other key facet which brings together the ideas of these three thinkers in this field is their dependence upon the philosophy of history. Each has a distinctive account of historical development which conditions their thinking about modern imperialism. Kant has become a frequent reference for twenty-first-century debates on imperialism because of the prominence of cosmopolitanism in ethical and realist debates in international theory. For those of a cosmopolitan bent, Kant takes on the form of a kind of father figure, and for opponents of cosmopolitanism, Kant is often regarded as the major point of origin of an excessively optimistic theory (Molloy 2017). Critical international theory (which is often sympathetic to Kant themes) draws strongly upon Marx’s critique of capitalism, and the attendant questioning of the international order this brings about, and arguably Hegel’s political philosophy, which still provides an underpinning for certain strands of realism. Kant’s philosophy of history took shape in articles he wrote for a popular audience in the 1780s and early 1790s and was presented in its most mature form in his books Toward Perpetual Peace (1795) and the Conflict of the Faculties (1798). Kant held that it was legitimate to regard human history as on the whole advancing from the worse to the better. Even if there were not sufficient grounds for claiming the human race was continuously advancing it was not acceptable to rule out the possibility of improvement. Kant thought it was always necessary to assume this possibility from the moral point of view in order that we individuals can commit ourselves to ensuring that our actions might always contribute to progress. From a moral standpoint we have to affirm freedom and equality in politics and since, in general even in the most advanced of states they remain insecure, we are obliged to seek improvement.

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Kant regards each territory and state as embedded within a system of territorial holdings and states. Genuine political flourishing could therefore only occur within a favourable system of international political order. Therefore, he advocated a domestic political system which was conducive towards a cooperative international framework. For this to happen, the domestic state structure ought to be republican, resting on the separation of powers, and representative government (with both the lawmakers and the executive elected by the citizens). For Kant, the independence of each state or territory was the norm we should expect, without necessarily the subordination of one these territories or states to the other. However, he was conscious that improvement had to begin from the historically inherited condition of the international system, where some states were wealthier and more powerful than others, but we should never take our eyes off the goal of the equality of all states. For Kant, the warlike condition amongst European states and the predatory relation of European countries towards the rest of the world was a regrettable fact. But neither war nor dependency was insuperable and in his historical writings he argued that the effects of war might themselves help accelerate the tendency towards the emergence of a peaceful worldwide federation even though this was often far from the intention of the protagonists. Kant’s model of a peaceful international system presupposes the equality of states, the absence of coercive interference in the affairs of other states, the full embrace of international law, the peaceful resolution of disputes, fair systems of migration and a worldwide right to visit territories and states. Although he makes these assumptions about what fully legal international relations require, he is perfectly aware that the world generally does not reflect his vision and that the international system is highly unequal. The unjustified domination of European powers and their failure to live up to republican ideals captures his attention in Toward Perpetual Peace. He speaks of ‘the inhospitable behaviour of civilized, especially commercial, states’ in Europe ‘the injustice they show in visiting foreign lands and peoples (which with them is tantamount to conquering them) goes to horrifying lengths’ (TPP, 8: 359/329). He wholeheartedly regrets the way that European powers saw the African and American continents as containing ‘countries belonging to no one’ (TPP, 8: 359/329), and so open to exploitation that appeared to have no limits. Although Kant raises the bar high in outlining how states and individuals should relate to each other in his political writings, his theory is strongly attuned to realist considerations. He sees how war is endemic in the system of European states and how it is further entrenched by the slave trade. He makes us acutely aware of the hypocrisy of European states ‘that make much ado of their piety and, while they drink wrongfulness like water, want to be known as the elect in orthodoxy’ (TPP, 8: 360/330). Some commentators have expressed doubts about the extent of Kant’s rejection of racism and colonialism. And, indeed, at some points in his writings, he expresses prejudices about the traits of non-European peoples (Flikschuh and Ypi 2014), but this is not his predominant theme. His commitment to the innate freedom and

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equality of human beings everywhere is what stands out. Wherever the paths of human beings cross in the world we should recognise the right of the other always to be treated without hostility. This is what lies at the heart of the idea of cosmopolitan right for Kant. And even in his own time, he expressed the view that ‘the community of the nations of the earth has gone so far that a violation of right in one place of the earth is felt in all, the idea of cosmopolitan right is no fantastic and exaggerated way of representing right’ (TPP, 8: 360/ 330). Kant’s definitive view of imperialism and colonialism comes out in his judgement of the treatment of China towards European visitors. In comparison with the Americas and Africa, the Chinese had treated European visitors with greater circumspection and vigilance. He commends China for allowing access only to one European people, the Dutch; and the Japanese are similarly congratulated for preventing any settlement of European people. In this way, they had escaped the mistreatment afforded to Africans and the Native Americans by their European visitors. In his Doctrine of Right, Kant warns the native inhabitants of the non-European world against the attempts of Europeans to acquire territory in their lands (DR, 6: 353/489–490). He thinks Europeans visitors should be wholly prohibited from acquiring such territories by force even where the slim excuse might be offered of the apparent neglect of the lands by the indigenous population. The hunting and agricultural practices of native inhabitants should be properly respected, and land should only be acquired through contract ‘and indeed by contract that does not take advantage of the ignorance of those inhabitants with respect to ceding their lands’ (DR, 6: 353/490).

Hegel and the Forward March of Spirit---The Right of Imperialism Hegel, in a similar way to Kant, situates his view of the non-European world and colonialism in the context of his philosophy of history. In his Lectures on the Philosophy of History, Hegel is more confident than Kant about the progressive outcome of history. For Kant, improvement depends upon our making history through the encouragement and realisation of moral and political ideals. Without knowing whether or not we are ultimately successful we have to apply ourselves to progress. Hegel has a quasi-theological view of history, regarding its development and future unfolding as being in the hands of spirit. Here spirit is a translation of the German word Geist which reveals the fundamentally idealist nature of Hegel’s philosophy as revealing the nature of the supreme intelligence which underlies the world. In history Geist shapes human society through the gradual unfolding of freedom. This realisation of freedom happens almost unconsciously from the standpoint of the historical actors themselves (375/348). They may well have their individual aims and ambitions but unknown to them they are the carriers of a forward moving spirit which has freedom as its aim. Great leaders and

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nations are important in Hegel’s account of history but not in the way they see themselves. Their significance is attained through their embodiment of the goals of spirit. From the outside the forward march of history may appear cruel and arbitrary. Many peoples and individuals fall away, overcome by events and their adversaries. It is impossible at the time to know for sure which individuals and movements entirely capture the progressively-driven requirements of the time. However, despite the appearance of chaos and disorder there is within the helter-skelter process of history a forward movement that can be later discerned. The unfortunate (losers) in history yield to the higher purposes of the fuller development of freedom. Unlike Kant, who views the unending wars and conquests that have disfigured human history largely negatively as a symptom of the immaturity of the human race, Hegel sees conflict and conquest in a more positive fashion. In his view, defeat in war and the dominance of one nation marks the transition from one stage of history to another. Political dominance and destruction can be seen positively as making way for higher forms of social order. He sees several key phases in human history where this pattern of decline and subsequent dominance shows itself. The first notable phase he demarcates is the ‘Oriental world.’ In this world only one human being is free. This is an agrarian society which functions through the paying of tributes to those higher in the social scale than oneself, culminating in the Emperor the highest individual of all. The next phase in human history is the Greek world where some are free. The Greek realm represents ‘the daylight of knowledge,’ tradition is modified ‘to become beauty and a free and serene ethical life’ (378/ 356). Despite this cultural excellence Greek society is marred by a lack of full individuality and presence of slavery as its basis. In moving from east to west, the next stage in human progress is the emergence of the Roman world. Here many are free. In this realm, the private family sphere establishes itself, however, this stands in conflict with the aristocratic ethos on which the Roman state is founded. In Hegel’s view, the conflict between the two is never fully resolved which leads to a ‘universal misfortune’ ending in the ‘dissolution of the whole’ (379/357). It is only when we attain what he calls ‘the Germanic realm’ that freedom is fully established. By the Germanic realm Hegel has in mind the post-renaissance, post-reformation world where Protestantism dominates religious and public life. The Germanic realm as it matures creates the ideal balance between our inner life, based on independence and self-regard, and our outer social life based on a civil society drawn into harmony by an ethical state. This ethical state which brings about the full realisation of our freedom should take on the form of a constitutional monarchy. Hegel is most uncomplimentary about Africa which to a large extent lies outside human history. ‘Africa proper, as far as history goes back, has remained—for all purposes of connection with the rest of the world—shut up; it is the gold-land compressed within itself—the land of childhood, which lying beyond the day of self-conscious history, is enveloped in the dark mantel of night’ (PH , 91). Hegel is not without some admiration for some of the

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traits of the African people but on the whole he has very little sympathy with its fate as the place of the worst exploitation and inhumanity. ‘Negroes are enslaved by Europeans and sold to America. Bad as this may be, their lot in their own land is even worse, since there slavery quite as absolute exists, for it is the essential principle of slavery, that man has not yet attained consciousness of his freedom, and consequently sinks down to a mere Thing’ (PH , 96). Hegel’s theory of empire and colonialism is a story of lower levels of human civilisation meeting each other and the higher form necessarily triumphing. The European world grows out of the process of the rise and fall of the ‘Oriental world’; the Greek world; and the Roman world. This gives it immense strength. The European (Protestant) world demonstrates itself to be superior to these earlier forms by incorporating within itself the advantages of the earlier conditions and realising the possibility of freedom for all. The Europeans bring this principle of freedom to the new world making the land and the society as a whole more productive. The native populations cannot keep up with their inventiveness and creativity. The native populations vanish or are absorbed by the higher civilisational form. There is an evident brutality to Hegel’s account of history, but he denies that it is merely negative. ‘World history is a court of judgment’ (PR, 372/342), and is not the outcome of mere might. What emerges for Hegel is a higher form of society partly at the expense of the previous order but partly also to its benefit. What makes European society so expansive and acquisitive is the principle of civil society that forms its basis. Under the protection of the modern State, civil society develops independently of state control into a competitive economic order which provides scope for the egotistic advance of individual well-being. In civil society, each is entitled to pursue their own interests in their own way providing it does not lead to harm for others. This brings endless material advantage to the society. But civil society is not without its own ups and downs. There is no guarantee that the interests of consumers and producers will not conflict with one another. The producers in a market economy are by their nature in competition with each other and even the producers can vie with each other for greater rewards. But the major cause of collision is the conflict between consumers’ interests and producers’ interests in general. Consumers are not obliged to produce the commodities that are offered for sale and producers consequently can never wholly be sure that what they offer will be bought at a price that continually provides them with a living. Some means of mediating them can be achieved through state regulation but not all clashes can be avoided. Colonisation arises from one such clash between producers and consumers. ‘Civil society is driven to establish colonies. The increase of population alone has this effect; but a particular factor is the emergence of a mass of people who cannot gain satisfaction for their needs by their work when production exceeds the needs of consumers’ (PR, 269/248). New markets have to be found as well as the space to house the expanding population. Hegel was aware that the market system which provided the basis for

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civil society leads to certain inevitable dislocations where civil society demonstrates that it was not rich enough to cater for its own needs. Poverty arises from the excess of population and the periodical falling off demand for certain products. Civil society indeed brought about the flourishing of many but it also threatened the impoverishment of others too. The sea played a big role in the expansion of European world. The sea is the natural element for industry, whose relations with the external world it enlivens. By exposing the pursuit of gain to danger, industry simultaneously rises above it; and for the ties of the soil and the limited circles of civil life with its pleasures and desires, it substitutes the element of fluidity, danger and destruction. (PR, 268/247)

High adventure, uncertainty and possible calamity are inescapable (and for Hegel) a valuable part of commercial society. European society imposes itself upon the world in a way that should be seen as to its advantage (Hardt and Negri 2000, 82).

Marx The modern imperialist system reaches its height in the late nineteenth and early twentieth centuries. The highhanded division of Africa into overseas territories by the European powers in the 1880s arguably marked its zenith. Marx’s critique of capitalist society Das Kapital was first published in 1867 at a point where European imperialism was still building up its strength. Marx and Engels anticipated the creation of a worldwide capitalist economy in their writings (from the 1840s onward) and provided a telling understanding of its structure and its driving forces. However, the main focus of their critical writings was the detailed analysis and understanding of the major capitalist country of their time, Britain, in order to present a picture to subjects of all other nations of the future which awaited them. Marx and Engels were critics of imperialism as an integral part of their analysis of the capitalist mode of production. They depicted capitalism as an exploitative class system where the ascendant capitalist class used its monopoly of the means of production to dominate all other aspects of society and extract a surplus from the direct producers which it acquires and consumes itself. In the respect that it was a class system, Marx did not see it as different from earlier modes of production such as those based on slavery and serfdom. Slave owners and the later feudal landowners both used their control over the means of production (and the producers themselves!) to extract a surplus which they kept for themselves. Capitalism was different from these earlier forms, however, in that the number of owners of the means of production was greatly increased (especially when company shares were sold) and it was from its inception a system of production which relied on financial intermediaries and worldwide trade. ‘The

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need of a constantly expanding market for its products chases the bourgeoisie over the whole surface of the globe’ (CM , 83). Because of the compulsion of capitalist owners (the bourgeoisie) to increase their profits continuously, manufacturing industry grew rapidly under their control; and in order to sell the produce, constantly expanding markets were required. The home market had to be supplemented by the foreign market. Raw materials were consequently always in demand and many of them, such as iron ore, cotton, timber, coal and sugar could only be accessed in the necessary amounts through trade with other countries. To achieve this, members of the capitalist class ‘must nestle everywhere, settle everywhere, establish connections everywhere’ (CM , 83). Outlets for their commodities could only efficiently extended through living locally. Modern European colonialism grew initially from establishing trading posts and installing local places of production such as tea and sugar plantations and mines. To ensure their own survival and flourishing, members of the capitalist class had to take on a cosmopolitan character. The underlying production and consumption structures were worldwide in their form. Raw materials need to be acquired in far off-lands and the products themselves had to be sold in all countries. Marx emphasised that this was a highly progressive aspect to this unavoidable cosmopolitanism, however he also drew attention to the disturbing effects of this global expansion. ‘The cheap prices of its commodities are the heavy artillery with which it batters down all Chinese walls’ (CM , 84). Marx appears unconsciously to have adopted much of Hegel’s superior cultural attitude to non-Europeans. For him they are largely barbaric and suffer a deserved fate in being drawn into the capitalist orbit. Capitalism inevitably ‘creates a world after its own image’ (CM , 84). Just as within the capitalist state it makes the countryside dependent on the towns so ‘it has made barbaric and semi-barbaric countries dependent upon the civilized ones’ (CM , 84). The capitalist economic basis of their societies allows Western states to prevail over the east and south. Marx downplays the contribution that indigenous non-Western culture might make to the progress of civilisation.4 Marx’s answer to the exploitation and attempts at world domination of the capitalist class was to seek emancipation through the working class. But this too he saw as moving from Western Europe to the rest of the world. He and Engels took the view that the working class had no particularly national interests. ‘Working men have no country’ (CM , 102). As the wealth of the nation and its future stock belonged to the ruling class they were alienated from their own society. Their future lay not with their own nation but with the worldwide working class. Workers were necessarily international in their outlook. This is reflected in the closing lines of the Communist Manifesto: ‘Working men of all countries, unite!’ (CM , 120) However, Marx and Engels envisaged this occurring through the working class of the leading European nations bringing their own capitalist classes under their control, in conquering the state for themselves. Marx looked to the European countries themselves to transform capitalism and then help liberate the emerging working class of

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the rest of the world. Imperialism would die out as capitalism was undermined in its native European lands. We now know that this has not yet happened. The only European nation to seek of its own accord to implement the radical Marxist programme, Bolshevik Russia, was more Asian than European, more rural than urban. In addition, it faced great hostility and even armed intervention from the capitalist West throughout its existence. The Bolshevik Revolution arguably gave an impetus to the development of revolutionary movements elsewhere in Europe, and support for anti-colonial movements in Asia and Latin America. However, instead of the radical working-class movement in Europe, as Marx expected, emancipating the non-European countries of the world (with the notable exceptions of China and Cuba), it was an anti-Western nationalism which had predominantly middle-class leaders, often educated in Europe which brought an end to Western colonialism. This nationalism was often tied into capitalism and most often looked to the West for its future pattern of development. Nevertheless, very much of the Marxian critique of modern colonialism and imperialism remains relevant. The worldwide system of imperial domination, which prevailed until the middle of the twentieth century grew from the triumph of capitalism. The inequalities and poverty it generated through the immense transfer of peoples from country to town and from one nation to the next (east to west, north and south), and the exploitation of cheap labour thus created was a feature of the capitalist system as a whole. The rich nations of the West got to dominate the others through financial and manufacturing power. Perhaps in manufacturing power, this supremacy has now been ceded to southern and Asian countries, but the financial power and know-how remains in the hands of the West. Lenin and Hilferding in their writings on Imperialism noted the dominant power of banks and their intermediaries in the early twentieth century (Lenin 1968; Hilferding 1985). They shared Marx’s view that the spread of capitalism to the non-European world would hasten its progress. But for Marx, unlike Lenin, that progress would best occur through the local establishment of a capitalist class that might subsequently be overthrown by the native working class. In its early Leninist phase, Bolshevism sought to feed off the discontents of suppressed nations and the peasantry within Russia. The alternative development of world economics and politics to that envisaged by Marx raises the question as to what further might be done with his telling insights into capitalism. Should we now side with a globalisation process that further entrenches capitalism in the south and east or do we welcome resistance and a counter pressure from anti-capitalist movements? The dialectical tension between the economic progress capitalism brings about and its suppression of non-European nations still reigns. Western imperialism has both brought enormous economic and social problems in its wake and provided a powerful material basis through which to tackle those problems.

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‘Liberal Imperialism’: Mill and Tocqueville John Stuart Mill is a political theorist of human progress. In his mind, the merits of customs and traditions must be measured against a general principle of utility, or in other words, the promotion of ‘the greatest happiness for the greatest number of people.’ In his defence of women’s liberation, for example, he contends that it is entirely prejudicial that women are ‘in nature’ inferior to man and should be subjected to man in all aspects of social life. As a follower of utilitarianism, he is very suspicious of the idea of ‘human nature.’ In late nineteenth century, when Mill was writing, women were still largely confined to domestic life in England and were excluded from various occupations. The reason behind this kind of ‘enslavement’ is the belief that women are somehow naturally unfit for those posts such as judges, professors or parliamentary representatives. Mill contends that people can never prove this differentiation of human nature between man and women. Just as any other speculation on the content of human nature, this particular speculation is really about a kind of ‘belief’ formed by unequal gender relationship in society—which itself is not justified. Since we may never know what exactly man and women’s nature is, it is entirely arbitrary to distribute rights and obligations amongst man and women according to notions of it. Instead, he argues, all posts and institutions should be open to women. If they are indeed naturally inferior to man, as some people say, they will be ousted by competition for the posts. And if they are not naturally inferior, then they would be able to contribute to the general welfare of the society. But apart from that, the alleviation of pain from women caused by liberation would itself qualify as a significant promotion of social welfare (Mill 1984, 259–340). Mill’s critique extends to the society as a whole. In discussing ‘the nature and limits of the power which can be legitimately exercised by society over the individual,’ he says that, ‘I forgo any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility’ (Mill 1977, 217, 224). With regard to the meaning of utility, Mill states that he sees ‘utility as the ultimate appeal on all ethical questions: but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being’ (Mill 1977, 224). His answer, famously, is a ‘very simple principle,’ namely that ‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’ (Mill 1977, 223). This principle is very progressive and even radical in the sense that it gives almost complete freedom to individuals to do whatever they like, choose whatever kinds of life they prefer, except when his/her actions or choices do harm to others. Of course people may debate what exactly ‘harm to others’ means, but the principle itself is a strong indictment of past customs and traditions which usually favour a paternalistic view of social and political power. Because of this, he believes that liberty of thought and discussion should be almost absolute for the sake of the general welfare and the improvement of human character.

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However, an important aspect of this ‘progressive’ political thinking is that human societies could be divided into more advanced ones and less advanced ones. Mill does not believe that the liberal principle mentioned above and the institutions that embody it could be applied to those less advanced societies, such as India. In On Liberty, right after elucidating the ‘harm principle,’ he immediately adds that ‘it is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties.’ Children, for instance, cannot be expected to choose whatever they like, their welfare should be looked after by adults. The parents could interfere into children’s lives for the latter’s benefit. For the same reason, Mill argues, ‘we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage’ (Mill 1977, 224). For backward states of societies, despotism is justified, if it is for the purpose of their improvement. He says: Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one. (Mill 1977, 224)

In other places, especially in Considerations on Representative Government , Mill gives further details on what capabilities more advanced peoples have that barbarous peoples lack. Mill thinks that representative government is most appropriate to human improvement. But since it has to be worked by ordinary men, it requires some basic conditions in order to even function at all. Mill lists three conditions: The people for whom the form of government is intended must be willing to accept it; or at least not so unwilling, as to oppose an insurmountable obstacle to its establishment. They must be willing and able to do what is necessary to keep it standing. And they must be willing and able to do what it requires of them to enable it to fulfil its purposes. (Mill 1977, 376)

All of these conditions seem to be lacking in backward societies. For instance, the Native Americans seem to be unable to accept any kind of regular and civilian government, let alone a representative one. They are ‘savages’ who do not know how to obey, according to Mill (1984, 376, 394). On the other hand, the ‘Hindoos’ are ‘a people who are more disposed to shelter a criminal than to apprehend him.’ ‘They would take trouble or expose themselves to vindictiveness by giving evidence against him’ (Mill 1977, 377). To paraphrase Mill at that time: They are not trustworthy. The Oriental people, such as those living in China, seem to be too passive in their character to be able to cooperate with each other on public matters. All they are used to is following

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orders from their masters. Of course, it is mostly bad government to blame for this kind of passive character in the first place, but that still leaves them unfit for liberal government (Mill 1977, 377–378). In the cases of savages and barbarous people, Mill says, ‘a civilized government, to be really advantageous to them, will require to be in a considerable degree despotic: to be one over which they do not themselves exercise control, and which imposes a great amount of forcible restraint upon their actions’ (Mill 1977, 377). Mill distinguishes despotism into two general kinds: benevolent and malevolent. Obviously to the savages and barbarous people, only the benevolent despotism is able to lead people to a certain kind of improvement and hence is justified. But it is equally obvious that they are not always so lucky to get benevolent despotic rulers. It follows that the backward non-Europeans would have more chance in the hands of a European power, such as England, to proceed to improvement. It is essentially in these terms that Mill justifies English imperialistic undertakings overseas. He says that, ‘As it is already a common, and is rapidly tending to become the universal, condition of the more backward populations, to be either held in direct subjection by the more advanced, or to be under their complete political ascendancy’ (Mill 1977, 568). More specifically, the government of a more advanced people over a backward should be ‘the government of leading strings,’ which is needed to carry the latter ‘the most rapidly through the next necessary step in social progress’ and ‘leading strings are only admissible as a means of gradually training the people to walk alone’ (Mill, 1977, 396). Mill and his father served in the East India Company for a long time, which gives them personal interest to defend the British Empire. But it is more than a matter of personal interest in John Stuart Mill’s case. The rationale of human progress in his justification of British imperialism is neatly in line with his emphasis on the same point in his otherwise more ‘normal’ liberal thought. After all, if we focus our attention on human progress, which is largely defined in terms of utility, and ‘abstract right’ are to be put aside, a benevolent kind of despotism would at least not look so bad when it comes to dealings with the barbarous. For Mill, the Orientals seem to be hopeless in terms of civilisational improvement in their condition, until the Europeans arrived. Whilst the theorem of progress is at the core of Mill’s defence of imperialism, it also leads him to harshly criticise some aspects of imperialistic and colonial governance. For instance, he believes British rule is largely responsible for the poor conditions of Ireland. He says, ‘for five centuries has she (England) had Ireland under her absolute, resistless power, to show what she could do in the way of “conquering anarchy”—and the result is the most total, disastrous, ignominious failure yet known to history’ (Mill 1986, 1096). Mill is certainly aware that, if not carefully conducted, governance by the more advanced people could well lead to the exploitation of the unfortunate barbarous people. As a long-time employee of the East India Company, he is professionally involved in the improvement of British governance of India. Remarkably, he is generally in favour of a kind of ‘decentralisation’ mode of

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colonial rule, giving colonised people more say in their own affairs and giving more weight to local customs (Mill 1990). He seems to believe that a kind of centralised rule from London, ignoring local people’s culture and feelings, would be counterproductive in both governing them and improving them. He uses similar arguments in his defence of the East India Company role in the governance of India in the face London government’s total take-over of Indian affairs (Mill 1990). This support for decentralisation does add some nuance to Mill’s otherwise more singular standpoint of ‘leading string’ imperialism; but it largely falls under the category of governance technique. Overall, he holds that barbarous peoples need to be guided out of their backward condition by advanced peoples. As many commentators have pointed out, Mill could indeed be seen as a typical advocate of what we could call ‘liberal imperialism.’ On the one hand, it is understandable that Mill would think that the liberal institutions he talks about in On Liberty and Consideration On Representative Government are not readily applicable to other peoples, such as the Indians and the Chinese. But on the other hand, is it sensible to simply pass off the Indians and Chinese as barbarous and backward? What does ‘backward’ and ‘progress’ mean? Mill seems to be very confident to find the answers to this kind of question. But leaving aside the debatable nature of the answers, we might at least ask: are the Indians and Chinese so backward that an entirely foreign power should be introduced to ‘guide’ them? The curious thing about the idea of ‘progress’ is: it could be used to argue for the most radical types of reform, but it could also give excuses for colonial despotic rule. It definitely blinds Mill from seeing that even the most ‘enlightened’ colonial rule would bring tremendous pain onto the indigenous peoples. Sometimes simply being ruled by a foreign power, no matter how ‘enlightened’ it is, degrades people in a formidable way. Even today, this mixing up of progress and foreign intervention is still present in debates over what kind of international order we need. It still seems handy to many partakers in this debate to slide in a certain kind of imperialistic rule in the language of progress or civilisation.

Tocqueville If John Stuart Mill’s political theory has much to do with the idea of ‘progress’—that is, forward-looking—Alexis de Tocqueville,5 Mill’s contemporary and one-time friend, is in a sense ‘backward-looking’ in his political thought. Being largely ‘liberal’ in his political stance, Tocqueville consistently analyses the downside of modern democratic society by comparing it with the soon-to-be-extinct aristocracy. In Democracy in America, Tocqueville expresses that, in modern democratic societies, whilst people are generally equal to each other, they seem to be much more mediocre in their taste and spirit. People are more of a materialistic mindset, and rarely capable of noble deeds (Tocqueville 2000). Tocqueville sees this apparent degradation of taste and spirit in modern times as problematic, mostly because it relates negatively

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to their capability and will to sustain free political institutions. As he sees it, mediocre people in modern times with materialistic mindset would not be so willing to participate in affairs that concern themselves. He argues that it is far more difficult to even desire freedom more than equality, because freedom requires people to fight for others’ interests. When some people in society suffer from injustice, there should be some people willing to stand up for their interests and make some sacrifice on their own part. This is a kind of noble heroic spirit that is lacking in modern societies. People tend to retreat into their private spheres, and consciously or unconsciously leave important public affairs to someone who act as paternalistic guardian rulers (Tocqueville 2000). In the case of France, Tocqueville paints a truly nostalgic picture of a bygone era, in which feudal aristocratic bodies still existed and there was mutual affection between the nobles and their common subjects. The metamorphosis of society before the French Revolution is characterised by the gradual, but seemingly irreversible dissolution of this local communal relationship. In its place a highly centralised power rises up—as embodied in the King—that controls almost everything. He laments that in the old regime that immediately precedes the Revolution, local parishes ‘had to obtain a decree to repair the damage the wind had done to the church roof’ (Tocqueville 1988, 131). It is against background that we could understand the occurrence and the radical nature of the Revolution: if people are largely excluded from politics, how could the state expect them to support it when crisis comes? In America, on the other hand, Tocqueville largely sees a different scenario: there was vibrant spirit in local townships, where people are willing and capable of actively participating in public affairs of their own. Tocqueville perceives these local bodies in more or less the same light as that of local aristocratic bodies in feudal Europe (Jaume 2013). Local political bodies function as the most effective source of check and restraint on the King’s power, and it nurtures people’s affection with one another. Somewhat unexpectedly for many students or admirers of Tocqueville, he seems to cast the same light onto the international level, and proceeds to endorse France’s colonial undertakings overseas and empire building. Similarly to Mill, Tocqueville is an ardent advocate of his country’s imperialistic undertakings overseas. Whilst writing his most influential book, Democracy in America, Tocqueville already began expressing interest in the French imperial undertakings in North Africa. He wrote an essay in 1833 entitled ‘How to Have Good Colonies,’ and in 1837 he published two letters outlining his initial ideas for consolidating and colonising Algeria. In 1841 and 1846, he twice travelled to Algeria to view the territory under French occupation. After each trip, he wrote long and serious essays, some of which were official reports to the French Chamber of Deputies. They explained how French domination could be maintained and strengthened in North Africa. ‘I have no doubt,’

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he declared, ‘that we shall be able to raise a great monument to our country’s glory on the African coast’ (Tocqueville 2001, 24). Even in Democracy in America, he says: There was a time when we as well could have created a great French nation in the American wilderness and, with the English, held the balance of the destinies of the New World. […] But a concurrence of circumstances that would be too long to list deprived us of this magnificent inheritance (Tocqueville 2000, 391).

However, unlike Mill, Tocqueville does not seek to justify the imperialistic rule of France over non-European peoples by using the rationale of human progress. Instead, he mainly bases his argument for empire building on a kind of realpolitik necessity. That is to say, Europe has entered an era of imperialism, with almost all major European countries engaged in competition for overseas territory. If France backed away from this competition, she would inevitably be reduced to the secondary rank amongst those powers. The stake would be too high for France to give up her international status like this. At the beginning of his 1841 ‘Essay on Algeria,’ Tocqueville says: I do not think France can think seriously of leaving Algeria. In the eyes of the world, such an abandonment would be the clear indication of our decline. […] If France shrank from an enterprise in which she faced nothing but the natural difficulties of the terrain and the opposition of little barbarous tribes, she would seem in the eyes of the world to be yielding to her own impotence and succumbing to her own lack of courage. Any people that easily gives up what it has taken and chooses to retire peacefully to its original borders proclaims that its age of greatness is over. It visibly enters the period of its decline. (Tocqueville 2001, 59)

Furthermore, he states: ‘if we can manage to hold the coast of Africa firmly and peacefully, our influence in the world’s general affairs would be strongly enhanced’ (Tocqueville 2001, 60). Specifically, referring the Mediterranean, he opines that, ‘in the political sea of our times,’ strategic points such as the port of Mers-el-Kebir and Algier ‘would certainly add a great deal to France’s strength,’ and that ‘if these positions do not remain in our hands, they will pass into those of another European people’ (Tocqueville 2001, 60). To Tocqueville, on the international level, there should also be check and balances of power. It seems that nation state in this regard would serve as de facto ‘local’ political bodies, without which international order would be susceptible to hegemonic order. Thus, whilst his imperialistic stance seems as aggressive as Mill’s, the theoretical rationale behind his stance is rather ‘defensive.’ Its core is the ‘prevention’ of arbitrary rule, and hence ‘backwardlooking,’ instead of aiming at progress. In close connection with this outlook, Tocqueville believes that a sense of national bond is crucial to the health of the nation’s politics and citizens’ freedom. Similar to his emphasis on local political bodies within a nation, he seems to project their importance on the

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national level when he steps into the arena of international politics. Here we encounter his rather surprising statements such as: ‘I do not wish to speak ill of war; war almost always enlarges the thought of a people and elevates its heart’ (Tocqueville 2001, 620). It is perhaps worth noting that he made this statement in Democracy in America. Elsewhere, he frequently refers to the importance of national glory, greatness or grandeur, mostly in commentaries on France’s foreign affairs. An extraordinary note he made in this regard is found in a letter he wrote to John Stuart Mill, in which he says: I do not have to tell you, my dear Mill, that the greatest malady that threatens a people organized as we are is the gradual softening of mores, the abasement of the mind, the mediocrity of tastes; …One cannot let this nation take up easily the habit of sacrificing what it believes to be in grandeur to its repose, great matters to petty ones; it is not healthy to allow such a nation to believe that its place in the world is smaller, that it is fallen from the level on which its ancestors had put it, but that it must console itself by making railroads and by making prosper in the bosom of this peace, under whatever condition this peace is obtained, the well-being of each private individual. (Tocqueville 1985, 150–151)

In response, Mill bluntly rebukes: I have often, of late, remembered the reason you gave in justification of the liberal party in the late quarrel between England & France—that the feeling of orgueil national [pride] is the only feeling of a public-spirit & elevating kind which remains & that it ought not therefore to be permitted to go down. [But] … the most stupid & ignorant person knows perfectly well that the real importance of a country in the eyes of foreigners does not depend upon the loud & boisterous assertion of importance, the effect of which is an impression of angry weakness, not strength. It really depends on the industry, instruction, morality, & good government of a country […] (Mill 1963, 536)

These two paragraphs succinctly summarise the difference in the imperialistic outlooks of Tocqueville and Mill. Whilst Mill emphasises progress in terms of ‘industry, instruction, morality and good government,’ Tocqueville mostly focuses on balance of power on the international level and the sense of national belonging. Following from this difference, we find that Tocqueville shows a much more positive attitude to non-European peoples’ ways of life than Mill does. Although Tocqueville himself is generally proud of European civilisation when it comes to its engagement with non-European peoples, and he also sometimes refers to the latter as ‘barbarous,’ he never sees this engagement in a ‘leading string’ perspective. Cultures and traditions define who those indigenous people are; industries and better instruction or government may bring them a certain sense of ‘progress,’ but it would also deprive them of their own identity and sense of belonging. Tocqueville seems to be much more sensitive

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to the kind of horror progressive European governance may bring to nonEuropean peoples. In other words, although he takes a harsh stand regarding France’s overseas undertakings, he is just as ready to admit that European peoples’ presence—no matter how ‘civilised’ they are—would basically mean disaster to those non-European peoples. After reviewing the French administration in Algeria, he says that the French has ‘made Muslim society much more miserable, more disordered, more ignorant, and more barbarous than it had been before knowing us’ (Tocqueville 2001, 141). Furthermore, he says, ‘civilized peoples often oppress and dispirit barbarous people by their mere contact, without intending to and, so to speak, without knowing it: the same rules of administration and justice that seem to the European to be guarantees of liberty and property, seem an intolerable oppression to the barbarian’ (Tocqueville 2001, 144). We find the same kind of analyses in his portrait of the relationship amongst the three races in America—white settlers, Native Americans and African slaves—at the end of the first volume of Democracy in America. Commenting on the liberation of slaves, he says: ‘You can make the Negro free, but cannot do it so that he is not in the position of a stranger vis-à-vis the European’ (Tocqueville 2000, 327). In commenting on the fate of Native Americans, he says: Living within the freedom of the woods, the Indian of North America was miserable, but he did not feel himself inferior to anyone; from the moment that he wants to enter into the social hierarchy of the whites, he can occupy only the lowest rank in it; for he enters ignorant and poor into a society where science and wealth reign. (Tocqueville 2000, 317)

The difference between Tocqueville and Mill cannot be greater. Whilst Mill sees Indians as savages who need to be brought up by European people, Tocqueville is basically amazed by how much Native Americans’ free spirit resembles European aristocratic ancestors’ noble mind (Tocqueville 2000). On the other hand, he is acutely aware of their absolute misery entering in the world of ‘civilised’ European people. Overall, imperialist Tocqueville turns out to be a very keen and insightful critical thinker of colonialism and racial relationships, which are still highly relevant to today’s reflections on international order.

Conclusion The justifications that John Stuart Mill, Tocqueville and Hegel provide for imperialist politics now appear outmoded and are likely to draw the legitimate scorn of former subject nations. Mill’s view of the civilising mission of countries like Britain to the rest of the world is now justifiably seen as condescending, and often not borne out by the evidence. Arguably, Western imperialism brought as many evils to its subjects as those it may have helped to alleviate. There is a haughty disregard in Mill for other cultures which the

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leaders of advanced Western countries would now do well to leave behind. In contrast, Montesquieu and Hegel bring a realism to their assessments of rival civilisations which we might commend for its honesty, and they also in their realism reflect a trend in international relations thinking which is still fairly mainstream today. But they also serve to highlight the shortcomings of realist thinking, which we would especially expect to resonate if the former colonial nations themselves adopted the same strategy as their economies catch up with those of the West and threaten to surpass them. No nation, race or group of nations is destined to remain on top forever. Marx and Kant share some of the former thinkers’ realism; but in Marx, it is trumped by a concern for the international solidarity of the world’s working class, and with Kant by a less controversial, possibly more amenable doctrine of worldwide individual equality and freedom. What is indisputable is that each of these five thinkers has made in their philosophies a formidable mark on imperialist and colonialist thinking.

Notes 1. Citations to Kant are from the Academy Edition (Akademie-Ausgabe) of his collected works (Gesammelte Schriften) (Berlin 1900–), volume and page number, with the page number also of the English translation by Mary Gregor in Practical Philosophy in the Cambridge Works (1996). The following abbreviations to Kant’s works are used: Toward Perpetual Peace = TPP; Doctrine of Right = DR. 2. Citations to Hegel are from Elements of the Philosophy of Right (1991), and Lectures on the Philosophy of History (1956). The corresponding abbreviations are PR and PH. 3. Citations to Marx are from The Communist Manifesto (1985) abbreviated as CM. 4. ‘All the world can move forward only by being transformed into a Western society’ (Hardt and Negri 2000, 120). 5. Tocqueville’s writings on imperialism and colonialism are contained primarily in the 1962 Gallimard edition of Oeuvres Complètes, volume 3, part 1 and in the 1958 edition Oeuvres Complètes, volume 5, part 2. On the basis of this, a separate collection of these writings has been edited and translated into English by Jennifer Pitts, entitled Writings on Empire and Slavery (2001).

References Kant, Marx, Hegel, Mill, and Tocqueville Hegel, G.W. Fredrich. 1956. Lectures on the Philosophy of History. New York: Dover. ———. 1991. Elements of the Philosophy of Right, trans. H.B. Nisbet. Cambridge: Cambridge University Press. Kant, Immanuel. 1996. Practical Philosophy, trans. Mary Gregor. Cambridge: Cambridge University Press.

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Marx, Karl. 1985. The Communist Manifesto. Harmondsworth: Penguin. Mill, John Stuart. 1963. Collected Works XIII. Toronto and Buffalo: University of Toronto Press. ———. 1977. Collected Works XVIII, XIX. Toronto and Buffalo: University of Toronto Press. ———. 1984. Collected Works XXI . Toronto and Buffalo: University of Toronto Press. ———. 1986. Collected Works XXV . Toronto and Buffalo: University of Toronto Press. ———. 1990. Collected Works XXX. Toronto and Buffalo: University of Toronto Press. Tocqueville, Alexis de. 1985. Selected Letters on Politics and Society, trans. James Toupin and Roger Boesche, ed. Roger Boesche. Berkley: University of California Press. ———. 1988. The Old Regime and the Revolution, ed. François Furet and Françoise Mélonio, trans. Alan S. Kahan. Chicago: University of Chicago Press. ———. 2000. Democracy in America, ed. and trans. Harvey C. Mansfield and Delba Winthrop. Chicago: The University of Chicago Press. ———. 2001. Writings on Empire and Slavery, ed. and trans. Jennifer Pitts Baltimore and London: The Johns Hopkins University Press.

Secondary Literature Flikschuh, Katrin, and Lea Ypi. 2014. Kant and Colonialism. Oxford: Oxford University Press. Hardt, Michael, and Antonio Negri. 2000. Empire. Cambridge, MA: Harvard University Press. Hilferding, Rudolf. 1985. Finance Capital. London: Routledge. Jaume, Lucien. 2013. Tocqueville: The Aristocratic Sources of Liberty. Princeton and Oxford: Princeton University Press. Lenin, Vladimir Ilyich. 1968. Imperialism. Moscow: Foreign Languages Press. Molloy, Sean. 2017. Kant’s International Relations. Ann Arbor: University of Michigan Press.

CHAPTER 14

The African Challenge and Its Aftermath: Colonial Legacies and the (Re)making of the International Legal Order Sara Dezalay

Law in the African “Post-Colony”: Two Tales of Globalization “Africa has been reimagined in different ways over the years—by intellectuals and scholars inside and outside the continent, by journalists, by young people making their way in an uncertain world, by political elites” (Cooper 2014, 8). Perhaps more than any other region in the world, the position of Africa in globalization has been constructed as ancillary to the development of the contemporary international system and capitalism. Africa is the “Global Economy’s Last Frontier!” Certainly, recent global developments have lent credence to this claim by Kingsley Chiedu Moghalu (2014), the deputy governor of the Central Bank of Nigeria. In the last fifteen years, the African continent has re-emerged as a largely untapped boon for energy commodities and a new market for infrastructures and telecommunications. A 2010 McKinsey report estimated the potential benefits of consumer-facing industries, resources, agriculture, and infrastructure together across the continent at $2.6 trillion in revenue annually by 2020 (Roxburgh et al. 2010). Yet, this “Africa rising” picture contrasts sharply with the Afro-pessimism image of a continent portrayed as continuously doomed by the “resource curse,”1 poor governance, weak legal institutions, corruption, violent conflict, and political S. Dezalay (B) European School of Political and Social Sciences (ESPOL), Université Catholique de Lille, Lille, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_14

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instability—a continent in other words continuously failed by the challenge of colonial legacies and seen to be sitting resolutely and unfailingly outside the course of history. Whilst the central role played by the African continent in the constitution of modern states and trade systems has long been established (see Anghie 2005; Burbank and Cooper 2010), this imagery of the “new frontier” or the “margin” is not just historically inaccurate. Narratives that continue to portray Africa as disconnected and non-global continue to have important political effects—not least because they shape knowledge and scholarly hierarchies about legal, political, and social developments across the continent. This is especially true for legal and economic globalization dynamics in Africa. As critical political economist Bond noted somewhat provocatively, despite the writings of critical scholars in the wake of Rodney’s How Europe Underdeveloped Africa, “thanks to politicians and bureaucrats in Washington and London, IMF and World Bank mandarins, Geneva trade hucksters, pliant NGOs, banal celebrities and the mass media, the legacy and ongoing exploitation of Africa have been tangled up in ideological confusion” (Bond 2006, iv). To boot: in Politics, and foremost International Relations scholarship, Africa has consistently been construed as an object of intervention. From the decolonization era through the Cold War, the continent has been primarily viewed under the lens of development—or rather, the problem of underdevelopment. With the breakout of the Cold War, Africa seemed to enter the fold of International Relations theories—but yet again as a continent doomed by the problem of “new wars” (Crocker et al. 2007) driven by ancestral ethnic rivalries re-awakened by the end of bipolarity and “poor governance” fed by corrupt political elites and weak institutions. These scholarly and policy shifts have deeply shaped the way law’s role— and that of lawyers and legal institutions across the African continent—has been construed. Law, indeed, occupies a specific position in these discourses. Law was the cutting edge of colonialism (Chanock 1985). The re-emergence of Africa as a boon for natural resources and a new market for infrastructures, telecommunications, and growingly, mass consumption in the past couple of decades is again repositioning law as the cutting edge of dynamics that are reshaping the relationship between the continent and the world economy. In particular, international and regional initiatives2 in the past decade have aimed at transforming the asymmetrical relationship between African states and private Northern multinational corporations so as to stabilize foreign investments into the continent, away from the economic, political, and reputational costs of the renegotiation of extractive contracts, and their contests in arbitrational and jurisdictional settings, including by “third parties” to extractive contracts, like local communities affected by the operations of multinationals. However, the pendulum of Janus-faced narratives about Africa’s position in globalization tends to obscure the role played by law(yers) in these developments. Law continues to be perceived as an external variable—a constantly

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reinvented “fix” to the problems of underdevelopment, poor governance, corruption, and conflict. This chapter suggests a research strategy to help move away from these ideological and political entanglements. The central claim of this road-map is that uncovering the social, economic, and political variables channelled through law and shaped by law provides a formidable entry-point to trace the mechanisms by which the uneven and unequal connection between Africa and the world (see Cooper 2014) is being negotiated, justified, and challenged over time. This can help build a structural critique to effectively link legal transformations, along with social, political, and economic change across Africa to the long-recognized role of the continent in the expansion of modern capitalism. As explained in the second section, part of the difficulty in advancing such a critique relates to what Steinmetz (2013) has described as imperial entanglements. Whilst ethnology, anthropology, sociology, and to a lesser extent international relations studies (Gruffydd-Jones 2006) have undergone an aggiornamento as “fields that have often been configured according to the geopolitical scale and shape of empires” (Steinmetz 2013, 857), law has not. The third section suggests a research agenda to overcome this entanglement between knowledge, politics, and ideological projections about law(yers)’ roles in shaping Africa’s position in globalization. This research strategy combines insights drawn from the ongoing Global History turn in historical scholarship, particularly legal history (see Benton and Ford 2016) with political sociology of law and lawyers. This approach channels attention towards the role of law in the longue durée by underlining the “interconnectedness” (Subrahmanyam 2004) between European colonialism on the African continent, the emergence of global capitalism, and the consolidation of the contemporary international economic and legal political order since the colonial era. This section argues that this macro focus on the dynamic interplay between law, politics, and economics in the longue durée can be usefully combined with a micro focus centred on the roles played specifically by lawyers. The position of lawyers in relation to social, economic, and political change across Africa is emblematic of the ideological projections that shape Africa’s position in globalization. When not obliterated entirely by scholarship, lawyers in Africa are either seen as mercenaries of neocolonial interests or missionaries of the rule of law. Focusing, rather, on their trajectories, strategies, and professional characteristics highlights their multiple, and at times contradictory roles, as builders of the state and intermediaries of globalization in Africa—in other words, as agents that can help account for the way the uneven and unequal connection between Africa and the world is continuously reshaped. The concluding section illustrates this research agenda by shedding light, specifically, on the perennial question of colonial legacies. It contrasts two periods—the first half of the nineteenth century and the first two decades of the twenty-first century—during which the international economic and legal order, far from stabilized, can be described as in a state of flux, shaped as much by macro political and economic variables as by the micro intermediation roles

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played, in particular, by lawyers—a characterization which highlights that it is in these so-called African peripheries that major legal, political, and economic revolutions, past and present, are at play.

Law in the African Post-Colony: The Puzzle of Legacy The high profile of International Criminal Court (ICC) prosecutions against African dictators and warlords, massive rule of law investments in conflict and post-conflict situations or the formidable stakes of natural resources in the continent continue to taint Africa with the deceptive image of a new political, economic, and legal frontier. Yet the “Africa rising” picture contrasts sharply with the touting of the rule of law and human rights “as twin catalysts” to reform weak legal institutions in so-called fragile states (Fathi Massoud 2013, 9). The re-enchantment of the law in the unfolding phase of globalization is, in Africa as elsewhere, a key component of contemporary politics. But this Janus-faced opposition between Afro-optimism and lawlessness masks more than it reveals. Discussions on the role of law and lawyers for the continent’s development are often mired by a degree of defensiveness, if not outright suspicion. More than for any region or continent, the threshold question remains centred on the degree of failure of legal and institutional “mimicry” and transplants (du Bois de Gaudusson 2009) and the twin legacies of brutal colonial experience (Bayart and Bertrand 2006) and Big Man politics (von Doepp 2005). Yet, the question of legacy is predominantly staged in terms of dis-junctures: that of the new colonialism of the nineteenth century, post-Independence and post-colonialism, or of neo-colonialism and a new imperialism currently unfolding in Africa. The case of the continent has loomed large in the wider transformation of international development policies, North–South relations, and the expansion of rule of law investments from the 1990s. In 1989, a World Bank report linked the curse of protracted violence and development failure in former African colonies to the weakness of legal institutions and corrupt rulers. The first Doing Business World Bank yearly report in 2003 underscored the inefficiency of the civil law regime inherited from colonization in former French colonies (World Bank 2003). From the 1990s, the democratic turn and the promotion of the rule of law and civil society across the continent have contributed to a widespread transformation of politics with an increased traction of law as a resource in political and social struggles, notably with the multiplication of law-oriented non-governmental organizations (NGOs). As the paradoxical effect of political liberalization coupled with neoliberal deregulation (von Benda-Beckmann et al. 2009), “fetishism” of the law has seemingly become the panacea of violent and corrupt rulers, as much as civil society as the “new civilizing mission of the twenty-first century” (Comaroff and Comaroff 2006, 25). Media accounts on the “new scramble” for Africa further contribute to reproducing this dialectic between law and lawlessness. It

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is indeed “fashionable, these days, to be upbeat about Africa” (Wrong 2015): any other way would just be the business as usual of colonial looting. However, this obfuscates how the encounter between the continent, law, politics, and economic power has unraveled in the longue durée of colonialism, imperialism and the current phase of globalizing. What Steinmetz has traced as the imperial “entanglements” (2013) of scholarly representations that were part of, and shaped by, the colonial enterprise provides a stumbling block to reflect on this challenge. The path-breaking work of Chanock (1985) and the growth since of legal historical scholarship on law and colonialism (Ibhawoh 2013) have underscored the centrality of law to the colonizing process. Law, at least until the 1930s, was at the core of the nebulous of knowledge produced on the colonies. Despite the large swath through scholarship cut by this work, the chiaroscuro of knowledge tracing empirically how this played out in practice still testifies to the embeddedness between knowledge, and politics of knowledge about law in (post-)colonial settings. Thus, the “modernization” paradigm of the 1960s attributed to law an ancillary role, based on the assumption that the rule of law would follow economic take-off. Applied to former colonies this paradigm set out two roles for law and lawyers: as institutions and agents of social change and as rule of law brokers. Legal education loomed large in these reform agendas. The aim was ostensibly to respond to the dearth of trained lawyers in the decades that followed the independence waves across the continent. This project was also fuelled by Cold War rivalries and the hegemonic ambition of the US to foster the emergence of a new generation of lawyers attuned to US interests in the Third World (Krishnan 2012). A unique series of studies at the turn of the 1980s, mostly focused on the African continent and anchored in a Marxist approach of dependency, took stock of the failure of the modernization paradigm embraced by this first Law and Development movement, faced as it was with the mushrooming of dictatorial regimes across the continent from the 1970s (Dias et al. 1981). This study essentially called for the need for a political economic research agenda that looked at lawyers’ relations with state power at the local level and that traced how the structuration of domestic legal professions also reflected economic dependence of post-colonial countries as an ongoing historical legacy. But it remained an exception against the backdrop of a pervasive chiaroscuro, if not dearth, of knowledge on lawyers across the African South. When they do exist, studies on legal professionals in colonial and postcolonial settings tend to remain locked in by a twofold bias (see Dezalay 2015, 2017a). On the one hand, lawyers in the colonial realms have long remained the suppressed underside of the North. When not marginalized to the point of oblivion, they have predominantly been studied with the lens of the contemporary hegemon, under the purview of the US sociology of legal professions, according to two self-opposed images (Dezalay and Garth 2011). Lawyers are either construed in heroic terms as missionaries of the rule of law (Halliday

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et al., 2012) or they are subsumed under the drive of the market (Abel and Lewis 1988a, 1988b, 1989), including as mercenaries of neo-colonial interests (e.g. Burgis 2015). On the other hand, and perhaps very much as a corollary, the argument of the centrality of law in colonialism has been woven into opposed accounts of legality in colonial and post-colonial realms. Confronted with the contradiction between the imperial promise of the rule of law and the total violence of colonial ruling,3 the law has been posited as an all-encompassing feature of colonial rule, whilst the violence of day-to-day colonial ruling for its part has become a kind of black hole that by essence negates legality (see Mann 2009). Tumbling on the perennial question of the failure of colonial legacies and the formal “mimicry” of post-colonial legal systems on former métropoles, essentially the literature focused on law and legal institutions in post-colonial Africa since the 1960s has tended to reproduce these oppositions, with the violence of political repression of post-colonial regimes seen as a transitory fix towards the end goal of political liberalism (e.g. Halliday et al. 2012). Projected onto post-colonial African settings, the ebb and flow of Law and Development scholarship and policies has tended to either see in legal institutions and their agents the solution to underdevelopment and poor governance, or the source of it. The neoliberal agenda promoted by International Financial Institutions (IFIs) from the 1990s and their structural adjustment policies has undoubtedly exerted a strong policy pull. The state itself in the African South became the object of intense policy debates within multilateral development organizations from the end of the Cold War. The reconceptualization of sovereignty as responsibility targeted specifically the African state (see Deng et al. 1996) and fuelled the expansion of a policy-oriented international industry of knowledge and practice focused on state and rule of law reforms in the Global South in the past three decades (see Dezalay 2011). In 2004, Young argued that for Africa, “the post-colonial moment appeare(d) to have passed” (2004, 49) raising the question of “new elements in the contemporary political equation” which might “add up to a basic alteration in the parameters of stateness” (ibid, 24). Yet, in this policy-oriented literature the state in Africa remains overwhelmingly an unproblematized given whilst being dubbed in turn “overdeveloped,” “soft,” “lame,” “fictive,” “weak,” “swollen,” “quasi,” “shadow,” “collapsed,” “soft,” “criminal,” and “post-state” (Dunn 2001). Anchored for the most part in a neo-Weberian notion of patrimonialism, the few studies that have endeavoured to unpack the state in contemporary African politics generally embrace an “illiberal” view of politics, whereby “liberalism dressed up as democratization was a feckless façade for persistent and often kleptocratic autocracy (…). As the ‘third wave of democratization’ dissipated under the weight of recalcitrant despotism (…) personalized rule by prerogative has prevailed, albeit over an increasingly hollowed-out state” (Gould 2006, 922). This vision of the state as an ideal–typical, a-historic given is reflected in the recalibration of rule of law reform initiatives spearheaded by multilateral and bilateral development

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institutions and NGOs over the same period: those have been predominantly conceived and projected against or despite national state institutions and state elites through a “civil society” reinvented as the crux of rule of law and development efforts, this time from the bottom up (Dezalay 2011). The prominence taken by “legal pluralism” in the past two decades as the overarching yardstick to measure the efficiency of legal institutions on the African continent, including their independence from political encroachments provides an emblematic illustration. The “rediscovery” of informal mechanisms of conflict regulation, spearheaded by the World Bank’s “Justice for the poor” program from the mid-2000s recalls in perfect bureaucratic oblivion the approach already favoured by colonial rulers to foster social peace in the colonial realm through the “reinvention” of “customary” justice from the turn of the twentieth century (see Kolhagen 2012).

Africa’s Lawyers: Between Imperial Legacies and Transformations in Global Capitalism The ongoing Global history turn in historical scholarship (see Benton and Ford 2016) has opened promising avenues to trace the role of law—and that of the middle-men of the colonial enterprise—across empires, but also to connect law to political, economic, and social transformations, in the longue durée. This scholarship underscores the connections between successive and competing imperial models, emphasizing how imperial legacies have been embedded in the modern nation-state and the contemporary international legal and political order (see Burbank and Cooper 2010). This scholarship underscores that, certainly, law was the cutting edge of colonialism. But colonialism was also ripe with conflicts over law’s remit. Emblematically, the imposition of a body of property law attuned to the economic interests of métropoles in their colonies was used to marshal the products of extraction—be it slaves, crops, or minerals—to the metropolitan cores, and to ascertain a global political economy that would entrench colonies in the periphery. But the question of who benefited from property rights over land and extractive goods at the local level was the object of intense and continuous struggles—between European merchants, colonial administrators, and local chiefs, amongst others (see Breckenridge 2011). In other words, law’s remit depended heavily on social and political variables—and the interplay between these variables was deeply connected to the roles played by intermediaries at the local level. The path opened by a political sociology that underscores, specifically, the roles of lawyers as power brokers in the formation of the state and in globalization offers a promising avenue to channel attention towards the functions played by such intermediaries in these dynamics. This approach emphasizes the specific position of lawyers as “intermediary elites” or “double agents” due to their capacity to juggle contradictory social, political, and economic interests. This perspective illustrates the continuous strategies of double game played

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by lawyers that Ernst Kantorowicz (1989) and others in his wake have shown that whilst at the service of power holders—and thus playing a central role of legitimation of state power—lawyers also needed to distance themselves from politics, as a condition to protect the autonomy of the law, and with it their professional practices. Indeed, these strategies are inscribed in the very structure of the law. From Renaissance Italy (see Brundage 2008), the law has been shown to be “a way to get access to and draw strength from a sovereign administration (such as the city state); to gain an academic and physical distance from state power; and to serve as a go-between for different sovereign administrations and interests” (Dezalay and Garth 2011, 53). Between the state lawyer (e.g. the jurisconsulte acting at the service of a national diplomacy) and the “merchant of law” at the service of corporations, there is a community of situation. The latter is defined by the promotion, arguably multifaceted but in the end converging of legal competency as a necessary condition to negotiate conflicting social interests (see Vauchez 2012). These insights on the roles played by lawyers qua intermediaries take on a specific relevance when applied to imperial contexts (see Dezalay 2015, 2017a, 2017b, 2018a, 2018b). By definition conflicts over law’s remit in imperial realms were multi-scalar: they involved the métropole, the colony, other empires; they boomeranged back and forth, and circulated. To boot: Lord Lugard’s policy of indirect rule was developed for the centralized states of Northern Nigeria in the early twentieth century then disseminated through British colonies in Africa as well as the African colonies of the French, Belgians, Portuguese, and Italians (Mamdani 1996, 78–88). That the British could then embark swiftly in the business as usual of colonial rule in Palestine in the 1920s was no surprise: “(t)hey (could) play their pipes as they have played them in a hundred lands” (Shamir 2000, 20). Despite the contrast often drawn between British colonial “indirect rule” and France’s “direct rule,” in practice, a similar distinction was performed across the French Empire through the “indigénat,” with the vast majority of Africans and Asians considered mere subjects. The quasi-general exclusion of lawyers acting as “avocats ” or barristers— be they indigenous or not—before “customary courts” served purposes of differentiation and control as much as exclusion. However, limiting the focus to the formalized legal pluralism that gradually emerged out of indirect rule detracts from tracing the core role of intermediation played by law. As shown by Benton and Ford (2016), legal professions, as recognized by colonial métropoles, only captured part of this intermediation role. Yet, across Empires, the minority of indigenous lawyers, amongst these multiple legal intermediaries, were placed in a specific position. These lawyers could leverage the imperial rule of law against the colonial state. Indigenous lawyers could be positioned as allies of the Empire through the interlocking of law and literacy, as much as they were embedded in local nodes of power. They were at once collaborators and rebels, the necessary kingpins of the Empire whilst, as the “fighting brigade of the people,” central cogs in its

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demise (see Oguamanam and Pue 2016; Dezalay 2017a). Meanwhile, the contradictory positions of indigenous lawyers and their legal strategies also underscored the coterminous relationship of projection and refraction—or “flows and counter-flows” (Ibhawoh 2013)—between the métropoles and their colonies. These insights are particularly fruitful to trace imperial legacies in the present and the roles played by law(yers) in social, political, economic change over time. Indeed, they shift the focus towards the structuration over time of the space carved out for and by these intermediaries in relation to power as defined by interconnections between the colonial state, métropoles as well as inter-imperial confrontations. Looking at the “legal field” in specific contexts, as a relatively autonomous social microcosm—to borrow Bourdieu’s conceptual tool (see Bourdieu and Wacquant 1992)—thus helps transcend oppositions that tend to be reified in scholarship and policy, such as that between formal and informal law. The focus, rather, is on the strategies and types of resources (educational and political but also social and family capital) used by these intermediaries. Further, this can provide ways to trace change in the longue durée. In his posthumous Sur l’État (2012), Bourdieu argued that to account for the role played by law(yers) in social and political change, it is necessary to acknowledge the embeddedness of national legal fields in the field of state power and therefore to trace the transformation over time of national fields of state power. In other words, it is essential to track the reciprocal relationship between law, and the economic, political, and social dimensions that characterize state power at the national level. Yet, to trace these connections, it is also necessary to account for the specific complexities of colonial settings. As pointed out by Steinmetz (2008), the field of state power in the colonial realm was characterized as much by local specificities as by the asymmetrical relation of power between the métropole and colonies. The field of state power in each colony was a partial refraction of the field of state power in the métropole. Each colonial state pursued a relatively autonomous trajectory shaped by the struggles between military, missionary, merchant interests, and local social hierarchies. Inter-imperial competition also impacted on colonial politics at the local level, as did the geographical scale of the Empire. Indeed: “(t)he fields and spaces of colonial officialdom and imperial trade spanned entire empires, producing fields with extremely complex shapes and octopus-like tentacles reaching out in all directions” (Steinmetz 2014, 8). Tracing the imbrication of these different scales becomes all the more crucial to account for the transformation of the role of law and lawyers in the post-colonial era. Historical sociology of empires has emphasized that many parts in our globalizing moment are entwined with imperialism (see Ibhawoh 2013). This does not just signal the contingency of the nationalized trajectory of the state (Burbank and Cooper 2010). It also underscores the embeddedness of the nation-state in imperialism. Indeed: “empires are more than giant

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states and are more than the forerunners of modern states” (Steinmetz 2014, 9). The trajectory of Judge Fatoumata Diarra provides an interesting example to illustrate this argument (see Dezalay 2018b). Judge Diarra featured amongst the historic first bench of eighteen judges elected to the ICC in 2003. She was also one of the seven female judges appointed to the Court—including three African women—in which she occupied a prominent position as First VicePresident between 2009 and 2012. The eldest of nine children, the daughter of traders, Diarra was born in 1949 in what was still the French colony of the Soudan français (current Mali). That she rose through the ranks of the Malian judiciary was all the more remarkable in a country in which there were only two trained lawyers at independence; as is the prominent foothold she gained in Malian civil society as an advocate for the rights of women and children from the 1980s. Yet, beyond the exceptional individual characteristics of this woman as a trail-blazer, a closer look at the structural conditions that contributed to shaping her trajectory constitutes a formidable entry-point to trace the position over time of legal elites in Mali, in relation to state power in the country, but also to wider patterns of legal globalization into the African continent. Diarra was born in Koulikouro, one of the military headquarters of the French in the Soudan Français and a river port with connections to the Northern and Southern regions of the country and Atlantic trade. This exceptional geographical position allowed social connections that would otherwise have been impossible—ranging from friendships between her father and colonial administrators, Diarra’s access to a primary education of good quality, and her being spotted and groomed for secondary (and higher) education in a context where merely 8% of the population had received a formal primary education at Independence in 1960. Diarra’s trajectory points to a specific pattern of formation of early legal elites in Mali (Moulaye, Diabaté and Doumbia, 2007), and beyond, in former French colonies in Sub-Saharan Africa. Notwithstanding Mali’s first independence ruler Keïta’s abrupt severance of links with the former métropole, Diarra, like other members of Mali’s first legal elite, completed her legal education in France. Much like her counterparts from British colonies trained at Inns of Courts in England, the imperial realm, fashioned as it was by highly selective meritocratic criteria of access combined with social and family resources, defined the stratification of Mali’s legal professions, with a higher tier largely defined by social ties and resources drawn from internationalization within the ambit of the former Empire. The later stage of Diarra’s career, as a judge at the ICC and subsequently as an advocate for women and children’s rights for international NGOs also helps provide a more nuanced understanding of the way Africa’s unequal and uneven relationship with globalization is being renegotiated in the present. In debates on the authority of international courts—specifically in the context of the apparent “divorce” between the ICC and the African Union (see Dezalay 2017b), the presence of females on the bench is hailed as a condition for

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the universality of international law. Yet, a closer look at Diarra’s trajectory along with that of other female members of the ICC bench, underscores gender as a catch-all category that obfuscates as much as it signals. Like other members of the bench—males and females—, Diarra’s profile displays the multi-positionality—astride legal practice, academia, sometimes politics— underscored by Sacriste and Vauchez (2007) as a condition for the authority of international tribunals at the stage of the genesis, and which still generally characterizes the profiles of international judges (see Dezalay and Dezalay 2017). The only distinctive attribute here, in Diarra’s trajectory along with most other female judges at the ICC, is their prominence at the local and international levels as civil society advocates for women and children’s rights. Gender, therefore, plays into the symbolic politics of the ICC as it feeds into one of the strategies of consolidation of this protractedly fragile institution. It has also gained prominence as a determining variable in the internationalization paths of female legal elites from the African South since the turn of the 2000s (see Dezalay 2018b).

Africa in the (Re)making of the International Legal and Economic Order The research agenda opened by these insights is exceptionally challenging as it requires combining focal lengths, by zooming in onto specific contexts and by zooming out on global changes (see Cooper 2014) so as to trace the interconnectedness between legal, political, economic, and social variables, and local, national, regional, and global scales. Yet, this can be a powerful way to confront and question the pervasive lens (and challenge) of the legacy of colonial rule on the post-colonial state in Africa. The paths opened by the historiography of colonial empires and the roles played by empires in world history more generally (in particular with the work of Burbank and Cooper 2010), indeed, are a reminder not to be excessively preoccupied with the pathos of history. Colonial legacy cannot be presumed as a causality. Rather, the question of legacy needs to be contextualized and historicized. As underscored by the historian of Medieval France, Boucheron (2009): historicity can be a way to uncover dynamics that play out in the longue durée and thereby to account for phenomena that would otherwise be construed as unproblematized static categories. This underlines the need to trace structural path dependencies—so as to identify imperial imprints in contemporary legal “revivals” (Dezalay and Garth 2010). Indeed, this has proven a formidable way to account for patterns of globalization in the contemporary era, in particular to trace US-led hegemonic exports of ideals and practices across Latin America and Asia (Dezalay and Garth 2002, 2010). Departing from the pathos of history is also an invitation to question, beyond the legacy of colonial rule, how colonialism, and with it, African peripheries themselves, have shaped, and continue to shape, the contemporary international legal order. This can prove a powerful entry-point to trace

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the evolving unequal and uneven connection between Africa and globalization by questioning the assumption, itself, of the binaries implied in this connection. In Theory from the South, the Comaroffs ask precisely what reversing the lens, that is writing the global order from an African perspective, and not vice versa, could entail: “what if we posit that, in the present moment, it is the Global South that affords privileged insight into the workings of the world at large?” (2012, 1). In other words, how can we move beyond the North– South binary, to lay bare the larger dialectical processes that have produced and sustained it? As these authors underline, the work of Chakrabarty (2000) and others have amply documented how “modernity was, almost from the start, a North–South collaboration—indeed, a world-historical production—albeit a sharply asymmetrical one. (…) To the degree that the making of modernity has been a world-historical process, it can as well be narrated from its undersides as it can from its self-proclaimed centers. (…) But we need to do more than just turn the story upside down” (Comaroff and Comaroff 2012, 6–7). Benton and Ford (2016) provide a path to do precisely this. Countering the tendency to describe international ordering as the nineteenth-century “last five minutes,” they trace how international law emerged out of a haphazard process over several centuries. Ultimately contributing to the growing reach of the metropolitan core and fostering the position of the British as world hegemon from the mid-nineteenth century, this process was heavily influenced and mediated by middle-men and social hierarchies at the local level and by political conflicts that circulated and boomeranged back and forth between the métropoles, the colonies and amongst empires. International law in the form of an international legal order reflected, therefore, a series of bilateral treaties and other legal regimes that created a series of permissive spaces for imperial enforcement relying on British municipal law—specifically in relation to property rights—and producing patchy regulatory regimes. This emphasizes the relevance of looking at social ties not only as a defining feature of colonial rule, but also as an enduring structural component of law, by examining the close association of law with the conversion of economic surpluses and power into enduring social relationships, in the longue durée. But these insights on the diffusion of what was gradually institutionalized as international law—what Benton and Ford (2016) refer to as “vernacular constitutionalism” can also provide interesting paths, synchronically, to make sense of the position of the African continent as a “new frontier” in the ongoing rush for natural resources and markets. The global regulatory tide has spurred an increased demand for law, and with it for lawyers, to strengthen the governance of mineral markets, be it in the form of “corporate social responsibility” or the stability of extractive contracts. Yet, the highly fragmented structure of the global market for natural resources, which gives the upper hand to private corporations (mostly Northern) in the production, pricing, and investment decisions, whilst allowing for a multiplicity of intermediaries, from local chiefs through to red-neck extractive companies less vulnerable to

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reputational costs, plays into the relative breadth and scope of global regulatory frameworks such as the 1977 US Foreign Corrupt Practices Act, and the Extractive Industries Transparency Initiative as they are themselves shaped by intense economic and political struggles between the United States and emerging economic cores, foremost China. Again, law seems to be the cutting edge of these dynamics. Yet again, middlemen, including lawyers, amongst the multiplicity of intermediaries involved in the channelling of extractive boons towards global markets, are playing into, as much as they are shaping, the contradictions between global regulatory tides and the expansion of capitalism. Thus, the promotion of “public–private partnerships” from the early 1990s has contributed to positioning the contract as a tool of private international governance (Cutler and Dietz 2017) and with it, corporate lawyers, at the heart of relations between resource-rich African states and multinationals (see Vauchez 2012, 79). A closer look at the structure of the spaces in which these lawyers are positioned highlights the contradictions marshalled by these ongoing dynamics. For example, the “Africa Bar” in Paris is a key site in which extractive deals between multinational corporations and Francophone states in West Africa are negotiated. The structure of this milieu, however, underlines the offshore yet connected structure of this small professional market, which, though tamed in recent years through regulatory pressures, still fosters inter-personal relations between French, white, corporate lawyers, and African political elites (Dezalay 2019). “Old margins are becoming new frontiers, places where mobile, globally competitive capital—much of it these days southern and eastern, finds minimally regulated zones in which to vest its operations” (Comaroff and Comaroff 2012, 13). These so-called new frontiers are also remaking the international legal and economic order.

Notes 1. The “resource curse” argument correlates the disappointing returns of mining riches in resource rich African economies to corruption, lack of transparency, and weak governance. See (Collier 2007). 2. Amongst dozens of initiatives, driven by Global North countries and multilateral institutions, and regional institutions on the African continent, the “Connex Initiative” spearheaded by the German government during its presidency of the G7 in 2014 aimed at drafting a “code of conduct” to “strengthen advisory support to low-income country governments in their negotiation of complex commercial contracts—to make the support that is available more comprehensive and more responsive to governments’ needs and to contribute to fairer, more sustainable investment deals.” See Code of Conduct of the G7 CONNEX Initiative (https://www.giz.de/de/downloads/giz2021-en-code-ofconduct.pdf). 3. Such as the ‘Code de l’indigénat’ applied throughout French colonies, which ordained the daily lives of colonized populations, including through harsh physical punishment.

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CHAPTER 15

New Imperialism Brett Bowden

Introduction John A. Hobson (1905, 3) begins his Imperialism: A Study by noting that “to lay one’s finger accurately upon any ‘ism’ so as to pin it down and mark it out by definition seems impossible.” Despite this seeming impossibility, Hobson goes on to offer a sustained analysis and critique of imperialism whilst adding “more precision” to a term that he describes as being “on everybody’s lips and which is used to denote the most powerful movement in the current politics of the Western world” (Hobson 1905, v). Hobson’s study addresses both the economics of imperialism and the politics of imperialism, or what is often termed the mission civilisatrice (or civilizing mission) dimension of imperialism. Whatever the difficulties in pinning it down, a working definition of imperialism is a necessity: In a general sense, imperialism refers to the imposition of one nation’s authority over another nation (or nations) or peoples through the establishment of political, economic and/or cultural dominance. Whilst it is often used interchangeably with colonialism, imperialism is a somewhat broader process in that it includes informal modes of control that do not necessarily require territorial domination, annexation or settlement. As with colonialism, imperialism is characterized by unequal and exploitative relations of power between the core or metropole and the periphery, including

B. Bowden (B) Western Sydney University, Greater Western Sydney, NSW, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_15

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a general lack of independence or autonomy over many aspects of personal, social, political, cultural and economic life in the periphery. Writing in the early 1930s, William Langer (1972, 67) suggests that “in this [general] sense, imperialism is probably as old as recorded history.” He notes that there are well-documented accounts, including early work by Joseph Schumpeter, going “back to the Assyrians and the Egyptians,” along with extensive studies of “both Greek and Roman imperialism.” Perhaps, in part, because of Hobson’s influence, within three decades of the publication of his study, Langer (1972, 67) observed that “Imperialism is a word which is now in bad repute, partly because of a psychological reaction to what it was supposed to stand for, partly because it is generally used in so loose a sense that it means nothing to the historian or the political scientist.” Not long after Langer made these observations, Lord Hailey, the British colonial administrator and author of the African Survey (1938), stated in 1940 that “Imperialism is not a word for scholars.” Another forty-odd years later, Michael Doyle begins his book Empires (1986, 11) with an epigraph that is this very same quote from Lord Hailey. Doyle (1986, 11) subsequently reiterates that in Hailey’s time, effectively the interwar years, “Imperialism was not in the mainstream of scholarly literature on world politics,” to which Doyle adds, “nor is it today.” This poses the question: How do we reconcile the suggestion that at the start of the twentieth century-imperialism was said to be a term that was on “everybody’s lips,” but for much of the rest of the century it is described as of “bad repute” and “not a word for scholars” of world politics? Hobson was writing his study during the middle of a period of significant colonial expansion that is commonly referred to as an age of “New Imperialism.” It was “new” because it followed the first wave of European colonial expansion, which corresponds roughly with the Age of Discovery, or the Age of Exploration, from around the beginning of the fifteenth century until the late eighteenth or early nineteenth century. The second wave of New Imperialism refers to the period of colonial expansion, primarily European, but also by the United States and Japan, during the late nineteenth century into the early twentieth century. Opinions differ about the most appropriate start and end dates, but they roughly correspond with those that are the subject of Eric Hobsbawm’s The Age of Empire 1875–1914 (1989). The significance of this period of imperial expansion is captured by Langer (1972, 67), who explains that long after it has passed, “this period will stand out as the crucial epoch during which the nations of the western world extended their political, economic and cultural influence over Africa and over large parts of Asia.” As he notes, this “tremendous outburst of expansion” was “crowded into a couple of generations, the peak of the movement being reached in the last decade of the nineteenth and the first decade of the twentieth centuries.” From just after the publication of Hobson’s study until a peak in 1945, the end of the Second World War, there was, in fact, a significant increase in published and scholarly discussions of imperialism. The decade from 1945 to 1955 saw a slow decline in discussions of imperialism, which would accord

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with growing anti-imperial sentiments following the War. From 1955 to 1968, there is another significant spike in the discourse on imperialism, which would be accounted for by a range of developments, including anti-imperial movements, particularly in Sub-Saharan Africa, Soviet expansion followed by the issuing of the Truman Doctrine and the further emergence of the Cold War, and the slow but steady build-up of the war in Vietnam. From 1968, when most former colonies had achieved independence, there is a steady decline in discussions of imperialism that flattens off around the mid-1990s. Despite the end of formal colonialism in most parts of the world, imperialism has remained a topic of interest, in part, because of the emergence of theories such dependency theory and world systems theory, the former of which in particular highlights the continuation of imperial-like relationships between wealthy “core” states and poorer underdeveloped states of the “periphery” (Frank 1966; Wallerstein 2004). There have long been debates about the rationale or reasoning behind the imperial enterprise, about which there is anything but consensus. Similarly, there have long been debates about the merits of imperialism in its various incarnations, and this too brings mainly disagreement. Langer (1972, 68) points out that “there is no agreement among those who have analysed imperialism as to what the motives are that impel a state or people to expand its territory or control.” The “liberal-bourgeois writers,” he adds, “generally deny that there is any natural link or necessary connexion between capitalism and imperialism.” Marxian theorists will argue the exact opposite. Hobson, who was anything but a Marxist, agreed. Lenin, who was, also agreed, as detailed in Imperialism, the Highest Stage of Capitalism (1917). Schumpeter (1955, 5) proposed a different view again, arguing “whenever the word imperialism is used, there is always the implication … of an aggressiveness for its own sake, as reflected in such terms as ‘hegemony’, ‘world dominion’, and so forth.” He adds that history is replete with examples of “nations and classes … that seek expansion for the sake of expanding, war for the sake of fighting, victory for the sake of winning, dominion for the sake of ruling.” Whilst that might be the case, few nations are inclined to admit as much. The two sides of these debates are evident in the United States in the following examples. At the end of the Spanish–American war in late 1898, with the US on the verge of formally moving from colony to colonizer, opinion was deeply divided. For many, such as Senator Henry Cabot Lodge, it was a matter of the indignity of being “branded as a people incapable of taking rank as one of the greatest world powers” if the Treaty of Paris were to be rejected. Antiimperialists such as Senator George Frisbie Hoar argued that the “Treaty will make us a vulgar, commonplace empire, controlling subject races and vassal states, in which one class must forever rule and other classes must forever obey.” On the other side, Senator Knute Nelson insisted that “Providence has given the United States the duty of extending Christian civilization. We come as ministering angels, not despots.” As history records, the US Congress ratified the Treaty of Paris on February 6, 1899, 57 votes in favour, 27 opposed;

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the following day President McKinley signed the treaty and the US formally took possession of the Philippines, Guam, Puerto Rico and Cuba (Beisner 1968). A few years later, Hobson (1905, 74) summarized this development in these terms, “Was this a mere wild freak of spread-eaglism, a burst of political ambition on the part of a nation coming to a sudden realisation of its destiny? Not at all. The spirit of adventure, the American ‘mission of civilization’, were as forces making for Imperialism, clearly subordinate to the driving force of the economic factor.” More than a century later, the same uncertainties persist. When then US Secretary of Defense, Donald Rumsfeld, was asked by a reporter on April 28, 2003 about empire-building, he responded, “We don’t seek empires. We’re not imperialistic. We never have been. I can’t imagine why you’d even ask the question.” The reason the question was asked is because the year prior a senior adviser to President George W. Bush declared, “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors… and you, all of you, will be left to just study what we do” (Suskind 2004, 51). It is because of precisely such thinking that the term New Imperialism has been born again in the late twentieth and persists into the early twenty-first century. The book resulting from David Harvey’s Clarendon Lectures delivered at Oxford University in February 2003 bares precisely that title, New Imperialism (2003). In it, Harvey (2003, 1) takes a “look at the current condition of global capitalism and the role that a ‘new’ imperialism might be playing within it.” He does “so from the perspective of the long durée and through the lens” of what he terms “historical–geographical materialism,” which is effectively a Marxian tradition. Works by post-Marxist thinkers Michael Hardt and Antonio Negri, first Empire (2000), followed by Multitude: War and Democracy in the Age of Empire (2004), and then Commonwealth (2009), whose target is “the republic of property,” have similarly reinvigorated the idea of New Imperialism.

New Imperialisms The term imperialism has come to be coupled to or prefixed by a wide range of labels and descriptors, many of them still controversial or contested. Examples that readily come to mind include neo-imperialism, economic imperialism, cultural imperialism (Rothkopf 1997), liberal imperialism (Cooper 2002), humanitarian imperialism, democratic imperialism (Kurtz 2003), Western imperialism, American imperialism and moral imperialism (Hernández-Truyol 2002), some of which will be discussed further below. The level of controversy and contestation tends to depend on factors such as one’s social, political, economic or cultural perspective. For many, to be accused of being an imperialist is a pejorative term but, as noted above, over the years it has been

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regarded by some as a badge of honour and a measure of national esteem. Some of these different views can be attributed in part to competing accounts of the roles played by empires and imperialism in world history: virtuous bringer of civilization to the masses or ruthless exploiter of the oppressed? Expanding the bounds of imperialism has the potential to lead to a situation observed by Doyle (1986, 13) when he noted, “in a field in which Hobson warned about the use of ‘masked words’ to rally bemused intellectual support for brutal policies, in which Lenin feared the impact of jingoistic ideas on a labor aristocracy bought by imperialistic gold, and in which Schumpeter discussed the use of imperialism itself as a ‘catchword’, one has to be especially careful not to contribute to obfuscation.” As Doyle (1986, 13, 20) further notes, “Empires have conventionally been defined in narrow terms as the formal annexations of conquered territory,” or what we call colonialism. Yet empires are also increasingly defined more “broadly as any form of international economic inequality, as international power, as international exploitation, and as international order—even as the extension of civilization (presumably that of the conquerors)” (see Bowden 2009). This helps to explain why the label imperialism is attached to so many of the unequal power relationships that constitute the vast web of connections in an increasingly globalized world. Moreover, imperialism does not just apply to the usurpation of political sovereignty; it can also be applied to realms beyond the purely political, including the economy, social and cultural domains, and systems of values and morals. An important question to ask is: Why imperialism at all? Might Langer be right in that the term has lost all meaning and relevance? Not so according to some; old-fashioned imperialism remains a necessity because “Empires are in the business of producing world order” (Maier 2002, 31). Or as Michael Ignatieff (2002, 54) has put it, “imperialism doesn’t stop being necessary just because it becomes politically incorrect. Nations sometimes fail, and when they do, only outside help—imperial power—can get them back on their feet.” Much of the general issue of imperialism continues to revolve around claims to superiority and the notion of a hierarchy of peoples, races, states or whatever the particular collective might be. Throughout much of recent history, it was Europe that was said to represent the highest stage of progress and development, and it was a condition that other peoples at various stages of “arrested development” were encouraged to aspire to. In more recent times, it is the United States that is held up as the shining light of modernity, the epitome of a fully-developed, individualist and commercial and consumer society. The line of argument remains much the same as that proposed by John Stuart Mill (1962, 73–74) in defending imperial government whereby he claimed that, like children, “backward states of society in which the race itself may be considered at its nonage” are incapable of self-government. As such, paternalistic “despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement.” Whilst the choice of language might have changed, it is still argued by many that “traditional” or “underdeveloped”

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societies still require a good measure of tutelage to help them “develop” and achieve “modernity.” Western-style modernization or development programs raise a range of questions relating to imperialism. Dean Tipps (1973, 210) makes the point that whilst not “all modernization theorists are necessarily apologists of American expansionism,” nevertheless, it is a theory that tends to necessitate a “form of ‘cultural imperialism’.” That is, “an imperialism of values which superimpose American or, more broadly, Western cultural choices upon other societies, as in the tendency to subordinate all other considerations (save political stability perhaps) to the technical requirements of economic development.” A rather blunt example of cultural imperialism is David Rothkopf’s (1997, 45) suggestion that it is in the Unites State’s interests to “ensure that if the world is moving toward a common language, it be English; that if the world is moving toward common telecommunications, safety, and quality standards, they be American; that if the world is becoming linked by television, radio, and music, the programming be American; and that if common values are being developed, they be values with which Americans are comfortable.” More alarming for some is his claim that the “United States should not hesitate to promote its values.” Rothkopf goes on to argue (1997, 48–49) that “Americans should not deny the fact that of all the nations in the history of the world, theirs is the most just, the most tolerant, the most willing to constantly reassess and improve itself, and the best model for the future.” Many would argue against such a claim on various grounds. Whilst it might seem like a good idea to impose some kind of order on the international states system, as Charles Maier (2002, 31) notes, “not all orders are alike: some enhance freedom and development; others oppress it.” As was the case in the colonial era, the “issues of inclusion and exclusion, belonging and estrangement, the peace of empire and the violence it generates despite its efforts, is what twenty-firstcentury politics, certainly since September 11, is increasingly about” (Maier 2002, 31). But there is more to the story of new imperialism than that which was ushered in by the post-September 11, 2001 wave of enthusiasm for intervention in rogue states. For some time now there have been advocates for imposing some form of imperialism-cum-colonialism in failed or collapsing states; or what some describe as humanitarian imperialism.

Humanitarian Imperialism Richard Shweder (2002, 121) made the point that “with the end of the Cold War, the temptation in the ‘West’ to engage in ‘Enlightened’ interventions into other peoples’ ways of life has become irresistible, once again.” The rationale behind this humanitarian style of interventionism differs slightly to the competition of Cold War interventions when winning over unaligned states to one bloc or the other was seen as all-important. Rather, it seems to have more in common with the logic of good old fashioned “civilizing missions” that seek to bring the blessings of good governance as dictated by the rationale of

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progress and the moral imperative of civilization. The language used to justify such interventions appears to indicate as much. Such interventions have not necessarily been undertaken whenever and wherever the opportunity presents itself; rather, for one reason or another—determinations of national interest high amongst them—the penchant for intervention is applied rather selectively: too-little-too-late in Rwanda, near all-out in the Former Yugoslavia. And, of course, there are pragmatic and practical limits as to what is possible; for instance, the West is not about to intervene in China to put an end to the persecution of ethnic or religious minorities. An early advocate of humanitarian interventionism was Paul Johnson [1993] in a 1993 feature article in the New York Times Magazine, bluntly titled, “Colonialism’s Back—and Not a Moment Too Soon.” He began by arguing that in much of the Third World, and in Africa in particular, the “the most basic conditions for civilized life have disappeared,” primarily because these countries are unable to govern themselves. His claim here is remarkably similar to those made five hundred years earlier about the plight of other “savage” peoples who were allegedly incapable of self-government; his solution is similarly reflective of an earlier era. The problems and “horrors” of Africa and elsewhere, he insisted, are neither a hangover from nor the vestiges of colonialism, and nor are they caused by “demographics or natural disasters or shortage of credit.” Rather, they come about because of “bad, incompetent and corrupt government, usually all three together, or by no government at all.” This incapacity for self-government, he claimed, has made way for the “revival of colonialism, albeit in new form;” a trend that “should be encouraged … on practical as well as moral grounds.” Colonialism, he contends, has a long and proud history; it was “invented” by the Greeks who “founded citycolonies to spread their civilization,” the Romans then followed suit, and so on down to the “European powers and then Russia and the United States.” Whilst colonialism does have a long history, this is very much a rose-tinted view of colonialism. At around the same time, William Pfaff (1993, 155–58) argued that the “new elites of the new African nations governed unsophisticated and illiterate populations, agricultural or pastoral peoples living at levels of social and economic development that had characterized Northern Europe centuries earlier.” This supposed “backwardness by the criteria of social, economic, and political development imposed by contemporary civilization” led him to the conclusion that the “immediate future of Africa, including that of majority-ruled South Africa, is bleak, and it would be better if the international community would reimpose some form of paternalist neocolonialism in most of Africa.” Both Ignatieff and Michael Walzer similarly suggested in the mid-1990s that a return to old style trusteeships or protectorates, lasting years if necessary, where the institutions of state and civil society can be nurtured, might be a workable option for failing states. Walzer (1995, 61) proposed that two styles of “long-lasting intervention,” trusteeship and protectorate, both of which he acknowledges have past associations with “imperial politics,

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now warrant considering.” Under trusteeship, the “intervening power actually rules the country it has ‘rescued,’ acting in trust for the inhabitants.” Under a protectorate system, intervening forces bring “some local group or coalition of groups to power,” which is then sustained only defensively to guard against the return of a “defeated regime or the old lawlessness.” This has much in common with the mandate system outlined in Article 22 of the Covenant of the League of Nations: To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.

Despite the best of intentions, as has almost always been proclaimed in matters colonial, it is not too hard to imagine how a powerful intervening force could abuse either of these proposals, as happened at times during the implementation of the League’s mandate. More recently, Ignatieff (2003a, 24) has suggested that twenty-first-century imperialism “is a new invention in the annals of political science;” it is what he calls “an empire lite, a global hegemony whose grace notes are free markets, human rights and democracy, enforced by the most awesome military power the world has ever known,” the United States. Why? Because the “case for empire is that it has become, in a place like Iraq, the last hope for democracy and stability alike” (Ignatieff 2003b, 54). As Ignatieff (2002, 30) and others note, “nation-building has become a multi-billion dollar business,” and the “new mantra of this industry is governance.” A further argument is made that “Economic development is impossible and humanitarian aid is a waste of time,” unless the particular country being intervened in “has effective governance: rule of law, fire walls against corruption, democracy and a free press.” The central tenets of this general argument are not particularly new; “governance” or “good governance” might be the catch-phrase of the times, but a capacity for competent self-government has long been the measuring stick of civilized society. And if a society is deemed incapable of self-government, at present as in the past, there are ready and willing tutors and governance professionals waiting to show the ill-governed how it is done. Large-scale international humanitarian missions such as nation-building are inevitably accompanied by a veritable caravan of non-government organisations (NGOs) that administer, either independently or as sub-contractors, any number of humanitarian programs; from healthcare to housing the homeless. Not without some justification, there are critics of imperialism who claim that, as part of the occupying expedition, NGOs are also implicated in the extension of the imperial mission. It is not too much of an overstatement to say

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that some of these organizations do bring a certain degree of condescension and missionary zeal to their work. In respect to this sector more generally, James Petras (1999, 440) argues that “NGOs fit into the new thinking of imperialist strategies” in that whilst the International Monetary Fund (IMF), the World Bank and multinational corporations work on developing world “domestic elites … to pillage the economy, the NGOs engage in complementary activity at the bottom neutralizing and fragmenting the burgeoning discontent resulting from the savaging of the economy.” Not all left-leaning thinkers support such interventionism. For those opposed it is still the case that there are no excuses for imperialism, even if it is dressed up as humanitarian intervention on behalf of an oppressed or endangered minority. For instance, following the NATO intervention in Kosovo on what were widely regarded by most observers as humanitarian grounds, Ellen Meiksins Wood (1999) pleaded, “Where … are the tens, even hundreds, of thousands who used to come out to protest US imperialism, in Vietnam or Central America? Where, in particular is the left? Have people stopped caring, or is it possible that people don’t recognize imperialism when they see it?” At the time, Meiksins Wood’s protestations had much to do with the left’s long-standing objections to economic imperialism. Her ire being sparked by a comment from then US President Bill Clinton, to the effect that NATO intervention had as much to do with advancing US economic interests as it did with saving Kosovars. He is reported to have said, “If we’re going to have a strong economic relationship that includes our ability to sell around the world, Europe has got to be key … That’s what this Kosovo thing is all about.” In all likelihood there was a humanitarian side to the story as well; rarely are such issues black and white. Whatever the circumstances of this particular case, this again highlights the issue of globalization and its association with economic imperialism.

Economic Imperialism Much has been written about economic imperialism, particularly by those on the left of politics in relation to neo-liberal economic orthodoxy and economic globalization, including on the continuities between globalization and earlier manifestations of economic imperialism. The role of multi- or transnational corporations in extracting resources or transferring wealth from the periphery to the core has also been examined at length. The role played by international financial institutions such as the World Bank and the IMF in implementing Structural Adjustment Programs (SAPs) in heavily indebted poor countries is worth taking a closer look at. It is worth looking at because of claims such as David Fidler’s (2000, 407) that “SAPs represent the capitulations of the era of globalization.” In essence, Structural Adjustment Programs are economic and monetary policies that (usually poorer or indebted) countries must follow in order to qualify for ongoing World Bank and IMF lending, whether it be for particular development projects or simply to service debt. Although SAPs

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are usually tailored to individual country needs, they are marked by a set of general guiding policy principles or prescriptions. Included in these are the privatization and liberalization of monopoly state enterprises and utilities; the promotion of export-led growth; and the “opening up” of the economy to unfettered foreign investment and “free” market enterprise. SAPs also usually demand that a country devalue its currency (to enhance exports); abolish tariffs, quotas and any other impediments to imports and exports, including the removal of subsidies and price controls; and deliver a balanced budget, usually through tax increases and lower spending on social services. Fidler (2000, 389) argues that in effect, “Capitulations and SAPs are kindred in their fundamental message;” that those on the receiving end do not measure up to certain standards of economic modernity. In order to be able “to engage fully in international relations, your behavior has to conform to expectations, policies and rules established by the prevailing powers.” The more specific point is that “SAPs aim to establish some fundamental conditions for economic interaction between the developed and developing worlds;” as was the aim in the colonial era. The primary objective is the reduction of “political, economic and legal uncertainty and risk for private enterprise” when it comes to “trade and investment between developed and developing countries.” Fidler (2000, 389–99) suggests that “because much of what is required under a SAP involves legal changes, SAPs can be seen as a sophisticated form of legal harmonization to facilitate the conduct of global trade and investment.” And, as was the case with the colonial era’s system of “capitulations, this harmonization is imposed on the developing world country by country, slowly building up a systemic harmonization in international relations.” The crux of the issue is that instead of “a harmonization based on mutual negotiation and compromise, Western forms of economic policy and law have been selected as the basis of harmonization and imposed on the developing countries through SAPs.” As Fidler (2000, 403, 405) pertinently highlights, this means that to “be considered a globalized state, a developing country subject to a SAP has to admit the inadequacy of its government and society and permit massive interference with its internal affairs.” Ultimately, in the same way that “capitulations laid the groundwork for the universal extension of the Western system of states and conception of international law, SAPs help lay the groundwork for the universal extension of the processes of globalization.” The trade liberalization component of the Washington consensus (see Serra and Stiglitz 2008) that informs such policies received further emphasis following the terrorist attacks of September 11, 2001. Not long after the attack, then US President George Bush declared that the “terrorists attacked the World Trade Center, and we will defeat them by expanding and encouraging world trade.” The Bush administration’s commitment to free trade as a weapon to combat terrorism was reaffirmed in the US National Security Strategy (NSS), issued a full year after the attacks of the previous September. In the preface to the document the president (White House 2002) declares, “We will actively work to bring the hope of democracy, development, free markets,

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and free trade to every corner of the world.” Section VI of the NSS (2002, 17–18), titled, “Ignite a New Era of Global Economic Growth through Free Markets and Free Trade,” states that the “concept of ‘free trade’ arose as a moral principle even before it became a pillar of economics. If you can make something that others value, you should be able to sell it to them. If others make something that you value, you should be able to buy it. This is real freedom, the freedom for a person—or a nation—to make a living. To promote free trade.” In discussing the “exertion of such indirect imperial control” via trade, Anatol Lieven (2003, 25–30) argues that “it is possible to draw a rather straight line from the Monroe Doctrine to the Bush Doctrine.” Others have made similar imperial arguments about earlier White House administrations. On a related note, Lieven suggests that the difference between the imperialism of the Clinton administration and that of the Bush administration was that “Clinton packaged American imperialism as globalism.” And Clinton, he argues, “was also genuinely motivated by a vision of global order in which America would lead rather than merely dictate.” The imperialism of the Bush administration, on the other hand, was an imperialism driven by “the domestic political fuel” of a “wounded and vengeful nationalism.” And like any other nationalist sentiment or movement, the administration was “absolutely contemptuous of any global order involving any formal check whatsoever on American action” and expressions of power. The Obama and Trump administrations have subsequently brought a mixed bag of foreign and economic policies; the latter perhaps having more in common with the realism of George H. W. Bush than either of his immediate predecessors, George W. Bush or Clinton. But arguments about economic imperialism tend to extend well beyond who occupies the White House at any given moment.

Western/American Imperialism This leads to the explicit issue of Western, or more specifically American imperialism, or what has been referred to as “the empire that dared not speak its name” (Maier 2002, 28), albeit one that has been widely discussed from an equally wide range of perspectives in the early twenty-first century (Ferguson 2003, 2004; Vidal 2004; Harries 2004; Odom and Dujarric 2004; Ninio 2004). As noted above, there have long been contrasting views on American imperialism, some of which can be traced to the ongoing influence of Thomas Jefferson’s call for America to be an “empire of liberty,” or an “empire for liberty.” In contrast to the position of the British Empire in North America and beyond, it would be an empire free of a corrupt and exploitative imperial ruling class (Onuf 2000). The reinvigoration of such debates is in large part because American power and influence is thought to be greater at the start of this century than ever before. Paul Kennedy, for instance, suggests that nothing past or present “has ever existed like this disparity of power” between the US and its allies and rivals. Charles Krauthammer is more strident

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in insisting the “fact is no country has been as dominant culturally, economically, technologically and militarily in the history of the world since the Roman Empire” (Eakin 2002). Thus, it is the US which is inclined to take the lead and seeks to set the tone across all manner of spheres: political, economic, legal, military, technological, cultural and more. With the end of the Cold War in sight, Craig Snyder (1989, 4) claimed that beyond exporting democracy, the United States’ “efforts to see a better world in the new century must involve all three components of our [American] social system … political, economic, and social.” In respect to the Bush administration, a period when talk of US imperialism was particularly prominent, Sebastian Mallaby (2002, 2–7) suggests that the “logic of neoimperialism is too compelling for the Bush administration to resist.” Why? Because the “chaos in the world is too threatening to ignore, and existing methods for dealing with that chaos have been tried and found wanting.” Mallaby goes on to argue that “a new imperial moment has arrived, and by virtue of its power America is bound to play the leading role.” Therefore, the “question is not whether the United States will seek to fill the void created by the demise of European empires but whether it will acknowledge that this is what it is doing.” Stephen Rosen (2002, 30–31) similarly claims that a “political unit that has overwhelming superiority in military power, and uses that power to influence the internal behavior of other states, is called an empire.” But he suggests that the US is not like earlier empires, because it “does not seek to control territory or govern the overseas citizens of the empire, we are an indirect empire, to be sure, but an empire nonetheless.” Rosen adds that if this is the most appropriate description of the US, then “our goal is not combating a rival, but maintaining our imperial position, and maintaining imperial order.” In contrast to Rosen, Chalmers Johnson (2004, 2006) makes the point that given the number of US military personnel and bases spread across so many continents, it is time to acknowledge that American democracy has given rise to a “global empire.” Another twist to the American imperialism debate is the perspective of those predicting or describing its downfall at the same time as others insisting it is an empire on the rise (Wallerstein 2002, 2003). In a similar vein to this line of argument, Lieven (2003, 29) suggests that “given its immense wealth, the United States can afford a military capable of dominating the earth; or it can afford a stable, secure system of social and medical entitlements for a majority of its population; or it can afford massive tax cuts for its wealthiest citizens and no tax rises for the rest. But it cannot afford all three.” At the very least, it is highly unlikely that the US would be able to sustain all three for any significant length of time. And if it decides to forego social services at home in order to maintain its military domination, then as Arnold Toynbee forewarned, most empires crumble from within because of overreach. It could be argued that the Trump administration, intentional or otherwise, heeded such advice in seeking to wind back some of the many United States’ commitments abroad.

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Moral Imperialism Questions of moral imperialism lie at the intersection of debates about ethical/ moral universalism and cultural relativism. Moral universalism refers to the position that some system of values or ethics applies universally; that is, to all people in all places at all times regardless of their differences, be they cultural, national, racial, religious, gendered or related to sexuality or any other distinguishing feature one might choose to apply. The justification for claims to universality of such a system of values might be based on understandings of human nature and the demands of universal reason, or assertions about what existing moral codes hold in common, such as the similar requirements of various religions. An example of this is the ethic of reciprocity, or the socalled “Golden Rule,” which is a fundamental moral principle common to most major religions. Whilst it is expressed in a range of ways, the essence of the ethic of reciprocity is captured in the phrase, “treat others as you would like to be treated.” Cultural relativism, on the other hand, refers to the principle that one’s values, beliefs and general way of life are dependent on and possibly unique to one’s own culture. The central argument is that systems of morals or ethics have no universal or timeless claims. The values, beliefs and principles by which one lives their life are only relevant or valid for the time and place in which that person or collective live by those beliefs, values or superstitions. Such arguments have been used to challenge claims about the universal nature and applicability of things such as individual human rights. It is argued by some that the human rights tradition is based on a particularly liberal mode of politics which, although generally accepted in the West, is not necessarily the norm elsewhere. It is further argued that the foundation of human rights lies in influential liberal thinkers, such as John Locke and John Stuart Mill, who are not only of the West but were involved in establishing imperial policies and the running of European empires. (This is despite the fact that Mill, and Jeremy Bentham even more so, did not subscribe to the idea of human rights, the latter famously referring to such rights as “nonsense upon stilts.”) This is essentially what moral imperialism is all about; it involves attempts by one cultural group, usually a dominant group, to impose their values on others at the expense of their own values and, potentially, much of their way of life. One of the key questions claims to universality raises is: If one group has to define and promote their values amongst the various groups holding different values, then are they really universal values at all? As Naeem Inayatullah and David L. Blaney (2004, 6–7) highlight, of real concern is “that claims of universal values are accompanied by a temptation to impose values on the recalcitrant, resulting in violence and domination.” By definition, the United Nations’ Universal Declaration of Human Rights (UDHR) enshrines rights that apply to all human beings equally, regardless of their various differences. Contrary to this view, the cultural relativism

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argument claims that not all human rights are universal; some might actually conflict with some cultures’ beliefs and values and could even threaten their survival. Significant cultural critics of the individual nature of universal rights include proponents of “Asian Values,” in which filial piety is a major consideration. For instance, in the early 1980s the Iranian representative to the UN, Said Rajaie-Khorassani, declared that the UDHR was “a secular understanding of the Judeo-Christian tradition,” which could not be implemented without breaching Sharia law (Littman 2003). Similarly, the then prime ministers (and again in the latter’s case) of Singapore and Malaysia, Lee Kuan Yew and Mahathir bin Mohamad, respectively claimed in the 1990s that Asian values are different from Western values and include a sense of loyalty and the foregoing of personal freedoms for the sake of social stability and prosperity (Zakaria 1994). This was countered by former (and effectively again) Malaysian deputy prime minister, Anwar Ibrahim (2006, 6–7), who argued, “To say that freedom is Western or un-Asian is to offend our traditions as well as our forefathers, who gave their lives in the struggle against tyranny and injustices,” both internally and externally imposed. An oft-cited example of what is claimed to be a double-standard is female genital cutting, which occurs in different cultural groups in Africa, Asia and South America; and in diasporas elsewhere. Whilst it is not mandated by any religion, it has become a tradition in a number of cultures. Cutting is considered by many to be a violation of women’s and girls’ rights and is outlawed in some countries. At the same time, it is noted by some that the male equivalent, circumcision, is based on a broadly Jewish cultural tradition and is legal in many countries: hence claims of hypocrisy or moral imperialism. One response to such claims is that arguments about cultural relativism are often resorted to by those who wield power in societies or cultures that commit human rights abuses, and that the people whose human rights are abused are in fact themselves powerless. One difficulty in assessing claims of universalism versus relativism lies in part on who is claiming to represent a particular culture; is it a dictator, acting in their own interests, or is it a genuine community leader standing up for the rights of her people? Either way there is likely to be some measure of moral imperialism going on.

Conclusion Early on in his study of imperialism, Hobson (1905, 5–6) states that it is hard to find a better account of the “true nature and limits of nationality” than that offered by Mill in Representative Government . In that essay, Mill (1962, 359– 60) wrote that a “portion of mankind may be said to constitute a Nationality if they are united among themselves by common sympathies which do not exist between them and any others.” A little further on he adds:

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This feeling of nationality may have been generated by various causes. Sometimes it is the effect of identity of race and descent. Community of language, and community of religion, greatly contribute to it. Geographical limits are one of its causes. But the strongest of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation, pleasure and regret, connected with the same incidents in the past. (Mill 1962, 359–360)

Based on such an account of the nation and its identity, Hobson (1905, 6) asserted that it “is a debasement of this genuine nationalism, by attempts to overflow its natural banks and absorb the near or distant territory of reluctant and unassimilable peoples, that marks the passage from nationalism to a spurious colonialism on the one hand, Imperialism on the other.” One of the issues, as explained by John Seeley (1914, 54–55) a little earlier, is that “when a nation extends itself into other territories the chances are that it will there meet with other nationalities which it cannot destroy or completely drive out, even if it succeeds in conquering them. When this happens, it has a great and permanent difficulty to contend with. The subject or rival nationalities cannot be perfectly assimilated, and remain as a permanent cause of weakness and danger.” This was an issue for the second wave of New Imperialism just as it was for earlier European colonial enterprises that met with various levels of local resistance. It was also true for latecomers to the imperial enterprise, such as the United States experienced in the Philippines. At the end of his extensive discussion of the late nineteenth and early twentieth century-wave of New Imperialism, Hobson (1905, 367) concluded that the “new Imperialism differs in no vital point from …[the] old.” This is not necessarily so for the New Imperialism of the late twentieth and early twenty-first centuries. As discussed, this era of imperialism takes a range of guises, including cultural and economic imperialism, that do not require formal occupation. But that is not to say that they do not also meet with resistance, the anti-globalization and alter-globalization movements being prominent examples. Moreover, imperial-like missions that do involve a measure of territorial occupation, including the establishment of military bases, whether they be coalitions of the willing led by the United States in Afghanistan or Iraq, or Russian expansion on the Crimean Peninsula, more often than not meet with resistance from those being imposed upon. That said, there are instances when intervention and the establishment of a foreign military presence is welcomed, even encouraged, such as when a powerful and potentially aggressive neighbour looms large. Whether the intervention and occupation is seen as a form of imperialism or as a guarantor of security and liberty will likely depend on one’s position in the broader geopolitical context. New or old, at the core of imperialism is the claim, explicit or implied, that one way of doing something, be it organizing society and the economy or a system of social values, is superior to another way. As such, all forms of imperialism inherently have a moral dimension to them. Imperialism says,

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often forcibly, that my way of doing this or that is superior to yours, my beliefs and values and way of life are superior to yours, as such you will be compelled to give up what you hold dearly so that you can live by my rules. In short, it suggests, and sometimes shouts, I am morally superior to you. That is the essence of all forms of imperialism—political, humanitarian, cultural or economic. They are all a form of moral imperialism.

References Anwar Ibrahim. 2006. Universal Values and Muslim Democracy. Journal of Democracy 17 (3): 5–12. Bowden, Brett. 2009. The Empire of Civilization: The Evolution of an Imperial Idea. Chicago and London: University of Chicago Press. Cooper, Robert. 2002. The New Liberal Imperialism. The Observer, April 7. Eakin, Emily. “It Takes an Empire”, Say Several US Thinkers. New York Times, April 2. Ferguson, Niall. 2003. Hegemony or Empire? Foreign Affairs 82 (5): 154–161. ———. 2004. Colossus: The Price of America’s Empire, 2004. New York: Penguin. Fidler, David P. 2000. A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization. Texas International Law Journal 35 (3): 387–413. Frank, Andre Gunder. 1966. The Development of Underdevelopment. Monthly Review 18 (4): 17–31. Hardt, Michael, and Antonio Negri. 2000. Empire. Cambridge, MA: Harvard University Press. ———. 2004. Multitude: War and Democracy in the Age of Empire. New York: Penguin Press. ———. 2009. Commonwealth. Cambridge, MA: Belknap Press. Harries, Owen. 2004. Benign or Imperial? Reflections on American Hegemony. Sydney: ABC Books. Harvey, David. 2003. The New Imperialism. Oxford: Oxford University Press. Hobsbawm, E.J. 1989. The Age of Empire 1875–1914. New York: Vintage. Hobson, John, A. 1905. Imperialism: A Study, 2nd ed. London: George Allen & Unwin. Ignatieff, Michael. 2002. Nation-Building Lite. New York Times Magazine, July 28: 26–31 and 54–56. ———. 2003a. Empire Lite. London: Vintage. ———. 2003b. The Burden. New York Times Magazine, January 5, 2003, 22–27 and 50–54. Inayatullah, Naeem, and David L. Blaney. 2004. International Relations and the Problem of Difference. New York and London: Routledge. Johnson, Chalmers. 2004. The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic. New York: Metropolitan Books. ———. 2006. Nemesis: The Last Days of the American Republic. New York: Metropolitan Books. Johnson, Paul. 1993. Colonialism’s Back—and Not a Moment Too Soon. New York Times Magazine, April 18: 22 and 43–44.

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Kurtz, Stanley. 2003. Democratic Imperialism: A Blueprint. Policy Review 118. https://www.hoover.org/research/democratic-imperialism-blueprint, Accessed 7 February 2019. Langer, William L. 1972. The Diplomacy of Imperialism, 1890–1902. New York: Knopf. Lenin, V.I. 1965. Imperialism, the Highest Stage of Capitalism: A Popular Outline. Peking: Foreign Languages Press. Lieven, Anatol. 2003. The Empire Strikes Back. The Nation, July 7: 25–30. Littman, D. G. 2003. Human Rights and Human Wrongs. National Review Online, January 19. Maier, Charles S. 2002. An American Empire? The Problems of Frontiers and Peace in Twenty-first-century World Politics. Harvard Magazine 105 (2): 28–31. Mallaby, Sebastian. 2002. The Reluctant Imperialist. Foreign Affairs 81 (2): 2–7. Mill, John Stuart. 1962. Utilitarianism, Liberty, and Representative Government. London: J.M. Dent & Sons. Ninio, Julian. 2004. The Empire of Ignorance, Hypocrisy and Obedience. Melbourne: Scribe. Odom, William E., and Robert Dujarric. 2004. America’s Inadvertent Empire. New Haven: Yale University Press. Onuf, Peter S. 2000. Jefferson’s Empire: The Language of American Nationhood. Charlottesville, VA: University of Virginia Press. Petras, James. 1999. NGOs: In the Service of Imperialism. Journal of Contemporary Asia 29 (4): 429–440. Pfaff, William. 1993. The Wrath of Nations: Civilization and the Furies of Nationalism. New York: Simon & Schuster. Rosen, Stephen Peter. 2002. The Future of War and the American Military. Harvard Magazine 104 (5): 29–31. Rothkopf, David. 1997. In Praise of Cultural Imperialism? Foreign Policy 107: 38–53. Schumpeter, Joseph. 1955. Imperialism and Social Classes: Two Essays. Trans. Heinz Norden. Cleveland, OH: Meridian Books. Seeley, John R. 1914. The Expansion of England: Two Courses of Lectures, 2nd ed. London: Macmillan. Serra, Narcís, and Joseph E. Stiglitz, eds. 2008. The Washington Consensus Reconsidered: Towards a New Global Governance. Oxford: Oxford University Press. Shweder, Richard A. 2002. On the Return of the “Civilizing Project.” Dædalus 131 (3): 117–121. Snyder, Craig. 1989. Democracy and the Vitality of Evil. The National Interest 17: 81–84. Suskind, Ron. 2004. Without a Doubt. New York Times Magazine, October 17: 44– 51, 64, 102 and 106. Tipps, Dean, C. 1973. Modernization Theory and the Comparative Study of Societies: A Critical Perspective. Comparative Studies in Society and History 15(2): 199–226. Vidal, Gore. 2004. Imperial America: Reflections on the United States of Amnesia. New York: Nation Books. Wallerstein, Immanuel. 2002. The Eagle Has Crash Landed. Foreign Policy 131: 60– 68. ———. 2003. The Decline of American Power: The US in a Chaotic World. New York: New Press.

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———. 2004. World-Systems Analysis: An Introduction. Durham, N.C.: Duke University Press. Walzer, Michael. 1995. The Politics of Rescue. Social Research 62 (1): 53–66. House, White. 2002. The National Security Strategy of The United States of America. Washington DC: The White House. Wood, Ellen Meiksins. 1999. Kosovo and the New Imperialism. Monthly Review 51 (2). https://monthlyreview.org/1999/06/01/kosovo-and-the-new-imp erialism/ Accessed 7 February 2019.

Further Reading Beisner, Robert L. 1968. Twelve Against Empire: The Anti-Imperialists, 1898–1900. New York: McGraw-Hill. Bowden, Brett. 2009. The Empire of Civilization: The Evolution of an Imperial Idea. Chicago and London: University of Chicago Press. Bricmont, Jean. 2006. Humanitarian Imperialism: Using Human Rights to Sell War. New York: Monthly Review Press. Doyle, Michael W. 1986. Empires. Ithaca: Cornell University Press. Furedi, Frank. 1994. New Ideology of Imperialism: Renewing the Moral Imperative. London: Pluto Press. Hardt, Michael, and Antonio Negri. 2000. Empire. Cambridge, MA: Harvard University Press. Harvey, David. 2003. The New Imperialism. Oxford: Oxford University Press. Hernández-Truyol, Berta Esperanza, ed. 2002. Moral Imperialism: A Critical Anthology. New York: New York University Press. Hobson, John, A. 1905. Imperialism: A Study, 2nd ed. London: George Allen & Unwin. Hudson, Michael. 2003. Super Imperialism: The Origin and Fundamentals of U.S. World Dominance, 2nd ed. London: Pluto Press. Tyrrell, Ian. 2010. Reforming the World: The Creation of America’s Moral Empire. Princeton, NJ: Princeton University Press. Zakaria, Fareed. 1994. Culture is Destiny: A Conversation with Lee Kuan Yew. Foreign Affairs 73 (2): 109–125.

PART V

Progress and Promise of International Law

CHAPTER 16

Practicing Humanity: Humanisation and Contemporary International Political Theory Peter Sutch and Oliver Pierce

Introduction This chapter explores a core theme in the growing literature at the intersection between international law and International Political Theory (IPT). We show that there is a genuine interdisciplinarity that draws on the evolution of international legal norms and has a clear impact on the normative structure of IPT and the way that justice and legitimacy claims are fashioned and deployed. The short version of the argument is that a range of international lawyers point to changes in legal practices that suggest a ‘humanisation’ of international law. Scholars in constructivist International Relations theory and in IPT rely on this change too. It grounds normative arguments about the justice of existing institutions and practices and the desirability and nature of institutional change. This changes the nature of the normative arguments but does not really resolve the core disagreements. Scholars in the cosmopolitan

P. Sutch (B) · O. Pierce School of Law and Politics, Cardiff University, Cardiff, UK e-mail: [email protected] O. Pierce e-mail: [email protected] P. Sutch Department of Political Studies, University of the Witwatersrand, Johannesburgh, South Africa © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_16

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and communitarian traditions, in the orthodox and revisionist just war traditions, in the English school and constructivist traditions are all a part of this movement. By using humanisation as the prism for this range of work, we aim to capture the main contours of this emerging literature and point to some tensions that deserve exploration.

Humanisation in International Law One of the primary claims in this chapter is that we can use the concept of ‘humanisation’ to help orient us in the interdisciplinary scholarship that constitutes contemporary IPT. Scholars in these fields are travelling from different directions towards a similar destination. The core questions they ask are importantly different. Lawyers and IR scholars tend to argue from observation of empirical (material and normative) facts about the world to arguments about legitimacy and justice. IPT has tended to provide arguments about the foundation of moral principles and use them as a measure of the world. But in recent work, many scholars whose earlier work was grounded in the classical traditions of political theory have abandoned the controversial attempt to ground moral principles in abstract moral thinking and instead choose to ground a commitment to moral principles in the emerging consensus of a humanised legal order. After all, if we already agree and have institutionalised the idea that the legitimacy of the system or of practices lies in its defending humanity, or, in some readings, promoting human rights, why go to the trouble of defending it from the ground up? The central claim of humanisation is jurisprudential. It is the claim that despite its inter-state origins; the arc of international law bends towards the claims of humanity. Consider the following from Kupreški´c before the International Criminal Tribunal for the Former Yugoslavia (ICTY): The absolute nature of most obligations imposed by rules of international humanitarian law reflects the progressive trend towards the so-called ‘humanisation’ of international legal obligations…The underpinning of this shift was that it became clear to states that norms of international humanitarian law were not intended to protect state interests; they were primarily designed to benefit individuals qua human beings. Unlike other international norms...compliance with humanitarian rules could not be made dependent on a reciprocal or corresponding performance of these obligations by other States. (ICTY 2000, 202–203).

The diminishment of reciprocal obligations outlined above is central to the work of one of the earliest and foremost scholars of humanisation, Theodor Meron. Meron, a hugely experienced judge in international courts, argues that international law has shifted “From an Inter-State to an Individual Rights Perspective” (2006, 9) and away from bilateralism towards a focus on community interests (2006, 247). The nub of the argument is that there

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is a ‘symbiotic relationship’ between international humanitarian law (IHL) and international human rights law (IHRL) concerning the role of human protection that affects the broader international legal order (Meron 2006, 8). Meron’s thesis is informed by three principal empirical observations. The first is the increased purchase that human rights law has had upon the contemporary legal order since the Universal Declaration of Human Rights (UDHR) (1948). The pull of human rights explains the ‘homo-centric focus’ of subsequent Geneva Conventions and Additional Protocols that sought to protect humans from the barbarity of war (Meron 2006, 6). ‘Human dignity’ is the touchstone around which the norms coalesce. The second is the decline in the role of reciprocity of international humanitarian obligations (2006, 9– 16). The idea that a state will be bound by a rule if, and only if, others are similarly bound is not valid because the thing the rule protects is considered too important. Common Article 1 of the Geneva Conventions for instance states “The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances” (cited in Meron 2006, 15). Illustrating the increased commonality between IHL and IHRL as well as the shift to community interests, Meron takes this blanket protection as analogous to obligations erga omnes (2006, 11). Such obligations are owed to all and can be claimed by all—we are beginning to see with such developments the claims of communal interest. Meron’s third observation draws on the changing character of war from international to civil/non-international ‘drawing’ IHL in the direction of IHRL (2006, 1–3). Common Article 3 (CA3) of the Geneva Conventions is of particular importance for extending human rights protections to civil wars. The article is to be considered indicative of ‘elementary considerations of humanity’. Furthermore, “What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife” (ICTY 1995). The International Court of Justice (ICJ) in Nicaragua outlined the normative status of CA3 also. “There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick” (ICJ 1986, 114). These combine to press similar conclusions on the architecture of the international legal order. The first concerns the basis of international law moving away from a focus on state sovereignty and international order towards a focus on human dignity and international justice. The second concerns a move from reciprocity to community obligation where humanity is at stake. This third is that doing so makes the protection of human dignity the concern of the international community domestically as well as in times of international conflict. The question for IPT is how the legal developments effect what we perceive to be fundamental to public normative reasoning (Buchanan 2013, 5). There is also a fourth development that plays an increasingly significant role in the analysis of legal scholars and that is the way that the state consent model of international law-making appears to be giving way to rules that do not require consent to be considered law. The international legal order traditionally protected the sovereignty of states by requiring their consent to laws

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that bound them. The claim here is that where laws protect humanity; state consent is no longer the animating basis of obligation. In particular, some rules (among them the prohibition of torture and of genocide) are considered to be jus cogens (peremptory norms from which no derogation is permitted) something that gives scholars from Allen Buchanan to Thomas Weatherall much food for thought. The combined weight of these developments moves many to point to the ‘extended reach of legality’ (Teitel 2011, 8). Such a notion is common to all of humanisation but is especially critical to Ruti Tietel’s thesis ‘Humanity’s Law’ (2011). She argues that a paradigm shift has occurred in the international order. Not only has IHL become humanised but also humanitarian reasoning is pervading international law more generally. Principles used to judge the appropriateness of humanitarian legal claims are being used to judge the appropriateness of legal rules more widely. “The leading element in the transformation is a humanitarian legal regime with a greater reach” (Teitel 2011, 34). The normative foundations of the international legal order have shifted from an emphasis on state security - that is, security as defined by borders, statehood, territory, and so on - to a focus on human security: the security of persons and peoples. (Teitel 2011, 4)

For Teitel, this new “humanity” law translates into a changed language for policymaking and describes the transformation of international normative order and “its constitutive principles, processes and values” (2011, 14). It provides us with the reasons for making judicial decisions, building institutions, and has seen three major system changes. First, the relevant agents are persons and peoples not states. Second, the rights and duties are international, not national, universal and not particular. Finally, the content of the norms constitute a human security guarantee; a transitional justice safety driven by global legal practice rather than the realisation of some shared moral value. Her description of humanity law as ‘a thin universalist notion of global justice as a minimum threshold of human security as well as a thicker more contextualised conception of duties beyond borders’ (2011, 162) echoes Walzer’s thin account of international justice—a moral casuistry that uses shared concepts to ensure gaps in international legal and moral reasoning are plugged. The norms of humanity law are very thin because they protect a global minimum. But we have seen in the evolution of IHL and IHRL, an outward ripple effect in which they not only grow as bodies of law but the core concepts extend to other regimes such as environmental law, trade and development. We see some of the normative implications of the claims being made in a variety of debates and fields. As Teitel notes, “Humanitarian legalist discourse offers an alternative set of principles and values for global governance” (Teitel 2011, 35). In the context of the laws of war, the core elements of the law and the traditional principle of the separation of jus ad bellum and jus in

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bello come under the critical gaze of revisionists such as Jeff Macmahan. If the law is to protect individual humans and not states then the whole regime is morally flawed (2008, 20). Scholars like Jutta Brunée point to the critical impact of the common interest of humanity in International Environmental law and how this goes against the foundational structures of international law (2007, 553). Thomas Weatherall maintains that under the influence of the orienting norm of human dignity as outlined in the UDHR; customary international law elevates a corpus of norms to the status of jus cogens — norms that are binding without state consent. These are the prohibitions on slavery, piracy, war crimes, crimes against humanity, aggression, genocide, torture, apartheid and terrorism (2014, 200–241). Weatherall posits that despite remaining within the formal bounds of the state system (2015, xxxix); an international social contract has emerged to produce an individualoriented ‘international ordre public’ with the effect of recasting the function of sovereignty (2015, xxxvi). The effect of these is cashed out through the notion of ‘obligations erga omnes ’—obligations owed to all mankind. The heart of the argument here is that a cosmopolitan law has emerged. Work in the broader field of global constitutionalism pushes a similar line. Anne Peters’s contention of sovereignty being ousted as the ‘Letzte Begrundung’ (first principle) of international law is exemplary of this. “A humanized state sovereignty implies responsibility for the protection of basic human rights and the state’s accountability” (2009, 513). These are not small alterations on the path of international law. They are fundamental redirections.

Humanisation and Contemporary International Political Theory In the broad field of IPT, humanisation claims come in a variety of forms. For some traditions, the communitarian, the constructivist, the historical and phenomenological and the reliance on empirical, legal and institutional phenomena are commonplace. Walzer’s exploration of the moral and legal limits of thin universalism (2004), Reus-Smit’s analysis of the extent to which changes in the fundamental institutions of international society imply changes to the meta-values or constitutive structures of our world and the consequences thereof (2008) and Frost’s account of how human rights norms relate to sovereignty norms (1996) are classic examples. In the liberal-cosmopolitan tradition, the tradition of IPT that dominates the post-Rawlsian landscape; we see the most dramatic movement. Some scholars have opted to move away from developing philosophical arguments justifying egalitarianism and individual rights and instead draw authority from the humanisation of international society. These ‘practical approaches’ claim they are more modest (less philosophically/morally demanding) and that they draw a motivational authority for their political arguments from the practices of international law (Beitz 2009, 100–111) (Buchanan 2013, 5). In doing so, they come to share much with the non-cosmopolitan approaches to IPT. Indeed,

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Emmanuel Adler sees a clear compatibility between constructivist and practical cosmopolitan work on the normative questions that are the main work of IPT (Adler 2019, 265). In arguing that “cosmopolitanism and communitarianism are not necessarily at odds” (2019, 274), Adler shows that there is increasing theoretical overlap between cosmopolitanism and communitarianism within constructivist thought. His argument explores emerging ethical practices associated with the value of humanity and asks whether, the common humanity value, which I identify as constituting better practices and bounded progress may become transcendental. (Adler 2019, 266)

He cites Reus-Smit and Beitz as inspiration for the relatively novel turn (for Adler) in exploring ethical normative practices (rather than normative practices per se) and like them, and the many others he cites, associates practices that have humanity at their core with progress. Nevertheless, his account of ethical normative practices separates some cosmopolitans from others. This is because the ‘middle ground’ shared by cosmopolitanism and communitarianism and pragmatism is methodological or theoretical rather than political or moral and thus tends strongly towards a bounded rather than transcendental account of progress and the retention of a horizontal international order. Despite their neo-Kantian, post-Rawlsian cosmopolitan heritage and their similar commitments to practical theorising Beitz and Buchanan can be seen to be on either side of this divide. The idea behind practical approaches is that normative theory can have more critical purchase if it situates itself from the outset in the increasingly legalised institutions of international politics. For many in IPT, the crux of the humanisation of international or global justice is linked to the global phenomena of the post-1945 human rights practice (Buchanan 2013, 7). The argument is that if we can distil the fundamental idea internal to the workings of a practice then we can use that as a means of internal critique concerning the reach and content of norms already established in a practice as well as a standard that helps determine what new norms and institutions are required. Human rights are a key feature of the international legal order and exploring the way that practical cosmopolitans harness the power of this global phenomenon allows us to map a key trend in IPT and to contrast it with other humanisation arguments. It is in the work of Beitz (2009)and Buchanan (2013) that this trend is most richly demonstrated. Despite analytical differences, there are similarities in their steps of argument. First is the claim that human rights law has become the global moral lingua franca. Second, the normative contention that this practice claims a sui generis authority in structuring how we think about human rights more broadly is made (Beitz 2009, 11). Third comes the philosophical qualification of these two points. The force of the practice is not felt due to agreement on any pre-theoretical or ‘folk’ (Buchanan 2013, 7) conception of the moral status of individuals that the international legal

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order is to realise. Rather, the practice exercises authority “by acceptance of a distinctive class of norms as sources of reasons - though not necessarily as decisive reasons—for an array of modes of action” (Beitz 2009, 9). Fourth comes an identification of the constitutive documents. Both Beitz and Buchanan note the anchoring role of the UDHR, the International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights to which Buchanan adds the Genocide Convention (2013, 6). Beitz continues to list the Convention on the Elimination on all Forms of Racial Discrimination, the Convention on the Elimination of all Forms of Discrimination against Women, the Convention against Torture and other Cruel, Inhuman or and Degrading Treatment and the Convention on the Rights of the Child (Beitz 2009, 26). The next move then is to consider the extent to which these norms press upon the broader international order. For Beitz, our analysis of IHRL helps us realise that human rights are vital because they offer institutional protections from ‘standard threats’ to urgent interests. Human rights ‘are the constitutive norms of a global practice whose aim is to protect individuals from threats to their most important interests arising from the acts and omissions of their governments’ (Beitz 2009, 197). They are standards for domestic institutions whose satisfaction is of international concern (Beitz 2009, 128). They collapse the distinction between domestic and international justice to make the violation of such rights the legitimate purview of external actors with the further claim that intervention may be a legitimate response. For Buchanan, this “signals a transition from an international legal system whose constitutive, legitimising aim was peace among states to one that takes the protection of human rights as one of its central goals” (2010, 71). The existence and normative centrality of IHRL lends force to the normative claims that follow. As Beitz notes, this lingua franca is widely although not unanimously accepted as providing publicly available; critical standards to which agents can appeal in justifying and criticising actions and policies proposed or carried out (or not) by governments (Beitz 2009, 210). The argument is that the protection of individual rights—not the consent of states—is the key to legitimacy and this gives us a powerful place to stand as we reflect on the practices of state and non-state actors, the structure of institutions (such as the UNSC) and the limits of existing law (such as the prohibition on the use of force). Both Beitz and Buchanan sidestep critiques of cosmopolitanism’s reliance on universal human reason or its insistence on pre-institutional natural rights. Rather, these are norms with important moral implications worked out for the specific circumstances of a society of states that have a dynamic quality to them (Beitz 2009, 122–127) (Buchanan 2010, 75). They are for Buchanan “…a deliberate and eminently reasonable response to the threats posed by the modern state” (2013, 267). It is here that a degree of normative ground is ceded to the communitarian argument that normative standards arise in the context of communities. The move is palatable because the community

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is international and coalesces around what Buchanan refers to as a statusegalitarianism; the belief that all agents matter equally. All Beitz and Buchanan do in this regard is harness the power of the legalisation of international politics and an international community in which human-oriented norms are claimed to have the most purchase. The paradigm in which these operate is juridical but this provides a language for politics (Beitz 2009, 41). In recognising the particularities of association by law, members of such a system (states) accept a degree of ‘normative discipline’ in their mutual relations (Beitz 2009, 211). There is mutual acceptance of the claim that, “The political structure of the world consists of a system of territorially defined political units, each claiming to exercise legitimate authority within its borders” (Beitz 2009, 129). But the priorities of human rights sit uneasily with the traditionally claimed rights of states, they provide ‘pro tanto’ (2009, 115) reasons for external remedial action (2009, 121). Legalised human rights become the fundamental standard of legitimacy in a shared and publicly available discourse (Buchanan 2010: 71). In short, they move from being purely moral claims to being politically sustainable legally embedded moral claims; the purchase of which we can see and measure in international society. Adler and his application of the concept of ‘communities of practice’ to IPT (2005, 2019) has been engaged in this sort of empirical work for a long time. He shows how, Communities of practice cut across state boundaries and mediate between states, individuals, and human agency, on one hand, and social structures and systems, on the other. It is within communities of practice that collective meanings emerge, discourses become established, identities are fixed, learning takes place, new political agendas arise, and the institutions and practices of global governance grow (2005, 15).

In later work, he writes about ‘epistemic practical authority’—a fundamental principle with the authority to determine the subsequent distribution of rights, duties and obligations (Adler 2019, 3). Through changes in epistemic practical authority, progress can and does occur. Within a state of ‘metastability’ (Adler 2019, 3), practices often evolve without changing the fundamental animating norm. This he calls bounded progress. A more radical form of change, social order evolution, occurs when there is a shift in what animating norm has this practical authority. To relate this to humanisation, the claim is that the epistemic practical authority of the international community has shifted from hanging upon the principle of state sovereignty to hanging upon the principle of humanity. What we need to understand is whether this is bounded or evolutionary change. To unpack this further, continuity and change can occur within a system in which the ‘master mechanism’ of epistemic practical authority remains the same. This state of ‘metastability’ in turn creates the opportunity for ‘bounded progress’ to occur (2019, 5). Such progress is neither deterministic nor fixed,

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but “…contingent, partial, reversible and constituted through practice and politics in transactions” (Adler 2019, 276). Enlightenment ideas of a natural and teleological evolutionary progress couched with reference to the development of reason and the assumption of rational actors are diluted to emphasise instead the contingency of ethical practices to emerge and be retained in the international sphere. A more seismic shift in the social order is possible and the stronger claims made in the back of humanisation suggest that this has happened. The job of the reader is to assess both the empirical claims and the moral argument that follows. In short, it is not enough to ‘talk the talk’ by claiming fidelity to certain ethical values. One must ‘walk the walk’ by performing practices that acknowledge a ‘common humanity’ (2019, 5). It is within practices that we find ethical normativity (Adler 2019, 270). “Common humanity values are immanent to practice, particularly to its background knowledge, and to communities of practice, where they are learned, and through which practice spreads (Adler 2019, 267). Performances are of particular importance here for they evidence the practical authority of the ideas around which communities of practice revolve. Under such a reading, values may ‘appear’ to be transcendental (2019, 266), but this is due to the repetition of practices and the reaffirmation of the background knowledge bound with them. Agents are bound by the “…repertoire of communal resources, such as routines, sensibilities, and discourse” within communities of practice (Adler 2019, 20). They are the hub around which ‘meaningful social relations take place based on “weak ties”’ (Adler 2019, 113). The ‘second, normative middle ground’ is “seized” here by the move of identifying ethical practices as immanent to communities of practice, their practices and constitutive background knowledge and fleshed out through “common humanity” values (Adler 2019). Common humanity values are then created and sustained through the innovation, retention, repetition and reiteration of practices, rather than having a life force of their own accord (Adler 2019, 266–67). For Adler, “The reconciliation between cosmopolitanism and communitarianism has already occurred” (Adler 2019, 273). This is a vital claim for Adler as it supplements his further claim that such a practice-oriented approach to ethical normativity can be seen to fashion a ‘normative middle ground’ between both camps (2019, 265–66). However, the idea that the world is a human rights dominated community of practice belies the consistent failure of actors to live up to this ideal and the consistent refusal to create rules and institutions that would give effect to this ideal. Pogge’s claim that an ‘historic transformation of our moral norms has mostly produced cosmetic rearrangements’ (Pogge 2002, 5) still rings true. So, what does this mean for our description of a community of practice and the power of the norms the cosmopolitans draw from it?

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Humanisation and Progress To restate the core of the argument thus far, practical cosmopolitans and humanisation theorists engage in an empirically informed normative argument concerning the roles, responsibilities and reliability of institutions within the international legal order. Underwriting their analysis is a shared standard of legitimacy centred on the claim that the purpose of international law is the protection of humanity. Buchanan develops the clearest and most ambitious argument on the practical cosmopolitan side. We have reached a point, he argues, where: Having a system of international legal human rights is a necessary condition for the existing international order to be justifiable, because without a system of international legal human rights the strong rights of sovereignty that the international order confers on states would be morally unacceptable. (Buchanan 2013, 44).

Having made his case Buchanan returns to the theme of consent and legitimacy and points to the limitations that a state’s right to withhold consent or to consent with reservations can have on the system (Buchanan 2013, 280). He explores ideas of an expanded category of jus cogens norms, supermajority ratification imposing universal obligation and the attempt to make the Responsibility to Protect (R2P) a required response to humanitarian wrongdoing (Buchanan 2013, 282). He recognises that the international order as it exists is resistant to such moves and that the system lacks the institutional safeguards to prevent predation by the powerful. Here, he makes perhaps the most ambitious argument of all. Buchanan argues that a more expansive conception of state’s duties under human rights is morally mandatory. In turn, it becomes morally required that we develop ‘institutional resources that would make a more expansive conception of duties not only feasible but morally acceptable’ (Buchanan 2013, 283). The moral power of the justification for human rights law drives a further argument that demands that we make the institutional infrastructure such that it can more effectively meet our obligations. Here, Buchanan demands that we deprive states of what, elsewhere, he calls a legitimacy veto (Buchanan 2010). This means a reformed Security Council where states cannot veto action to respond to crimes against humanity with further questioning of the state consent model of international law-making. It may be true that at the founding of the system of international human rights law, there was no practical alternative to the reliance on the consent of states, that is, to create this law primarily through the making of treaties. But if circumstances changed sufficiently, it might become feasible to take a less voluntary approach. And it would be a mistake to assume that doing so would be morally unacceptable or deprive international human rights law of legitimacy. (Buchanan 2013, 28)

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The claim is that the legitimacy of international law has moved from its consensual nature to its ability to protect human rights. If the latter is threatened by the former then the model of consent and reservation must fall by the wayside. This is the case for institutional change. To make Buchanan’s point above more tangible, we can look to his arguments concerning just war. For Buchanan, the international legal blanket prohibition on the use of aggressive force is ‘comprehensive but mistaken’ (2013, 252). The legitimate use of force only in self-defence against an imminent threat is deemed ‘inherently conservative’ (Buchanan 2013, 264) and ‘arbitrarily incomplete’ (Buchanan 2013, 252). While conventional just war theorists (and Walzer is his principal target) recognise the threat of terrorism and non-international armed conflict, they err on the side of a prohibition on preventative force (the doctrine employed by the USA to root out the seeds of terrorism rather than respond to immanent threats) and limited humanitarian intervention. The key reason is that any more flex in the rules opens the door to abuses of power and predation by the powerful. However, for Buchanan, One can have one’s cake and eat it, too, if a more permissive norm than the Just War norm can be properly embedded in an institutional arrangement that adequately reduces the risks that attend the inherently speculative character of the Preventive Self-defence Justification (Buchanan 2013, 259).

The core of Buchanan’s point is that we may mitigate the risks of a more permissive norm on the use of force if properly institutionalised to provide checks and balances on state leaders. By institutionalising a more permissive norm in the face of new threats, state leaders will be required to articulate their actions in public forums and in publicly accessible terms. It may be the case that reform of the UNSC requires the support of a reluctant P5 or that some state will refuse a re-worked law on aggression. But here, Buchanan argues, the use of a veto in the UN or in international law-making more broadly is morally illegitimate. On Buchanan’s analysis then, the normative arc of international law is bending increasingly towards the imperatives of humanity. These developments have the weight to urge reform of the prevailing architecture of the international system. The consensual model of international law-making chief among these. What this speaks to is an increasingly hierarchical order replacing a traditionally horizontal international order. Similar moves that speak to increasing hierarchy within the international legal order are made by humanisation theorists also. Each makes theoretical moves that bring with them a reorganisation of the landscape of international law. Articulations of the peremptory status of jus cogens norms are perhaps the most obvious (Weatherall 2015). The bridging of jus ad bellum and jus in bello (Teitel 2011), the decline in reciprocity in international law (Meron 2006) and the re-weighing of considerations towards customary legal status (Meron 2006) are each part of the same complex. They each stem from

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the normative momentum put upon the traditional international legal order driven by the increased homocentricity of international legal norms. There are strong empirical and moral reasons to support these movements. The notion of edging the normative development of international society forward by increasing the protections for individuals from standard threats that emerge in a system of sovereign states seems compelling. Hierarchising that system to make concerns of humanity rank over the traditional state sovereignty has appeal. No one sensible denies the moral import behind claims of the need to respond to gross human rights violations. But arguments about the move to a hierarchical, rather than a heterarchical international society are not the only conclusion from the fact of humanisation. Recall that sovereignty arose to defend a range of urgent issues from the standard threats of absolutist Europe. Humanitarian and human rights rules arise to protect individuals from sovereign states and the system they constitute. For many scholars, a humanised world order with the hierarchisation of international society itself represents a threat to legitimacy. Indeed, Adler’s account of how legitimate norms emerge from communities of practice points us another way. Adler contends that the spread and the legitimacy of ethical norms has most purchase in horizontal and social orders (2019, 269). This is because such progress is contextual, contingent and reversible. Such norms can become transcendent in the sense of universal but what Adler draws attention to is not just the institutionalisation of practices and their ethical dimension, but how they become embedded. A level playing field in which communities of practice engage in inter-community and intra-community negotiation and contestation have a greater chance of success than do hierarchical systems do due to the charge of imposition (Adler 2019, 269). Indeed, Adler argues that evolutionary constructivism is essentially communitarian (Adler 2019, 274). If we are serious about drawing norms from communities of practice, we need to pay close attention both the norms they are articulating and the social practices through which they are created, contested and sustained. We can’t simply move from the argument that there exist practices of human centricity to the further claim that humanisation warrants reorganisation of the international legal order from which those practices are found towards a hierarchical conception. Where major actors offer revisionist accounts of the prohibition of torture (the USA in the context of the War on Terror), of Humanitarian Intervention or self-defence (Iraq, Georgia, Ukraine…the list could go on) the desirability of such transcendence wains and the fear of backsliding sharpens. Adler draws a distinction between bounded progress and social order evolution. For Adler, ‘bounded progress means that better practices and social orders may and should cognitively evolve from the inside out’ (2019, 277). Here, better practices are those that concern humanity. What allows this to occur however is the ‘metastability’ of the international order overall—a stable order which allows for fluctuations in practice without changing the overall nature of the order from which they emerged and are reiterated. This is very much the pattern of Beitz’s humanisation position. The stronger, Buchanan

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style conclusion, has more in common with social order evolution. Such a position argues that a tipping point has occurred in which “A new order takes the place of the old one” (Adler 2019, 3). Epistemic practical authority, “the master mechanism” in this is replaced. ‘However, social order evolution is infrequent’ (Adler 2019, 3). Such revolutions are the result of the variation and selection of practices congealing to form a cohesive whole. They take time and necessitate consistency in practice. Far more likely are internal order changes below a threshold point whereby the identity of the international order remains the same while allowing for ‘better practices’ to evolve. Brunée and Toope offer a conception of international law as having legal purchase due to its internal features (2010). Their interactional account focuses attention not just on what the law says, but how actors feel obligated to what the law says, and therefore, how sustained practice is. What is fundamental to this is the feelings of fidelity to law that participants to the practice have due to the pull of an internal criteria of legality. These internal criteria are principles of procedural justice shared by a community of practice and have what Adler calls epistemic authority or form part of what Reus-Smit calls the constitutional principles of a particular social order. As Reus-Smit shows in his response to the interactional account such principles can and have changed over time and in this time period form the essential criteria of a multilateral and contractual system of law. For Brunée and Toope, a sense of obligation is felt when this internal character of law is upheld. What is important for us here is in the argument that law ‘lives’. “Law is formed and maintained through continuing struggles of social practice” (2010, 22). By focusing on the internal life of law and the practices which sustain it, Brunée and Toope hit upon a crucial detail for practice in its non-determined character. It is not enough to sign a treaty and claim victory over some specified horror as though a prohibition in writing is the same as prohibition in practice. Practices must be sustained and reiterated to avoid the risk of ‘backsliding’. Their case study of the internal morality of law as it relates to the UN Convention on the Prohibition of Torture (UNCAT) finds such a legal regime wanting. This is because of what we might call backsliding when major actors pay only lip service to the prohibition either while sanctioning torture or by not acting to prevent it. Far from existing as a jus cogens norm from which no derogation is allowed; the internal life of the legal prohibition of torture risks becoming ‘dead letter’ due to widespread practice (2010, 270). Brunée and Toope’s insightful intervention should give significant pause for thought among those who argue that the establishment of a treaty regime or signing of a binding document is enough. In arguing for the necessity of consistency in practice, Brunée and Toope are closer to Adler and point towards a more socially oriented understanding of how to account for the legitimacy of international legal norms. There must be evidence within society of the force of the normative regime fleshed out by commitment through practice. It is not enough to argue as Meron does that “Humanisation may have triumphed, but largely rhetorically” (2006, 86).

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For scholars such as Christian Reus-Smit, a ‘formal re-hierarchisation’ of international politics ‘whereby democratic states would gain special governance rights – particularly with regard to the legitimate use of force—and other states would have their categorical rights to self-determination and non-intervention qualified’ is unjustified (Reus-Smit 2005, 72). Reus-Smit’s account of legitimacy is close enough to Buchanan’s that he too argues that human rights are a central constitutive norm in modern international politics and therefore understands the attractiveness of the way that Buchanan and others attempt to draw normative argument from international law (Reus-Smit 2005, 86). The crucial point is that the overriding importance of human rights norms is not settled in the manner Buchanan suggests. If it were then UNSC or Charter reform would not be the obstacle that it is. Humanitarian and human rights concerns are high on the agenda of states. It is entirely plausible to argue that these concerns have qualified the idea of sovereignty. However, the idea that the commitment to human rights principles would lead members of international society to abandon what Reus-Smit refers to as the ‘equalitarian’ regime overlooks the centrality of the norms of procedural justice tied up with multilateralism in contemporary international politics. The increasing normative weight of human rights concerns does not, in itself, insist on the reconstitution of the international legal order. It does offer that possibility, but the debate is one that asks all actors to choose between an equalitarian conservative approach to the use of force and an assertive hierarchical approach. If, as the evidence suggests, there is still a significant North-South and West– East division on the extent to which human rights concerns provide legitimate grounds for an expanded right to use force then; as Reus-Smit puts it, the judgement of liberal philosophers to the contrary is moot. This is what it means to give up on philosophical normativity. Reus-Smit argues that rather than two mutually contradictory autonomous regimes; human rights and sovereignty are mutually constitutive. They are twin parts of an ongoing process in which legitimate statehood and rightful state action are debated (2001, 519). Sovereignty on this view has never been ‘self-referential’ but rather exists in a wider realm. Social normativity, the realm of social acceptability, imputes upon the principle of sovereignty a broader range of considerations that both legitimise and circumscribe particular conceptions of statehood and forms of action. In the twentieth century, this wider social realm draws upon human rights not as a constitutive norm but as ‘distinctly modern’ normative elements that play a legitimating role regarding sovereignty (2001, 520). Reus-Smit unpacks this in his response to the work of Brunnée and Toope (above). The argument regarding the types of internal characteristics that norms need to possess to be considered legitimate as identified by Brunnée and Toope are distinctive to contemporary practice (Brunée and Toope 2011, 348). What is applicable to the argument here is that a proposed evolution in institutional and legal regimes needs to be accompanied by change at the level of constitutional principles. The argument that evolutions in law have enough force to move the dial of broader

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society is incomplete (Reus-Smit 2011). To really evidence a shift in the international legal order, we need to see a shift in the most basic level of international society: the fundamental practices which keep international society ticking along. Such institutions express a deeper layer of institutional values (Reus-Smit 2011, 555). Brunnée and Toope’s internal morality of law rules have purchase only because they express a deeper connection to the institutional practices of contractual law and multilateralism. The internal features claim authority for they express fidelity to the constitutional underpinnings of sovereign equality and an equalitarian legal order. Rather than existing in stasis institutional practices, social identities and conceptions of legitimacy emerge, evolve and interact (Reus-Smit 2003, 612– 15). Reus-Smit locates this as part of the ‘sociological’ face of obligation which argues for the recognition of an underlying social relationship from which rules and norms are built on top (Reus-Smit 2003, 595–96). What is at the heart of Reus-Smit’s account then is a need to ascertain the ‘social validity’ of international law (2001, 611). This may be best outlined with reference to the customary status attributed to CA3 of the Geneva Conventions. Within the literature on the humanisation of international law, a high stock price is given to the customary force of norms such as CA3 in extending human rights to non-international armed conflicts and beyond signatories to the treaty. Meron notes, “This Article is a clear demonstration of the influence of human rights law on humanitarian law” (2006, 7). For Teitel, it sets a “legal and moral floor” (2011, 136). But this ‘bypassing’ of consent traditionally construed is due to the broader practices of states. Such protective capacity is at risk however if we are to move towards a hierarchical understanding. The purchase that CA3 has in extending its protective capacity is not because of any perceived values, but because of the consistent practice of international society. The legitimacy attributed to the article in having such a status is a feature of its procedural legitimacy—as the effect of arriving through the ‘right process’ (Franck 1995, 7). State consent and articulations of opinio juris are vehicles expressive of a deeper social normativity and are formal source of law. They simultaneously express the idea of bounded progress in the international legal order. Communal norms arise indicative of an evolutionary social order. Yet, such evolution is buffered by notions of consent articulated through concepts such as the doctrine of the persistent objector. Ideas of both cosmopolitan progress and communitarian conservatism are at play here. Progress can and does occur, but for such progress to be considered legitimate, such progress needs to show fidelity to the peculiarities of the system to which it is to apply. The equalitarian regime of international law underwrites this more forcefully than does a hierarchical conception. Customary international law is not perfect. But the argument for the purchase of ethical practices carried by law has greater weight when the order from which such practices emerge and dissipate are undergirded by the socially accepted institutions of international society. Notions of state consent guard a more fundamental social norm of sovereign equality. The thin legitimacy of international law has greater capacity

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to withstand critiques of imposition if the structure of the international order continues to be horizontal. We do not need then the injection of less consensual models of international law for the order to progress. Doing so risks spoiling the protective ability that the attribution of customary status to norms such as CA3 can have if properly construed. The emphasis needs to be focused less so on the identity of the principles and more on their justification. Such justification carries more weight if it is disciplined by the broader norms of international society from the start. This does not deny the type of progress that humanisation has sought to articulate and emphasise to this point. It does however pose an addendum to the means in which its force is currently conceptualised and for what is needed for it to progress further. Such progress may be slower and ‘bounded’ in its normative horizons. It may, however, be more argumentatively secure so that when tough questions of international politics arise we can answer them with more confidence. If we return to Beitz’s account of the power of human rights law, we see a pattern of argument similar to Buchanan’s but one that shies away from demanding systemic institutional change. For example, he shows that the norms of the Convention on the Elimination of Discrimination against Women, so often unenacted and often qualified by sovereign reservations, meet the ethical standards of being ‘proper’ human rights—in that they are protecting urgent interests from standard threats and so are properly the object of international concern (2009, 187). In other words despite cultural recalcitrance and legally valid reservation, we have strong moral grounds for thinking that continued discrimination, at home and abroad, is unjust. His argument shows the normative power of practical thinking. But it also shows its limits because the question of what we do with this moral certainty crashes into the buffers of bounded progress. In a world lacking institutions capable of determining and enforcing responsibilities, it must be left to individual agents alone or in coalitions, to recognize their eligibility [to act]…often…without knowledge or assurance about the plans of others. (Beitz 2009, 174)

This somewhat damp squib of a conclusion might lead some to favour Buchanan’s institutional moral claims. If we build new institutions that enshrine our ability to make such determinations and take positive action the world would be a more just place with what Adler calls better practices. But the argument that we need social order evolution does not fall naturally from bounded human rights practice—it requires a separate set of practices, its own epistemic authority. Certainly, it will be co-constituted by humanised practices but the weight of evidence suggests we have not reached that point.

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Conclusion Humanisation cuts across developments in International Law and IPT. It helps close the gap between normative theory and international political practice. Humanisation gives conceptual form to a bundle of ideas edging the normative development of international society along. It is true that under the influence of the humanisation of world politics cosmopolitan and communitarian theories have reached a middle ground. But it is still a site of contestation. In seizing this middle ground, cosmopolitans have ceded the right to rely on foundational theory and communitarians have accepted that humanised principles are universal (in Adler’s sense of the word). The contested ground is the extent to which the humanisation of international law pushes to systemic change and to morally underpinned legal and political hierarchy or not. There is a division among the cosmopolitan camp with exemplars such as Beitz and Buchanan answering this question differently. There is division in legal and IR scholarship too. The key to understanding this terrain is theorising the ethically normative power of humanisation. Scholars like Adler, Reus-Smit, Walzer, Frost (most recently with Silviya Lechner), Beitz and Buchanan are all working this terrain. Yet, despite a large degree of reconciliation within the now very diverse field of IPT, there is still debate left to be had. The humanisation of international law may well be where this debate will increasingly focus. In this development, the sociological triumph of human rights masks the normative loss of foundational political thought—certainly of the sort of foundations associated with Kantian cosmopolitanism. It seems to us that while both cosmopolitans and communitarians have ceded ground to the other camp the cosmopolitans have lost more and only a contingent and fundamentally reversible evolution of the most basic constitutional principles of the international community can offer any hope to a more radical cosmopolitan project. Maybe a universal humanised legal order bounded by a state system is enough. But turning from a shelf of philosophical texts to the news about wars, climate crises, refugee crises and the proliferation of distinctly barbarous, non-humanised practices suggest that IPT cannot rest on the laurels of humanisation since 1945. The question thus becomes not whether humanisation has forged a cosmopolitanism but how best to institutionally support humanisation and whether a communitarian or cosmopolitan agenda works best.

References Adler, Emmanuel. 2005. Communitarian International Relations. Abingdon: Routledge. ———. 2019. World Ordering. Cambridge: Cambridge University Press. Beitz, Charles. 2009. The Idea of Human Rights. New York: Oxford University Press. ———. 2010. Human Rights, Legitimacy, and the Use of Force. New York: Oxford University Press. ———. 2013. The Heart of Human Rights. New York: Oxford University Press.

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Brunée. 2007. Common Areas, Common Heritage, and Common Concern. In The Oxford handbook of International Environmental Law, eds. Bodansky et al, 550–574. OUP. Brunée, J., and S. Toope. 2010. Legitimacy and Legality in International Law: An Interactional Account, CUP. Franck, Thomas. 1995. Fairness in International Law and Institutions. New York: Oxford University Press. Frost, Mervyn. 1996. Ethics in International Relations. Cambridge: Cambridge University Press. International Court of Justice. 1986. Case Concerning Military and Paramilitary Activities In And Against Nicaragua. Merits. International Criminal Tribunal for the Former Yugoslavia. 1995. The Prosecutor v. Dusko Tadi´c, Appeals Chamber, Decision. ———. 2000. Prosecutor vs Kupreški´c. Judgement. McMahan, Jeff. 2008. The Morality of War and the Law of War. In Just and Unjust Warriors: The Moral and Legal Status of Soldiers, ed. David Rodin and Henry Shue, 19–43. Oxford: Oxford University Press. Meron, Theodor. 2006. The Humanization of International Law. The Hague: Martinus Nijhoff Publishers. Peters, Anne. 2009. Humanity as the Alpha and Omega of Sovereignty. European Journal of International Law 20: 513–544. Reus-Smit, Christian. 2001. Human Rights and the Social Construction of Sovereignty. Review of International Studies 27: 519–538. ———. 2005. Liberal Hierarchy and the Licence to Use Force. Review of International Studies 31: 71–92. ———. 2011. Human Rights in the Global Ecumene. International Affairs 87 (5): 1205–1218. Teitel, Ruti. 2011. Humanity’s Law. New York: Oxford University Press. ———. 2004. Arguing About War. New York: Yale University Press. Weatherall, Thomas. 2015. Jus Cogens. Cambridge: Cambridge University Press.

CHAPTER 17

Hegel and International Political Theory Tony Burns

Introduction G. W. F. Hegel (1770–1831) is a major figure in the history of political thought. His most significant work for students of political theory is his Natural Law and Political Science in Outline: Elements of a Philosophy of Right , which was published in 1821 and is commonly referred to as the Philosophy of Right (Hegel 1979 [1821]). So far as questions of politics generally are concerned, Hegel is usually and rightly regarded as a statist thinker. His primary focus is on the concept of the state. Indeed, he is often regarded as being the philosopher of the modern state. In what follows, I shall consider the international dimension of Hegel’s political thought. This includes, but is not confined to, a discussion of his views on international relations, as traditionally understood. When talking about politics and the state in §259 of the Philosophy of Right , Hegel says that we might consider individual states in isolation from one another and look at their domestic or internal affairs, including their constitutional arrangements (Hegel 1979 [1821], §259, 160). On the other hand, however, we might also consider the relationships which exist between states in the international arena, or the sphere of international relations. If we do

T. Burns (B) School of Politics and International Relations, University of Nottingham, Nottingham, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_17

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this, then we must address the issue of international law or the legal principles which ought to regulate relations between states. Hegel suggests that a comprehensive study of politics in relation to the state needs to do both of these things. However, he also says in §259 that the isolation and separation of individual states from one another in the international arena should be regarded as being merely relative or partial. He states that each individual state is a component part or element of an over-arching totality or whole. This, Hegel claims, is to be associated with ‘the universal Idea,’ or the World Mind, which in his view is working itself out or giving itself actuality ‘in the process of World History’ and which has ‘absolute power over individual states’ (ibid.) In the final analysis, then, Hegel maintains that both domestic politics and international relations need to be located within the context of the philosophy of world history if either of them is to be properly understood, either in relative isolation from one another or in the relationship in which they stand to one another. It is at this point that the international dimension of Hegel’s political thought goes beyond the traditional concerns of the discipline of international relations. Hegel tends to think that politics always and necessarily have to do with a certain type of conflict which involves the demand for recognition, or the demand for such things as honour, dignity, esteem, status and respect. The idea of a ‘struggle for recognition’ is central to Hegel’s political thought generally, not only in the relatively early Phenomenology of Spirit (Hegel 1977 [1807]), but also in his Philosophy of Right . In what follows, I shall discuss four areas of Hegel’s political thought in which this idea is manifested. In section “Hegel on Politics as a ‘Struggle for Recognition”, I consider Hegel’s view that politics in general has to do with the demand for recognition, focusing on what he says about this in his Phenomenology of Spirt (1807). I illustrate his views (briefly) by relating them to the internal politics of individual states. In section “Hegel and International Relations”, I explain how Hegel’s theory of recognition influences the way he thinks about international relations and international law in the Philosophy of Right . In section “Hegel and Colonialism”, I turn to consider Hegel’s views regarding colonialism, connecting them to his philosophy of world history. In section “Hegel and Cosmopolitanism”, I say something about Hegel attitude towards cosmopolitanism; a subject that is of considerable interest for students of international political theory today.

Hegel on Politics as a ‘Struggle for Recognition’ The starting point for understanding Hegel’s view that politics involves a struggle for recognition is the so-called master-slave section of his Phenomenology of Spirit (Hegel 1977, §§166–230, 104–138). Central to Hegel’s account of the struggle for recognition is the conceptual distinction that he draws between true and false recognition, which possesses a clear moral dimension (Hegel 1977, §§182–188, 112–114). Hegel maintains that slavery

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in all of its concrete manifestations is necessarily unjust because it conflicts with the most fundamental principle of ‘abstract right’ (abstraktes Recht ), or of Right abstractly understood. That principle, as Hegel points out in Part One of the Philosophy of Right , enjoins us to ‘be a person and respect others as persons’ (Hegel 1979 [1821], §37, 37). Hegel argues in his Shorter Logic that what the slave in general lacks is ‘the recognition’ from others, especially of course his (sic) master, that he is a person’ (Hegel 1975a [1830], §163 Zus, 227–228). In his Philosophy of Mind, Hegel says that in modern society, wherever slavery has been abolished, each human being is now ‘recognized and treated’ as he or she should be namely ‘as a rational being, as free, as a person.’ Every human being, therefore, ‘behaves therefore towards others in a manner that us universally valid, recognizing them – as he wishes others to recognize him – as free, as persons’ (Hegel 1971, §432 Zus, 172–173). Hegel argues that the personality of those who have been enslaved ought to be recognized and respected. This requires, among other things, that those individuals who are masters should be willing to set aside their ‘unequal particular individuality,’ or their current status as masters, and acknowledge that those who have been enslaved are also persons and therefore their own equals. Both masters and slaves must recognize that they share a ‘common identity with each other’ (Hegel 1971 [1830], §436 Zus, 176–177). This is something which Hegel evidently considered to be a moral duty. Hegel associates such a situation with the notion of true recognition. In his view, true recognition is always reciprocal recognition. It is the type of recognition in which two free and equal human beings or persons mutually acknowledge one another as such, or ought to do so. Recognition of this kind is incompatible with slavery, which Hegel considers to be essentially unjust. He suggests that the reason why masters treat their slaves unjustly is because they do not recognize them as human beings like themselves and therefore their own equals. In disagreement with Aristotle’s defence of natural slavery in his Politics, Hegel maintains that slavery cannot in any circumstances be provided with a moral justification. I shall comment later on how seriously Hegel takes this idea in the case of the transatlantic slave trade in the eighteenth century. Hegel contrasts the notions of true and false recognition. He argues that false recognition involves a denial of personality. It occurs when masters see themselves, not as human beings and therefore the equals of their slaves, but only as masters and hence as the superiors of their slaves. Consequently, they regard their slaves as inferior beings, without moral standing. They are ‘things’ or ‘instruments’ who exist only for their own use, and not fellow human beings who are, as Kant says, of value as ‘ends-in-themselves.’ Hegel suggests that if and when slaves acknowledge the superiority of their masters and their own inferior status as slaves, then they are in error. He considers this to be a moral failing on their part as well as an intellectual one. Following Rousseau, he suggests that they are at least partially responsible for their own condition of servitude. Hegel associates this situation with a weakness of character on the

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part of slaves, who have a culpable lack of self-respect (Hegel 1979 [1821]: §57, Zus, 239). In Hegel’s political thought, the concept of a slave and that of a citizen are two sides of the same coin. Hegel’s views on mastery and slavery in the Phenomenology of Spirit may, therefore, be regarded as an account of the grounds for citizenship. For Hegel, to recognize others as fellow human beings and to recognize them as fellow citizens amounts to the same thing. The demand for true recognition involves, therefore, the claim that there should be no slaves, only citizens. All adult human beings who are not disqualified (e.g. by insanity) should be included as citizens of some state or other. What type of state did Hegel have in mind? It is commonly thought that this is a nation-state. There are numerous passages in the Philosophy of Right which support this reading (Hegel 1979 [1821]: §33, 36; §156, 110; §181, Remark, 122; §211, Remark, 135).1 In them, Hegel associates the state with a particular group of individuals all of whom share the same national identity, or the same language, culture, customs and traditions. It is not too surprising, therefore, that at least some commentators have regarded him as an advocate of German nationalism. Leonard Krieger, for example, has argued that for Hegel ‘the prime individuality was the nation (Volk)’ and that Hegel values the freedom of a ‘people within the nation-state’ (Krieger 1957: 130, 132; see also Avineri 1962, 1979 [1972]: 34–36, 45, 69, 79, 228–229; Knox 1996 [1970]; Moland 2011: 151–156; Mowad 2013). Considered from this point of view, Hegel is a strong communitarian thinker. The type of society which he values in the Philosophy of Right is unified, homogeneous, undifferentiated, mono-cultural, close-knit and exclusionary. It is a political community, in the strong sense of that term. However, as we shall see, Hegel does not always talk in this way. There are occasions when he suggests that what he has in mind is a more inclusive and open society, which would be multicultural and far more differentiated, plural and diverse than is suggested by those who associate him with German nationalism or with strong communitarianism.

Hegel and International Relations When talking about ‘persons,’ Hegel refers initially to individual human beings. However, in The Philosophy of Right he argues that nation-states are also moral persons. As in the case of human beings, Hegel regards these states as being free and equal individuals which are entitled to demand from one another recognition as such. The basic principle of international law is, therefore, that of ‘abstract Right’ namely ‘be a person and respect others as persons.’ This requires reciprocal recognition of the autonomy or independence of individual sovereign states. To illustrate, Hegel says that ‘a state is as little an actual individual without relations to other states’ as an individual is ‘a person without rapport with other persons’ (Hegel 1979 [1821], §331, Remark, 212). The identity or self-consciousness of an individual state

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is, therefore, constituted by in and through the relationships of reciprocal recognition in which it enters with other states. In Hegel’s own words, ‘states reciprocally recognise each other as states’ (Hegel 1979 [1821], §338, 215; also §340, 216). Hegel maintains that both the autonomy, the authority and the legitimacy of an individual state rests on ‘its recognition by other states,’ although, he continues, this recognition requires that ‘where a state is to be recognised by others, it shall likewise recognise them’ and in so doing ‘respect their autonomy,’ that is to say, their sovereignty (Hegel 1979 [1821], §331, Remark, 213). Hegel argues that in order to be constituted as a state, or to become a state properly so-called, a particular family, horde clan, multitude or nation must possess a certain ‘objectivity,’ both ‘in its own eyes and in the eyes of others.’ This objectivity comes into existence only when it acquires a constitution or achieves a ‘universally valid embodiment in laws,’ without which it will fail ‘to secure recognition from others.’ Until then, Hegel argues, ‘its autonomy is formal only’ and is not yet ‘sovereignty’ in the strict sense of the term (Hegel 1979 [1821], §349, 218–219). So far as the issue of the autonomy and independence of individual states is concerned, Hegel argues that ‘every state is’ or ought to be ‘sovereign and autonomous against its neighbours’ (Hegel 1979 [1821], §331, 212). The very idea of international law, he suggests, ‘springs from the relations between autonomous states’ (Hegel 1979 [1821], §330, 212). Each and every state is ‘entitled in the first place and without qualification to be sovereign from their point of view, i.e. to be recognised by them as sovereign’ (Hegel 1979 [1821], §331, 212). Hegel insists that the internal affairs of any particular state is ‘a purely domestic matter’ and that ‘one state should not meddle with the domestic affairs of another’ (Hegel 1979 [1821], §331, Remark, 213). It should, however, be noted that Hegel introduces a caveat to this general principle. He points out that the title of ‘state’ is ‘purely formal’ and that ‘the demand for this recognition of the state, merely on the ground that it is a state, is abstract.’ The granting of recognition by a neighbouring state is, Hegel observes, always ‘conditional on the neighbouring state’s judgment and will’ (Hegel 1979 [1821], §331, 212). Whether or not the recognition that is demanded is in fact granted by other states depends on a number of things. In addition to an assessment of ‘the general situation,’ Hegel argues that these include whether or not the state in question, or the body that demands recognition as a state, possesses a political ‘constitution.’ Hegel tends to think of the struggle for recognition as being one of the principal causes of war between states. Wars sometimes break out, he suggests, because one state causes ‘injury’ to another. This might happen because of a ‘specific breach of a treaty.’ However, Hegel points out, it also sometimes occurs because of some injury ‘to the honour and autonomy’ of a particular state’ (Hegel 1979 [1821], §334, 214). On these occasions, Hegel argues, what gives such wars ‘significance for world history’ is the fact that ‘they are struggles for recognition in connection with something of specific intrinsic

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worth’ (Hegel 1979 [1821], §351, Remark, 219; see also Browning 2012; Williams 1997). Hegel maintains that the situation of the various individual states or juridical ‘persons’ in the sphere of international relations is analogous to that of the individual human beings which populate the state of nature. Individual states are, he maintains, ‘in a state of nature in relation to each other’ (Hegel 1979 [1821], §333, 213). He sometimes suggests, apparently following Thomas Hobbes, that the juridical persons which are states are rational, calculating egoists which always pursue what they consider to be their own self-interest in everything that they do. Each state always and necessarily pursues ‘its own welfare,’ from which it follows that individual ‘welfare is the highest law governing the relation of one state to another’ (Hegel 1979 [1821], §336, 214). Given that Hegel occasionally talks in this way, it is perhaps not too surprising that some scholars have associated him with the doctrine known as ‘realism’ in the theory of international relations. Hegel argues that because sovereignty lies with the individual states, and because ‘the sovereignty of a state is the principle of its relations to others,’ it follows that there is no ‘universal will with constitutional powers over them’ (Hegel 1979 [1821], §333, 213). The ‘state of nature’ which exists between individual states, as it is envisaged by Hegel in Part Three of the Philosophy of Right , is characterized by the fact that there is no higher authority, a ‘world state,’ possessing the sovereign power to make and enforce laws which all individual states would then be obliged to obey and would be subjected to some form or other of coercive punishment if they do not. There is no international law in that particular sense of the term. Hegel does not deny that there is such a thing as international law. However, he maintains that in substance this could only ever be a matter of treaties and contractual agreements which are made between individual sovereign states. He does associates the idea of international law with that ‘universal law which ought to be absolutely valid between states, as distinguished from the particular content of positive treaties’ (Hegel 1979 [1821], §333, 213). Presumably though, when making this remark, he had in mind the formal principle of abstract right which enjoins ‘be a person and respect others as persons.’ On the other hand, however, he also argues in the Philosophy of Right that this formal principle requires a substantive content. So far as provision of this content is concerned, Hegel maintains that this can arise only by a contractual agreement. There is, he says, only one ‘fundamental proposition of international law,’ which enjoins that all ‘treaties, as the ground of obligations between states, ought to be kept’ (Hegel 1979 [1821], §333, 213). The consequence of this principle is that there arise ‘a multiplicity of relations which are determined by the arbitrary will of both autonomous parties,’ and which therefore possess the nature of ‘contracts pure and simple’ (Hegel 1979 [1821], §332, 213). Hegel observes that in the absence of a world-state, possessing sovereign power; there is no ‘praetor to judge between states’ when disputes between

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them arise (Hegel 1979 [1821], §333, Remark, 213). It follows from this that ‘if states disagree and their particular wills cannot be harmonised, the matter can only be settled by war’ (Hegel 1979 [1821], §334, 214). In such a situation of conflict between states, he suggests, ‘the only higher judge is the universal absolute mind, the world mind’ (Hegel 1979 [1821], §339 Zus, 297). It is not entirely clear what Hegel meant by this. However, one possibility is that he was thinking of the principle that ‘to the victor goes the spoils.’ In other words, when wars break out between states, precisely because there is no higher authority that is in a position to make a judgement about this issue, it follows that the question of which state is in the right and which is in the wrong cannot be settled. To employ a phrase which is used by Karl Marx, in a different context, ‘between equal rights force decides’ (Marx 1974 [1867]: III, X, 1, 225). This captures very well Hegel’s approach to international relations, which arguably has more in common with the political thought of John Locke than with that of Hobbes, or with ‘realism’ as students of international relations understand the term. As Michael R. Williams has noted, its focus on the notion of ‘collisions of right’ also resembles the tragic vision of the ancient Greek dramatists (Williams 1997, 346–348). We saw earlier that in Hegel’s opinion in order for any state to exist, or for any non-state social group to become a state, properly so-called, requires an act of recognition by other states in the international arena. Here, we must distinguish between what Hegel has to say about the states of Europe, on the one hand, and non-European states on the other. In the case of European states, Hegel maintains that these are indeed all the equals of one another in such things as honour, dignity and respect, but also in terms of their shared values and in the balance of power that exists between them. For these reasons, he argues that ‘the European peoples form a family.’ They share a commitment to the same principle, which underlies ‘their legal codes, their customs, and their civilisation’ (Hegel 1979 [1821], §339 Zus, 297). He notes that this underlying commonality ‘has modified their international conduct accordingly in a state of affairs’ which would, as Hobbes suggests, otherwise be ‘dominated by the mutual infliction of evils’ in war (Hegel 1979 [1821], §339 Zus, 297).

Hegel and Colonialism One aspect of the international dimension of Hegel’s political thought is his views regarding colonialism, of which he tends to be uncritical (Brennan 2013; Germana 2018; Serequeberhan 1989; Stone 2017). Discussion of this issue includes his attitude towards colonial slavery. This is an ambiguous idea which might apply either to the political enslavement of the colonies, or alternatively to the existence of personal slavery within them, for example, in the plantation economy. One issue here is Hegel’s view of the relationship which exists between the peoples of Europe and those non-European peoples which at present lack a state, or a political constitution, and who are attempting to create an independent, sovereign state of their own. Such

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peoples seeking national independence, with their aspirations for statehood, are evidently engaged in a struggle for recognition of some kind. Surprisingly, perhaps, given his sympathy for the ideals of republicanism, Hegel tends not to think of colonialism as a manifestation of political slavery, although Hegelian thinkers who came after him have done so. When discussing colonialism, Hegel relies heavily on his philosophy of world history. He invokes the idea of progress and the controversial distinction between ‘civilized’ and so-called uncivilized peoples. In the Introduction to his Lectures on the Philosophy of World History, he argues that the process of world history, which is the history of human civilization, contains ‘intermediate grade[s]’ between the uncivilized condition of the pure state of nature and the ‘realization of a rational State,’ such as could be found in the European society of his day (Hegel 2001 [1831]: 117). In his Philosophy of Right , Hegel differentiates between ‘civilized nations,’ on the one hand, and those peoples who are ‘barbarians,’ on the other. The difference between the two, Hegel argues, is that the latter ‘lag behind’ the former in the possession of those political ‘institutions’ which he considers to be ‘the essential moments of the state’ (Hegel 1979 [1821], §351, 219). He asks whether, or to what extent, ‘a nomadic people’ or ‘any people on a low level of civilisation, can be regarded as a state’ (Hegel 1979 [1821], §331, Remark, 213). He then goes on to argue that, in some cases, the religious beliefs of the different parties ‘may entail an opposition at a higher level between one people and its neighbours and so preclude the general identity which is requisite for recognition’ (Hegel 1979 [1821], §331, Remark, 213). Consequently, in the case of allegedly uncivilized peoples, it also precludes the possibility of the creation of a sovereign and independent state. Hegel argues that it would be wrong to say that uncivilized peoples have a political constitution, or that they constitute a state possessing sovereignty. Such peoples, Hegel maintains, are in that condition of ‘dull innocence’ before which ‘history actually begins,’ which he associates with the principle of ‘revenge’ rather than justice, and with ‘the struggle for formal recognition’ as a state (Hegel 1979 [1821], §349, Remark, 219). In these circumstances, Hegel argues, any ‘civilised nation’ or a people at a more advanced state in the process of world historical development is conscious that the rights of barbarians are unequal to its own’ and rightly dismisses their demand for ‘autonomy,’ or recognition of their sovereignty, as being ‘only a formality’ (Hegel 1979 [1821], §351, 219). What Hegel says about the peoples of Africa in the Introduction to his Lectures on the Philosophy of World History indicates his views on this subject. Hegel refers there to ‘Negroes’ as exhibiting the character of ‘the natural man in his completely wild and untamed state.’ There is he suggests ‘nothing harmonious with humanity to be found in this type of character.’ There is no ‘morality’ and no ‘culture’ either (Hegel 2001 [1831]: 111). Here, a ‘perfect contempt for humanity’ is, Hegel alleges, ‘the fundamental characteristic of the race’ (Hegel 2001 [1831]: 113). In support of this claim, Hegel maintains

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that in Africa ‘tyranny is regarded as no wrong, and cannibalism is looked upon as quite customary and proper’ (Hegel 2001 [1831]: 113). He associates these character traits with the fact that the peoples of Africa remain as yet uncivilized. There is, he says, ‘absolutely no bond, no restraint upon’ the ‘arbitrary volition,’ or the ‘sensuous volition,’ which underpins individual conduct in these societies. There is, therefore, in consequence a proclivity for ‘external force’ and ‘violence’ there. In this situation, Hegel suggests, ‘sensuous barbarism can only be restrained by despotic power’ (Hegel 2001 [1831]: 114). Consequently, the situation of the peoples of Africa is such as to ‘preclude the existence’ of a ‘political constitution’ of the kind that exists within the civilized states of Europe (Hegel 2001 [1831]: 114). In his Lectures, Hegel refers to the part that personal slavery has had to play in world history. He argues that ‘we find’ personal slavery ‘even in the Greek and Roman States, as we do serfdom down to the latest times’ (Hegel 2001 [1831]: 117). In the case of Africa, he maintains that the Africans did not consider personal slavery to be unjust and indeed practiced it themselves (Hegel 2001 [1831]: 116–117). As in the Phenomenology, he maintains that personal slavery ‘is in and for itself injustice,’ given that ‘the essence of humanity is freedom.’ However, he does not call for its immediate abolition. Indeed, he claims that it has had beneficial consequences. Slavery, he says, is ‘a phase of advance from the merely isolated sensual existence’ which prevails in the state of nature. It might properly be regarded as a ‘phase of education’ or a ‘mode of becoming participant in a higher morality and the culture connected with it’ (Hegel 2001 [1831]: 117). So far as abolition is concerned, Hegel asserts that in order for this to be achieved in a given society; it is necessary that ‘man must be matured.’ He concludes from this that ‘the gradual abolition’ of personal slavery, in those countries which retain it, would be ‘wiser and more equitable than its sudden removal’ (Hegel 2001 [1831]: 117). It might be asked whether, in Hegel’s view, there was at least the potential for the peoples of Africa to become ‘civilized,’ to acquire a political constitution and, thereby, to achieve a statehood which would be recognized by other sovereign independent states within the international arena? If so, and if this potential were actualized, then according to later Hegelian thinkers the consequence of their success in this struggle for recognition would be their emancipation from the political slavery that is colonialism. However, Hegel emphasizes that he did not think that such potential existed in the case of the peoples of Africa. He associates ‘that want of self-control’ which he thinks ‘distinguishes the character’ of Africans, not only with the absence of civilization thus far, but also with the absence of a capacity for any moral progress or historical development. Their condition, he argues, ‘is capable of no development or culture’ and ‘we see them at this day, such have they always been’ (Hegel 2001 [1831]: 116). It is for this reason that Hegel refers to Africa only in the Introduction to his Lectures and not in the main body of the text. Towards the end of his Introduction, Hegel says that ‘at this point we leave Africa, not to mention it again.’ For, he goes on, Africa ‘is no historical part

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of the world; it has no movement or development to exhibit’ (Hegel 2001 [1831]: 85). In Hegel’s view, Africa represents ‘the unhistorical, undeveloped spirit’ of the world that is ‘still involved in the conditions of mere nature, and which had to be presented here only as on the threshold of the world’s history’ (Hegel 2001 [1831]: 117). The issues of imperialism, colonialism, Eurocentrism, racism and slavery are central to current debates surrounding the politics of recognition within international political theory, especially within the field of postcolonial studies. Given Hegel’s views regarding allegedly uncivilized peoples, it is not surprising that many scholars have (rightly) criticized him and his ideas. Some of them have objected to Hegel’s attitude towards colonialism (Buck-Morss 2003; Brennan 2013; Germana 2018; Serequeberhan 1989; Stone 2017). Others have claimed that Hegel’s ideas are Eurocentrist (Tibebu 2010; also Buchwalter 2009). Some have gone further and claimed that Hegel’s thinking is racist (Bernasconi 1998, 2000, 2003; Bonetto 2006; Hoffheimer 2005).2 Hegel’s remarks about Africa and its place in world history have also (again rightly) been the subject of strong criticism (Bernasconi 1998; Bernasconi 2007; Camara 2005; Habib 2017a; Kuykendall 1993; Monahan 2018; Taiwo 1998). Hegel’s account of mastery and slavery in his Phenomenology of Spirit does not necessarily have to do with slavery in (or of) the colonies, or with the slave trade. However, at least some of those who have discussed the Phenomenology have attempted to connect what he says there to his opinions about Africa and world history (Buck-Morss 2003; Germana 2018; Smith 1991). Alexandre Kojève’s judgement that Hegel regarded the abolition of slavery (in all of its senses) as the ‘end-of-history’ is significant here (Kojève 1996 [1947]: 44, 58, 237). It stands in stark contrast to the views which Hegel expresses at times about what might be termed ‘actually existing slavery,’ including the transatlantic slave trade, the political enslavement of the colonies and the personal slavery which existed in the plantation economy of, for example, the United States in the antebellum period (Bush 1989). It would be a mistake to assume that when talking about slavery in the Phenomenology; Hegel must have had these specific forms of servitude in mind. As Susan Buck-Morss has noted, there is a striking dissonance, or even a blatant contradiction, between what Hegel says about the intrinsic wrongness of slavery, in both the Phenomenology and the Philosophy of Right , and his arguably complacent attitude towards the various forms of slavery which existed in the societies of his own day (Buck-Morss 2003). The logic of what Hegel says about the inherent injustice of slavery in the Phenomenology points towards a strong condemnation of slavery in all of its forms. Hegel has rightly been criticized for his failure to utter such a condemnation, for example, by supporting the movement to abolish personal slavery and the slave trade. If Hegel’s views regarding the master-slave relationship were insufficiently critical at the time, that does not mean that they could not be adapted and put to a more radical use by later thinkers. This is clear from the fact that

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a number of twentieth century figures who were engaged in the struggle for national liberation and political independence against the forces of imperialism and colonialism, especially but not only in Africa, were enthusiastic about at least some of Hegel’s ideas, not least his views regarding the struggle for recognition in the Phenomenology of Spirit . Radical theorists and political activists who considered Hegel’s philosophy to be a valuable resource for a political programme devoted to overthrowing colonialism, with all of its associated forms of slavery, and to challenging the ideas which were used to justify them, included Jean-Paul Sartre, Franz Fanon and Paolo Freire (Sartre 1965 [1945]; 2001 [1964]; Fanon 1967; Freire 1972).3 One well-known example of this is Fanon’s discussion of ‘The Negro and Recognition’ in his Black Skins, White Masks (Fanon 1967 [1952]; Habib 2017b).

Hegel and Cosmopolitanism In the last few decades, the phenomenon known as globalization has to some extent diminished the significance of the nation-state for students of international politics, not least because of the emergence of transnational institutions possessing state-like powers, for example, the International Court of Justice at the Hague. We are, it is suggested, increasingly living together in just one world, or in one global society, of which every human being might be thought of as being a member citizen. The cosmopolitan ideals of the ancient Stoics have been revived. Students of international political theory have taken an interest in such things as the idea of global citizenship and the issue of global distributive justice. The discipline of political theory itself is becoming increasingly globalized or internationalized. Given these developments, it is interesting to speculate about the contribution which Hegel has made to the discussion of these issues. Until recently, there had been relatively little discussion of Hegel’s views regarding these questions (Buchwalter 2007, 2009, 2012; Hicks 1999, 2012; Browning 2011; Burns 2013, 2014; Moland 2011). Alexandre Kojève has argued that for Hegel it is the struggle for recognition, rather than any class struggle having to do with the distribution of economic resources, that is the ‘motor of history’ and the most significant cause of social and political conflict (Kojève 1996 [1947]: 43–44). According to his reading of Hegel’s Phenomenology, the cessation of the struggle for recognition between masters and their slaves should be associated with the ‘end-of-history.’ Kojève suggests that world history, or rather the end-ofhistory, as understood by Hegel in his Lectures on the Philosophy of History, is to be associated with the emergence of a morally desirable state of affairs within which the struggle for recognition has ceased and in which there will no longer be any masters or slaves of any kind. Controversially, Kojève attributes to Hegel the view that at that point all human beings will become citizens of a cosmopolis or world-state. Kojève refers to this as ‘the universal and homogeneous state’ (Kojève 1996 [1947]: 44, 58, 237; Burns 2014: 331–333).

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Kojève’s reading of Hegel’s philosophy of history is controversial because Hegel is commonly thought to be opposed to cosmopolitanism, especially to Immanuel Kant’s strong form of that doctrine, which he criticizes in his Philosophy of Right and elsewhere (Hegel 1979 [1821], §324, 209–210; §324 Zus, 295–296; §333, 213–214). Hegel rejected Kant’s notion of ‘perpetual peace,’ which conflicts with his belief in the inevitability of conflict and war between states (Arp 1999; Mertens 1995; Shelton 2000). He argued that the condition of perpetual peace, which is ‘advocated as an ideal towards which humanity should strive’ by Kant and other cosmopolitan thinkers, is not in practice achievable, because ‘the state is an individual, and individuality essentially implies negation’ (Hegel 1979 [1821], §324, 209–210, 295–296; §333, 213–214). As such, it is constituted by reference to something which it ‘is not.’ Hence, ‘even if a number of states’ were to make peace with one another and ‘make themselves into a family,’ this group as an individual ‘must engender an opposite and create an enemy’ (Hegel 1979 [1821], §324, 295). In his essay On the Scientific Ways of Treating Natural Law, Hegel refers to the ‘vacuity’ of Kant’s idea of ‘an international state or a world republic’ (Hegel 1975: 132; also Buchwalter 2007: 173fn38; Hicks 1999: 99; 2012: 24; Jaeger 2002: 503). Against Kojève, it might be argued that Hegel is not a strong cosmopolitan thinker. He rejects the idea of a world-state. However, he might plausibly be associated with a weaker form of cosmopolitanism. A good example to illustrate this, and also the relevance of Hegel and his ideas for students of international political theory today, is the issue of international migration, or the so-called migrant crisis which is currently being confronted by the UK and the member states of the European Union. Here, it should be noted that many of the individuals concerned, who include refugees and seekers of political asylum among others, are migrating from the continent of Africa. This issue has to do with open or closed borders, and with inclusion and exclusion from citizenship. Ought the individuals who fall under these various categories of displaced and stateless persons to be granted citizenship, either in the UK or in one of the states of the European Union? If not, what theoretical justification could there be for excluding them? What Hegel has to say about citizenship in his Philosophy of Right is directly relevant to the debate around these questions. This is yet another manifestation of Hegel’s view of politics as involving a struggle for recognition. When discussing the grounds for citizenship, Hegel argues that it is the universal characteristics which are possessed by all those moral persons who are human beings which give humanity its intrinsic dignity and its moral value or worth. Here, he has in mind such things as rationality, freedom, selfconsciousness and the capacity for ethical life, as opposed to such things as race, religion, nationality or gender, which are the particular characteristics which divide and separate the members of one society or group from another, and which may lead to conflict between them. As Hegel says in his Lectures on the Philosophy of History, ‘utterly excluding all speciality, therefore, man (sic),

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in and for himself – in his simple quality as man – has infinite value; and this infinite value abolishes, ipso facto, all particularity attaching to birth or country’ (Hegel 2001 [1831]: 351). He also observes that it is as a consequence of education that ‘the ego comes to be apprehended as a universal person in which all are identical’ (Hegel 1979 [1821], §209, Remark, 134). Considered from this point of view, Hegel argues, ‘a man (sic) counts as a man in virtue of his manhood alone, not because he is a Jew, Catholic, Protestant, German, Italian, &c’ (ibid.). Hegel insists that this is an assertion which ‘is of infinite importance’ (ibid.). It is, he says, ‘defective only when it is crystallized,’ as he thinks happens in the case of Kant, into a strong form of cosmopolitanism which stands ‘in opposition to the concrete life of the state’ (ibid.). Hegel implies that not all forms of cosmopolitanism are guilty of making this mistake. Thinking of this kind is a long way from the xenophobic, ethno-nationalism with which Hegel has sometimes been associated. It was by reference to such humanistic or humanitarian arguments that Hegel opposed social and legal discrimination, including exclusion from the full rights of citizenship, against national or religious minorities in the Germanic states of his day, for example the Jews. As he puts it, those associated with ‘the fierce outcry raised against the Jews’ ignore ‘the fact that they are, above all, men (sic); and manhood, so far from being a mere superficial, abstract quality is on the contrary itself the basis of the fact that what civil rights rouse in their possessors is the feeling of oneself as counting in civil society as a person with rights’ (Hegel 1979 [1821], §270, Remark fn, 169). Interestingly, despite his objection to strong cosmopolitanism, which as we have seen he associates with the philosophy of Kant, Hegel refers to this right to citizenship as an ‘eternal human right’ (Hegel 1971 [1830], §433, 174). Indeed, much like Hannah Arendt and Seyla Benhabib, he suggests that the right to be included as a citizen in some state or other, or the ‘right to have rights,’ is the one and only human right (Benhabib 2004, 2008; 2011, 2018). It is for this reason that Hegel may be regarded as a weak cosmopolitan thinker. The relevance of these ideas for the contemporary debate around the issue of migration and citizenship within the European Union is readily apparent.

Conclusion Hegel is a complex, ambiguous figure, whose ideas have been interpreted in different, indeed opposite ways. His reputation as a proponent of German nationalism, his views on colonialism and his criticisms of cosmopolitanism all point to the conclusion that his ideas are not relevant for students of contemporary international political theory. However, from the time of Karl Marx onwards, Hegel has had followers who have thought that his ideas might be adapted so that they speak to issues of today—whenever ‘today’ happens to be. Those who have attempted to reconstruct Hegel’s political thought in

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this way have often reasoned with Hegel against Hegel, pointing out that on some issues he is in contradiction with himself. We have seen that, unlike Hegel himself, some twentieth-century thinkers have used his views regarding the politics of recognition to criticize colonialism. Moreover, some Hegelian thinkers writing today have argued that his theory of recognition might be used to defend cosmopolitanism, rather than to criticize it. It is humanitarian ideas of this kind which represent the positive legacy of Hegel’s thought and the more enlightened contribution that it can make to discussion of current issues within the discipline of international political theory.

Note 1. See also Hegel (1979 [1821]: §211 Zus, 272; §274, 178–179; §274, Remark, 179; §274 Zus, 286–287; §322, Remark, 208; §324 Zus, 295; §331, 212; §§339–340, 321; §341, 216; §§344–347, 217; §349, 218; §§351–52, 219; §§356–357, 221). 2. McCarney (2003), Moellendorf (1992), Mowad (2013),Parekh (2009), Purtschert (2010) and Zambrana (2017). 3. See Gendzier (1973), Honenberger (2007), Kleinberg (2003), Turner (1996) and Villet (2011).

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Browning, G.K. 2011. Hegel, Global Theory and Recognition. In Global Theory: From Kant to Hardt and Negri, 42–60. London: Palgrave. ———. 2012. Hegel on War, Recognition and Justice. In Hegel and Global Justice, ed. Andrew Buchwalter, 193–210. Dordrecht, Heidelberg, New York and London: Springer. Buchwalter, Andrew. 2007. Hegel’s Concept of an International ‘We.’ In Identity and Difference: Studies in Hegel’s Logic, Philosophy of Spirit and Politics, ed. Philip T. Grier, 155–176. Albany, New York: SUNY Press. ———. 2009. Is Hegel’s Philosophy of History Eurocentric? In Hegel and History, ed. Will Dudley, 87–110. Albany, New York: SUNY Press. Buchwalter, Andrew (ed.). 2012. Hegel and Global Justice. Dordrecht, Heidelberg, New York and London: Springer. Buck-Morss, Susan. 2003. Hegel, Haiti and Universal History. Pittsburgh: University of Pittsburgh Press. Burns, Tony. 2013. The Right to Have Rights’: Slavery, Freedom and Citizenship in the Thought of Aristotle, Hegel and Arendt. In Culture and Civilization, Volume V, Cosmopolitanism and the Global Polity, ed. Gabriel R. Ricci, 181–207. Rutgers University: Transaction Publishers. ———. 2014. Hegel and Global Politics: Communitarianism or Cosmopolitanism? Journal of International Political Theory 10 (3): 325–344. Bush, Jonathan. 1989. Hegelian Slaves and the Antebellum South. Cardozo Law Review 10: 1517–1563. Camara, Barbara. 2005. The Falsity of Hegel’s Theses on Africa. Journal of Black Studies 36 (1): 82–96. Fanon, Franz. 1967 [1952]. The Negro and Recognition. In Black Skins, White Masks, trans. Charles Lam Markman, 210–222. New York: Grove Press. Freire, Paolo. 1972. Pedagogy of the Oppressed, trans. Myra Bergman Ramos. Harmondsworth: Penguin Books. Gendzier, Irene L. 1973. Conscience and Consciousness: The Relevance of Hegel and Sartre. In Frantz Fanon: A Critical Study, 22–35. London: Wildwood House. Germana, Nicholas A. 2018. Revisiting ‘Hegel and Haiti’: Postcolonial Readings of the Lord/Bondsman Dialectic. In Creolizing Hegel, ed. Michael Monahan, 95–112. London: Rowman & Littlefield International. Habib, M.A.R. 2017a. Hegel and Africa. In Hegel and Empire: From Postcolonialism to Globalism, 49–64. London: Palgrave Macmillan. ———. 2017b. Frantz Fanon: An African Reading of Hegel. In Hegel and Empire: From Postcolonialism to Globalism, 65–74. London: Palgrave Macmillan. Hegel, G.W.F. 1971. Hegel’s Philosophy of Mind: Being Part Three of the Encyclopaedia of the Philosophical Sciences, trans. William Wallace. Oxford: Clarendon Press. ———. 1975a. Logic: Being Part One of the Encyclopaedia of the Philosophical Sciences, trans. William Wallace. Oxford: Oxford University Press. ———. 1975b. Natural Law: The Scientific Ways of Treating Natural Law: Its Place in Moral Philosophy and Its Relation to the Positive Sciences of Law, trans. T. M. Knox. Intro. H. B. Acton. Foreword John R. Silber. Philadelphia: University of Pennsylvania Press. ———. 1977 [1807]. Phenomenology of Spirit, trans. A.V. Miller. Oxford: Oxford University Press. ———. 1979 [1821]. Philosophy of Right, trans. T.M. Knox. Oxford: Oxford University Press.

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———. 2001 [1831]. Philosophy of History, trans. J. Sibree. Kitchener: Batoche Books. Hicks, Steven V. 1999. Hegel and Cosmopolitanism. In International Law and the Possibility of a Just World Order: An Essay on Hegel’s Universalism, 69–114. Amsterdam and Atlanta, GA.: Rodopi. ———. 2012. Hegel on Cosmopolitanism, International Relations and the Challenges of Globalization. In Hegel and Global Justice, ed. Andrew Buchwalter, 21–47. Dordrecht, Heidelberg, New York and London: Springer. Hoffheimer, Michael H. 2005. Race and Law in Hegel’s Philosophy of Religion. In Race and Racism in Modern Philosophy, ed. Andrew Valls, 194–216. Ithaca and London: Cornell University Press. Honenberger, Phillip. 2007. ‘Le Nègre et Hegel’: Fanon on Hegel, Colonialism, and the Dialectics of Recognition. Human Architecture: Journal of the Sociology of SelfKnowledge 5 (3): 153–162. Jaeger, H.M. 2002. Hegel’s Reluctant Realism and the Transnationalization of Civil Society. Review of International Studies 28 (3): 497–517. Kleinberg, E. 2003. Kojève and Fanon: The Desire for Recognition and the Fact of Blackness. In French Civilization and Its Discontents: Nationalism, Colonialism, Race, eds. T. Stovall and G. van den Abeele, 115–118. Lexington Books. Knox, T. M. 1996. Hegel and Prussianism. In The Hegel Myths and Legends, ed. Jon Stewart, 70–81. Evanston, IL: Northwestern University Press. Kojève, A. 1996 [1947]. Introduction to the Reading of Hegel: Lectures on the Phenomenology of Spirit. Assembled by Raymond Queneau, ed. Alan Bloom, trans James H. Nichols Jr. Ithaca and London: Cornell University Press. Krieger, Leonard. 1957. The German Idea of Freedom: History of a Political Tradition From the Reformation to 1871. Chicago: University of Chicago Press Kuykendall, Ronald. 1993. Hegel and Africa: An Evaluation of the Treatment of Africa in the Philosophy of History. Journal of Black Studies 23 (4): 571–581. Marx, Karl. 1974 [1867]. Capital, Volume I, A Critical Analysis of Capitalist Production, ed. Frederick Engels, trans. Samuel Moore and Edward Aveling. London: Lawrence & Wishart. McCarney, Joseph. 2003. Hegel’s Racism: A Response to Bernasconi. Radical Philosophy 119: 32–35. Mertens, T. 1995. Hegel’s Homage to Kant’s Perpetual Peace: An Analysis of Hegel’s Philosophy of Right, §§321–40. The Review of Politics 57 (4): 665–691. Moellendorf, Daniel. 1992. Racism and Rationality in Hegel’s Philosophy of Subjective Spirit. History of Political Thought XIII (2): 243–255. Moland, Lydia L. 2011. Hegel on Political Identity: Patriotism, Nationality, Cosmopolitanism. Evanston, IL: Northwestern University Press. Monahan, Michael. 2018. Creolizing Hegel. London: Rowman & Littlefield International. Mowad, Nicholas. 2013. The Place of Nationality in Hegel’s Philosophy of Politics and Religion: A Defense of Hegel on the Charges of National Chauvinism and Racism. In Hegel on Religion and Politics, ed. Angelica Nuzzo, 157–185. Albany, New York: SUNY Press. Parekh, Surya. 2009. Hegel’s New World: History, Freedom, and Race. In Hegel and History, ed. Will Dudley, 111–134. Albany, New York: SUNY Press. Purtschert, Patricia. 2010. On the Limit of Spirit: Hegel’s Racism Revisited. Philosophy and Social Criticism 36 (9): 1039–1051.

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Sartre, Jean-Paul. 1965 [1945]. Anti-Semite and Jew, trans. George J. Becker. New York: Schocken Books. ———. 2001 [1964]. Colonialism and Neocolonialism, trans. Azzedine Haddour, Steve Brewer and Terry McWilliams. London: Routledge. Serequeberhan, Tsenay. 1989. The Idea of Colonialism in Hegel’s Philosophy of Right. International Philosophical Quarterly 29 (3): 301–318. Shelton, Mark. 2000. The Morality of Peace: Kant and Hegel on the Grounds for Ethical Ideals. Review of Metaphysics 54: 379–408. Smith, Steven B. 1991. Hegel and the Problem of Slavery. Cardozo Law Review 13: 1771–1785. Stone, Alison. 2017. Hegel and Colonialism. The Hegel Bulletin 38 (1): 1–24. Taiwo, Olufemi. 1998. Exorcising Hegel’s Ghost: Africa’s Challenge to Philosophy. African Studies Quarterly 1 (4): 3–16. Tibebu, Teshale. 2010. Hegel and the Third World: The Making of Eurocentrism in World History. Syracuse, New York: Syracuse University Press. Turner, Lou. 1996. On the Difference Between the Hegelian and the Fanonian Dialectic of Lordship and Bondage. In Fanon: A Critical Reader, eds. Lewis R. Gordon, T. Denean Sharpley-Whiting, and Renée T. White, 134–154. Oxford: Blackwell. Villet, Charles. 2011. Hegel and Fanon on the Question of Mutual Recognition: A Comparative Analysis. The Journal of Pan African Studies 4 (7): 39–51. Williams, R.R. 1997. Sovereignty, International Relations and War. In Hegel’s Ethics of Recognition, 334–363. Berkeley: University of California Press. Zambrana, Rocio. 2017. Hegel, History, and Race. In The Oxford Handbook of Philosophy and Race, ed. Naomi Zack, 251–260. Oxford: Oxford University Press.

CHAPTER 18

Just War Theory: Past, Present, and Future Cian O’Driscoll

Introduction “A stain on our history,” “Shameful,” “Disturbing,” and “Grim” these are just some of the reactions that the Brereton Report (Inspector-General of the Australian Defence Force 2020) elicited from Australian political and military leaders upon its publication in November 2020.1 Detailing the findings of a public inquiry into reports of serious misconduct by Australian troops in Afghanistan, 2005–2013, it certainly makes for painful reading. It exposes a litany of wrongdoing by Australian personnel, including 23 incidents in which “one or more non-combatants or persons hors-de-combat were unlawfully killed by or at the direction of” Australian service personnel. A total of 25 current or former members of the Australian Defence Force (ADF) are implicated in these incidents, which led to the death of 39 individuals. None of these incidents, the report clarifies, involved “disputable decisions made under pressure in the heat of battle. The cases in which it has been found that there is credible information of a war crime are ones in which it was or should have been plain that the person killed was a non-combatant or hors-de-combat (28–29).” These findings are disquieting. Looking beyond their shock value, they oblige us to confront tough questions about when, where, and how we commit our military forces, and what standards of conduct we can expect of C. O’Driscoll (B) Coral Bell School of Asia Pacific Affairs, Australian National University, Canberra, ACT, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_18

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them. These questions fall under the purview of just war theory. The purpose of this chapter is to introduce this theory and, by so doing, to illuminate both how it helps us think through these questions and where it falls short. What is just war theory, I propose to ask, and is it part of the problem or part of the solution? The discussion will proceed in a straight-forward manner, with sections corresponding respectively to the past, present, and future of just war theory. Engaging with recent historiography, section “Introduction” will recount the history of the just war tradition. Building on this, section “Past” will examine how that history informs contemporary debates in just war theory, especially those bearing on the revisionist turn that currently divides the field. Finally, section “Present” will set out some thoughts concerning the challenges confronting just war theorists are likely to face in the near-future. This will, as it happens, bring us back to where we started, the moment of reckoning that is the Brereton Inquiry. This sorry episode should be a source; I will argue, not just of great regret, but also of concern, for just war theorists. The chapter will conclude with some remarks on the problems; it reveals and how we might address them.

Past Just war theory is a framework for analysing the moral and ethical questions that warfare provokes. It is reasonable to suppose that anyone who has ever been involved in a debate or quarrel about the rightness or wrongness of a particular or proposed war has availed of it. Why is World War II considered by so many to be the good war? Should the international community have deployed military force to halt the 1994 Rwandan genocide? Was the 2003 invasion of Iraq justified? And does it matter that it was not authorised by the United Nations Security Council? Was the 2014 Israeli operation against Gaza conducted with due care? Was there a compelling case for the use of force against the Syrian state when it used chemical weapons upon its own people in 2015? What is so wrong about what ADF forces did in Afghanistan? These are the kind of questions that commonly lead people to just war theory. Once there, what these people discover is a series of questions intended to guide ethical reflection on the use of force. These questions are usually separated into three distinct but inter-locking poles of inquiry (for an overview: Finlay 2019). Filed under the Latinate term, the jus ad bellum, the first pole of inquiry speaks to the recourse to war. What counts as a just cause for the resort to force? Who is authorised to initiate it? What intentions ought to guide it? Have all other options been exhausted before war was proposed? And can it reasonably be expected to bring about greater good than harm? Viewed in concert, these questions direct us to reflect on what circumstances, if any, justify the turn to warfare. The second pole of inquiry, known collectively as the jus in bello, addresses the conduct of war. Who is entitled to wield force? Who qualifies as a legitimate target for military action? What weapons

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may be used? What tactics are prohibited? And what counts as superfluous or excessive violence? Together these questions prompt us to think about how war ought to be waged. The third and final pole of inquiry, usually referred to as the jus post bellum, relates to the termination of war. How should warfare be concluded? What responsibilities and entitlements do the various belligerents accrue in the aftermath of hostilities? And what is the surest path to a just and lasting peace between erstwhile enemies? These questions combine to guide how we think about the right way to end a war. A lot more could be said about each of these questions and the categories they invoke. It will suffice here, however, to note that they have been subject to extensive elaboration and parsed into what is usually referred to as a set of moral principles or precepts (Johnson 1999, 27–38; Frowe 2011) (Table 18.1). These principles are sometimes presented as criteria that must be satisfied for a war to be deemed just. There is, however, a consensus in the literature that they are best approached, not as a rote checklist, but, more loosely than this, as a set of open-ended questions designed to guide ethical analysis (Brown 2013, 38). Anyone keen to learn more about the finer points of these categories can turn to the burgeoning literature on them. It is enough for now, I hope, to have a general sense of how they hang together. With the basics of just war theory thus covered, the next question is where it came from. There is a fascinating story to be told about the origins of the idea of just war and how it has evolved over time. This story usually starts with the fourth-century CE political theology of Saint Augustine, and in particular his efforts to reconcile the civic duty of military service with the precepts of the Christian faith (e.g., Elshtain 2001, 18). It was in the service of this cause that Augustine (2006, 82) formulated what would become the formative statement of the idea of just war: “As a rule just wars are defined as those which avenge injuries, if some nation or state against whom one is waging war has neglected to punish a wrong committed by its citizens, or to return something that was wrongly taken from them.” Augustine’s pithy formulation subsequently became the cornerstone of church teaching on war and, courtesy of figures such as Isidore of Seville and Gratian, the focus of canonical Table 18.1 Just war theory: principles and precepts Jus ad bellum

Jus in bello

Jus post bellum

Just cause Legitimate Authority Right Intention Aim of Peace Proportionality Last Resort

Discrimination Proportionality

Rights vindication Restoration of order Rehabilitation of vanquished

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commentary (Russell 1975). Augustine’s definition of just war was systematised and expanded in the thirteen century by the great Dominican thinker Thomas Aquinas, who incorporated elements of Aristotelian political theory into it (Dyson 2003; Tooke 1965). Skipping forward to the dawn of the early modern period, Aquinas’s template was extended and revised by, among others, Francisco de Vitoria and Francisco Suarez to account for the conquest of the Americas and the challenges that Spanish crown encountered in this context (Hamilton 1963; Schwartz 2019). Hugo Grotius, one of the greatest minds of the seventeenth century, laid the groundwork for the codification of just war theory into international law and the law of armed conflict, an undertaking later carried on by Emer de Vattel in the eighteenth century and Francis Lieber in the nineteenth century (Jeffery 2006; Neff 2014). It was against this historical backdrop that Michael Walzer revived just war theory in 1977 with the publication of his modern classic, Just and Unjust Wars (2015). We will have more to say about Walzer momentarily. In the meantime, there are caveats to be raised about the story I have just told, three of them, to be precise. The first relates to the boundaries of this story, what it includes, and, more to the point, what it omits. The concern here is that the potted history of just war theory that I have just recounted is contestable on several grounds. To start at the very beginning, several scholars have questioned whether it is correct to commence histories of just war theory with Augustine. Their counterargument is that there is evidence that the roots of something approximating just war theory can be traced to classical Greece and Rome, and even beyond (Cox 2017). This quibble might appear inconsequential at first glance, but it feeds into debates about whether or not just war theory is properly understood as a Christian doctrine. As such, it primes how we view just war theory: as culturally specific to the West, or as a cross-cultural body of thought that has claims to universality (Whyte 2018). Moving on, some scholars have also contested the canonical status afforded to the historical thinkers listed above and the lack of attention paid to other, putatively significant figures. Why, for instance, do Vitoria and Suarez feature so prominently, while Bartolome las Casa is nowhere to be seen (Brunstetter 2018)? And is there a reason why Grotius’s significance for the evolution of just war thinking is emphasised while the contributions of, for example, Christine de Pizan are often downplayed (on Pizan: Heuser 2010). These queries remind us that how we understand just war theory, and its development over time, is, in large part, a matter of editorial choices and the stories we wish to tell. The second caveat also bears on a boundary dispute of sorts. It is the concern that the mainstream historiography of just war theory occludes any discussion of “regular war”; a concept that scholars (Haggenmacher 1992; Reichberg 2008) trace to Romanist medieval humanist thought. The key feature of this approach was the understanding of war, not as comprising a series of discrete, unilateral acts of force carried out by states against one another, but as a kind of state or background condition that sovereigns initiated and which then prevailed between them, constituting them as enemies,

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until such time as they terminated it. By initiating a state of war, states effectively agreed to settle their dispute by arms, and to accept the outcome of that clash as authoritative. This approach repudiated the view, so central to mainline just war theory, that the possession of a just cause should be regarded as a necessary condition for the legitimate recourse to force; instead, it emphasised the prerogative of sovereigns, qua sovereigns, to judge for themselves when the resort to war is appropriate. What is interesting for present purposes is that, until recent years, this entire body of thought was occluded from the standard histories of just war theory. The work of Pablo Kalmanovitz (2020), among others, suggests that this might finally be changing. It will be interesting to see where it leads us. Kalmanovitz’ work brings us to the third and final caveat, which pertains to the role that just war theory past plays in just war theory present. At issue here is the relevance of the history of just war thought to contemporary just war theory. While some scholars treat the historical record as a mere throatclearing exercise for the real work of present-day theorising (e.g., Lazar and Frowe 2018), this approach appears problematic to me. Too sanguine, too hasty, and too presentist, it forecloses what others among us consider to be an open question: As just war theory develops over time, does it bring its history with it, or does it leave it behind see: (O’Driscoll 2008, 100)? There are two flip sides to be considered here. On the one hand, are contemporary articulations of just war theory tainted by their association with earlier just war doctrines, some of which are predicated upon troubling beliefs—for example, regarding the appropriateness of war for religious causes, the title of indigenous populations to their lands, and the superiority of Christian civilisation? The past, on this view, is never dead—it is not even past. Or, on the other, is it the case that contemporary just war theory has broken free of its own troubled past, so that it no longer carries the stain of its original sin? There is no easy way to adjudicate between these possibilities, but it is important that we reflect on them. They speak, not merely to what the activity of just war theorising involves, but also to the commitments it entails.

Present These are not exclusively academic concerns. That is to say, while some of the issues we have covered to this point may sound dusty or esoteric, they matter for the crash and bang of international politics. Though once an obscure hobby horse for Catholic seminarians and historians of International Law, just war theory has become the predominant discourse of war and peace in contemporary international affairs. Political leaders regularly invoke it while militaries the world over have hardwired it into their operating protocols and codes of conduct (Walzer 2004, 10–11). These developments have gone hand in glove with the growth of just war theory as an object of academic inquiry. In addition to the launch of a specialist periodical, the Journal of Military Ethics, the period since the end of the Cold War has witnessed an upsurge

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in the number of monographs and journal articles devoted to just war theory published in the mainstream disciplines of International Relations, Political Theory, and Moral Philosophy. This swell of work has propelled just war theory into new domains and extended it to address a wide range of emergent issues. There is now a large body of high-quality work on everything from the ethics of drone-strikes, to the morality of the use of force short of war, to the regulation of autonomous weapons systems and cyber-warfare. The thing is, however, that what is meant by “just war theory” in these works is subject to variation. The implication of this is that just war theory means different things to different people. The question then arises: Whose just war, which theory? Three main approaches to just war theory can be discerned in the extant literature. The purpose of this section is to review these approaches and to consider how they relate to one another. I will use an adapted version of Michael Walzer’s (1987, 1–32) account of the three ways of doing moral philosophy to structure this discussion (on Walzer’s original formulation: Orend 2001). Discovery The first way of doing moral philosophy, according to Walzer, involves the path of “discovery.” Reflected in the image of Moses ascending the heights of Mount Sinai to receive from God the stone tablets on which the Ten Commandments were inscribed, Walzer equated the path of discovery with religious contemplation and revelation. On Walzer’s account, this process involves setting oneself apart from the world in order to ascertain the truth that would illuminate it. I use the notion of discovery here to mean something slightly different. I use it to refer to that stream of just war theorising that is self-consciously historical, that is to say, that stream of just war theorising which supposes that to think ethically about war requires one to think historically about ethics. What we are talking about here is not merely the excavation of the historical just war tradition, but also a mode of engagement with it designed to inform our responses to problems present and emerging. We are, in other words, talking about delving into the past of the tradition so that, emulating Moses, we might recover the moral wisdom it encapsulates and pass it on to future generations. If all of this sounds rather abstract, we can examine how it has been fleshed out by one of its leading exponents, James Turner Johnson (see Patterson and LiVecche 2020). Johnson’s principal argument is that just war thinking is best conceived, not as a practice of theory-building, but as an engagement with tradition. By tradition, Johnson (1984, 15) means “a fund of practical wisdom, based not on abstract speculation or theorisation, but in reflection on actual problems encountered in war as these have presented themselves in different historical circumstances.” Engaging with tradition, then, means familiarising oneself with its evolution over time, entering into a continuing dialogue with the thinkers who shaped it, and extrapolating lessons from it to

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guide our actions today. Work that follows this template has been known to surprise the uninitiated, who naturally want to know what the dusty texts of dead white males, from Augustine to Vattel, has to do with the task of just war theorising today (for a critical perspective: Kinsella 2011). For Johnson and those who follow him, it is vital. An awareness of where just war thought has come from, they posit, is essential to any understanding of where it is going. There are dangers with the path of discovery. Most obviously, it is susceptible to drift toward a lazy conservatism that romanticises (or perhaps even fetishises) the past at the expense of new thinking. Only a fine line divides an emphasis on tradition from degenerative traditionalism (O’Driscoll 2013). It is, I think, possible to practice this style of just war thinking without falling into this trap. The work of, among others, Gregory Reichberg, Valerie Morkevicius, Rory Cox, Daniel Brunstetter is exemplary in this respect. Even so, it is easy to go astray when following the path of discovery. Interpretation Keen to avoid these snares, Michael Walzer practiced the second way of doing moral philosophy that he identified: the path of interpretation. He trials it in his 1977 classic Just and Unjust Wars (2015), arguably the single most important work of just war theory since the late eighteenth century. Interpretation involves a commitment to working with and through the norms that we encounter in the world around us today. This means that the starting point for ethical analysis is the moral world as we find it, here and now, not the study of its historical foundations.2 In practical terms, this involves locating the normative principles embedded in the practices of contemporary international society so that we might elucidate and refine them—and contribute to their progressive realisation.3 Viewed in this light, Just and Unjust Wars takes the form of an extended effort to identify, distil, grapple with, and extend the ethical principles that underpin contemporary efforts to regulate warfare. While it is idiosyncratic in certain respects—most notably its terminology, which swerves the standard just war theory lexicon—Just and Unjust Wars is, in a substantive sense, a conventional book. As Chris Brown (2018, 209) observes, the positions Walzer adopts on the recourse to the conduct of war are “broadly compatible with the contemporary legal regime governing the use of force in international relations.” For instance, Walzer’s (2015, 61– 63) account of the jus ad bellum principles governing the recourse to force comprises six principles which align with the Charter of the United Nations (UN): (1) There exists a society of independent states; (2) This international society has a law that establishes the rights of its members—above all, the rights of territorial integrity and political sovereignty; (3) Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another is a criminal act and constitutes aggression; (4) Aggression justifies two kinds of violent response: a war of self-defence by the

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victim and a war of law enforcement by the victim and any other member of international society; (5) Nothing but aggression can justify war; and (6) Once the aggressor state has been militarily repulsed, it can also be punished. Similarly, Walzer’s list of jus in bello principles accords closely with the key tenets of the legal texts (e.g., Geneva Conventions, etc.) that govern the regulation of warfare today. Where Just and Unjust Wars is concerned, however, the conventional is deeply controversial. The vision of just war theory that Walzer sets out may appear intuitive to the present-day reader, who is familiar with the UN system, but it actually represents a significant departure from the historical mainline of the just war tradition. Where, for Augustine, Aquinas, and those who followed them, the task of waging a just war was essentially a punitive one, directed toward the righting of wrongs and the sanctioning of malefactors, Walzer framed it as a defensive action, indexed to the preservation of rights (O’Donovan 2003). Some scholars have seen this as a backward step. Their objection is that it dilutes just war theory by juridicalising it (e.g., Rengger 2013). Other scholars—and we will have more to say about this group momentarily—have been more concerned about the way that Walzer’s framework decouples jus in bello rules of war from jus ad bellum considerations. Consistent with the Laws of Armed Conflict, Walzer’s approach supposes that, irrespective of which soldiers are fighting upon, whether for a just cause or against one, they should all be regarded as moral equals and granted the same protections and entitlements in combat (2015, 127). This commitment, usually referred to as the “moral equality of combatants,” is compatible with the view that wars that are unjust on jus ad bellum grounds may still, in respect of jus in bello principles, be waged justly. The reader who is familiar with the history of the just war tradition will notice that while this way of framing matters accords with aspects of the “regular war” idea discussed earlier; it is at odds with the vision of just war promulgated by Augustine and developed by those who followed him. Invention The group of scholars perplexed by Walzer’s preference for decoupling jus in bello rules of war from jus ad bellum considerations (see above) is usually lumped together under the umbrella category of “revisionism.” From a whisper to a roar, revisionist approaches to just war theory have gone from being a minority pursuit to the largest growth area in the field in less than twenty years. The work of Jeff McMahan has been pivotal to this development (see Roff 2018). McMahan’s point of departure is a disagreement with Walzer over how best to understand the principle of just cause. McMahan (2017, 671) rejects as too permissive the claim that just cause is an expression of the right of communities to defend their political sovereignty and territorial integrity. He argues instead

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that “there is a just cause for war if, and only if, the people warred against are responsible for wrongs to others that are of a type sufficiently serious to make those people morally liable to armed attack, if that is necessary to prevent or redress those wrongs.” To say they are liable to armed attack, he continues, is to say that “because they have wronged or threatened others, they lack a right not to be attacked by or on behalf of their victims, so that even if they would be harmed by being attacked, they would not be wronged or treated unjustly.” Moreover, the concept of liability should be applied not just to the enemy army as a whole, but to each of its individual members, such that force may only be used against enemy combatants who have personally contributed to the wrong that is the basis of the just cause for war (Hurka 2007, 200). This way of approaching matters leads McMahan to contest two central planks of Walzer’s framework. The first is the doctrine of the moral equality of combatants. McMahan repudiates this doctrine as morally absurd. He argues that it is ridiculous to believe either that a person involved in an act of wrongdoing may permissibly kill in furtherance of that end, or that a person who is rightfully resisting an unjust attack may be permissibly killed for so doing.4 He counters that, morally speaking, only unjust combatants are liable to armed attack, and only combatants endowed with a just cause may legitimately carry out such armed attacks (2006, 379). The second tenet of Walzer’s framework contested by McMahan is the doctrine of non-combatant immunity. McMahan submits that while combatants should still be expected to discriminate between legitimate and illegitimate targets for armed attack; this distinction does not map directly onto the line drawn between combatants and non-combatants. Instead, he argues (2008, 27), it should reflect the delineation between actors who have materially advanced an unjust cause and those who have opposed them. The effect of this proposition is to suggest that combatants fighting with justice on their side cannot be legitimately targeted in war, but noncombatants who proportionately contribute to the wrongdoing that is the source of the other party’s just cause may be. We are, of course, barely scratching the surface. McMahan’s revisionist contribution to just war theory goes way beyond what we can cover here. As, it should be added, do the range of arguments put forward by the eclectic group of scholars who, influenced by McMahan, have also decided to go down the revisionist road. Cecile Fabre, Seth Lazar, Helen Frowe, and David Rodin, among others, have all made rich contributions in their own right. It is interesting to note, then, that these scholars are as inclined to disagree among themselves, and with McMahan, as they are to disagree with Walzer (Lazar 2017). What unifies them as revisionists is not, it follows, the mere fact that they challenge the Walzerian orthodoxy or that they cite McMahan. Rather, it is how they go about their business. To greater or lesser degrees, the scholars associated with the revisionist camp approach the task of ethical reasoning via the path of invention, the third way of doing moral philosophy identified by Walzer. Where discovery

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presumes that ethical analysis is best approached through tradition, and interpretation starts from a commitment to studying the world as we find it, invention is a more rationalist endeavour. Dismissive of the idea that sound ethical principles can be distilled from either the sacred texts of the just war tradition or the normative infrastructure of contemporary international society, those who tread the path of invention suppose that they must instead be constructed from first principles in a Rawlsian style (see Orend 2001, 210). Abstraction, idealisation, universalisation, deduction, and the liberal use of thought experiments are the main techniques involved, analytical rigour and precision the watchwords. This is just war theory in Anglo-American analytical moral philosophy mode. A source of vibrant creativity, it has also been the subject of fierce critique. The charges laid against it are that it is excessively theoretical and, as a consequence of this, has little contact with the rough and tumble of warfare that it ostensibly addresses (Walzer 2015, 335–346; Hutchings 2018). Whose Just War, Which Theory? No doubt about it, there is an element of academic navel-gazing involved in charting the methodological differences between rival approaches to just war theory. Would our time not be better spent treating the substantive issues that societies confront in theatres of war? The reason for framing the discussion in this apparently oblique manner is to provide the grounding scholars new to the field will require to make sense of the different styles of analysis and argument they are wont to encounter in the established literature. It also sets the scene for some weighty questions. How do these theories hang together, if at all? Is one of these theoretical modes superior to the others? Do they represent fundamentally incompatible approaches, or can they somehow be synthesised, or even reconciled? Should today’s just war theorists seek to broker a dialogue between adherents to these divergent approaches, or is it sensible to assume that good fences make good neighbours? These are just some of the challenging issues awaiting the next generation of just war theorists.

Future There is no shortage of novel issues for the next generation of just war theorists to fret about. The development of non-lethal weapons systems, the wholesale adoption of drone-strikes as a way of war by the United States (US), the advent of cyber-operations, and the appearance of artificially intelligent weapons on the battlefield all ensure that just war theorists will not want for work in the coming years (see Gentry and Eckert 2014). But what can we say beyond that? Predicting the future is a fool’s errand. What I want to do instead is take this opportunity to chart a new, aspirational direction for just war theory. This research programme builds upon but also departs from current trends in the field. In particular, I am keen to set out an agenda that circumnavigates the rise

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of revisionism and the increasingly stale opposition it has elicited from scholars associated with historical and Walzerian approaches to just war theorising. The problem with contemporary just war theory is that it risks losing contact with the very practice it ostensibly regulates: warfare. As Walzer has observed, today’s just war scholarship is often more focused upon theory than war (2015, 335–346). Where once it incorporated (and reflected) the chivalric traditions of the martial class, it now appears to be drifting toward an esoteric scholarly discourse propagated by philosophers, lawyers, theologians, and ethicists with little regard for the actualities of warfare (O’Driscoll et al. 2020, 2). The danger, therefore, arises of treating just war theory as a purely scholastic enterprise, a disconnected activity, set apart from the experiences of the very people whose lives it wagers. If this drift is not arrested or curtailed, it will become all too easy for scholars interested in the ethics of war to lose sight of what war actually entails—the violence it involves and the demands it makes of those who wage and suffer it. This worrying direction of travel is reflected in the lack of interest contemporary just war theorists have shown in the lived realities of warfare.5 The most obvious indicator of this is that there has not yet been any systematic study of how soldiers—precisely the people tasked with waging their community’s wars—think and talk about the ethics of war.6 To put it bluntly: scholars have hitherto paid remarkably little attention to how soldiers talk about the ethics of war. The effect of this has been to propagate a body of writing about the ethics of war that is disconnected from both the practice and experience of war (O’Driscoll et al. 2020, 24). This is true of all approaches to the study of the ethics of war. For instance, scholars associated with the historical approach to the ethics of war have paid scant attention to the experience of soldiers, emphasising instead the work of theorists over the lived realities of the men and women on the frontlines. By the same token, so-called revisionist theorists have shown very little interest in, the perspectives of combatants, favouring hypothetical thought experiments populated by stick-persons (e.g., the trolley dilemma) over any attempt to account for the boots-on-the-ground experience of soldiers. While there is much to be gained from these engagements with history and abstraction, they are premised on the silencing of the soldier, a forgetting of their material, gendered and racialised realities, an erasure of their embeddedness as agents in time and space, culture, and context (Hartnett and O’Driscoll 2020, 4). Finally, while some texts—notably, Walzer’s Just and Unjust Wars —incorporate anecdotes from the battlefield in their analysis, they use them in an illustrative rather than substantive manner. These texts are also very much the exception rather than the rule. As already alluded to, the failure on the part of just war theorists to engage with the experience of soldiers has serious implications. It perpetuates an approach to thinking ethically about war that is divorced from the lived realities it seeks to account for. The risks, hardships, concerns, and beliefs of soldiers are dismissed as irrelevant to (or, worse, a distraction from) the activity of just war theorising and, on that basis, excluded from analysis. This

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is deeply problematic. Not only is the scholastic approach unduly narrow, it is also conducive to “moralism,” by which is meant the tendency to shy away from the complexity of social phenomena in the real world and to instead equate theorising almost exclusively with the construction of “first principles of justice that are independent of, and isolated from, the messy universe” of experience (Thaler 2018, 6). There is, then, I wish to argue, a need to re-connect just war theory to the mud-and-blood experience of those soldiers who are tasked to live, die, and kill by the rules it propagates. This would entail approaching just war theory in a more bottom-up and particularised manner, in this case via the lived experience of soldiers. The tools required for this kind of work can be sourced from several overlapping intellectual traditions, chief among them the feminist body of work on standpoint theory, and situated knowledges (Haraway 1988; Harding 1992; Hartsock 2004) and existentialist writings (from Kierkegaard to Iris Marion Young) on “concrete thought” (Warnock 1970, 132–139). The successful deployment of these intellectual resources would have the effect, not only of putting just war theory back in contact with the practice it ostensibly regulates, warfare, but of grounding it in the daily lived realities of those men and women tasked to engage it. It would, in other words, bring the experience of soldiers into conversation with contemporary just war theorising, while connecting scholarship on the ethics of war to the growing literature on the embodied experience of warfare (e.g., Wilcox 2015; Gregory 2016). This proposal to marry the experience of war and ethics of war has far-reaching implications for just war theory (see Bergman Rosamond and Kronsell 2020). Beyond what has already been stated, it would also, I hope, drive what we might call a turn toward a grounded approach to just war theory. Such a development would cut directly against the grain of most contemporary scholarship on the ethics of war, which is avowedly objectivist. Objectivism supposes that there are universal truths that are objectively valid and which can be discerned via the adoption of the scientific method. Presented by its proponents as “the right way” to think about the world and humanity’s relation to it, objectivism relies upon the processes of topdown detachment, abstraction, and generalisation, and is predicated upon the assumption of what is variously referred to as a “God’s-eye view” or “view from nowhere” (see Nagel 2012, 197–211; Williams 2006, 93–94). The development of a grounded approach would, it follows, offset the excessive objectivism of this prevailing orthodoxy in contemporary just war theory. To guard against any potential misunderstanding, the cultivation of a grounded approach to just war theory is not proposed as an alternative to, or replacement for, objectivist accounts of the ethics of war. Rather, the claim advanced here is merely that a certain amount of attention to the bottom-up lived experience of war would be useful as a corrective to the dominance of the top-down objectivist approach within just war theorising. It would, I think, go a long way toward bridging the troublesome gap between just war theory and just war practice.

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Conclusion There is a fascinating passage in the biography of William the Marshal, a man widely heralded as the finest knight of the thirteenth century (Crouch 2002, 207). The passage in question details the moment William, then on his deathbed, was asked by one of his courtiers whether he feared that heaven held no place for fighting men such as him. “The Churchmen are too hard on us, shaving us too closely,” William retorted. “If simply because I’ve taken five hundred knights and kept their arms, horses, and all their equipment, the kingdom of heaven is closed in my face, then there’s no way for me to enter it, for I am unable to return these things.” But this argument must be false, he concludes, or no man could ever find salvation. This vignette may at first glance appear remote from the discussion developed in this chapter. Closer inspection reveals, however, that it captures its key contours. It reflects, in the first instance, the intractable difficulties we encounter when we attempt to talk about war in ethical terms. More precisely, it signifies something of the square-pegs-into-round-holes nature of that enterprise. Yet, it also indicates the inescapable need to carry on that activity. Even if we struggle to talk about war on an ethical register, there are few among us who do not think it is important to at least try. Otherwise, one would be giving up on the idea that it is possible to engage the problem of war on a normative level. On a deeper level, this vignette illuminates the complexities that arise when we attempt to profess on the ethics of war. How do we ground our claims? On what foundation do our arguments about right and wrong rest? Do we anchor them in appeals to some kind of natural law or divine will, or should we base them in customary practice? Alternatively, is reason the best route to a coherent account of the ethics of war? Just as William the Marshal could not escape this question, nor, it seems, can contemporary just war theorists. Finally, this vignette highlights the importance of ensuring that just war theory remains connected to the realities of the practice it ostensibly regulates, warfare. If just war theory is to matter, it must be intelligible to the men and women who commit to live, die, and kill by the rules it promulgates. It failed this test in William the Marshal’s eyes, and the evidence presented by the Brereton Report suggests that it is also a problem for some militaries today. The principal challenge awaiting the next generation of just war theorists is to understand and address this disconnect.

Notes 1. These phrases circulated endlessly in the Australian media coverage of the Brereton Report in December 2020. 2. “[T]here is no other starting point for moral speculation,” as Walzer (1987, 20) puts it, “[w]e have to start from where we are.” Also see Walzer (2015, xxvii). 3. O’Driscoll (2008, 96).

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4. McMahan (2009, 14) uses a domestic analogy to illuminate his point: “If a murderer is in the process of killing a number of innocent people and the only way to stop him is to kill him, the police officer who takes aim to shoot him does not thereby make herself morally liable to defensive action, and if the murderer kills her in self-defence, he adds one more murder to the list of his offences. … A person can have no right of defence against a threatened harm to which he has made himself liable. … The murderer has, by wrongfully threatening the lives of further innocent people, made himself liable to be killed in their defence.” 5. There are some honourable exceptions here, most obviously Lee (2018) and Schulzke (2019). 6. Soldiers are not, of course, the only actors caught up in warfare. For more on this: Parashar (2013).

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O’Driscoll, Cian, Chris Brown, Kimberley Hutchings, Christopher J. Finlay, Jessica Whyte, and Thomas Gregory. 2020. How and Why to Do Just War Theory. Contemporary Political Theory (FirstView online): 1–32. Orend, Brian. 2001. Walzer’s General Theory of Justice. Social Theory and Practice 27 (2): 207–229. Parashar, Swati. 2013. What Wars and ‘War Bodies’ Know about International Relations. Cambridge Review of International Affairs 26 (4): 615–630. Patterson, Eric D., and Marc LiVecche, eds. 2020. Responsibility and Restraint: James Turner Johnson and the Just War Tradition. Middletown, RI: Stonetower Press. Reichberg, Gregory. 2008. Just War and Regular War: Competing Paradigms. In Just and Unjust Warriors: The Moral and Legal Status of Soldiers, ed. David Rodin and Henry Shue, 193–213. Oxford: Oxford University Press. Rengger, Nicholas. 2013. The Just War and International Order: The Uncivil Condition in World Politics. Cambridge: Cambridge University Press. Roff, Heather M. 2018. Jeff McMahan. In Just War Thinkers: From Cicero to the 21st Century, ed. Daniel R. Brunstetter and Cian O’Driscoll, 238–249. Abingdon: Routledge. Russell, Frederick H. 1975. The Just War in the Middle Ages. Cambridge: Cambridge University Press. Schulzke, Marcus. 2019. Pursuing Moral Warfare. Washington, DC: Georgetown University Press. Schwartz, Daniel. 2019. The Political Morality of the Late Scholastics. Cambridge: Cambridge University Press. Thaler, Mathias. 2018. Naming Violence. New York: Columbia University Press. Tooke, Joan D. 1965. The Just War in Aquinas and Grotius. London: SPPCK. Walzer, Michael. 1987. Interpretation and Social Criticism. Cambridge, MA: Harvard University Press. ———. 2004. Arguing About War. New Haven: Yale University Press. ———. 2015. Just and Unjust Wars: A Moral Argument with Historical Illustrations, 5th ed. New York: Basic Books. Warnock, Mary. 1970. Existentialism. Oxford: Oxford University Press. Wilcox, Lauren. 2015. Bodies of Violence. Oxford: Oxford University Press. Williams, Bernard. 2006. Ethics and the Limits of Philosophy. Abingdon: Routledge. Whyte, Jessica. 2018. The ‘Dangerous Concept of the Just War’: Decolonization, Wars of National Liberation, and the Additional Protocols to the Geneva Convention. Humanity: An International Journal of Human Rights, Humanitarianism, and Development 9 (3): 313–341.

CHAPTER 19

Three Axial Ages of Religion, Law and Global Constitutionalism Hauke Brunkhorst

Introduction This is a grand narrative. The German philosopher Karl Jaspers, right after the Second World War, put forward a theory of the Axial Age (Achsenzeit ) of Eurasian Antiquity, which according to Jaspers invented all the basic ideas of the society in which we live today (Jaspers 1966). Yet, the thesis of this article is that there was more than one Axial Age. The (I) First Axial Age of religious worldviews (800 BCE–1000 CE) was followed by (II) a Second Axial Age of law (1000–1750 CE) and (III) a Third Axial Age of global constitutionalism (1750–present). The First was triggered by the foundation of the main world religions and to a minor extend of metaphysics (philosophy) between 800 and 200 BCE, the Second by the Papal Revolution of the eleventh and twelfth centuries CE (with growing influence of philosophy and science). The Second Axial Age was further developed, overcome and sublated by the Atlantic-Pacific World Revolutions of global constitutionalism (constitutional revolutions) since 1750. The initial impulse of the Second Axial Age of law was the Papal Revolution from 1075 to 1122 in Western Europe and in England until the Murder in the Cathedral (T. S. Elliot)—the martyrdom of the archbishop of Canterbury, Thomas Becket—in 1170. The founding figure of the French Annales school, the great historian Marc Bloch, has described the reform movement H. Brunkhorst (B) European University Flensburg, Flensburg, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_19

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led by Pope Gregory VII as an “extraordinarily powerful movement” after which “one can date without exaggeration the definitive formation of Latin Christianity” (Bloch 1999, 154). It was factually a new foundation of Western Christianity as the Catholic Church; the universal Church separated in 1054 in the Great Schism from the Orthodox Church. The most important historian of this revolution, Harold Berman, speaks of the “first of the great world revolutions” (Berman 1991, 150 et seq.). The Medievalist and legal historian Johannes Fried describes Gregory as “one of the greatest revolutionaries in history” and the reforms initiated by the Papist party “one of the great revolutions of European history” (Fried 2009, 163, 165). The great revolution of the eleventh century was primarily a legal revolution, a revolution of law. That was also the case with all great revolutions of the last millennium; that is, the Protestant Revolutions (called as the Papal Revolution a “reform” and “reformation”) from 1517 to 1688. All these revolutions were Western European, but had a world-historical impact, especially because the following great legal revolutions were no longer European and Christian world revolutions: The Atlantic-Pacific World Revolutions from 1755 (Russia) to 1911 (China), and—overlapping with the constitutional revolutions—the Social World Revolutions from 1848 to 1989. The Papal Revolution, the emergence of modern law and the turn of the Second Axial Age were enabled by a cultural revolution in worldview (Weltbild). It consisted in the axial turn from immanence becoming transcendent (humans becoming godlike, and some more than others) to transcendence becoming immanent (God becoming human as everybody) (Brunkhorst 2014, 99 et seq.). There were no legal revolutions before 1075. However, co-original with the emergence of cities, citizens and empires during the Axial Age were many insurgencies, anti-imperialist revolts and wars, hunger revolts, poverty, slave revolts—often religiously motivated—and intellectual protest—by the adolescent sons and daughters of the rich and mighty directed against the unprecedented injustice of the new, urban-centric empires (Eisenstadt 1962, 271 et seq.). Since then, the history of all society became “the history of class-struggle” (Marx and Engels 1990, 462). Therefore, together with the massive change of the basic structure (state, cities, religious communities, class-structure, agrarian production), an autonomous discourse emerged from which the handwritten metaphysical and religious worldviews were formed (Jaspers 1960; Eisenstadt 1987; 1992; Arnasson et al. 2005; Bellah and Joas 2012; Habermas 2019). The most important result of the Papal Revolution was modern law. It enabled the unprecedented formal organization of the Church, which immediately became the paradigm of all following formal organizations, including the national state. The historian Wolfgang Reinhard states: “The Papal official church (Amtskirche) had a strong lead over nascent secular states not only in theory but also in institutional practice. Papal claim to autocracy, centralism,

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administrative apparatus and taxation made it the model of the modern state in the Middle Ages” (Reinhard 1999, 261; Weber 1964, 432 et seq.). Moreover, the Church was the first transnational organization, and since then, we can observe a kind of co-evolution of cosmopolitan and national statehood (Brunkhorst 2014, 59 et seq.). Today, one can even argue that it is not possible to have a lasting national state, and especially no democratic legal state (demokratischer Rechtsstaat ), without a complementary transnational organization of public international law (Brunkhorst 2014, 59 et seq.; Thornhill 2020). Therefore, it is no longer surprising that some historians even consider the historical change of the eleventh and twelfth centuries deeper than that of the Atlantic-Pacific world revolutions. Eminent historians, such as the German legal historian Uwe Wesel, casually called the age of the Papal Revolution an Axial Age (Wesel 2010, 179 et seq.).1 I will try to give some arguments that the Second Axial Age of Law sublated the First Axial Age of Religion in the triple Hegelian sense of destroying, preserving and elevating it to a higher, more progressive level—but never without also elevating—to a certain extent—the dark side of progress (the extent of which is an empirical and practical question). Moreover, I will try to show that the Atlantic-Pacific World Revolutions from the eighteenth century onwards are even engendering a Third Axial Age of Global Constitutionalism, sublating the Second Axial Age of Law from within the law.

Societal Formations, Worldviews, Formative Periods There is no doubt any longer that the concept of the Middle Ages is “profoundly Eurocentric” (Bauer 2018, 23). For some time, according to one historian, there has been no serious historian: who actually believe[d] that the period from 500 to 1500 [the so-called Middle Ages] represent[ed] a relatively independent, relatively uniform epoch. Still less will anyone seriously claim that it was a dark epoch. (Bauer 2018, 28)

From this, one can only conclude the need to drop the concept of the Middle Ages and the associated three-way division of history into ancient, medieval and modern, and replace it with a sociologically-based timescale. Societal Formations—Decentering Eurocentrism Sociologists assume the evolution of three social formations that have been differentiated up to now. The criterion for temporal differentiation is a fundamental change of the “societal formation” (Gesellschaftsformation); that is, in the basic relations of production and in the basic relations of understanding (the material and/or formal constitution). Change is triggered and shaped by the productive forces and media of communication and dissemination (Marx

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1961, 9; Habermas 1982, 259). Each social formation allows for different modes of production and their combinations. In Early History (100,000–3,000 BCE), the communicative use of our linguistic competences produces (enables, triggers and shapes) segmentally differentiated and egalitarian cooperating societies of hunter-gatherers. In Ancient History (3,000 BCE–1,000 CE), the communicative use of writing produces a stratified and hierarchically cooperating class—or castsociety (privileged classes) of urban-centric empires. In Modern History (1,000 CE–present), the communicative use of the printing press (preceded by a long period of experiments with improving old techniques of reaching mass audiences such as postal services, roads, ships, manufactured reproduction of written materials and smoke signs) and checking new means of dissemination (variation of printing techniques, cheapening prints, comic strips for illiterates, etc.) produces a modern, functionally differentiated class society (income classes) of market-, profit- and thus growth-dependent capitalists (with segmentally differentiated formal organizations and secondary stratification of income classes). It thus produces relations of understanding regulated by egalitarian legal norms such as the old Roman legal principle: quod omnes similiter tangit, ab omnibus comprebetur—that which affects everyone requires the consent of everyone. Finally, the modern societal formation during the last c. 300 years of the last millennium has become the societal formation of a functionally differentiated and socially integrated world-society with capitalist relations of production, imperial (hegemonial) structures and egalitarian constitutional norms (human rights transnationally institutionalized since about1950), enabled by media of dissemination such as worldwide shipping-traffic, electronic oversee-cables (since 1866), mass air traffic (since 1960) and digitalization. Maybe (but nothing in organic or social evolution is predictable), we are now witnessing the emergence of a fourth formation of society that is backed and enabled by the digitalization of mass-media. Worldviews as the Superstructure of Axial Turns and Global Legal Revolutions Not alone, but to a certain extent, the “changes in the economic foundation lead sooner or later to the transformation of the whole immense superstructure” (Marx 1971, 15). Thus, every emergence of a new societal formation is accompanied by the construction of a new understanding of the life-world as a whole, which Jaspers called worldview, including not only the earthly lifeworld, but the entire cosmos, and not only this world, the immanence, but also the other world, the transcendence: the kingdom of Heaven or God, the nirvana, the world of ideas, etc. For Jaspers, the term worldview covers the entire history of comprehensive religious and philosophical understandings of cosmos, human life-world, social evolution and history of the last 3,000 years. The societal self-understanding

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that emerged in egalitarian hunter-gatherer and early agrarian societies before the Axial Age, Jaspers calls mythos in distinction from the philosophical or religious logos of the worldview (Nestle 1975). Jaspers made a name for himself in sociology, especially through the work of Shmuel Eisenstadt. Jaspers has repeatedly been admired, and rightly so, for his early and decisive critique, which overcame and decentered the almost always imperial perspective of Eurocentrism. This separates him from Max Weber, whose theory of religiously motivated rationalization he otherwise largely followed. However, Jaspers limited the spatial and temporal scope of the Axial Age to Eurasia between 800 and 200 BCE (China, India, Persia, Near East, Minor Asia, Europe), and this has been a contentious issue for some time (Assmann 2017; Graness 2017). As a consequence of this debate, one should make a small revision that does not change his basic idea. First, extend the region to Afroeurasia. This would include not only Zoroastrianism, which emerged between 1,800 and 600 BCE in Persia (dates unclear, sources rare), but also the ethical cosmology of universal solidarity of ancient Egypt. The latter goes back way before the old Egyptian Empire and into the earliest sources from 2,000 BCE. This extension should also incorporate the early Christian ethics of brotherhood, which emerged in the first and second centuries of the first millennium CE, still a kind of Jewish sect. Second, extend the time frame from about 2,000 BCE to about 150 CE. Jasper’s basic idea of a long-lasting boom of radical intellectual innovations and paradigm shifts, amounting to the probably “deepest break in the whole history around the year 500 BCE,” would not be significantly altered by these extensions (Jaspers 1960, 19). Jaspers called this period “axial” because it is not a period of history like others. Due to his one-origin-one-goal philosophy of history, this period represents a singular axis of world history “around which everything revolves and which divides its course into a before and after” (Assmann 2018, 14). The radical turn of the Axial Age is not simply more of the same. Firstly, it stands for the “destruction” of the old mythical world of what he calls in quotation marks Naturvölker (primitive peoples). For Jaspers, life then was (also in quotation marks) “unhistorical” and uncritical (“unquestioned”) for “thousands or hundreds of thousands of years” (Jaspers 1960, 21–26). Secondly, it represents a “new beginning” on the ruins of the old world and the origin of the true man; that is, the individualized personality of modern man: the man of “history,” “logos and rationality,” “reason (Vernunft ) and deliberative reflection (Reflexion)” (Jaspers 1960, 21–27). At the peak of the Axial Age, “the rotation of world history accelerate[d]” enormously, and “everything was caught up in a maelstrom” (Habermas 2019, 177). To the man of the Axial Age, “new boundless possibilities opened up” (Jaspers 1960, 21). Extraordinary things “crowded together” (Jaspers 1960, 20). Humanity “as a whole,” the “actual human being” took “a leap forward” (Jaspers 1960, 20). Moreover, the people, at least the elites, had a kind of consciousness of the enormous step forward they had done. As expressed in Sophocles’ Antigone:

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“Nothing more strangely wonderful than man./ He moves across the whitecapped ocean seas/ … He’s taught himself speech and wind-swift thought,/ trained his feelings for communal civic life.”2 In a Excurse to the Dialectic of Enlightenment, Horkheimer and Adorno (basically in accordance with Jaspers but with much less optimistic assessments) have shown that Homer’s Ulysses on his Journey through the hostile world of myth expresses an almost bourgeois self-confidence in progress in the minds of “the globetrotter Ulysses” as well as in the mind of “the solo manufacturer Robinson Crusoe”(Horkheimer and Adorno 2002, 49). Homer’s Ulysses completely disenchants the power of myth and emancipates himself from it—admittedly at the price of an unimaginable horror in the “iron cage of the unfreedom of the future” of class societies (Max Weber). Compared to the outbreaks of violence in all imperial class societies, the acts of violence in the world of Ulysses—with its still flat hierarchies—were comparatively moderate. But one could already see what would become of his world one day. Formative Periods: Abysses and Bridges Even if Jaspers draws a very long line of continuity, he is not simply wrong: it is a line of continuity from the Axial Age to the immediate present in the middle of the twentieth century, asserting that 3,000 years ago “was born what since then man can be,” “the man with whom we live until today” and the “basic categories in which we think until today” (Jaspers 1960, 19f). These are the categories of “being as a whole” in relation to “being oneself”; the “unconditioned” and “transcendental” in relation to imperatives; the individual human being, longing and “urging for liberation and redemption before the abyss. In every sense, the step into the universal was taken” (Jaspers 1960, 20–24). However, there are three problems. Firstly, was the abyss that separates us—modern people since Zarathustra, Confucius, Isaiah, Buddha, Socrates, Homer, Sophocles, etc.—from the world of myth really so deep, that, before that time, it was completely devoid of history, reason and the longing for liberation and redemption? As Claude LéviStrauss has shown, these societies were not just mythical and mindless in their tranquility and self-evidence with nothing for intellectuals, and only “factual belief of the popular masses” from which above all the danger of a relapse into myth is supposed to emanate (Jaspers 1960, 21). Was the mythically told and remembered so-called science of the concrete not science (Lévi-Strauss 1968, 11–59)? My point here is that without “magic knowledge” (“science of the concrete”) it is hard to imagine how “scientific knowledge” (modern abstract science) is possible (Lévi-Strauss 1968, 25). It does not come from nothing. On the contrary, the First Axial Age must have been preceded by a very long formative period, which took place within the horizon of the “primitive peoples.” There must have been a kind of formative period, “a longer age of transition” within the old societal formation (Bauer 2018, 109f), that finally

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enabled the construction of a new societal formation (Garnsey and Humfress 2001, 3). For Lévi-Strauss, the “Neolithic Man” from the pre-axial early period of the agrarian mode of production must have been “the heir of a long scientific tradition” because his great technical innovations (pottery, weaving, agriculture, animal husbandry) presuppose “centuries of active and methodical observations, bold and controlled hypotheses either rejected or verified by means of tirelessly repeated experiments” (Lévi-Strauss 1968, 26f). For LéviStrauss (in astonishing coincidence with the Dialectic of Enlightenment ), the determinism of magic thinking and praxis anticipates already methodologically the scientific determinism of modern physics. Therefore, he argues, “the rites and magical beliefs” might have been nothing but “expressions of a belief in a future science.” (23) Secondly, regarding the so-called norms of “reverse dominance hierarchies” in hunter-gatherer societies (Boehm 2001, 64 et seq.; 1993), which ethnologists have only recently discovered in past decades, do they not express a longing for liberation and redemption from the very material domination, that alpha-despots were probably exercising over hunter cooperatives? Some myths tell of such domination and warn of a relapse (Boehm 2001, 189; Knauft 1991). Is it not the case that the prophetic idea of the equality of all human beings—developed by a small, semi-nomadic society of some tribes of shepherds in ancient Israel three thousand years ago, living in the endangered periphery of several aggressive empires with their ravenous appetite for new slaves—also an expression of the universalized counter-memory of the equality once fought for in the early hunting communities (Boehm 2020)? Is it not the case that the basic structure that made the Book of Exodus a “possible historical event,” that goes back to the “poetic memory” of prophetic writers, also made it true as a real possibility of the future (Buber 1956, 8f)? Even if the mythical world is “round and hollow” (Godelier 1973, 316.), restricted to a “Zeitbewusstsein,” a consciousness of time that does not reach “beyond the succession of remembered generations” (Habermas), it is—as many mythical narratives demonstrate—already an emerging “history in the consciousness of freedom” (Hegel). Even if any questioning, critique, debate or moral and legal discourse over deviations, violations and sanctions or alternative suggestions are strictly blocked by hunter-gatherer societies (as Boehm has observed impressively: Boehm 2001, 73f et seq.), the long-term memory of real egalitarianism has been made explicit by the prophetic criticism of the injustice and inequality of imperial class societies. It has constituted a discourse of counter-memory of “archaic” equality that stretches from Isaiah to Rousseau, Marx and present-day debates on so-called barbarian (presumably because stateless) societies (Weinfeld 1987, 254f; Uffenheimer 1987, 211, 229). Jaspers is right, though. The insight of the Axial Age intellectuals that the present had been “preceded by an infinite past” (Jaspers 1960, 23)— linking their stories of salvation (and, of course, early profane historiography à la Thucydides) with the latest historical science, and the most modern theory

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of evolution—is unprecedented. It constitutes a profound break with all that came before—about 100,000 years of small size egalitarian societies. Thirdly, Jaspers neglects not only these and other continuities—that in some crucial respects bridge the abyss that separates the pre-axial age of mythical worldviews from the post-axial age of religious and metaphysical worldviews—but also the fact that there has been more than one axial turn in the course of social evolution. Admittedly, at the end of the book, he does speak of the possibility of a coming Second Axial Age—a “world order of law” (45)—which could be triggered by the unsolved problems of the “scientifictechnical civilization” (127–179), and the displacement of the deep (religious) commonalities of modern mankind as a result of the pluralized clash of the axial age cultures. However, he ignores that we have already been living for 1,000 years in a particularly European, and then a de facto universal world order of law, without, unfortunately, having solved the crises and conflicts of the “scientific-technical civilization.” Therefore, I assume at least two more axial ages. The First Axial Age, that of the religious and metaphysical worldview (2000 BCE to 150 CE), is followed by a Second Axial Age of Law (1000–resent). The Third Axial Age of Global Constitutionalism (1750–today), no longer a Christian and European age, is a global one. It has quickly led to a complete deconstruction and decentralization of Eurocentrism, reestablished as ideologically effective, and in many respects (slavery, imperialism, etc.) disastrous historical fiction of Eurocentric national history, accompanying a historically very short, but extremely bloody period of Western global dominance, that is now over largely due to successful freedom fights of the peoples of the Global South. As recent global, interregional and postcolonial history shows, the West has learnt at least as much from the so-called Rest as the Rest has learnt from the West; hence, increasing diversity by reciprocal copy and paste, pick and mix, melting and combining.

Second Axial Age of Law The (1) first modern constitutional project (2) legally institutionalized the idea of universal freedom that (3) established the legitimization through legality as the existing contradiction of a law that is emancipatory. First Modern Constitution of Europe This happened on March 3, 1075, the day on which the Papal Revolution broke out, triggered by the first written, formal and supra-regional constitutional draft in Europe, and probably worldwide. The draft, with its 27 articles (canones ), was not even half as long as the 17 articles of the French Declaration of Rights of August 26, 1789, but may have been even more momentous.

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The title of the document: Dictatus Papae. Its author: Gregory VII, pope since 1073. The Dictatus is the last document of the formative period of late antiquity and the first of the new world age of law: the Second Axial Age. Instead of exploring the already existing possibilities of informal dispute settlement, the Pope went immediately on collision course on February 22, 1076 (like centuries later a revolutionary renegade priest of his church, the Jacobin Abbé Emmanuel Joseph Sieyès, did on June 5, 1789, in the French Estates-General). While waving the Dictatus in his hand, he excommunicated (canon 6) and deposed (canon 12) in absence (canon 5) Henry IV, while absolving all his “subjects from their fealty” to him (canon 27). All this was done on the constitutional legal basis of his power to bind and loose, derived directly from God (canon 1). But instead of giving way, revolutionary popes and counterrevolutionary emperors remained on collision course. The explosive device detonated. The enormous energy and creativity of the critique of power, until then constitutionally neutralized by cementing it into the power bloc, was released. The legitimizing constitutional framework of imperial monotheism collapsed. Like the French Declaration of 1789, the Dictatus Papae of 1075 had two parts. One part contained a kind of rights (canon 1, Dictatus; Articles 1–2, 4– 5, 7–11, Declaration), while a second part prescribed the differentiation and coordination of the branches of power (canons 2–27, Dictatus; Articles 3, 6, 12–16, Declaration). All the rights of the Dictatus are implicit in canon 1: “The Roman Church was founded solely by God.” This includes the entire law of the biblical books, especially the Ten Commandments. The most important implication of canon 1 is the legal concept of universal and comprehensive freedom. This is implied in the universal singular of the main objective of the Pope’s party of reform: Libertas Ecclesiae—the freedom of the church as a totality and in general. Libertas Ecclesiae The idea of the universal freedom of the Church was legally derived from Mathew 16: 1–19, John 21: 16–18 and some other legal sources (libertas Romania, etc.). However, factually, it was something completely new. Gregory VII made the legal concept of Libertas Ecclesiae the cry of the revolution at the very beginning of his term in office, triggering a tsunami of heated intellectual disputes that “gained the concept an enormous popularity in the twelfth century” (Szabó-Bechstein 1991, 149). The concept, backed by a special Papal Bull since 1079 and expanded into the first universal “theory of egalitarian liberty” (Kerner 1991, 119), was substantiated philosophically by John of Salisbury with the freedom of the will, libertas arbitrii (Kerner 1991, 119, 143f). Moreover, it increasingly penetrated the mass consciousness as “a single, general concept of liberty” (Köhn 1991, 349). After the Revolution (as ever). the poor were betrayed by the class that they had elevated into power, the clergy. Nevertheless, the revolution became, as recent historical scholarship

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suggests, an event that (to put it in Kant’s terms regarding an observation he made about the days of the French Revolution in 1793–1794) “can never be forgotten,” and therefore, as Kant suggested, “should be recalled and awakened at every opportunity of favorable circumstances for the repetition of new attempts of the same kind” (Kant 1977, 361). Far less than the French Revolution, the Papal Revolution was able to fulfill its promise to realize universal human freedom, but it found “a pattern of interpretation [Deutungsmuster] whose consequence is universal freedom” (Fried 2007, 172), and thus opened the way to its social realization, which, because it leads directly to the Second Axial Age, can never be forgotten. The Dictatus Papae transformed the papal privilege (originally the protection of the Pope, used to free some clerical communities from imperial taxes, etc.) into a reflexive privilege of all privileges. The papal privilege since the outbreak of the revolution is thus understood to be lifting singular privileges into a universal privilege of freedom for the entire Church, and virtually for all Christians of the One Faith and, finally, for all humans of the One (global) Empire due to the law of the One God (canon 1, Dictatus Papae) (Höfert 2015).3 The old form of papal or imperial privilege was, in the case of the churches, the concrete ecclesia liber of a single church, defined and limited by its patron (a duke, a king, a bishop, a pope, an emperor, etc.). The new form of papal privilege was the abstract Libertas Ecclesiae of the entire, supra-regional, European and even (according to its claim) worldwide organization of the Church. It was defined and limited by the organization itself , its autonomous sub-organizations, its members and all creatures who are images of God. Therefore, contrary to its common reading as theocratic, the Dictatus Papae, as an eminent legal historian has argued, “was not conceived at all as an instrument of papal rule, but as a means of legitimating the realization of a freedom tending to abolish all secular bonds” (Fried 2007, 158f). Libertas Ecclesiae was a kind of Kelsian “Grundnorm” (or basic norm) that “constitutes the unity in the diversity of legal norms” (Rachuonyo 1987, 416). It is not an overestimation to say that Libertas Ecclesiae became the first normatively effective constitutional norm of universal freedom in history, applicable (counterfactually) to all human beings (Fried 2007, 157–172). If the ancient concept of freedom was firmly cemented in the unchanging primary order of inequality of the imperial class societies, whose paradigm was that of heteronomy; namely, patriarchally-determined emancipatio: the release of a son or slave from the domination of the father who was the dominus of his dominium, the universal freedom of Libertas Ecclesiae was different. It was based on the same understanding of freedom as our contemporary concept of emancipation. In contrast to the ancient Roman emancipatio, it actually means freedom based on self-determined liberation. At the turn of the first millennium, every exploited and stigmatized illiterate—the poor—understood the meaning and message of freedom as liberation (emancipation) from “oppression and hindrance.” From this point onward, it was not far from the abductive conclusion of rejecting the whole system of class rule based on serfdom

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and inequality—especially when the battle cry of “the black dressed militia of the pope” (Duby 1992, 118f) for Libertas Ecclesiae together with their favorite sermons on the liberation struggles of the chosen people against Egyptian slave holders and Maccabean imperialists reached every village pub. With this, the paradigm shift from freedom as a gift to self-generated freedom was completed. The concept of the freedom of the will leaves the Augustinian “level of pure doctrine of grace, it becomes profane-ethical and gains the ability to shape the social world; at the same time, it individualizes man, who is now no longer assigned his freedom solely by group and status, but essentially by himself” (Fried 2007, 172). Moreover, Gregory VII himself understood Libertas “as a demand to be realized in the world” (SzabóBechstein 1991, 149). The universal freedom of the civitas dei (city of God) thus comes into stark contrast with the reality of the servitude of the terrana civitas (earthly city). The incarnation of God is now understood as an absolute break with antiquity, as a practical “continuation” in this world and as a “future” oriented realization “of God’s plan” (Duby 1981, 246f). This is no longer only spiritual, but also “positively valued physical labor” (Duby 1981, 246f). The transcendent has now become immanent (Berman 1991, 290). The Second Axial Age: Law that is Emancipatory After the cultural revolutionary turn to immanence, the revolution was unstoppable. The explosive device of the critique of imperial power ignited in the midst of that power. From the end of the tenth century, the abbots, priors and monks of the Cluny monastic network, which was rapidly expanding throughout Europe, formed themselves into the black dressed militia of the pope. The legal basis of the militia was a kind of missing link between privileged ecclesia liber and universal Libertas Ecclesiae, the Papal exemption (Neiske 1997; Schieffer 1991, 53–58; Duby 1992, 116). They turned the tables, condemned the deification of man as imperial paganism, placed the doctrine of the incarnation at the center of their theology and laid out its egalitarian implications that all should participate equally in the project of building the world, as much as possible in accordance with God’s humanity. His law was to be implemented through revolutionary legal reforms. The intellectuals, merchants and warriors of the Age of the Papal Revolution copy, pick, steal and rob what they can use from their far advanced southern and eastern neighbors: Aristotle commentaries, translators, slaves, technical instruments, agricultural innovations. However, back at home in Europe, they glue, mix, fuse and combine everything. As a result, the Western catching up revolution goes its own way very early on. A new type of experimentalism begins. This would never have happened if the monks of the papist reform party had not set out soon after the turn of the millennium in search of an Eastern Roman document: The Corpus Iuris Civilis. In 528, Emperor Justinian I had ordered a committee of jurists to collect the fragments of Roman civil

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law scattered throughout the Empire, to arrange the collected (according to Justinian’s introduction) 2000 books and (according to today’s estimation) 12 million lines and to reduce them to still stately 150,000. Finally, the commission delivered the first manuscript to the Emperor in 534 (Wesel 2010, 97f et seq.; Höfert 2015, 180). At the end of the millennium, there was no Roman Law Book available in the West. But the reform-monks knew that there were some copies somewhere (Wollasch 1992). Their long, feverish search was successful in 1050 in a library in Pisa. The scribes made lots of copies. The jurists reorganized, compatibilized, annotated them (paste), subjected them to the selective force of the universal concept of freedom (pick) and intertwined them with canon law to form a dialectical unity (mix & recombine). Knowing the Justinian Code, the most modern law at that time (besides the Islamic one), Gratian proceeded to compose a corresponding Corpus Iuris Canonici and to hand it over to the manuscript manufactory under the methodically (dialectically) intended heading Concordia discordantium canonum. The result of the methodologically dialectical appropriation of old hats: an entirely new idea of law, as new as the invention of the spine in the Cambrian era, as new as the invention of monotheism or nirvana or truth in the first axial age, as new as Kant’s concept of autonomy in the eighteenth century or Einstein’s theory of relativity in the twentieth century. Therefore, the disengagement of the two branches of power of the sacred and the profane is not the unique selling position of the Papal Revolution, and it is not at all the unique selling position of the Occident. It is its most important precondition, invented hundreds of years earlier in the East and the South (with a constitutive role of the wider Near Eastern region). In Brown’s metaphor: the disengagement indeed “released an energy and creativity” to change the world “analogous to a process of nuclear fission” (Brown 1975, 134). However, this energy and creativity of the two powers of Late Antique imperial monotheism was needed for setting off something more powerful. This was the nuclear fusion between Roman Civil Law (Corpus Iuris Civilis ) and Canon Law (Corpus Iuris Canonici). It transformed the basically oppressive ancient legal order—which was never strong enough to function as an “immune system of society” (Luhmann)—into a modern legal system. This remains strong (because it is self-organized) enough to function as a kind of immune system and stabilize the existing relations of class rule (Berman 1991, 86). However, that comes with a price. The legal system established by the Papal Revolution was the first functionally differentiated, autonomous system of modern society because of its academic professionalization. The latter could only develop together and in close interpenetration (structural coupling) with the simultaneously differentiated, equally autonomous educational and scientific system of the European university (Brundage 2010; Fried 1974; Rüegg 1993). For both systems, the following is true: they can be destroyed from outside, but no longer steered and controlled. However, state and church, imperium and sacerdotium (and studium), faith and power remain firmly embedded in the regime of imperial

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monotheism (which persisted from about the fifth century until the threshold of the Third Axial period of global constitutionalism in the nineteenth century) as one complex of one transregional (or transnational) constitution. This is the case with Concordats like that of Worms 1122, the corporate constitution of the European church state, the corporately pluralized rule of law in Europe, the old European commercial law, etc. (Berman 1991, 327–789). But the autonomous legal order is by no means exhausted in the function of a mere immune system. Rather, the fusion of the Corpus Iuris Civilis with the Corpus Iuris Canonici unites a regime-stabilizing law of coordination of the ruling classes with an emancipatory law that is programmed eschatologically for the liberation above all of the dominated classes from imperial domination, exploitation and oppression. It was only the fusion of these two contradictory bodies of law that released an energy and creativity strong enough to immunize a highly dynamic, increasingly complex society against the egalitarian risks of monotheism—a monotheism that has the totality of society in mind (modèle economique, the biblical master image of the totality of the class society of poor and rich), and not only the political and military classes of citizens of cities (modèle urbain, the Athenian and Roman master image of a particular society of cities and citizens ) (Patlagean 1977; Brown 2002). But the gain of legitimacy again comes at a price. As soon as the internalized ethical-moral critique of power, which imperial monotheism was able to suspend and thus neutralize, is transformed into emancipatory, structurally anti-imperialist law, its emancipatory potential can no longer be neutralized. Precisely because it is law, and especially constitutional law of universal freedom, “it can strike back” (Müller 1997, 56). The existing contradiction (Hegel 1975, 59) of modern law between a right of domination and a right of emancipation is no longer a contradiction between a power of mere morality immigrated into the center of imperial domination (which is by no means nothing). On the contrary, it is a contradiction in the “existence of free will” (Hegel 1970, § 29)—that is, in law itself . It operates as a kind of controlled nuclear fusion, which can run out of control at any time and lead to a further great legal revolution. Every movement of law, every legal act that immunizes existing relations of domination against emancipatory challenges must henceforth expect an emancipatory counter-movement that can assert itself in law at any time. Max Weber did not even expect this possibility, which has become real in the transition to the Second Axial Age, because he saw forces that could break the millennia-long tendency toward ultimately technical-instrumental rationalization only in ethics, never in law. Although Jaspers considered law less instrumentally, he nevertheless followed Weber and postponed his great hopes for a new axial period of international law to the third millennium.

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Third Axial Age of Global Constitutionalism Almost overnight, the lonely crowd of Late Antiquity becomes an organized entity. In the rapidly growing God’s Peace movement, the people ended up almost becoming a first kind of legislative power (Möller 2020; Moore 2001, 28, 49; Bloch 1999, 154). This continues in sporadic uprisings of an ever more militant peace movement in the course of the revolution, such as the Caputiati, the capes men, a movement of urban artisans that spread throughout Southern France in town and country. They made general “freedom and equality the goal of their struggle against mercenaries and nobility” (Köhn 1991, 363). The “revolutionary accent” of the Caputiati was their Oath of Equals, which expressed a “strong class solidarity” (Bloch 1999, 546) especially of urban society. To reject any distinction between a lesser and a superior was their slogan: “minos majorisve nulla esset distinctio” (Köhn 1991, 362). In the translation of Ton Stein Scherben, a Berlin-based rock band from 1972 this reads: No power for anyone (“Keine Macht für Niemand”). No less, the strong participation of the Pauperes in the first crusades —which were imperial revolutionary wars not unlike the Napoleonic wars 700 years later—had strengthened the collective agency of the lower social classes. For the first time, they were no longer mere victims of plundering, burning and murdering warriors. They had become themselves warriors who plundered, burned and murdered on their long journey: first the Jews, then the Arabs and then their Christian brothers in Constantinople. They did these and all the other crimes against humanity in the name of the Law that had made them holy warriors: the militia Christi on armed pilgrimage to the Holy Land. Dialectic of enlightenment. There, in the Holy Land, they established, like Napoleon’s soldiers later, newly constituted states throughout the region, most of them short term. However, as Napoleon’s armies or Roosevelt’s armies in the Second World War, they also had a message of a certain kind of universal freedom: the Pope’s crusaders of the twelfth century disseminated the (written) message of Christian universal freedom. The Napoleonic crusaders had the (written and printed) message of constitutional (republican-imperial) universal freedom (based on popular sovereignty). The American and Soviet crusaders of the Second World War had the written, printed and electronic message of global constitutional (democratic and communist) universal freedom (at least as lip service, but not only as lip service). Increasingly, the lower classes and their (intellectually more rather than less qualified and literate) clerical and monastic leaders of the eleventh and twelfth centuries in Western Europe oriented themselves to an “ultimately single, general concept of freedom”—sometimes evolving into “communal associations with a highly developed political autonomy” of free and equal male individuals (Köhn 1991, 349). Canonists took the doctrine of the Roman civil law of inheritance, which said that that which concerns everyone requires

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the consent of everyone (quod omnes similiter tangit, ab omnibus comprebetur). They then universalized this doctrine into a constitutional principle that governed any corporate body (Berman1991, 366; Tierney 1982, 21–25). By a very technical reinterpretation of the Quod omnes tangit procedure, even laymen were to be represented at general councils of the Church (Tierney 1982, 21). On the Church Councils, the assembled represented the entire People of the Church, including all generations, alive or dead, as a kind of Christian, eschatological popular form of sovereignty. Moreover, since the thirteenth century, the increasingly powerful Orders of mendicant monks and the quickly growing Poverty Movements, organized (as the many free and republican cities ) on the basis of the liberal new law of corporations, finally led to the Protestant uprisings, revolutions and revolutionary wars of the sixteenth and seventeenth centuries. In the course of the Protestant revolutions, the idea of the equal freedom of every Christian was combined with the humanistic consciousness of the self-empowerment of the individual human being in general, whether Christian or not. While the Papal Revolution copied the difference between transcendence and immanence into this world, and transformed the dualism of transcendence and immanence into a graduated and historical continuum of legal spheres, the Protestant Revolution freed immanence totally from the dualism of the two realms and copied the dualism into the conscience of the individual believer and/or the discursive conscience of the community of believers. Transcendence no longer befalls the objective and the social world from outside, but only the subjective world of the individual . Natural law and divine law, both systematized and founded through the Decalogue, are transformed step by step into the constitutional law of the political association (Brunkhorst 2014, 157). The revolution of the common man (gemeiner Mann), of farmers and artisans, legally advised by Zwinglian jurists and intellectuals, draw the consequence and proclaimed for the first time universal human rights—see Art. 3 of the Twelve Articles of Memmingen, and comparable later proclamations by English Diggers (Blickle 2003, 2004). Human rights were at best realized factually in subjective rights of property—with the sad exception of those who were themselves the private property of the ruling class. Fortunately, at that time, all constitutional eternity-guarantees were already positive law. And positive law is positive because it is posited by human beings (in difference to natural or divine law). Therefore, it can be changed at any time. And the law that upheld slavery changed, far too reluctantly, but it did change in the long transition from the age of globalization to the global age between 1750 and 1850 (Bright and Geyer 2012, 285–300). Then followed a long struggle for the realization of equality, inclusion and recognition of African Americans and indigenous peoples that was globalized in the twentieth century and is ongoing. These struggles were driven by the political-practical transformation of subjective rights into Aufhebungsrecht: law sublating the existing legal order or parts of it, such as slavery; and Aufhebungsrechten (Wihl 2019): rights that are constructed by legal subjects in political practice—in

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a “hand-to-hand-fight” (Marx 1970)—as rights that can be sublated, can be overcome, derogated, modified, expanded, reinterpreted, reconstructed, adjusted and readjusted again and again. The first human right to overcome “all relations in which man is a debased, enslaved, abandoned, despicable essence” (Marx 1970) was first implemented in the form of subjective rights in private law. However, that was a great legal advance—the public law side of which Hobbes (Skinner 2008) spelled out and even Marx celebrated as a “wide field of choice, arbitrariness, and therefore of formal freedom,” which “is not based on relations of domination and servitude” (Marx 1953, 367f), because only through this law that is freedom struggles for emancipation against capitalism (and capitalist law) are made possible in capitalism (and in capitalist law). The Atlantic-Pacific world revolutions of global constitutionalism are still on the evolutionary path of the Papal Revolution. The Papal Legal Revolution and the follow-up revolutions of Protestantism were European, Occidental (Western) and Christian. However, the French, Haitian, Caribbean and Pacific legal revolutions are no longer European, Occidental and Christian. They are revolutions of global constitutionalism that globalize law, which has become the existence of free will in a “long and tortuous history of development” (Marx 1969, 94) by decentering Eurocentrism in practice from the beginning. This process starts in the middle of the eighteenth century with the first written and printed constitutional drafts in the European periphery and at least half those in Asia. The first one is the constituzione of Pasquale Paoli in Corsica 1755, a kind of military constitution for the entire island. The second one is the moderate absolutist Nakaz, approved in Russia in 1767. Nakaz was drafted by a commission chaired by Catherine II. The commission consisted not only (as the Philadelphia Convention of 1776) of male, white, Protestant, propertied people of European origin, nearly all military officers, but also of non-European, non-Protestant people of color, dispossessed people, women, workers and peasants (Colley 2021, 17–25, 57–92). From day one, the constitutional fever of the eighteenth to the twentieth centuries spreads like a pandemic, like a bushfire, like a tsunami, accelerated by the rapid development of ever cheaper media of dissemination, by the printing press, by shipping, which was already greatly improved in the eighteenth century, by the postal service, then the railroads, photography, intercontinental cables, telegrams, radios, moving pictures and so on. Constitutional texts and revolutionary manifestos are fed into the communications networks ever more quickly, in ever larger print runs, ever more cheaply, on ever more densely interconnected transport routes, so that constitutional progress becomes ever more hectic, multiplied and fortified by copy and paste, pick and mix, melt and combine in interregional and reciprocal interaction (136f, 412). Since the middle of the eighteenth century, the progress of dissemination media, especially the faster and better ships, also enables the evolution of destructive forces: a new hybrid warfare, the combination of land and sea operations. Wars become world wars, penetrating all zones of the globe, and

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transforming faster than ever the living into dead soldiers, and not only the soldiers. The number of casualties increases exponentially. First the Seven Years War (1756–1763), then the Napoleonic Wars (1792–1815), the first two world wars, the latter turning the three Atlantic revolutions (Haiti, France, America) into a high variety of world revolutions, spreading to the Pacific and South America at the same time through mutual pick and mix, melt and combine. From now on, the global arms trade flourishes. The media, soldiers and traders ensure the global spread of terror simultaneously with that of moral resentment over belligerent and colonial violations of rights at ever shorter intervals, observed already by Kant (Kant 1977, 216; Eberl and Niesen 2011, 251–262). Thus, wars trigger revolutions and revolutions trigger wars. In both cases, there are progressive and retrograde variants. Sometimes one turns into the other (Colley 2021, 25–41 et seq.). Above all, the French Revolution (1789–1814), in its Napoleonic period (1799–1814), makes revolution and constitution—and, as Marx aptly adds, the state of siege—travel around the world. It does so via Spain (Napoleon’s Bayonne Statute of 1808) and its resistance to French imperialism, which makes possible the first and still the most comprehensive, transnational, formally highly inclusive Constitution of Cadiz 1810, which guarantees equal rights to all inhabitants of the Spanish Empire. It is a mix of French revolutionary, Napoleonic imperial and Spanish anti-imperial ideas, ratified in European, American, Pacific and Asian Spanish regions in 1813, but which ultimately remains fake—but as a fake of “genuine ideas” (Kant 1968, 248), which are modified locally, shape emancipation interests and enable revolutionary breakthroughs in the Catholic world of the Spanish empire (Colley 2021, 168–202, 230–242). However, the constitutional fever not only has it taken an inflammatory foothold, driven by the west wind, across the Atlantic, Caribbean and Pacific on all the world’s oceans, continents and island empires, but has also returned to the Occident and Europe with new, highly contagious Indian, Asian, African, feminist, radically democratic or monarchic, and Oceanic variants. The first universal female suffrage occurred in the Democratic Republic of Pitcairn, a small island in the middle of the Pacific Ocean. It lasted from 1838 to 1930, with indigenous people as citizens, and barely a handful of Europeans, who had migrated from Europe (Colley 2021, 253–260). All this was known to contemporaries. Only the nation-state and imperialistminded historians suppressed it and made it forgotten “[b]y a strange contradiction, namely the great respect for the past, one let oneself be tempted to restore the past as it should have been” from a national European point of view (Bloch 1999, 136). London is exemplary. The first global city. Since 1810, the hub of all global dissemination media and discourses. It has global print media, global shipping and the British Library. Here, at the center of global counterrevolution, failed revolutionaries and emigrants from all over the world meet to concoct new, more radical ideas and constitutional designs, to send them by mail, ship

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or telegraph all over the world, to trigger constitutional reforms and instigate revolutions (Colley 2021, 203–210 et seq.). In this dense, gossipy milieu, revolutionary ideas mutate at evolutionary top speed. Self-legislation and self-representation, at the same time clashing and overlapping, constituent and constituted power evolve since the second half of the eighteenth century in the “hand-to-hand-fight” between theory and practice. They permeate philosophical, juridical and political discourses and make society’s power-knowledge complexes grow and explode. They are not only about power, self-preservation, colonialism and imperialism, but always also about the seductive, disturbing, disruptive, subversive power of written and printed words of constitutional texts and their commentaries. They are associated everywhere and to this day with the hope of progressive modernization, international recognition, liberation from despotic aristocracy, colonial rule, slavery, exploitation, oppression, stigmatization and discrimination, and the concurrent, threatening but real possibility of perfecting domination, exploitation, subjugation and discrimination of every kind. They are part of the dialectics of enlightenment, rationalization, progress, in the West as in the East, in the North as in the South, with many different and ever-changing accents (Colley 2021, 357–424). Technologies, textbooks, ideas and constitutions are sometimes imposed by the West and sometimes copied by the indigenous people and their class of intellectuals, philosophers, etc. Subsequently, they get rearranged, reinterpreted, combined and mixed with crucial elements of indigenous culture (which is nothing original but always already itself a product of interregional exchange). They are tried out, tinkered with, decontextualized and recontextualized (as in evolutionary exaptation) until something new emerges. This something new is then copied by the West, and so on back and forth, in every direction. The revolution that produces a new constitution forces reason to become historical. Not only Kant (see above), but also Thomas Jefferson sees in the repeatability of constitutional revolutions the possibility of comprehensive progress : “Tho’ written constitutions may be violated in moments of passion and delusion, yet they furnish a text to which those who are watchful may again rally and recall the people” (Thomas Jefferson cited in Colley 2021, 342f). This is also written to get rid of slaveholders like Jefferson himself. In this written constitutional text that is itself always already integral to a praxis, which even a Adornoian context of total delusion of reality as a whole (Verblendungszusammenhang ), that as Hegel might say, also has reality, since—such as Stalin’s extremely progressive constitution from 1936 that was not only the result of a Soviet Union-wide free debate of forty million men and women participating in special meetings and making submissions to the draft but also worked as a constitution in praxis for at least two years (Colley 2021, 408–410)—the context of total delusion is itself nothing else than a product of an evolution, which even in this context can become constructively effective, inscribing itself into the cultural memory, scratching itself, imprinting

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itself and now lies ready to be used, be it for further delusion purposes, be it for enlightenment purposes to get free from delusion (Welsch 2022). The years when the book Dialectic of Enlightenment was written in the Californian exile at the end of the Second World War belong to the darkest (or even were the darkest) three years in world history (1942–1945). But the 1940s were also the decade of the greatest victory of the global left over the global right (Hobsbawm 1996). Between 1941 (Atlantic Charter) and 1949 (end of the Second World War and the Indian and Chinese revolutions), at the preliminary endpoint of the fourth wave of legal revolutions that have roiled and troubled the last millennium, the idea of political, cultural, social and legal inclusion of everybody from whatever social, gender, national, religious, ethnic and “racial” relations of orientation, understanding and production (Thornhill 2020) has, after all, become international public law that must be constructed democratically by “world public opinion” and transformed “into international public authority” (Bogdandy et al. 2017, 115–145; Bogdandy 2022). The equal sovereignty of national states and empires as subjects of a coordinative international law of co-existence has been derogated by Aufhebungsrecht, that is the law of sublation, and replaced by sovereign equality (Art. 2 [1] UN). The reverse order of the words, from “equal sovereignty” to “sovereign equality,” makes a reverse, new order of international law as law of subordination of all political organizations, states and empires under international public law (instead of quasi private law of coordination). This law must be democratically legitimized and enable the peaceful co-operation of political organizations (Art. 1[3] UN) instead of the mere co-existence of contracting (and law-enforcing) parties (Fassbender 2009). At the historical moment, when the international system of the UN Charter seems to disintegrate (after the massive breaches of international law in Iraq 2003 and Ukraine 2022), and the inability of nationally limited democracy “in solving international problems of an economic, social, cultural, or humanitarian character” (Art. 1[3] UN) is proven, there is no alternative to the realization of the unfinished project of a global social democracy.

Notes 1. Michael Geyer in a workshop at Northwestern University (Workshop on “Critical Theory of Legal Revolutions” at Northwestern University 2015, February 27). 2. Sophocles, Antigone, 2. Act, Chorus (2003). 3. On this slogan that is astonishingly the same in all late-antiquity empires in the northern hemisphere of Afroeurasia as Almut Höfert has shown in her pathbreaking book, and so is the structure of coordination of the two clearly different and distinguished (but nowhere functionally differentiated) branches of power of imperial monotheism in East Roman Orthodox empires (Metropolitan vs. Emperor), in all Islamic empires (Imam vs. Calif) and in Western Empires (Pope vs. emperor; king vs. bishop). Caesaropapism never existed, anywhere. The coordination of the two different branches of power is nearly the same in all three

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religious versions of imperial monotheism, as Höfert has shown. Unfortunately, I cannot go into this here but have done so in a book that is close to be finished in hopefully short time. For a sociological explanation, see Eisenstadt (1962).

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Marx, Karl, and Friedrich Engels. 1990. Manifest der kommunistischen Partei. In. Works, vol. 4. Berlin: Dietz. Marx, Karl. 1953. Grundrisse der Kritik der politischen Ökonomie. Berlin: Dietz. ———. 1971. Zur Kritik der Politischen Ökonomie. Berlin: Dietz. ———. 1969. Das Kapital, vol. I. Berlin: Dietz. ———. 1970. Introduction to a Contribution to the Critique of Hegel’s Philosophy of Right, trans. Joseph O’Malley. Oxford: Oxford University Press. https:// www.marxists.org/archive/marx/works/1843/critique-hpr/intro.htm. Accessed 28 September 2022. Möller, Kolja. 2020. Volksaufstand & Katzenjammer. Zur Geschichte des Populismus. Berlin: Wagenbach. Moore, Robert I. 2001. Die erste Europäische Revolution – Gesellschaft und Kultur im Hochmittelalter. München: Beck. Müller, Friedrich. 1997. Wer ist das Volk? Eine Grundfrage der Demokratie. Berlin: Duncker & Humblot. Nestle, Wilhelm. 1975. Vom Mythos zum Logos – Die Selbstentfaltung des griechischen Denkens. Stuttgart: Kröner. Patlagean, Evelyne. 1977. Pauvreté économique et puvreté sociale à Byzanze: 4–7e siècles. Paris: Mouton. Rachuonyo, J.O. 1987. Kelsen’s Grundnorm in modern Constitution-Making: The Kenya Case. Verfassung und Recht in Übersee/Law and Politics in Africa, Asia and Latin America 20 (4): 416–430. Reinhard, Wolfgang. 1999. Geschichte der Staatsgewalt. München: Beck. Rüegg, Walter, ed. 1993. Geschichte der Universität in Europa, vol. 1. Mittelalter. München: Beck. Lévi-Strauss, Claude. 1968. Das wilde Denken. Frankfurt: Suhrkamp. Neiske, Franz. 1997. Papsttum und Klosterverband. In Vom Kloster zum Klosterverband. Das Werkzeug der Schriftlichkeit. Akten des Internationalen Kolloquiums des Projekts L 2 im SFB 231 (22–23 Feb 1996) (Münstersche Mittelalter-Schriften 74), ed. Hagen Keller and Franz Neiske, 252–276. München: Fink. Schieffer, Rudolf. 1991. Freiheit der Kirche: vom 9. Bbs zum 11. Jahrhundert. In Vorträge und Forschungen XXXIX: Die abendländische Freiheit vom 10. zum 14. Jahrhundert, ed. Johannes Fried, 49–66. Sigmaringen: Jan Thorbecke. Sophocles. 2003. Antigone, trans. D. Franklin. Cambridge: Cambridge University Press. Szabó-Bechstein, Brigitte. 1991. “Libertas ecclesiae” vom 12. bis zur Mitte des 13. Jahrhunderts. Verbreitung und Wandel eines Begriffs seit seiner Prägung durch Gregor VII. In Vorträge und Forschungen XXXIX: Die abendländische Freiheit vom 10. zum 14. Jahrhundert, ed. Johannes Fried, 147–175. Sigmaringen: Jan Thorbecke. Thornhill, Chris. 2020. The Sociology of Law and the Global Transformation of Democracy. Cambridge University Press 2020. Tierney, Brian. 1982. Religion, Law, and the Growth of Constitutional Thought 1150– 1650. Cambridge: Cambridge University Press. Uffenheimer, Benjamin. 1987. Mythos und Realität im alten Israel. In Kulturen der Acbsenzeit, Teil 1, ed. S.N. Eisenstadt, 192–239. Frankfurt: Suhrkamp. Weber, Max. 1964. Wirtschaft und Gesellschaft. Köln: Kiepenheuer.

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Weinfeld, Moshe. 1987. Der Protest gegen den Imperialismus in der altisraelitischen Prophetie. In Kulturen der Acbsenzeit, Teil 1, ed. S.N. Eisenstadt, 240–257. Frankfurt: Suhrkamp. Welsch, Martin. 2022. Dialektik der Aufklärung? Zu Ingeborg Maus’ Kritischer Theorie in ‚Zur Aufklärung der Demokratietheorie‘ – anlässlich des 30. Jubiläums. Archiv für Rechts- und Sozialphilosophie 108 (3): 396–411. Wesel, Uwe. 2010. Geschichte des Rechts in Europa – Von den Griechen bis zum Vertrag von Lissabon. München: Beck. Wihl, Tim. 2019. Aufhebungsrechte – Form, Zeitlichkeit und Gleichheit der Grund- und Menschenrechte. Weilerswist: Velbrück. Wollasch, Joachim. 1992. Reformmönchtum und Schriftlichkeit. Frühmittelalterliche Studien 26 (1): 274–286.

PART VI

Challenges to Sovereignty, Territory and Borders

CHAPTER 20

Conceptual Foundations of Sovereignty and the Rise of the Modern State Silviya Lechner

The Discourse of Sovereignty The discourse of sovereignty began to take shape in European political experience around the close of the Middle Ages, and it had historical, practical, and conceptual dimensions.1 The historical event that precipitated its emergence was the refusal of the French king, Philip IV the Fair, to be subordinate to Pope Boniface VIII. Originally, in 1296, the bone of contention was the question whether Philip had a right to tax the French clergy in order to finance his war with England (Tierney 1964, 172–174). A second controversy followed, concerning the right of the king to punish a French clergyman, which hitherto had been a papal privilege under canon law (Tierney 1964, 180–185). This dispute between king and pope, which ended with a victory for the French king, pertained to the problem of who is entitled to have ultimate authority—or sovereignty—in the sphere of religion. Gradually, over the next three centuries, it extended to the spheres of law and politics and embroiled lesser potentates. Medieval Europe constituted a patchwork of different potentates, organisations, and bodies—kings, popes, lords, vassals, church officials, as well as towns, parliaments, guilds, and universities—all of which had some degree of authority in relation to one another but ‘none of which was sovereign in the modern sense of the term’ (Brown et al. 2002, 5). In this context, sovereignty S. Lechner (B) Department of Political Science, Anglo-American University (AAU), Prague, Czechia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_20

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offered a solution to the practical problem of ‘how conflicting claims to ruling authority should be reconciled’ (Brown et al. 2002, 247). In its modern sense, sovereignty designates supreme and exclusive authority in a realm. This type of authority, as the ensuing discussion will show, is tied to the rise of the modern state as a system of law whose jurisdiction extends over subjects inhabiting a territory. The term ‘realm’ is usually associated with the idea of a rule-bound domain, but in the context of sovereignty it has an additional connotation of a territorial boundary. The concept of sovereignty captures the gradual territorialisation and secularisation of political rule. By the sixteenth century, the medieval conception of Respublica Christiana as a unified community of Christian faith had been largely superseded by the modern discourse of sovereignty (Philpott 1995, 361–362). As a result, the exercise of final authority had been confined to separate territorial units with determinate and mutually exclusive borders, states (Spruyt 1994, 3). Each state has an equal standing so that even the Pope is no longer a representative of God on Earth but one secular ruler among others. In conceptual terms, sovereignty marks the revival of the Roman law principle princeps legibus solutus est. It is translated as ‘the emperor is not bound by the law’ or ‘the emperor is not bound by statutes’ (Watson 1998: Dig. I.3.31).2 Early modern thinkers rediscovered this principle for the purposes of defining the office of a sovereign ruler. Not being bound by the law, the sovereign ruler is free to change or rescind one’s own laws, an idea prominent in the early modern theories of sovereignty of Jean Bodin (1530–1596) and Thomas Hobbes (1588–1679). The civil war between Huguenots and Catholics influenced Bodin, as that between Royalists and Parliamentarians was to influence Hobbes, alerting both philosophers to the need of an authority, supreme and singular, that can restore unity to the political realm. The next two sections will trace how their political theories illuminate the conceptual (non-contingent) connection between sovereignty and the modern state from a characteristically legal perspective.

Bodin on Sovereignty Bodin was a French jurist, scholar, and public official. He represented the Third Estate of Vermandois at the Estates-General at Blois in 1567, the same year his famous Les Six Livres de la République was published (Ulph 1947: 289).3 The work was translated into English as The Six Bookes of a Commonweale (Bodin 1962 [1606]) in 1606. In it, Bodin developed a doctrine of sovereignty as part of a project on the theory of public law (Franklin 1992, xv–xvi) thereby departing from the tradition of Roman law built around the apparatus of private law (covering contracts and promises between private parties). Bodin broke new ground with his claim that sovereignty embodies a supreme lawmaking prerogative. ‘The main point of sovereign majesty and

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absolute power consists of giving the law to subjects in general without their consent’ (S I.8., 23 [142]). While Bodin takes the sovereign to be a ruler who makes law, earlier medieval scholars regarded this ruler as an interpreter of pre-existing law. The type of law is distinct in each case: law artificially made represents positive law (it is literally ‘posited’ by someone); the law medieval rulers were called upon to interpret derives from the nature of things—it embodies natural law, an idea that medieval scholars associated with the writings of St. Augustine and Thomas Aquinas, and later on, with those of Hugo Grotius and Samuel Pufendorf (Hochstrasser 2000). The contrast between these two kinds of law may be expressed in terms of a more basic distinction between reason and will (Oakeshott 1975, 60–61). Natural law contains precepts that bind all rational agents in virtue of their reason; the precepts of positive law are based on will: they can be willed into (and out of) existence by a legislator, the sovereign. And while all rational beings (humans, and presumably Angels) are subject to natural law, the positive law created by a sovereign is binding exclusively on the individuals living inside the state governed by that particular sovereign. Bodin intended to present sovereignty as a complex, impersonal power vested in a head of state. His theory of sovereignty is mapped onto a set of institutional relations obtaining between various offices and positions within the state. Bodin defines sovereignty as ‘the absolute and perpetual power of a commonwealth’ (S I.8., 1 [122]). Its perpetuity implies that a ruler holds this power for life (S I.8, 6 [126]), and its absoluteness, that as a supreme lawgiver the sovereign recognises no restrictions on its prerogatives. For Bodin, ‘sovereignty given to a prince subject to obligations and conditions is properly not sovereignty or absolute power’ (S I.8., 8 [128]). In a further sense, Bodin’s claim that the sovereign has absolute power implies that this power is overarching or final with respect to any other power or office. The only exception is God to whom the sovereign is subordinate (S I.8., 4 [124]). Bodin espouses the legibus solutus principle (S I.8., 11, 15 [131, 135]). Thus, the sovereign has a right to abrogate its own laws as well as those of its predecessors (S I.8., 11–12 [131–132]). The laws made by predecessors, Bodin maintains, can be binding on the current sovereign prince only if his title is based on hereditary rule as opposed to election or appointment (S I.8., 42 [159]). It is important to register that sovereignty is a juridical concept and that its proper analysis supposes an examination of cognate juridical concepts. In this vein, Bodin distinguishes law from contract (or promise) and argues that although the sovereign is not bound by its own laws, it is still bound by its contracts (S I.8., 13–14 [133]). Law embodies general rules addressed to a general class of individuals, whereas contract is a transaction between particular individuals. There are two reasons why the sovereign is bound by its own contracts, Bodin contends. First, because the sovereign is a guarantor of the contracts entered by its subjects and of the good faith presupposed by

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such contracts, and second, because the rules of equity demand the observance of promises (S, I.8., 35 [153]). The idea here is that since a contract is a reciprocal relation between equals, neither party is entitled to terminate it unilaterally (S I.8., 15 [135]). The sovereign prince, when it acts as a contractor, has the status of private party. Bodin also distinguishes law (loy) from right (droit ). Law is command; right is a relationship of pure equity. ‘For’, as Bodin observes, ‘the law is nothing but the command of the sovereign making use of his power’ (S I.8., 38 [155]). Chapter X of Book I of Les Six Livres discusses the ‘marks’ of sovereignty or specific rights derived from the ultimate right to make law. They include the right to declare war and conclude peace, to appoint judges and high magistrates, to adjudicate verdicts issued by magistrates, to impose the death penalty, to give pardon, to determine the standards of coinage, to levy taxes, and to receive oaths of allegiance from lower rank officials and subjects (S I.10., 58– 59 [223]). But how can the holder of this bundle of sovereignty rights be identified in any political community? Bodin suggests that the sovereign stands above, and thus can be differentiated from, magistrates on the one side, and from its subjects, on the other (S I.8., 11 [131]). The basic principle is that the sovereign ‘gives the law’ to all its subjects, and that some of its prerogatives may be delegated to magistrates in their capacity of subordinate officials. According to medieval jurists, the magistrates had rights of office that could not be encroached by the King (Franklin 1992, xiv).Bodin advocates the abrogation of their autonomy and the institution of sovereignty as an hierarchical structure of rule. Magistrates are now portrayed as having rights granted by the sovereign, and the sovereign is the sole office holder inside the state endowed with original (non-delegated) power or sovereignty (S I.10., 49, 53–54 [214, 218]). Bodin posits a set of hierarchical relations of law but what, if anything, would bestow unity on this set? According to Bodin, the necessary unity is guaranteed by the requirement that sovereignty should be absolute and indivisible (S I.10., 49–50 [214–215]; Franklin 1992, xxii–xxiii). The notion of absoluteness was alluded to above. The notion of indivisibility implies that sovereignty is concentrated in the hands of a single person or body. Bodin does not justify this claim, he simply uses it to define sovereign power. By definition, a sovereign prince has no superiors and no equals or ‘companions’ since ‘to have a companion is to have a master’ (S I.10., 59 [224]). From this, it is a short step to the conclusion found in Les Six Livres that that sovereignty is a monarchical prerogative (Skinner 2009, 329). In lieu of its indivisibility, sovereign power cannot be shared between multiple office holders, which entitles the sovereign to both make law and enforce it. Even though Bodin insists on the overarching moral status of natural and divine law (S I.8., 10 [131], see also I.8., 8, 13, 31–32 [129, 133, 149–150]; I.10., 76, 86 [240, 249]), these limitations are too weak to curb the sovereign’s sweeping prerogatives in the domain of positive law.

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In summary, Bodin’s major contribution to the discourse of sovereignty is to have articulated the idea of the sovereign as supreme legislator who is not bound by its own laws. Even though Bodin intended to develop a theory of law where sovereignty represents a set of rights attached to an impersonal office, he actually advanced a theory of ruler sovereignty (Franklin 1992, xiii), a fact preventing him from maintaining a consistent distinction between the sovereign, as a supreme legislator within the state, and the state itself. Bodin also failed to distinguish power from authority. These distinctions will be pivotal to Hobbes’s theory of the sovereign state.

Hobbes: The Sovereign State Like Bodin, Hobbes regards sovereignty as an attribute of the juridical state. But while Bodin merely presupposed a theory of the juridical state, Hobbes developed it.4 Today, Hobbes’s theory is classified as contractarian because it presents the state as an outcome of a social contract (Hobbes did not use this term, though he espoused the idea behind it). The social contract is not a particular, time-and space-bound transaction between named individuals. Rather, it is a generalised transaction between all those individuals who, from a future-directed perspective, would have qualified as citizens of the state. Hobbes sets out to explain how the state would have come about, if certain facts about human beings and their mutual relations were true: his explanation is hypothetical rather than historical. Such hypothetical relations characterise the ‘state of nature’, a condition of interaction that would occur in the absence of a juridical state. In a Hobbesian state of nature, individuals are assumed to be naturally free and equal.5 Assuming, further, that they are regularly interacting, and that no legal rules are available to constrain their interactions, the outcome is radical uncertainty. Hobbes’s view of the state of nature is complex and multifaceted. Here, it is useful to distinguish three possible models compatible with it, drawing on textual evidence from Leviathan (1651).6 The first model picks out the psychological premises of hope and fear, fear of death serving as a limiting notion (L XIII, 186 [62]). Thus, individuals in Hobbes’s state of nature will expend most of their energy in anticipating the potentially hostile moves of others instead of devoting themselves to science and advancements that yield ‘commodious living’ (Kavka 1983). A second model projects a lack of ‘felicity’ or inability to realise one’s desires (L VI, 129–130, [29–30]; cf. L XI, 160– 161, [47]; McNeilly 1968, 130–133, 180–181). When individuals happen to live in close proximity, the realisation of each person’s desires will be frustrated and made uncertain by the mere presence of others (Oakeshott 1975, 36–38, 64). A third predicament is linguistic uncertainty. People often give different names to the same object, feeling or passion and such linguistic confusion may become a source of strife (L VI, 120–121 [24]; XV, 216 [79]). In short, the state of nature produces uncertainty generated by psychological, proximitybased, or linguistic factors. To be able to overcome uncertainty in any of these

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senses, it is necessary to create a state. For our purposes, it is important to understand why this state should be a sovereign state. Hobbes grounds his argument for the sovereign state in the concept of authority. This concept is unique to Leviathan (Chap. XVI). In De Cive (1949, 1651/1647]), Hobbes claimed that the sovereign holds power that resembles the ‘irresistible power’ of God (DC XV.5).7 On this view, the subjects submit to their sovereign due to the overwhelming power differentials between each subject and the sovereign. But Hobbes realised that power is a contingent and shifting resource: its possession is uncertain. In Leviathan, the core idiom of power is replaced by authority, which implies recognition by those governed. A ruler is said to hold supreme political and juridical authority—or sovereignty—in virtue of prior authorisation by the individuals he or she comes to govern: they are the holders of original authority (L XVII, 227 [87]). Hobbes defines original authority as ‘the right of doing any act’ (L XVI, 218 [81]). By implication, ‘political authority’ (‘juridical authority’) is a right to act within the realm of politics (law). Because the would-be citizens themselves authorise (transfer their right to act to) the sovereign, they freely undertake an obligation to obey the positive law the sovereign makes. For, as Hobbes writes, no man can be obligated except through an act of his own (L XXI, 268 [111]). This emphasis on freedom as a power to act in a self-chosen way is another facet absent from De Cive where the passion of fear was dominant (DC I.2, I.13). This change in emphasis from fear to freedom, and from power to authority, gives Hobbes the conceptual tools to articulate a robust conception of sovereignty and to link it to the state as an institutional structure. In Leviathan, Hobbes discusses two forms of sovereignty: ‘sovereignty by institution’ and ‘sovereignty by acquisition’. Sovereignty by institution involves a multitude of contractors, where each promises to every other to relinquish one’s right to self-government by authorising one and the same person, called a state (civitas or ‘commonwealth’), to govern them all with a view of protecting their common peace and security. It is articulated in Chapter XVIII. Sovereignty by acquisition, canvassed in Chapter XX and ‘A Review and Conclusion’ (L, 720–721 [391]), covers the case when a defeated party pledges obedience to the victor in order to save one’s life. Hobbes treats this pledge as a form of free contracting or promising (L XX, 255–256 [104]) and not as an instance of coerced submission (cf. DC VIII.2–3). Both forms of sovereignty have a common ground in the morality of promising. Nonetheless, there are two key differences between them. The first is that sovereignty by institution represents a genuine social contract where each person contracts with every other in a generalised, open-ended manner, whereas sovereignty by acquisition involves a series of individualised contracts between a particular victor and a particular captive. The second difference has to do with the distribution of fear. Sovereignty by institution implies generalised uncertainty such that everybody fears everybody else; in sovereignty by acquisition the vanquished fear one known person, the victor.

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What is the relation between state and sovereignty? Quentin Skinner argues that the Hobbesian sovereign represents the state (Skinner 1999; 2009, 346). This is confirmed by Hobbes’s contention that the sovereign ‘bears the person’ of the subjects considered as a unity, or ‘state’, and not as a disaggregated multitude (L XVII, 227–228 [87–88]; XVIII, 237 [93]; see also XXIX, 365 [168]).8 To be sure, natural persons cannot fuse together—their unity therefore is embodied in the state as a civil or juridical person (Oakeshott 1975, 29). But since this person cannot act itself (it symbolises the legal order), it is necessary to have a designated agent who can act on its behalf: this is the sovereign (L XXVI, 313 [137]). On Hobbes’s doctrine of representation, agents who ‘own’ their own words or actions are natural persons, and agents who represent the words or actions of others are ‘artificial’ or ‘feigned’ persons (L XVI, 217 [80]). It is unclear why Skinner attributes to Hobbes the position that the sovereign is a natural person, whereas the state is an artificial person (Skinner 1999, 11 n65; cf. Runciman 2000; Chwaszcza 2012). In the interest of coherence, Hobbes should treat the sovereign and the state as entities of the same logical order, and if the state, as we have just seen, is an artificial (legal) person, so must be the sovereign. To support this proposition, it has to be shown that there is a conceptual relation between sovereignty and state, and that they both represent juridical persons or offices. Hobbes’s analysis of the state is contained in Part II of Leviathan titled ‘Of Commonwealth’. The state is a body of laws (coercive general rules) which determines offices, rights, and positions with the aim of regulating: (1) relations among individual citizens and (2) relations between the citizenry as a whole and its ruler(s). Law has two major ingredients: general rules (L XX, 261 [107]; XXVI, 312 [137]) plus coercive back-up. In Leviathan, law is not seen just as a coercive mechanism for social control but as the basis for rightful rule or authority. The definition of law changes accordingly. In De Cive, law is ‘the command of that person (whether man or court) whose precept contains in it the reason of obedience’ (DC XIV.1), and in Leviathan, it is the ‘the word of him, that by right hath command over others’ (L XV, 217 [80], emphasis added; XXVI, 312 [137]). The state-sovereign relation can now be explicated in the following way. The Hobbesian state is a system of coercive rules, laws, authorised by those governed. These rules are designed to determine what is ‘Meum and Tuum… Good, Evill, Lawfull, and Unlawfull in the actions of Subjects’ (L XVIII, 234 [91]; see also XXIV, 296 [128]). They regulate relations of property and status, notions of right and wrong, standards of exchange, accumulation, and measurement, and any matter whose contestation by private parties in the state of nature might severely hinder or render impossible the peaceful coexistence of ‘men in multitudes’. The Hobbesian sovereign is the ultimate office that supplies such final, authoritative determinations and thereby removes uncertainty (L XIV, 296 [127–128]). The sovereign is capable of performing this role because it constitutes right reason (E II.10.8; L XXVI, 317 [140]). Right reason is generated by social convention—a group of people agree to treat the reason of one person, the sovereign,

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as an ultimate measure of what is right (L V, 111 [19]). In the absence of right reason, individuals will fall back onto their private judgements leading to disagreement and uncertainty—the predicament of the state of nature. There are certain conditions which a person or body must satisfy to qualify as sovereign in Hobbes’s view. One essential condition is that the sovereign’s pronouncements are final, authoritative, and coercively enforceable within the realm of state law. Another one is that each state should have a single sovereign (L XIX, 240 [95]; XXII, 275 [115]). Third, there are epistemic conditions: it should be possible to uniquely identify the sovereign as a duly authorised lawgiver and ultimate adjudicator, and the fact of who the sovereign is must be public knowledge (L XXVI, 319–320 [141–142]).9 Otherwise, uncertainty and disagreement will endure. Fourth, there are conditions of scope or jurisdiction. Sovereign authority applies only to relations between agents which it would be proper to regulate by law—actions ( foro externo) rather than thoughts ( foro interno) (L XV, 215 [79]), and, concretely, actions of one individual that might harm or infringe the rights of another individual. Finally, sovereignty entails jurisdiction restricted to the territory of a particular state (L XLII, 595 [312]). These conditions indicate that the Hobbesian state is a territorial system of law and that sovereignty is a status determined within it. Thus, the sovereign must be a legal person. One last matter to consider is whether the Hobbesian sovereign is legibus solutus. Hobbes follows Bodin in this (E II.8.7; L XXVI, 313 [137–138]) and in stipulating that sovereignty is absolute (L XIX, 246 [98]; XXII, 275 [115]) and indivisible (E II.8.7; L XVIII, 237 [93]).10 He lists an analogous set of rights attendant to the office of sovereignty (L, Chap. XVIII; XX, 252 [102]; XXI, 272 [113]). But if sovereignty involves rights, does it also involve obligations of some sort? Hobbes’s response is ingenious: the sovereign is a legal person that cannot have any obligations towards its citizens. (Its obligations, to provide for the ‘safety of the people’, attach to the office of sovereignty and thus to the state.) Logically, this is because the Hobbesian sovereign is not a party to the social contract (L XVIII, 230 [89]). The contract is a relation among the would-be citizens who, each separately and conditionally on a reciprocal commitment by the rest, authorise the sovereign as a beneficiary (third party). Normatively, the sovereign cannot commit injustice or ‘injury’ with respect to its subjects since each subject is held to be the ultimate author of everything the sovereign does (L XVIII, 229 [89], 232 [90]). Hobbes’s sidestepping of the problem of the sovereign’s obligations towards the citizens leaves us with a sense of unease. Hobbes partially remedies this by introducing a section on the ‘liberties of the subjects’ in Leviathan, which permits one to resist the death penalty, torture, imprisonment (L XIV, 192 [66], 199 [69–70]), or attempts to be deprived from basic liberties necessary for survival such as access to air, nutrition, or medicine (L XXI, 268–269 [111–112]). But notice that Hobbes speaks of liberties, not of rights construed as legal titles that can be claimed or enforced against the sovereign’s will. The question of whether the governed ought to have rights against their

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sovereign, or whether sovereigns ought to have obligations towards those they govern will continue to occupy later contractarian thinkers such as Locke, Rousseau, and Kant.

Locke’s Theory of Government As we have seen, Bodin identified sovereignty with the ruler’s supreme legislative power, and Hobbes, with the ruler’s supreme authority that stems from the rights of the governed. Bodin and Hobbes agreed that the sovereign legislator is not bound by the law, and that sovereign authority is indivisible and absolute. But what would prevent unbounded sovereigns from indulging in executive whim, repression, even tyranny? Being a subject to a civil state in such circumstances would be worse than remaining in the state of nature. As Locke famously said, ‘This is to think that, men are so foolish, that they take care to avoid what mischiefs may be done them by pole-cats, or foxes: but are content, nay, think it safety, to be devoured by lions ’ (ST VII.93; see also II.13).11 In this section, we will consider what bearing Locke’s theses, presented in his Second Treatise of Government (1690), have on the question of sovereignty and state. It is notable that John Locke (1632–1704) is not a theorist of the state, but a theorist of government—indeed, of limited government. In The Second Treatise, Locke contends that government is established in two steps. First, individuals create ‘political society’ (also called ‘civil society’ or ‘commonwealth’), and then this political society decides on the machinery of government by majority rule (ST VIII.95, 99). Government is an office of management that performs tasks for the common good of those ruled (ST I.3; IX.131). For Locke, this office is established to protect the natural rights of individuals to ‘life, liberty and estate’ collectively termed ‘property’ (ST IX.123). Its normative basis is the trust of the governed (ST IV.22; XII.142; Thompson 1994, 75). If their trust proves to have been abused, they have the right to revoke their mandate and depose the offending rulers (ST XIII.149). Locke’s legitimisation of revolution and the conception of basic human rights as paramount exerted a powerful influence upon the ideas of the rebellious colonists who set up the United States. Moreover, Locke thinks that rulers, albeit public officials, are subject to the same moral constraints—enshrined in the law of nature—that bind the consciences of private parties (ST XI.135). He fears that political power makes rulers particularly prone to abuse. The forms of political abuse he singles out are tyranny and slavery, both constituting violations of individual freedom and of the right to be free from the arbitrary will of another (ST III.17; IV.23; Mack 2012, 71–72). In Locke’s words, ‘No body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another’ (ST XI.135; see also II.4). Locke’s argument is motivated by practical concerns surrounding the events of the Glorious Revolution of 168812 and the attempt of the propertied

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class to resist ‘absolute arbitrary power’ (ST XI.137; MacPherson 1962, 220– 221). His chief theoretical concern is to justify political institutions that would guarantee the natural rights of individuals. He combines a theory of natural rights—as moral rights in the state of nature—with a theory of natural law, as a moral law issuing from God (ST II.6; XI.136). God is invoked to ground the postulate of natural equality, which Locke uses to defend the proposition that all human beings, as God’s property, are endowed with an equal set of natural rights (ST II.6). These rights fall into two categories—first-order rights to life, liberty, and estate (or ‘property’); and second-order rights including rights to enforce the law of nature, rights of defence and self-defence, and rights to receive restitution (if one’s first-order rights have been violated) (ST II. 7– 8, 10–13).13 Upon forming political society, individuals transfer to it their second-order rights (IX.129–130), but retain their first-order rights which provide the moral ground for resisting tyrants and for liming government more generally (Mack 2013, 75–78). Even from this rough sketch, it is evident that the political institutions Locke envisages need not be organised as a juridical state (viz., a public coercive authority). Any association able to reliably protect and enforce the natural rights of individuals inside its realm, given the baseline of natural freedom and equality, will do (Nozick 1974). True, Locke speaks of properties associated with the state: ‘established, settled, known law’, impartial adjudication by ‘a known and indifferent judge’, and executive power to put into effect rules and judicial decisions (ST IX.124–126), but this fact does not principally change the conclusion. Locke’s ‘government’ is a political structure which has no independent rights of its own, as a public person, the way the Hobbesian state does; it is a custodian of the first-order rights of individuals. By assuming away the public person of the state, Locke dispenses with the idea of a sovereign qua state representative. An alternative possibility is that ‘political society’ is sovereign insofar as Locke allows its withdrawal of trust to collapse an illegitimate or tyrannical government. But there is a tension in Locke’s account. In Chapter XVIII (‘Of Tyranny’), the individual is presented as being injured by the arbitrary will of an absolute monarch. However, in Chapter XIX (‘Of the Dissolution of Government’), political society is the injured party (Mack 2013, 103). Locke seems to be arguing that upon dissolving government, sovereignty devolves onto political society, which implies that political society has original (non-delegated) sovereignty. But this supposition is inconsistent with Locke’s overall project to defend the sovereignty of the individual as a rights-holder (Mack 2013, 102).

Rousseau: Popular Sovereignty and the General Will The idea that political society or ‘the people’ are original proprietors of sovereignty is defended by Jean-Jacques Rousseau (1712–1778) in On The Social Contract (1762).14 In Rousseau’s words, ‘the legislative power belongs to the people, and can belong to it alone’ (SC III. 1). Because the people

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forms a collective unit, an ‘it’ rather than a ‘they’, Rousseau has to explain its constitution as well as the legitimacy of its authority vis-a-vis the individual, both as a natural and a legal person. For the most part, Rousseau engages in justification rather than in explanation. The kernel of his argument is contained in Chapters 6, 7, and 8 of Book I where the constitution of popular sovereignty (via the social contract) is outlined and tied to the normative standard of ‘the general will’. Books II and III explicate the normative contents of the general will and defend the legitimacy of popular rule. Rousseau analyses sovereignty in two distinct senses. The first occurs at the beginning of Chapter 6 in Book I, where he defines the people as a community of lawgivers or citizens. The people, as lawgivers, create laws which they are bound to obey, as subjects. The unified collectivity of lawgivers is called a ‘sovereign’, and the unified collectivity of subjects is called a ‘state’ (SC I.6). Rousseau postulates three kinds of institutional relations: (1) between sovereign and state; (2) between individual citizens; and (3) between the sovereign as a whole and each citizen, as a member of that whole (SC II.12).15 As may be recalled, for Hobbes the latter two sets of relations comprise the structure of state authority. By adding a tertium—the ‘state-sovereign’ relation—Rousseau fleshes out the import of political collectivities. He assigns two distinct identities to each person: one as a solitary individual, and another one as a member of a collectivity. This assumes that membership itself counts as a basic value or good that individuals will seek to realise by uniting within a political community. For Rousseau, therefore, the social contract is not a hypothesis of how to generate a state; it is a normative argument for the value of political community—or ‘body politic’ (SC I.6). Concretely, Rousseau sees the social contract as a device for legitimising the constraints on natural freedom, which shared political life demands. The basic problem is to ‘find a form of association which defends and protects with all common forces the person and goods of each associate, and by means of which each one, while uniting with all, nevertheless obeys only himself and remains free as before’ (SC I.6.). This requires ‘total alienation of each associate, together with all of his rights, to the entire community’ (SC I.6). Ultimately, it also requires that ‘each of us places his person and all his power in common under the supreme direction of the general will, and as one we receive each member as an indivisible part of the whole’ (SC I.6). Rousseau’s argument hinges on the mysterious notion of the general will.16 Rousseau identifies sovereignty with ‘every authentic act of the general will’ (SC II.4). This is the second sense of the term sovereignty he employs. According to Rousseau, the sovereign can only act when the people are assembled (SC III.12). Unless the citizens constituting the sovereign are practising direct democracy, they will not be acting as free beings. ‘For to be driven by appetite alone is slavery, and obedience to the law one has prescribed for oneself is liberty’ (SC I.8). (This concept of obeying a self-imposed law will be termed autonomy in Kant’s moral theory.) Rousseau’s doctrine of popular

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sovereignty has often been seen as a formative influence in the French revolution as well as modern theories of participatory democracy. But democratic participation is not self-validating: it is normatively regulated by the general will. The object of the general will is the common good, reflecting the general interest of the body politic as opposed to the particular interests of private individuals (SC II.1, II.3). Rousseau appeals to the idea of law to articulate the normative logic of the general will. The general will must be ‘general in its object as well as its essence’ (SC II.4). Analogously, law is a general rule, indifferent to particular persons, places, or states of affairs (SC II.6), and the exercise of sovereignty involves law-giving that is general in scope: legislation by the entire political community, for the sake of the community (SC II.4). Any executive decree whose object is a particular group of subjects, any decision of a court of law, since it concerns a particular case, or any other particular application of a general law (declaration of war, for example, SC III.2) are not acts of sovereignty, but acts of government (‘magistracy’) (SC II.4). For Rousseau, the government does not make laws but only applies or executes them. The legislative power of the people, or sovereignty, when exercised, embodies the general will. But what reasons do individuals have to embrace the general will? Here, it is necessary to distinguish individual citizens from individual contractors in the state of nature (Cohen 1999, 198). For the citizen, the question is, why an autonomous person with his or her own conception of the good would embrace the constraints of the common good? Rousseau’s suggestion seems to be, because citizens have learned to value their mutual equality.17 The general will, when it becomes declared and thus an act of sovereignty (SC II.2), assigns equal rights and obligations to each member of the body politic (SC III.3). For the contractor, the question comes in two versions. The first version asks (for a self-interested individual with a basic interest in preserving one’s autonomy), is it possible to protect ‘the person and goods of each associate’ who ‘while uniting with all, nevertheless obeys only himself and remains free as before?’ Given that the original alienation of individual rights to the community is complete for each would-be citizen, Rousseau maintains, no single member of the body politic should feel disadvantaged or should have an interest in disadvantaging any other (SC I.6). The second version asks (for an individual concerned not to diminish the overall amount of one’s freedom), why submit to coercive state laws given that these curtail one’s natural freedom? Rousseau expresses this point in the opening lines of the Social Contract, ‘man in born free, and everywhere he is in chains’. His answer to both versions of this second question is that each individual relinquishes one’s natural rights and property to the community completely, and thus in an equal measure, to immediately regain them in the form of civil rights, as a citizen. This ‘remarkable change in man’ (SC I.8) is actualised by the social contract. But this contractarian hypothesis seems misguided because it employs the language of equality to address a problem about freedom.

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Rousseau, it would seem, has succeeded in theorising equality rather than freedom. Even the notion of ‘moral liberty’ or obeying self-imposed laws is applied by Rousseau to the sovereign, as a collective body—or at least without discriminating between collectivity and individual. This throws light on his sinister suggestion that members of the sovereign who dissent from the majority, where majority rule is a practical approximation of the general will, will be ‘forced to be free’ (SC I.7). Like Locke’s, Rousseau’s analysis exhibits a strain between the idea that the people are sovereign and the idea that the individual has moral sovereignty over one’s own destiny. This complexity has played a significant role in modern politics from the eighteenth century onwards.

Kant: The Rule-of-Law State and the Sovereign This penultimate section is devoted to Kant’s theory of law and state with a focus on his mature work, The Metaphysics of Morals .18 Kant’s views are worth exploring not least because they share curious affinities with those of Hobbes and Rousseau. Let us begin with the parallel between Kant and Hobbes. Kant embraces Hobbes’s view of sovereignty as an aspect of the state: the two concepts cannot be understood in isolation. Kant also follows Hobbes in assuming that the only way to overcome the uncertainty of the state of nature is by creating a civil state. Law is the primary material out of which it is crafted because law determines the hitherto uncertain status of agent relations, and it renders these determinations coercively enforceable. Finally, Kant adheres to Hobbes’s conception of the state in an even stronger sense, by defining it as a public coercive authority with a supreme prerogative within a realm. To explain the emergence of the state, Hobbes and Kant both begin by postulating a single basic right in the state of nature that reflects the conception of agents as free and equal beings. However, each fills out this right with a different content. Hobbes brands it a ‘right of nature’, even though it is not a right that entails obligations. It is a ‘Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto’ (L XIV, 189 [64]). Kant, in his turn, posits the ‘innate right to freedom’ as a moral right.19 It signifies the right of an individual to be one’s own master and it grounds other key rights concerning property, contract, and status. Kant defines it as ‘freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law’ (MM VI: 237). This right constitutes freedom of external choice and enables the agent to act independently of the arbitrary choice of any other agent. The fundamental problem for Kant is that this basic right together with the rights predicated on it remains uncertain or ‘provisional’ in the state of nature (MM VI: 312). On Kant’s conception, the state of nature is not a product of contingent, empirical, or anthropological facts (Kersting

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1992, 144). The very concept of a state of nature entails uncertainty in lieu of the proximity of human beings, which are mutually threatened with uncertain transactions, the tyranny of private judgement, and the unilateral application of force (MM VI: 312). The solution lies in a coercive public structure or state. The necessity of leaving the state of nature and creating a state therefore arises a priori (MM VI: 306–307). As a matter of logical necessity, the state is the only legal structure that can render rights determinate and secure. This generates Kant’s conception of the civil state as a ‘rightful condition’ where everyone is able to enjoy their rights (MM VI: 305–306). Such a distribution of rights is made possible by ‘the principle of right’ or justified coercion (MM VI: 313; Ripstein 2004). This principle entitles one to use coercion (force) to thwart wrongful coercion, as when one private party arbitrarily blocks another private party from exercising its innate right to freedom. Using coercion to prevent wrongful coercion is morally justified (MM VI: 231). The Kantian state is a coercive authority that relies on the principle of right to structure the relations among its citizens. But this authority cannot be identical with any private party; its character is necessarily public. It requires a set of public institutions for making, interpreting, and enforcing a system of legal rules—or in short, a state (Weinrib 2019, 27–29). For Hobbes, the state is a public coercive authority that guarantees its citizens equality under the civil law, as well as freedom within the law’s bounds. Kant embraces a more radical idea of freedom: freedom alone justifies the exercise of state coercion (MM VI: 340). Hence, the state is entitled to demand obedience to its coercive authority, but it also has a corresponding duty to secure the rights and freedoms of its citizens. Only a properly constituted state, or ‘republic’ as Kant calls it, accords due respect to citizens’ rights. The ideal of a republic is the ‘original contract’ defined as ‘an act by which a people forms itself into a state’ (MM VI: 315; see also TP VIII: 289, 295, 297; PP VIII: 350). The original contract does not designate an institutional mechanism in any material terms. It is ‘a regulative idea of reason’ and its intellectual source is Rousseau’s conception of the general will. For Kant, this idealised will demands any actual legislator to produce laws ‘that could have arisen from the united will of a whole people’ (TP VIII: 297; MM VI: 340). With this, we have arrived at the notion of sovereignty in Kant’s account. Not unlike Hobbes, Kant regards the supreme legislator as an office within the juridical state.20 By saying that the legislator ought to give laws that would have been freely consented by the people, he is not supposing anything like Rousseau’s popular sovereignty. Instead, he is identifying an independent set of normative principles that constrain legislative authority. This resembles the idea of a state constitution. Kant wants to determine what moral principles it would be appropriate to adopt as boundaries of enacted civil law, thereby raising a question about the rule of law (not rule by law). Kant uses the term ‘constitution’ in two senses, to describe the basic structure of a rule-of-law state (‘republic’ or Rechtsstaat ), and the functional organisation of government21 —the former is key here. In explicating the basic structure of a republic,

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Kant focusses on the relation between citizens and their ruler(s). The rights of the citizens are decisive and must satisfy three criteria postulated by the original contract: (1) lawful freedom for each state member (political equivalent to the innate right to freedom); (2) civil equality under the law for each subject; (3) civil independence of each citizen (TP VIII: 290–296; MM VI: 314–315; PP VIII: 349–350n). The concept of civil independence incorporates a class of individuals (with independent means to sustain themselves without reliance on others) as active citizens who vote to determine state law (TP VIII: 294–296; MM VI: 314–315). Despite the fact that Kant’s criterion of civil independence is insufficiently egalitarian by today’s standards, his doctrine outlines the principles of a rule-of-law state which recognises the rights of its citizens as free and equal beings. Defending a blueprint of a state that would realise the rights to freedom and equality of its citizens has been a driving moment in the classical contractarian tradition from Hobbes, through Locke, to Rousseau and Kant. Kant’s schema overcomes the defect in Rousseau’s account of the general will which left too little room for individual freedom, and recognises, in a vein reminiscent of Locke, the import of freedom as non-domination. It also introduces moral boundaries on the exercise of sovereign authority without removing the constraints inherent in the public and coercive character of the juridical state that Hobbes understood so well. For Kant, the sovereign is not legibus solutus but a legislator bound by the rule of law.

External Sovereignty In concluding this discussion, it is pertinent to outline the idea of external sovereignty with an emphasis on the modern state. The purview of this idea is not municipal law and politics but rather the external relations of states. Because the character of these relations remains contested, so is the understanding of external sovereignty. The usual starting point in the debate is Hobbes’s proposition that individuals in the state of nature resemble sovereign states. In lieu of their ‘mutual independency’, states regard each other with suspicion, adopting the posture of ‘gladiators’ (L XIII 187 [63]). Realists take Hobbes to be arguing that the international realm constitutes a state of war.22 Lacking a global sovereign, this realm is permeated by uncertainty which makes each individual state distrustful of others and compels it to seek power in order to survive (Waltz 1979). On this realist reading, external sovereignty—Hobbes’s mutual ‘independency’—entails uncertainty and power struggle among hostile states. Rousseau reaches a similar realist conclusion in his commentary on Abbé Saint-Pierre’s project for perpetual peace (Rousseau 1970a [1761]). This project calls for a federative authority for European states incorporating a common juridical body with coercive prerogatives within a system of collective security that anticipates the League of Nations (Rousseau 1970a [1761], 141–144; see Williams 1992, 74–76). Its rationale is that states ought to

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work towards realising their common interest—lawful peace—by foregoing their self-destructive individual interests in seeking domination. While the Abbé hoped that states would behave like rational actors and institute a peaceful Congress of this kind, Rousseau remained pessimistic. He feared that states favour their private interests, and that these ever-shifting interests would generate equally unstable balances of power (Rousseau 1970b [1782], 161– 164). The natural condition among self-interested sovereign states, Rousseau observed, is one of ‘chance’ (Rousseau 1970b [1782], 158) or the antithesis to legal certainty. Attaining lawful peace thus is a chimera in the international realm. Realists use the term external sovereignty to mean a de facto capacity to maintain independence. A sovereign state is capable of thwarting the attempts of any other state (or states) to dictate terms of interaction. The difficulty with this realist conception of sovereignty is that it becomes indistinguishable from (relational) power. Properly understood, external sovereignty—like its internal counterpart—is a juridical notion that refers to rights. Internally, a sovereign state has a right to determine the law of the realm, and externally, all states have a right to be regarded as formally equal actors (the co-called sovereign equality of states), irrespective of differences in relative power or influence. External sovereignty represents a right determined within a system of moral or legal norms upheld by a plurality of states. It is important to differentiate descriptive from normative views of such a system. International lawyers adopt a descriptivist stance in portraying states as sovereign—or mutually independent and equal—legal persons each of which is entitled to determine freely both its external relations (political, military, cultural) and its internal affairs. On this classical conception of external sovereignty that was adopted in international legal discourse between the eighteenth and mid-twentieth centuries, states are the primary subjects of international law. Consequently, there is no legal right of intervention across borders (Brierly 1963, 293). In the midtwentieth century, the rising tide of human rights violations perpetrated by states against their own citizens gave impetus to the doctrine of humanitarian intervention. This doctrine permits states to intervene in the territory of another state if the latter massacres or enslaves its population (Walzer 1992, 106–107; Holzgrefe and Keohane 2010). Since the turn of the millennium, this right has transformed into a responsibility or duty to protect (Bellamy and Luck 2018). It is noteworthy that both the right to intervene in order to prevent mass atrocities in a foreign state and the duty to protect are moral idioms that reflect a normative stance. They operate as moral correctives to the juridical principle of sovereign equality. Under the revised principle of what might be termed responsible sovereignty, respect for basic human rights (such as the right not to be massacred or enslaved) is a condition for being a member in good standing in the civilised society of states (Frost 1996). Nonetheless, the novelty of this principle as a guide to international practice should not be exaggerated since its conceptual origins are pre-modern.

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One impressive philosophical attempt to reconcile the rights of sovereign states with the rights of human beings living inside states is Kant’s project for perpetual peace. Kant held that instituting a state actualises the principle of civil right (justice) for a group of citizens, but it does not settle the problem of injustice in any other part of the world (PP VIII: 360; MM VI: 353). Therefore, the principle of right must be realised across three domains—civil, international, and cosmopolitan. In Perpetual Peace (1795), Kant uses this tripartite structure of right as the logical basis supporting his blueprint for outlawing war. This requires a republican constitution for each state (domestically), a union of free states (internationally), and a cosmopolitan principle of universal hospitality to protect refugee and commercial rights (globally) (PP VIII: 350–360). Relevant to the problem of external sovereignty is the question of international right as institutionalised into a union of free states. When Kant speaks of ‘free states’, does he refer to the internal constitution of the state (internal sovereignty), or rather, to the relations between states (external sovereignty) (Cavallar 1999, 115)? Curiously, Kant hesitates about the relation between coercion and freedom in his account of international right. In his pre-1793 works, he envisioned the creation of a super-state or a Congress with coercive powers (UH VIII: 24, 26; Kant 1991, pp. 47–49; TP VIII: 312–313), making the aspect of coercion dominant. In Perpetual Peace (1795) and the Metaphysics of Morals (1797), he proposed instead a peaceful confederation of free states whose members can join or leave it at will (PP VIII: 354; MM VI: 345, 350–351). The aspect of freedom is central in this case (but see PP VII: 357). While this complex matter cannot be settled here,23 Kant’s later writings indicate that the normative grounding of civil right and of international right may be principally different (Cavallar 1999, 118–119; Flikschuh 2010). The difference is that while one human being has a right to coerce another into forming a state (MM VI: 312), a state has no right to coerce another into forming a superstate (PP VIII: 355–356). In short, there is an asymmetry between freedom and coercion depending on whether the focus is on the state or on the external relations of states. Civil right places coercion before freedom; international right places freedom before coercion (PP VIII: 383). Two factors explain the peculiarity of Kant’s view of international right. The first is conceptual. Kant defines international right as presupposing ‘different states [that] are not to be fused into a single state’ (PP VIII: 354; see also PP VIII: 367). The second factor is justificatory. Since states ‘already have a rightful constitution internally’, Kant writes, ‘[they] have outgrown the constraint of others to bring them under a more extended law-governed constitution in accordance with their concepts of right’ (PP VIII: 355–356). It is morally wrong to coerce states into membership of a world republic or even a peaceful confederation: each state ought to be free to decide for itself. Moreover, because the state enables a rightful condition for its citizens, the moral right of the state as a free person does not seem to block the realisation of citizens’ rights.

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The upshot of Kant’s account of international right is that each sovereign state should be construed as an agent holding an innate right to freedom in its external relations to other states. Sovereignty here represents moral status, not legal status (since no overarching coercive authority binds all states in the international realm). Kant enables us to see Hobbes’s dictum about the ‘mutual independency’ of states in a new light, not as a realist precept about uncertainty and power, but as a moralist precept expressing the moral sovereignty of states.

Notes 1. For recent debates on the early modern origins of the discourse of sovereignty, see Prokhovnik (2008, 13–34). 2. ‘Dig. 1.3.31’ refers to The Digest of Justinian, Book I, Chapter 3, Sect. 31. 3. The text used in this discussion is Bodin’s On Sovereignty (1992), [abbreviated ‘S’], cited by part, chapter, page number of the 1992 edition, with the pagination of Bodin’s 1583 edition in square brackets. 4. References to Hobbes’s Leviathan (1968 [1651]) [‘L’] are cited by chapter, page number of the 1968 edition, followed by the pagination of the 1651 ‘Head’ edition’ in square brackets; The Elements of Law (1969 [1650]) [‘E’] is cited by part, chapter and section; and De Cive (1949 [1651/1647]) [‘DC ’], by chapter and section. 5. Each Hobbesian individual is free to seek to bend the external world to its purposes, and each has roughly equal reasoning capacities and bodily vulnerability. 6. A detailed account of Hobbes’s three models of a state of nature in Leviathan is Lechner 2019, Chapter 5. 7. Remnants of this ‘power’ perspective survive in Leviathan (L XXXI, 397 [187]). 8. Hobbes speaks of the state as ‘Persona Civitatis, the Person of the Commonwealth’ (L XXVI, 312 [137]). 9. Hence, for Hobbes, the civil law must be promulgated (L XXVI, 317 [140]). 10. In The Elements of Law, Hobbes cites Bodin (De Republica, Bk. I, Chapter 2) in support of his own claim that sovereignty should be indivisible (E II.8.7). 11. Locke’s Second Treatise of Government (Locke 1980 [1690]) [‘ST ’] is cited by chapter and section. 12. As Thompson (1994, 90–92) shows, Locke’s Second Treatise is both a political pamphlet and a work of political philosophy. 13. The expression ‘first-order rights’ and ‘second-order rights’ is Mack’s—see Mack (2013, 75–76). 14. Rousseau’s On the Social Contract (1997) [‘SC ’] is cited by chapter and section. 15. At SC II.12, Rousseau adds two further components: criminal law, and customs and mores, but these are not relevant to the problem of sovereignty. 16. Patrick Riley identifies a tension in Rousseau’s general will between a purely rational morality, and a social or common morality corresponding to two distinct traditions, ‘ancient cohesiveness’ and ‘modern voluntarism’ (Riley 1982, 98–99, 100–111). Riley’s position is uncharitably criticised in Cohen (1999).

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17. On my reading, Rousseau is ultimately a theorist of equality; on Cohen’s reading, he is a theorist of social autonomy. 18. The texts of The Metaphysics of Morals [‘MM ’], On the Common Saying: That May Be Correct in Theory but It is of No Use in Practice [‘TP ’] and Toward Perpetual Peace [‘PP ’] are from Kant’s Practical Philosophy edited by Mary Gregor (Kant 1996a). The text of Idea for a Universal History with a Cosmopolitan Purpose [‘UH ’] is from the Reiss edition of Kant’s Political Writings (Kant 1991). All citations follow the standard of the Prussian academy edition of Kant’s works. 19. For Kant, to hold a right is to put another person under an obligation (MM VI: 239). 20. Kant also uses the term ‘sovereign’ in a broader sense referring to the three ‘authorities’ or ‘persons’ of the state: legislative, judiciary, and executive (MM VI: 313, 338). These ‘persons’ form a unity in normative terms, captured in the ideal of the united general will, even though in functional terms they are distinct and entail separation of powers (their shared normative ground ensures their complementarity, MM : 318). See Kersting (1992, 155–156). 21. The organisational aspect is equivalent to the functional aspect of the Kantian sovereign as a tripartite person—see note 20. 22. Realism here designates a theory of international relations, not an epistemological position. 23. A classic collection of essays on Kant’s Perpetual Peace is Bohman and LutzBachmann (1997).

References Bellamy, Alex, and Edward C. Luck. 2018. The Responsibility to Protect: From Promise to Practice. Cambridge: Polity. Bodin, Jean. 1962 [1606]. The Six Bookes of a Commonweale, ed. Kenneth Douglas McRae. Cambridge, MA: Harvard University Press. ———. 1992. On Sovereignty, ed. Julian H. Franklin. Cambridge: Cambridge University Press. Bohman, James, and Matthias Lutz-Bachmann, eds. 1997. Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal. Cambridge, MA: MIT Press. Brierly, J. L. 1963. The Law of Nations: An Introduction to the International Law of Peace, 6th ed., ed. C. H. M. Waldock. Oxford: Clarendon Press. Brown, Chris, Terry Nardin, and Nicholas Rengger, eds. 2002. International Relations in Political Thought: Texts from the Ancient Greeks to the First World War. Cambridge: Cambridge University Press. Cavallar, Georg. 1999. Kant and the Theory and Practice of International Right. Cardiff: University of Wales Press. Chwaszcza, Christine. 2012. The Seat of Sovereignty: Hobbes on the Artificial Person of the Commonwealth or State. Hobbes Studies 25 (2): 123–142. Cohen, Joshua. 1999. Reflections on Rousseau: Autonomy and Democracy. In The Social Contract Theorists: Critical Essays on Hobbes, Locke and Rousseau, ed. Christopher W. Morris, 191–204. Lanham: Rowman & Littlefield. Flikschuh, Katrin. 2010. Kant’s Sovereignty Dilemma: A Contemporary Analysis. Journal of Political Philosophy 18 (4): 469–493.

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Riley, Patrick. 1982. Will and Political Legitimacy: A Critical Exposition of Social Contract Theory in Hobbes, Locke, Rousseau, Kant and Hegel. Cambridge, MA: Harvard University Press. Ripstein, Arthur. 2004. Authority and Coercion. Philosophy and Public Affairs 32 (1): 2–35. Rousseau, Jean-Jacques 1970a [1761]. Abstract of the Abbé de Saint Pierre’s Project for Perpetual Peace. In The Theory of International Relations: Selected Texts from Gentili to Treitschke, ed. M.G. Forsyth, H.M.A. Keens-Soper, and P. Savigear, 131– 156. London: George Allen and Unwin. ———. 1970b [1782]. Judgement on Saint Pierre’s Project for Perpetual Peace. In The Theory of International Relations: Selected Texts from Gentili to Treitschke, ed. M.G. Forsyth, H.M.A. Keens-Soper, and P. Savigear, 157–166. London: George Allen and Unwin. ———. 1997. The Basic Political Writings, trans. Donald A. Cress. Indianapolis: Hackett. Runciman, David. 2000. What Kind of Person Is Hobbes’s State? A Reply to Skinner. The Journal of Political Philosophy 8 (2): 268–278. Skinner, Quentin. 1999. Hobbes and the Purely Artificial Person of the State. The Journal of Political Philosophy 7 (1): 1–29. ———. 2009. A Genealogy of the Modern State. Proceedings of the British Academy 162: 325–370. Spruyt, Hendrik. 1994. The Sovereign State and Its Competitors: An Analysis of Systems Change. Princeton, NJ: Princeton University Press. Thompson, Martyn. 1994. Locke’s Contract in Context. In The Social Contract from Hobbes to Rawls, ed. David Boucher and Paul Kelly, 73–94. London and New York: Routledge. Tierney, Brian. 1964. The Crisis of Church and State: 1050–1300. Englewood Cliffs, NJ: Prentice-Hall. Ulph, Owen. 1947. Jean Bodin and the Estates-General of 1576. The Journal of Modern History 19 (4): 289–296. Waltz, Kenneth N. 1979. Theory of International Politics. Boston, MA: McGraw Hill. Walzer, Michael. 1992. Just and Unjust Wars: A Moral Argument with Historical Illustrations, 2nd ed. New York: Basic Books. Watson, Alan, ed. 1998. The Digest of Justinian, vol. I. Philadelphia: University of Pennsylvania University Press. Weinrib, Jacob. 2019. Sovereignty as a Right and as a Duty: Kant’s Theory of the State. In Sovereignty and the New Executive Authority, ed. Claire O. Finkelstein and Michael Skerker, 21–46. Oxford: Oxford University Press. Williams, Howard. 1992. International Relations in Political Theory. Milton Keynes: Open University Press.

CHAPTER 21

Nationalism and Intrastate Diversities Andrew Vincent

Introduction This essay is concerned with one dimension of international relations, namely the relation between nationalism and the diversity of intrastate groups. This relation raises important questions about one implicit assumption of the discipline of international relations, namely the close, for some almost indissoluble relation between the idea and practice of the nation and that of the state. In this sense, the discipline, rightly or wrongly, has often been characterized as a study of the relation between nation states. This assumption has close sustaining links to common understandings around, for example, the League of Nations or United Nations, meaning in the broadest sense nation states. Similarly, international law can also be construed in terms of the laws which figure between nation states. The present essay is designed to raise critical questions about the idea of the nation and thus by default the compound term ‘nation state’, raising in consequence doubts about serviceability of the compound ‘nation state’ as a clear marker or indicator for an intelligible discipline. The essay will first briefly indicate the place of the nation state within the study of international relations. It then turns to the analysis of the concept of nation and nationalism and its complex relation with intrastate groups and minorities. It concludes with a study of the relation of nation to the state and sovereignty, set against the backdrop of such intrastate diversity. A. Vincent (B) School of Law and Politics, Cardiff University, Cardiff, Wales, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_21

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Setting the Scene: International Relations There is something unusual in the naissance of international relations as a self-conscious academic discipline. It arose initially in a flush of hope, characterized by what might be termed Wilsonian legalism. This surfaced from a response to the carnage of the First World War and the subsequent Versailles Treaty debates. Originally, it was part of the euphoria (of sorts) surrounding the establishment of the League of Nations (1919)—a euphoria focused on a liberal internationalism, optimistic visions of international law and the belief that reasonable agreement between states could establish international peace, as in the Kellogg Briand Pact (1928). This moment of hope had academic spin-offs. For example, the Carnegie Endowment for International Peace instituted a large publishing venture to translate lovingly the canon of texts which characterized the (purported) history of classical international thought from Ayala, Belli and Gentile up to Vattel, Vitoria, Wolff. Many scholars linked with this project also had strong connections with the American Society of International Law, and some were directly involved in the 1930 League Codification Conference. This optimistic moment also saw the founding of the first chairs of international relations in Britain—those in Aberystwyth (from the David Davies bequest 1919) and the University of London (via the Cassel Trustees 1923). One might be led to believe here that international politics was founded as an academic discipline by recording its strong links with a tradition of natural law and international legalism. Oddly, this was not really the case. This first flush of hope was quickly tempered by a very different logic during the later 1920s and 1930s. The more formal early academic setting of the Anglo-American discipline of international relations evolved in writers such as E.H. Carr, Reinhold Niebuhr, Georg Schwarzenberger, George Kennan and most particularly Hans Morgenthau. Morgenthau, a Jewish émigré from the German Reich in the 1930s, was described by Stanley Hoffman as the real ‘founder of the discipline’ of international relations (Hoffman 1987, 6). Morgenthau’s work was a conscious departure from the hopes for legal internationalism. The presiding shade hovering over his work was Carl Schmitt.1 For Schmitt, an understanding of the state ‘is incomprehensible if one does not know exactly who is to be affected, combated, refuted, or negated by such a term’ (Schmitt 1996, 31). Conflict did not automatically entail war between states; however, it was an ever-present threat and remains the ‘leading presupposition which determines in a characteristic way human action and thinking and thereby creates specifically political behaviour’ (Schmitt 1996, 34). It follows from this that to have a universal order, consensual international law would entail no friends and no enemies and thus would denote the end of politics. In this context, Schmitt remarks dismissively (and Morgenthau later expressed exactly the same point in his Politics amongst Nations) of international law, the League of Nations and the Kellogg Briand Pact. Schmitt noted that ‘as long as a sovereign state exists, this state decides for itself, by virtue of its independence, whether or

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not such a reservation (self-defence, enemy aggression, violation of existing treaties, including the Kellogg Pact, and so on) is or is not given in the concrete case’ (Schmitt 1996, 51; see also Morgenthau 1961, 277). Similarly, the League of Nations could only exist as long as it had an enemy; without an enemy, the League would become redundant (see Schmitt 1996, 28). It is hardly surprising in this context that, as one comparatively recent international relations writer has observed, ‘Schmitt was the forerunner of political realism, as exemplified in the work of Hans Morgenthau, E. H. Carr and Hedley Bull’ (Chandler 2008, 45). One trademark docket for the above tendency in international relations, certainly as it appeared from the later 1940s, was the formal title realism or more commonly now classical realism. Realism is underpinned by the above conflictual perspective, derived initially from the fractious debates of late 1920s Weimar. A similar if diverse constellation of anxious bodies of argument from this Weimar moment can be detected running through the work of Spengler, Arendt, Strauss, Adorno, Cassirer, Voegelin, Popper and Hayek—admittedly from very different perspectives. In the case of realism, it was often arrayed for its audience in the timeless clothes of empirical reflections on human nature and politics. Barry Buzan, in a resonant observation, speaks of realism as arising from a ‘timeless wisdom’ about politics (see Buzan 1996). This current essay will neither be attempting any history of international relations nor realism, a realism which up to the present day has kept producing nuanced variations. Conversely, my more limited aims are first to note two rough and ready points which configure the way the discipline of international relations has often formed, both are conveniently illustrated in the domain of such realism. The discussion then shifts to queries about these assumptions. The first assumption is relatively uncontroversial, namely that international politics, from its inception, has largely been concerned (in terms of subject matter) with the relation between sovereign nation states. International society might thus be described as a plurality of such nation states. It makes little fundamental background difference here whether we distinguish a ‘society of states’ from a ‘system of states’.2 Nation states are seen as the key baseline actors characterizing the discipline, whether or not such states identify common rules. The underlying assumption is that such nation states are identifiable with their own unique set of interests. Foreign policy—the relations between such entities—thus becomes a unique trait of the discipline. A second closely related assumption, which is more obvious in some international writers than others, is that a plurality of such nation states, seeking their own interests, can often conflict, or at least such states subsist with the potential risk of conflict. Consequently, the symbiotic binary of war and peace becomes almost topographical symbols, marking the boundaries of the discipline.3 There is a glimmer here again of the Schmittian conception of politics. The sense of impending hazard and sheer endurance of nation states has been, for some, a distinctive mark of the discipline. As Martin Wight commented, there is ‘a kind of recalcitrance of international politics to being theorized

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about. The reason is that the theorizing has to be done in the language of political theory and law. But this is the language appropriate to Man’s control of his social life… International theory is the theory of survival’ (Wight 1966, 33). The conventional wisdom of the immediate post-1945 generation of particularly realist-inclined international relation theorists was that the reality of power, threat and survival, vis-à-vis sovereign nation states, was a given datum. This partly explains some of recalcitrance regarding the hesitant reintroduction of normative political theory into the international discipline, largely from the 1990s (see Boucher 1997, 1998, ch.16). The question as to whether realism rules out normative considerations, or alternatively whether there can be a realist blending with ethics remains an ongoing debate. Normative international theory, although now much more established and modish in the academy, is in some ways still seen by some to be incongruous. The focus that some, for example critical theorists, amongst others, bring to ideas such as ‘praxis’ or ‘emancipation’ in international relations ‘are frequently challenged by realists for being preachy rather than “academic”’. Such an adverse view of normative theorizing Booth finds lurking even in the most literate international theorists such as Hedley Bull (Booth 2007, 173–7 4). On these rough background assumptions, international relations often views itself as a singular discipline. For such assumptions, the variable order in the international domain lies largely in the structures and types of relations between a plurality of ‘nation states’. Given the centrality of the ‘nation state’ to large swathes of the international discipline, to what extent is the concept of the nation and/or nationalism a clear, coherent or accommodating notion?

National, Nation and Nationalism: A First Look When we use the term ‘international’—as in international relations—what do we mean by the term ‘national’, to which the prefix ‘inter’ is added? What is presupposed in such terminology? As a compound word, ‘international’ implies logically a prior grasp of the term national. There is a sense of something unitary or unifying in the concept national. However, what precisely assures us of this unitary status? My suspicion is that the purported unity is often constituted, underpinned or supplemented by other terminology, a terminology which in turn retains an equally puzzling relation to the national. The terminology which has the most determinate role in this setting is sovereignty and statehood. These concepts are often doing the heavy lifting for the national. Of course, additional concepts also figure here, such as power or security, although these do not substantiate any unity for the nation. Further, the way in which these various concepts are understood and framed is also significant. Admittedly, the idea of the ‘international’ likewise covers a wide range of auxiliary phenomena—international institutions, law, courts, corporations and so forth. However, within this latter inundation of concepts and practices, the vocabulary of ‘international’ keeps interminably repeating in

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the background like a stuck record. So, thus what is the meaning of the term ‘national’ to which we attach the prefix? The root word nation derives from the Latin terms nasci (to be born) and natio (belonging together by birth or place of birth). The routine sense of natio is thus concerned, prima facie, with a grouping of sorts related by the chance of birth or birth place. One important connotation of this point is that such an emphasis—on relation by birth—provides the groundwork for a sense of a ‘natural’ form of human association. The implication is that the agent does not choose their nation, they are, as it were ‘thrown’ into it. One can immediately begin to understand here the problems of categorizing nations—as many do—as human artefacts or fictions. The critic who considers that nations are just fictions can be struggling on a number of fronts, not least semantics and etymology. The link between ‘nation’ and ‘natural’ is exemplified in the biological patina of some discussions, particularly of ethnic nationalism.4 In the period chiefly from the 1870s to the 1930s, this quasibiological reading of nationalism impacted very directly on both theory and practice. More problematically, it also interlinked closely with understandings of race. Scepticism has been expressed on this ‘naturalistic’ theme by other interpreters of nationalism, particularly in the post-1945 period. In fact, the oddity of this latter naturalistic theme can be brought out further with another oftused synonym for the nation, namely culture. Many over the last three decades have refocused on nationalism as an expression of culture. I am thinking here of such writers as David Miller, Yael Tamir, Will Kymlicka, Craig Calhoun, Joseph Raz, Avishai Margalit and Kai Nielsen. Thus, for Kai Nielsen, ‘all nationalisms are cultural nationalisms of one kind or another’ (Nielsen 1999, 127). The fundamental problem here is that the concept culture also remains profoundly nebulous. Minimally, culture is not typically linked to nature. In fact, culture is more often than not regarded as a wholly human artefact. In this sense, to make culture and the nation synonymous automatically destabilizes the link between the nation and natural. For some, this destabilization is not a problem; for others, it is a worry which detracts from the natural rootedness of the nation or ethnie.

Is There a Unitary Understanding of the National and Nationalism? A simple and quick answer to the above subtitle question would be a resounding no. Firstly, there is no consensus over historical origins. The bulk of recent work still revolves endlessly and inconclusively around the historical theme. Scholars carry on hammering away at their pet theories, whether primordialist, ethno-symbolist or modernist (see, for example, Ichigo and Uzelac 2005; Breuilly 2005; Roshvald 2006; Özkirimli and Grosby 2007; Drakulic 2008; Smith 1986, 2001). The word nation appeared first in the English and French languages in approximately the fourteenth century. Its

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usage became more commonplace in European literary circles by the fifteenth and sixteenth centuries, although what exactly it signified remains less clear. The term initially had no immediate connection with political theory or ideology. Thus, nationalism—as ideology—can thus be kept distinct from the nation. Nationalism, as theory, seeped into the European vocabularies in the eighteenth and early nineteenth centuries, often in conjunction with the development of the idea of the state. Thus, many scholars insist on a separation between the ‘idea of the nation’ and the ‘ideology of nationalism’. Conceptually, this is not that clear, but one can see why it might be argued. The term nation is taken as a less protean and more descriptive term than nationalism—a form of registered historical or anthropological fact rather than an explicitly avowed body of ideas. A nation can therefore exist in this argument as an empirical human community, but not coincide with an explicit declaration of an ideology called nationalism. The use of the term ‘national’ might have some rough connection to this latter idea. However, nationalism as an ideology is for some an altogether more inchoate term (see Wayne Norman 1999, 56). This latter point is advocated not only by academic interpreters of nationalism, but also by many advocates for nationalism. It can, for example, potentially salvage the arguments concerning the antiquity of the nation—as opposed to modern rationalizations of nationalism. Others repudiate the use of both nationalism and nation. Thus, in the 1990s, David Miller followed J.S. Mill from the 1860s in advocating the term nationality as distinct from the other terminology (see Mill 1962; Miller 1995).

Responses to the National Idea During the twentieth century, there have been two broad overarching responses to the idea of the national within both political and historical studies, as well as in the perceptions of ordinary citizens. One approach has been generally anxious. This sense of unease was profoundly affected in most European states (and in some Asian states such as Japan)—on both theoretical and practical levels—by the horrifying events surrounding the Second World War. Thus, for many, national socialism, fascism and extreme national authoritarianism marked out early to mid-twentieth century obsession with the nation for specific repugnance. Many commentators, from the 1940s period up to 1990, consequently saw nationalism as an unduly narrow, tribalist, potentially totalitarian and bellicose doctrine. Furthermore, liberal, Marxist and social democratic theories, in this same period, self-consciously developed more internationalist or cosmopolitan stances. One exception to this anti-nationalist process was the anti- and post-colonial nationalisms, which embodied from the 1950s an emancipatory imprimatur, frequently utilizing the vocabulary of self-determination for new states. Aside from the colonial field, the focus of attention of many in the post-1945 era was the attempt to curtail the national via international institutions and laws; thus, we see the diverse ameliorations of international law, the evolution of international courts, human rights growth

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and the United Nations and so forth. The aim was, loosely speaking, to try to corral the national within the bounds of rule-governed civility. The second response to the national dates originally from the early nineteenth century and the first clear inception of the political ideology of nationalism. This initially saw a positive social, political and economic value in nationalism. In early to mid-nineteenth-century writers such as Giuseppe Mazzini, Ernest Renan, Gottfried Herder and J.S. Mill, amongst many others, there was a strong sense of civic liberation attached to nationalism. It implied the emancipation of cultures and/or peoples from oppressive empires and repressive political structures. Yet, the later nineteenth century and particularly the early twentieth century also saw the rapid growth of authoritarian, conservative, racial and later fascist forms of nationalism. This latter development, in many ways, delivered a body blow to the liberal or civic emancipatory patina of the earlier nationalist ideas of the 1840s. Emancipation and self-determination were still deeply embedded in the nationalist vocabulary, but the focus had shifted profoundly to something far more opaque and politically capricious, as in the emancipation of a race or the liberation of the Volk or people from the constraints of parliamentary liberal democracy, establishment elites or the rule of law. Two additional factors are worth noting here: most current debates over the idea of the nation and nationalism now acknowledge that they do embody a broad cluster of perspectives (see Vincent 2002; Spencer and Wollman 2002, 94ff). In this sense, it is accepted that there are diverse ideological variations. These internal variants were not envisaged by the early to mid-nineteenthcentury theorists of the nation. Thus, nationalist ideology during the twentieth century to the present day appears as a much more mutable pattern of thought than previously imagined. There is no predictable political direction. Secondly, some have seen a link between forms of nationalism and liberal values such as freedom and democracy. Consequently, since the collapse of the Berlin wall in 1989, and the changing political landscape of international politics, there has been a resurgence of theoretical interest in liberal or civic nationalism in the academic environment. The serious flaw in this post-1989 academic interest in nationalism is that very little of it has been liberal in practice. If anything, the bulk of the nationalism seen, for example across Europe in the last few decades, has been markedly inward-looking, illiberal, populist-inclined, anti-intellectual, anti-immigrant, incipiently authoritarian and often acutely xenophobic. Political practice thus runs counter to much of the optimistic liberal-minded writing about the nation and nationalism in the academy. Another chronic puzzle is that the idea of the nation or the national is a comparatively recent historical phenomenon, at most dating from the late eighteenth or early nineteenth centuries. Conversely, one of the central substantive theoretical claims of many nationalist proponents of all stripes, as well as academic commentators, has been the deep antiquity of the nation. Accordingly—so the argument proceeds—as long as humans have existed, they have done so in national and/or ethnic units. Nonetheless, it is also clear

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for many other serious scholars that nationalism is historically a comparatively modern artefact. In fact, for some scholars, nationalism equates wholly with modernity (Gellner 1983; Anderson 1983; Breuilly 2005). It is thus, at most, a phenomenon of the nineteenth and twentieth centuries.5

Nationalism and Intrastate Diversities Briefly to summarize the foregoing: there is little conceptual or historical unanimity on the terminology surrounding the idea of the national. Terms such as nation, national or nationalism remain contested. Further, some have repudiated or rejected the idea of the national altogether as a fictional construct; others again have embraced the fictional character but retained the significance of the national as a cultural project. Culture, in this latter context, is therefore seen as a constructed but nonetheless meaning-rich dimension of social reality. Meanwhile, as indicated, the genealogy of the various theories of the nation and national remains fraught with strikingly different interpretations. Nationalism, as a frame of ideas, lingers disconsolately amongst a wide range of occasionally very diverse political beliefs. Overall, despite being an ever-popular field of inquiry, the ideas of the national and nationalism remain intrinsically both nebulous and incessantly disputed. Given the above summary, what then of the claim of the nation or national coinciding with statehood? Further what impact does this have on a term such as ‘international’? Before discussing these questions, one further problem needs to be aired which is also deeply pertinent to the whole state/nation relation. The nub of the problem is: is the idea of a unitary nation born out in practice? The arguments here play precipitously on the contested margins of the way a nation is understood. As indicated, there is tendency to think of the national in terms of culture or language. However, once we invoke such concepts and the concomitant vocabulary of identity, recognition and self-determination, we then disclose a deeper layer of complexity arising. This new layer of complexity can be summoned via quite mundane details. At the present moment, there are somewhere in the region of one hundred and ninety-five independent states globally. These contain over six hundred languages, and there are approximately five thousand plus minorities within such states. To pick some random examples: Vietnam, a comparatively small state, contains around fifty recognized minorities, China has approximately fifty-five and Russia approximately one hundred and eighty-six, and these are just the recognized ones. Such minorities are conventionally differentiated in the context of ethnicity, language, history, religion, kinship and custom, although culture can often become a convenient shorthand to encompass these criteria. These mundane facts, in turn, have led to widespread global debates over minorities and their rights, particularly in more recent times with indigenous minority groups. More contentiously, there are demands for the rights of immigrant and refugee groups within states.

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The issues here are obdurately complex. Some random examples will have to suffice. Thus, some groups such as the Basques straddle different state territorial borders, in this case France and Spain. The same holds for the Kurds who overlap Iraq, Turkey, Syria and Iran. The continent of Africa overall remains a profoundly complex example of the superimposition by colonial powers, during the late nineteenth century, of national artifices over older tribal lands and associations. Other groups such as the Catalans, Quebecers or Flemish reside in a delineated territory within states, but have struggled at points for secession, in these cases from Spain, Canada and Belgium. The same argument has arisen with variable demands for Scottish, Northern Irish or Welsh secession from the United Kingdom. Alternatively, some groups struggle principally for their own lands or relative autonomy within states, such as the Maori of New Zealand, or indeed many within the Flemish movement. These diverse minority group demands are configured in many different ways via, for example federalism, confederation, devolution, consociationism or outright secession and independence. There is indeed a long and very complicated history to such movements. This same ‘group impetus’ has been reflected in post-1945 discussion of human rights. Particularly since the 1990s, cultural and minority grouporientated human rights have taken a much higher profile in human rights discussion. They are often referred to as third generation human rights (see Vincent 2010, 139–146). One focus of such discussion has been the issue of both indigenous and minority cultural groups. These cultural claims are envisaged as forming the core identities (of their members), which ought in turn to be respected and accorded a rights status. A number of conventions and declarations have thus focused on this cultural theme during the last few decades. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religions and Linguistic Minorities was passed in the General Assembly of the United Nations in December 1992. The Council of Europe adopted a Framework Convention for the Protection of National Minorities in 1995. The ten-year period from 1995 to 2005 was also declared by the United Nations as the International Decade of the World’s Indigenous Peoples. In September 2007, the General Assembly passed the Declaration on the Rights of Indigenous Peoples after many years of detailed discussion, although it is worth noting that the large multicultural-inclined states (with indigenous peoples) of Australia, New Zealand, Canada and the United States initially all voted against it. However, it is worth pausing for a moment to compare the above movement for cultural and minority human rights with the ethos of the earlier Universal Declaration of Human Rights [UDHR]. This latter document was slightly more ambiguous on the issue of nationality. The proximity of the Second World War and the violent racialized nationalisms of the 1920s and 1930s were too close in time for comfort. The UDHR did though include Article 15, 1, which speaks rather nervously of the human ‘right of nationality’, although again it is difficult to know precisely what this entails. Article

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27, 1 also includes the ‘right freely to participate in the cultural life of the community’, but again it is difficult yet again to know what community is being referred to. The term nationality dropped out totally in 1960s human rights covenants, usually replaced by the weasel word ‘people’. In the ICESCR and the ICCPR,6 both begin strangely with the same Article 1—‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. As indicated, the concept ‘nation’ is studiously avoided and the words ‘peoples’ and ‘cultures’ become prevalent. Yet, the gist of the words seems to be roughly parallel. Both the latter 1966 Covenants were written in the tense era of European decolonization in Asia and Africa. Thus, the fixation with the right of self-determining peoples was to a degree understandable. But the upshot of both opening articles is ironically a human right blessing upon the old nineteenth-century idea of the nation (state) as a culturally distinct self-determining entity. The basic question arising from the above discussion is how can one reconcile, on the one hand, the universal human right to the self-determination of the unitary nation with, and on the other hand, the universal human right to self-determination of the multiples of minority groups or cultures who subsist within and across the boundaries of such nation states? Despite a very hesitant and pragmatic imprimatur by the UDHR on the nation state in 1948, nonetheless as a mundane fact each nation state frequently embodies many minorities who are themselves clearly affirmed as independent human rights bearers within the various minority and indigenous conventions, covenants and declarations of human rights of the 1990s.

Multiculturalism and Intrastate Diversity Another well-known parallel stratagem to address such intrastate group and minority rights, particularly from the 1990s period, has been the idea of multiculturalism, an idea which has traversed a rocky path over the last three decades. By and large, it was addressed to indigenous cultures, minority and immigrant groups within established states. It did not speak to the minority groups or cultures which crossed different state territorial borders. Most commentators concur that multiculturalism (as a doctrine) is a moderately recent topic of political debate, although it has historical antecedents (see Vincent 1987, ch.6). Some commentators have seen the lifetime of effectual multicultural debate as fairly confined. For some, it is a product, in educational and politicized circles, of the last thirty years. Will Kymlicka, writing at the turn of this century, noted that it had been present for no more than a decade (Kymlicka in Joppke and Lukes 1999, 112). It is also arguable that since around 2011 it has begun to diminish somewhat as a policy, predictably with the recent rise of authoritarian populisms. The prefix ‘multi’ conventionally arose in the context of group cultures. In broad overview, multiculturalism viewed society as composed of a diversity of

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groups, each constituted by their own unique culture. Culture refers loosely to the beliefs, symbols and values of the group. However, the question what a group is exactly (conceptually) and whether it qualifies for a culture, and, in addition what a culture is precisely, all remain unresolved. To complicate the issue even further, the concept multicultural has overlaps with a number of cognate terms such as pluralism, difference and multi or polyethnic. These can all function in an analogous conceptual manner to the term multicultural. Each term has often, over the early 2000s, become a rallying point for heated intellectual debate, although usually more heat than light was generated. Without entering the detailed minutiae of multicultural argument—which embodies many different typologies and very divergent bodies of argumentation—the idea of multiculturalism has been canvassed and underlined here for two modest reasons. First, it exemplifies, once again, a basic awareness of multiple intrastate groups as a guileless datum of social existence. It therefore raises, once again, an unavoidable question mark over the very idea of a unitary consensual nation. Predictably, it is understandable that the concept multiculturalism does not really appear in most orthodox international relations discourse. It is only focused on intrastate minorities. Furthermore, multiculturalism does not immediately address extra-state issues of, for example, mutable or fluid borders, immigration, or the status of refugees, which straddle territorially different state borders. Second, it might reasonably be concluded in this setting that the national stands potentially opposed to the multicultural. However, this would be misleading. Paradoxically, another underlying reason for the intense focus on intrastate diversity has been the popularity of the culture-based nation state. This latter compound invokes a vision—in confusing tandem with other concepts such as sovereignty and self-determination—of a cohesive unified cultural community. However, as noted above, each alleged nation contains sub-ethnicities and sub-national minority groups of many and varied types. Diversity and difference are ordinary. However, if we now step back from this latter judgement, there still remains a family resemblance within all such argumentation. Thus, in the same way that nationalism in political theory can be configured as fragmenting into distinct national units, each with their own historical continuity, language and culture, so each sub-nationality minority and sub-group can also argue legitimately (using the very same logic) that each national entity, in turn, needs to be further subdivided to satisfy the same yearning for cultural autonomy, independence and self-determination amongst minority groups. Fragmentation is therefore written into the very fabric of nationalist, communitarian and multicultural argumentation. As President Wilson was to bemoan in 1919 at Versailles, how could one prevent every moderately sized cultural group perceiving itself as a nation, and thus possibly a self-determining state? In addition, how was one to resolve conflicts between and within nation states and, even more problematically, secessionist movements within nation states. In a broad-brush stroke, multicultural politics is a spooky mirror image of international politics.

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The central point therefore is that the ‘idea of the national’ emphasizes the political priority of self-determination rights for meaningful cultural groups. Yet most developed nation states, by dint of basic social reality, contain a diversity of internal minority groups. Thus, the same ‘self-determination logic’, which the nation applies against other nations, is echoed precisely via internal sub-national intrastate groups. This is the root argument found in both multicultural and secession claims. Such groups would make little sense without this implicit logic. Ironically, nationalism undermines intrastate diversity through its emphasis on unified national consensus, but at the same time it unwittingly logically facilitates this same diversity by throwing the moral and political emphasis on the self-determination right of culturally cohesive groups. Therefore, one key reason for the quandary of fragmentation within contemporary and past societies has been the logic of cultural self-determining nations themselves. While nationalism, culturalism and identity politics flourish so will the internal mitosis of cultural groups.

Nation and State The above argument leads me now to a final consideration of the relation of nations and states, which will also touch upon the idea of sovereignty. As argued earlier, it has become a backgrounded commonplace in international relations to speak of the ‘nation state’. The conventional view is that the state provides the forum or shell within which national identity can be articulated or represented. This identity may be in large part fortuitous, simply because of the context of a particularly robust nineteenth-century European statist politico-legal ethos. This latter ethos not only developed on a practical-political level, but was something that was also given a powerful academic imprimatur by a large and growing band of academic lawyers, historians, philosophers and political theorists writing in the expanding European universities of the nineteenth and early twentieth centuries. Academic national history in universities and the idea of the ‘nation state’ have had a close symbiotic relation to the present day (see Soffer 1994). The terminology of the nation state has consequently appeared consistently in academic politics and history curricula. In the early twentieth century, particularly after the Versailles Treaty and its regularized usage of the term selfdetermination, it became more or less a routine vernacular term in political speech across Europe and elsewhere. Ernest Barker, the first professor of politics in Britain, summarized the idea quite concisely ‘The history of the century since 1915… will teach us that in some form a nation must be a State, and a State a nation… A democratic State which is multi-national will fall asunder into as many democracies as there are nationalities’ (Barker 1927, 17). Despite detractors, the compound term ‘nation state’ persists. Attempting to summarize one key aspect of the condition of contemporary political theory in 2000, David Archard comments ‘like it or not, most states are nation states and… nationalism both as a generalized sentiment of attachment to one’s national

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identity and as a form of organized political activity, is a salient feature of the contemporary world’ (Archard 2000, 156). Archard’s general point has continued to engage some academics to the present day. Unremarkably, it forms a staple component of the international relations discipline. Yet do nations and states actually coincide? This is a large topic which can only be lightly glossed. Oddly more dedicated nationalist theorists themselves are divided on the issue (see Smith 1991, 14–15). For Neil MacCormick, for example, the concepts of the nation and state must be considered separately. He noted that ‘states are political entities which have a legal definition’. Thus, wherever ‘there exists a relatively independent and self-sufficient legal order having defined organs of government of a relatively centralized kind exercising jurisdiction over a… territory, there is a state’. The members of such a state were defined by law. For MacCormick, nations were clearly not like this (MacCormick 1982, 248). The nation was rather a form of ‘popular consciousness’, involving a common culture. There was nonetheless ‘the need for a form of common governance which recognizes and allows for the continued flourishing of the cultural and historical community’ (MacCormick 1982, 261). Despite recognizing the desire that national communities have felt for gaining their own ‘state’, MacCormick expressed profound scepticism about this expectation. He noted, for example, that the nineteenthand twentieth-century ‘nation state’ had not added much to contentment or peace in Europe, or elsewhere. However, he did look with optimism to the retention of nationalism outside the state idea. Thus, the nation state compound was envisaged as gradually being replaced by forms of regional powers in the context of federations, such as the European Union. Multilevel plural governance was seen to provide the best vessel for national aspiration. For MacCormick, in fact, ‘the concept of a “sovereign state” is of much more recent vintage than that of a nation, and developments such as that of the European community suggest that it may have already had its day’ (MacCormick 1982, 264). Thus, nationalism was something which MacCormick thinks can and should develop outside the obsolescent sovereign state. A similar pattern of argument can be seen in the work of Yael Tamir (Tamir 1999). For David Miller, ‘nation’ and ‘state’ are not synonyms. The nation is a people with an aspiration to be politically self-determining and the state is the political institutions they aspire to achieve (Miller 1995, 18–19). State boundaries should, as far as possible, coincide with national boundaries. Such a coincidence is morally desirable for Miller. Overall, for Miller, the state ‘is likely to be better able to achieve its goals where its subjects form an encompassing community, and conversely national communities are better able to preserve their culture and fulfil their aspirations where they have control of the political machinery’, which requires in turn sovereignty (Miller in Brown 1994, 145). However, Miller is still insistent that sovereignty and statehood should not become a totem. He suggests there may be very good reasons for

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ceding some legal powers to other bodies, such as the European Union. But there still remains a close symbiotic relation between states and nations. In sum, there is in fact little unanimity over the relation of the state and nation even amongst writers supportive of nationalism. The more negative views in Tamir and MacCormick argue that nationalism is an ancient phenomenon, which long precedes the state and has now outgrown it. Miller offers a more sympathetic rendering, but even he has qualifications to make over the future of sovereignty. Further, contrary to all the above writers, if it is the case that nationalism is a practice dating largely from the late eighteenth or early nineteenth century, then forms of state have clearly existed for many centuries without the idea of the nation or national. For a moment, in the nineteenth century, the nation state compound had sense and reference. Nonetheless, it is a fallacy to think of states—historically, politically or sociologically—automatically coinciding with nations. This latter argument becomes even more problematic when conjoined with the previous discussion of multiple minority groups, sub-nationalities and ethnie, both within and overlapping states. Heterogeneity and intrastate diversity are commonplace (Hobsbawm 1992, 17). Homogeneity is virtually non-existent, except in very rare partial approximations, say Iceland. This of course does not entail that some will still want to continue to espouse such fictions as homogenous nations or pure races.

States and Nations However, what of the ‘state’ side of the above compound? Minimally, on a juridical level, one can say that the state is a unique notion of public power. Yet what might we associate it with? Government is one possible synonym. Governments are usually collections of individuals and institutions; but no one individual or institution embodies overall fiscal, legal, political, or judicial authority. Individuals in government come and go. Thus, it is not the individuals as such who constitute the state. One might possibly associate the state therefore with offices of government, rather than the individuals who hold the offices. Again, the offices can mutate or be modified. Such offices can be diverse, and they therefore only represent the state in certain narrow respects. Therefore, one cannot really identify the state with any one or even a collection of offices. The state can of course be identified with an element within a government, such as the executive, the judiciary or legislature, or a composite of these. Yet, governments understood as legislatures or executives also ebb and flow, whereas a state appears as a continuity. In addition, if a judiciary or a parliamentary legislature hinders or prevents an executive action, which element embodies the state? Of course, if the state were the executive, then it would disappear every time a government fell, unless the executive remained in perpetuity without elections; this then totters into dictatorship. What of the administrative dimension, particularly the higher echelons? This could be said to embody the continuity of the state. Administrative structures can remain

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relatively stable in the transition between governments. Yet although important to the running of a state, one would justifiably hesitate to suggest that the state is the administration. However, it might still be argued that when a government and administration act in unison it is surely the state acting? This might be a feasible argument unless of course the action is seen as unconstitutional or is challenged judicially. Both government and administration can be limited by a constitution, court or indeed by a people—as in a popular plebiscite or referendum. If a constitution or judiciary is providing authoritative limits to government or administration action, then it follows that the government or administration cannot be the state. They may carry some of the authority of the state, but they are not the state as such. Does this mean that the constitution is the state? One could associate the state with a constitutional frame—say a basic law or Grundnorm. Again, the problem is that a constitution—outside of being a description of arrangements or rules—is usually seen to define or limit a state. In this sense, how can a constitution be the state? A constitution can likewise be authoritatively modified by a supreme court or legislature and thus the argument proceeds ever onwards. Suffice it to say that the state, even if deeply important, remains elusive. The state idea embodies immensely complex and overlapping traditions of analysis (see Vincent 1987). Yet it is not clear whether any of the theories within this rich tradition link in any fundamental way with the idea of the nation. The nation is a concept which appears at a comparatively late stage in the state tradition. From the nineteenth century, it has been a powerful, if often unexplained, addition to the state vocabulary. In passing, there are elements of the state tradition which have been accommodating frameworks for multiple intrastate groups. The Swiss confederation, set up in 1291, was notable for enduring the religious civil wars of the sixteenth century. Confederations or federations were essentially premised on contractual agreements and distributed powers. This subsequently became a model for the United Provinces of the Netherlands and part of the background argument for the federalized United States of America—e pluribus unum. What then of sovereignty? Everything again depends here on exactly how one interprets sovereignty. There is an abstract conceptual history of sovereignty which can in some cases be traced back to Roman legal thought. In practice, the concept of sovereignty has had a tangled history for about five centuries in Europe. In practice, for most of this time, what we might call sovereign states were unstable entities. The endeavour of apparent sovereigns to conciliate interests and collect taxes was seldom less than fraught, even under absolutists such as Louis XIV. Further, the concept of sovereignty itself raises similar complexities to the concept state; who or what is sovereign—a government, an executive, portion of government, a constitution, the people or a compound of these? What does sovereignty denote? Conventionally, it usually implied some form of absolute authority within a territory. But such an idea is usually fiction.7 Schmitt called sovereignty the ‘state of exception’— a form of existential stepping-out from normal legal and political processes.

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But again, such a notion is surely questionable. Even in well-developed states the notion of sovereignty as exceptional absolute power makes little real sense, either internally or externally. No civil state claims such total arbitrary power, except that its puts itself outside of civility. It then largely ceases (formally or informally) to be a state, vis-a-vis the recognition of other states. Thus, the National Socialist regime in Germany in the 1930s in effect undercut its own statehood. Thus, sovereignty is essentially a problem. Anthony Cassese sensed this during his time as President of the International Criminal Tribunal for the Former Yugoslavia, arguing in retrospect that international law always remains the austere contrary to the claims of sovereignty. He complained that even the 1998 Rome Statute has been still far too deferential to sovereignty (see Broomhall 2003, 56–57). The rule of law is not a coercive capricious power structure; it is rather the intrinsic condition of civil existence. Force exercised by a state is constrained by rules and limited to variable degrees. Replacing statehood with unqualified power is, in practice, an assault on statehood. In many ways, a constitutional rule of law is the opposite of sovereignty.

Conclusion Intrastate and extra-state diversities of groups, for most developed modern states, are simply what is empirically the case. Loyalties are many and various. Identities are muddled and confused. Hence, if we mean by a state a consensual nation, then the question is, can any such entity be found? Additionally, the concept and practice of the state embody an opulent miscellany of legal and political theories and practices. Historically, various theories of the state have subsisted initially in Europe for around five centuries. There are also divergent accounts of the state, for example, between the French, German, and British state traditions. Numerous accounts of sovereignty have often interlaced with statist vocabulary over this long historical trajectory. However, sovereignty, as it has often been deployed, has been frequently fashioned as a kind of unearthly mythical power. For a time in the late eighteenth and early nineteenth centuries, this amalgam of ideas became connected to the vocabulary of nationhood. This led to a recurrent baffling conceptual legacy concerning the nation state. However, nationalism has remained elusive and perplexing. Each state rather embodies a multiplicity of minority, cultural, ethnic or indigenous groups which make the idea of the pure nation look simply strange. The state, embodying minimally the rule of law and regularized political discursivity, is the basis of social and political order both domestically and internationally. A plurality of such entities is neither focused on hostility nor threat of conflict. States are conversely sites of possible order and civility, embodying multiple groups and associations as normal facets of social existence. Such a scenario has little to do with a nation.

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Notes 1. Morgenthau had studied law at Munich (1924) and then Berlin (1929). The two really key influences on his work were Max Weber and Carl Schmitt. His doctoral study in 1929 was an analysis of the limits of international law. Some scholars have seen the doctorate as a thinly veiled attempt to both critically assess, but also incorporate Schmittian ideas into international politics. Morgenthau eventually (and ironically) claimed that Schmitt had plagiarized his ideas. Although leaving Germany in 1932, Morgenthau remained profoundly influenced by Schmitt on politics. 2. The doyen of the English school, Hedley Bull, distinguished between a ‘system of states’ and a ‘society of states’. The former is concerned with states which have some contacts and impact upon one another, such as to appear as parts of a whole. The latter eventuates when common values and interests lead to states being ‘bound by a common set of rules in their relations with one another, and share in the working of common institutions’ (Bull 2002, 9, 13). Thus, for Bull, even though international society remains anarchical, states can still forge common societal rules for interaction. 3. As Raymond Aron noted ‘Inter-state relations present one original feature which distinguishes them from all other social relations: they take place within the shadow of war, or, to use a more rigorous expression, relations among states involve, in essence, the alternatives of war and peace… so long as humanity has not achieved unification into a universal state, an essential difference will exist between internal politics and foreign politics’ (Aron 1966, 5–6). 4. Nationalism became integrated in the later nineteenth century with theories of adaptation and change through natural selection (see Ratzel 1896). The vestiges of this method have continued in sociobiological theories (Reynolds 1987). 5. Among the nation states created over the nineteenth and early twentieth centuries: 1830 Greece; 1831 Belgium; 1861 Italy; 1871 Germany; 1878 Romania, Serbia and Montenegro; 1905 Norway; 1908 Bulgaria; 1913 Albania; 1917 Finland; 1918 Poland, Czechoslovakia, Estonia, Latvia, Lithuania; 1922 Ireland. The League of Nations founded in 1920 had forty-two members, the United Nations, founded in 1945, had fifty-one, by 1969 eighty-two, by 1973 one hundred and thirty-five, and by 1988 one hundred and fifty-nine. In 2019, it has grown to around one hundred and ninety-five. 6. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. 7. Stephen Krasner, speaking of Westphalian sovereignty, describes it as ‘organized hypocrisy’ and yet a ‘durable myth’ (Krasner 1999).

References Anderson, Benedict. 1983. Imagined Communities: Reflections on the Origin and Spread of Nationalism. London: Verso. Archard, David. 2000. Nationalism and Political Theory. In Political Theory in Transition, ed. Noel O’Sullivan, 155–171. London: Routledge. Aron, Raymond. 1966. Peace and War: A Theory of International Relations. London and New York: Doubleday.

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Barker, Ernest. 1927. National Character and the Factors in Its Formation, 4th ed. London: Methuen. Booth, Ken. 2007. Theory of World Security. Cambridge: Cambridge University Press. Boucher, David. 1997. Political Theory, International Theory, and the Political Theory of International Relations. In Political Theory: Tradition and Diversity, ed. Andrew Vincent, 193–213. Cambridge: Cambridge University Press. ———. 1998. Political Theories of International Relations. Oxford: Clarendon Press. Breuilly, John. 2005. Dating the Nation: How Old Is an Old Nation? In When Is the Nation? ed. Atsuko Ichijo and Gordana Uzelac, 15–39. London: Routledge. Broomhall, B. 2003. International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford: Oxford University Press. Bull, Hedley. 2002. The Anarchical Society. London: Macmillan. Buzan, Barry. 1996. The Timeless Wisdom of Realism. In International Theory: Positivism and Beyond, ed. S. Smith, K. Booth, and M. Zalewski, 47–65. Cambridge: Cambridge University Press. Chandler, David. 2008. The Revival of Carl Schmitt in International Relations: The Last Refuge of Critical Theorists. Millennium 37 (1): 27–48. Drakulic, S. 2008. Whence Nationalism? Nations and Nationalism 14 (2): 221–239. Gellner, E. 1983. Nations and Nationalism. Oxford: Blackwell. Hobsbawm, E. 1992. Nations and Nationalism Since 1780: Programme, Myth and Reality. Cambridge: Cambridge University Press. Hoffman, S. 1987. An American Social Science: International Relations. In Janus and Minerva: Essays in the Theory and Practice of International Politics, ed. S. Hoffman. Boulder and London: Westview. Ichijo, Atsuko, and Gordana Uzelac, eds. 2005. When Is the Nation? Towards an Understanding of Theories of Nationalism. London and New York: Routledge. Joppke, C., and S. Lukes, eds. 1999. Multicultural Questions. Oxford: Oxford University Press. Krasner, Stephen D. 1999. Sovereignty: Organized Hypocrisy. Princeton, NJ: Princeton University Press. ———. 1999. Comments on Shacher and Spinner-Halev: An Update from the Multicultural Wars. In Multicultural Question, ed. Christian Joppke and Steven Lukes, 112–130. Oxford: Oxford University Press. MacCormick, N. 1982. Legal Rights and Social Democracy: Essays in Legal and Political Philosophy. Oxford: Clarendon Press. Mill, J.S. 1962. Utilitarianism, Liberty and Representative Government. London: Dent. Miller, David. 1994. The Nation-State: A Modest Defence. In Political Restructuring in Europe, ed. C. Brown, 133–158. London: Routledge. ———. 1995. On Nationality. Oxford: Clarendon Press. Morgenthau, H.J. 1961. Politics Among Nations: The Struggle for Power and Peace. New York: Alfred Knopf. Nielsen, K. 1999. Cultural Nationalism, Neither Ethnic nor Civic. In Theorizing Nationalism, ed. R. Beiner, 119–130. New York: State University of New York Press. Norman, Wayne. 1999. Theorizing Nationalism (Normatively): First Steps. In Theorizing Nationalism, ed. R. Beiner, 51–66. New York: State University of New York Press.

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Özkirimli, U., and S. Grosby. 2007. Nationalism Theory Debate: The Antiquity of the Nation. Nations and Nationalism 13 (3): 523–537. Ratzel, Friedrich. 1896. History of Mankind. London: Macmillan. Reynolds, Vernon, Vincent Falger, and Ian Vine, eds. 1987. The Sociobiology of Ethnocentrism: Evolutionary Dimensions of Xenophobia, Discrimination, Racism and Nationalism. London: Croom Helm. Roshwald, A. 2006. The Endurance of Nationalism: Ancient Roots and Modern Dilemmas. Cambridge: Cambridge University Press. Schmitt, C. 1996. The Idea of the Political. Chicago, IL: Chicago University Press. Smith, A.D. 1986. The Ethnic Origins of Nations. Oxford: Blackwell. ———. 1991. National Identity. Middlesex, Penguin. ———. 2001. Nationalism. Cambridge: Polity. Soffer, Reba N. 1994. Discipline and Power: The University and the Making of an English Elite 1870–1930. Stanford: Stanford University Press. Spencer, P., and H. Wollman. 2002. Nationalism: A Critical Introduction. London: Sage. ———. 1999. Theoretical Difficulties in the Study of Nationalism. In Theorizing Nationalism, ed. Ronald Beiner, 67–90. New York: State University of New York Press. Vincent, Andrew. 1987. Theories of the State. Oxford: Blackwell. ———. 2002. Nationalism and Particularity. Cambridge: Cambridge University Press. ———. 2010. The Politics of Human Rights. Oxford: Oxford University Press. Wight, Martin. 1966. Why Is There No International Theory? In Diplomatic Investigations, ed. Herbert Butterfield and Martin Wight, 17–34. London: George Allen and Unwin.

CHAPTER 22

Universal Obligations: Jus Cogens and Obligations Erga Omnes Christian Tomuschat

The two concepts of jus cogens , or peremptory norms of international law, and erga omnes display according to their linguistic appearance a firmness that might qualify them as epitomizing the centre of a universal constitution. Indeed, they seem to suggest that the global order has a hard core capable of imparting its beneficial effects to all the ramifications and sidelines of the system of international law. The central idea of jus cogens amounts to recognizing to its component elements some kind of primacy in respect of all other classes of international law. Generally, all the rules of international law are deemed to be located at the same level within the global legal order. Justification for an exceptional privileged status of jus cogens is drawn from its key function as protecting basic values (collective interests) of the international community. Erga omnes obligations have the same substantive background. But their effects are seen primarily in procedural terms where remedies against alleged wrong-doing according to general international law or actions before international courts and tribunals are contemplated. Both concepts thus seek to strengthen the defences available within the international community against serious breaches of the international legal order, in particular by engaging the potentialities of individual states acting for the furtherance and maintenance of the common interest of humankind.

C. Tomuschat (B) Humboldt University, Berlin, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_22

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Historical Background The common home of humankind, our planet Earth, constitutes not only a physical unity. Hundreds of years ago, before it had been discovered that land and sea formed eventually a coherent whole, attention of historians and lawyers was generally focused on the diversity of the existing governance systems that had been shaped by time and history as individual entities. Only philosophical reasoning could imagine worldwide structures that would ensure peace and security, and well-being for everyone living on this globe.1 Many centuries passed before the new geographic vision of the world became a living reality in the minds of all people. It took a long time before the political elites realized that a world order based on firm principles was also a political desideratum. The nineteenth century still viewed the interrelationships between and among nations essentially as a permanent battle for domination and superiority. World War I eventually gave the impetus for the creation of the League of Nations that was entrusted with promoting international cooperation and achieving international peace and security among all the peoples of the world. As is well known, this first attempt failed to achieve its goals, not least because it remained a ‘white man’s club’ and because the most powerful nation, the United States, refused to join that alliance. After World War II, the new World Organization, the United Nations, was better equipped for the discharge of its mandate, outlined in the preamble of the Charter and in its Article 1 (‘Purposes and Principles’). The paramount principle of nonuse of force was introduced (Article 2(4)), the new Security Council being mandated to monitor compliance with that principle and thereby to ensure international peace and security, if necessary by recourse to armed force. At that time, in 1945, the terminology of jus cogens was not yet in current use. Today, however, the principle of non-use of force is considered one of the primary examples of a norm of that category.2

The UN Charter as the Centre of Legitimate Normative Authority The new world order introduced by the Charter emphasizes as its central building block the sovereign equality of all of its members (Article 2(1)). Sovereign equality has at the same time been recognized as a principle of international customary law protecting every State, independently of its membership in the United Nations.3 Obviously, there exists a certain antagonism between sovereign freedom on the one hand and the fact that this freedom is enshrined in the framework of international law which constrains its exercise. However, sovereignty has never been conceived of as unlimited freedom to act exclusively according to one’s own political wishes and preferences, without any regard for neighbouring countries. Every State is sovereign within its own province of jurisdiction, in particular on its own territory, but never beyond its borders. Thus, walls of separation and protection have been

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erected: every State is free to steer its political course without undue hindrance from outside forces but must remain within the zone specifically assigned to it. Sovereign equality and the consequential principles of non-use of force and non-intervention by resorting to coercive measures constitute in their conjunction the basic foundation stone of the international community. Thus, the Charter has a truly constitutional character. But it could not become a truly universal instrument without addressing the lacuna in its personal foundations caused by the absence of large sections of humankind living in the colonized countries. Self-determination is mentioned in Article 1(2) but had not been conceived for effective implementation. Lastly, the basic normative configuration is complemented by a set of rules requiring cooperation and respect for the elementary rights and freedoms of individuals.4 The international community could not survive if it were confined to a pure juxtaposition of its members lacking any link beyond their negative demarcations. Climate change and such disasters as the COVID-19 infection have recently accentuated the need for common efforts to ensure the survival of humankind. Wolfgang Friedman has coined the famous formula that international law is moving from a law of coexistence to a law of cooperation.5 Yet cooperation, although prominently mentioned in the 1970 Declaration on Friendly Relations6 as principle No. 4, remains generally subject to discretionary decisions of governments, lacking the specific supremacy of jus cogens .

The Legal Tools: Article 38 of the Statute of the International Court of Justice It was clear from the very outset that the United Nations itself should only have an auxiliary role, the bulk of jurisdictional competences remaining in the hands of its members. In this sense, the Charter specified which tools would be available for the implementation of national and international policies. Article 38 of the Statute of the International Court of Justice (ICJ Statute) indicates the legal sources that together form the system of international legality. In this provision, treaties, customary law and general principles of law are listed as the core elements of international law (paragraph 1 a-c).7 The words ‘jus cogens ’ or ‘obligations erga omnes ’ cannot be found there. Regarding the secondary law of international organizations, Article 38 also abstains from any mention, due to its origins in the Statute of the Permanent Court of Justice at a time when that new source of law was still largely unknown. As far as the legal effects of the acts of the relevant UN institutions are concerned, the Charter makes specific determinations, in particular regarding the Security Council (Article 25 and Chapter VII). From a viewpoint of logical consistency, the reference to Article 38 of the ICJ Statute, an integral element of the Charter (Article 92), does not provide an entirely persuasive explanation of the legal position.8 On the other hand, the evidence is abundant that de facto all the States of the world share

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currently the view that they live under an umbrella of principles, rules and regulations destined to govern their activities to the extent that international law purports to set obligatory boundaries for their conduct. Even amidst the massive decolonization process during the second half of the twentieth century when the question arose under what international legal regime the new States, having gotten rid of the domination by the colonial powers, would be placed, not a single voice could be heard suggesting that the ‘old’ international law could not exert any authority over them. Criticism was widespread to the effect that international law as a complex of normative propositions that had been shaped essentially by the leading European powers in their own interest could not be the right yard stick for the new states.9 Many elements of that normative edifice were challenged—but not the system as such.10 The school of TWAIL (Third World Approaches to International Law) has explored all the allegedly biased aspects of the traditional ‘European international law’.11 For many traditionalist thinkers, the analysis conducted by TWAIL amounted to an eye-opener in respect of the hidden discriminatory effects of the classic rules. The positive aspect of those criticisms was an impetus to scrutinize the inherited normative materials as to their compatibility with the new beacons of a world where States shall indeed be equal, free, and sovereign in their decisions. As a consequence of the reform processes that soon found their driving force in the United Nations, not least its auxiliary organ for the development and codification of international law, the International Law Commission (ILC), all the new States have in fact been integrated into the existing system. They all have become members of the United Nations, and not a single State has remained outside the World Organization.12 The rights and entitlements inherent in sovereignty became the most precious gift for them, enabling them to get rid of any legal burden from the former colonial period, notwithstanding criticism of the post-colonial State as an impotent actor.13 Today, the situation has become crystal clear. The UN General Assembly has affirmed many times that international law constitutes the firm ground of the international community and that it must be faithfully complied with by all States. In its high-level Declaration on the Rule of Law at the national and international levels (Resolution 67/1, 24 September 2012), it reaffirmed (op. para. 1). our solemn commitment to the purposes and principles of the Charter of the United Nations, international law and justice, and to an international order based on the rule of law, which are indispensable foundations for a more peaceful, prosperous and just world.

This is an important statement. The international community, acting through the United Nations, has succeeded in establishing a legal framework for all States of this globe, a framework that is universally recognized and is not being challenged as such. The troubles and disturbances of the decolonization period have not hit the applicable system of international law, but have by

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contrast strengthened and reinforced it.14 Decolonization has finally provided all peoples with the opportunity to participate in the manifold processes of norm creation carried forward at universal level, thereby asserting their specific views as to the equity and justice in the international legal order. It appears particularly significant that the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations15 was adopted by the General Assembly by way of consensus on 24 October 1970 at a time when developing countries had already achieved a fair majority in the world forum.16 According to this Declaration, no exclusionary or discriminatory rule remains de jure, all the entities having reached the status of sovereign statehood enjoy equal rights. International law can no longer be criticized as an instrument for the promotion of the interests of a leading group of European nations and other industrialized countries. On the contrary, it can be asserted without any hesitation that, centred in the United Nations, a system of universal law has arisen. The question remains open, however, whether the virtual ground change has everywhere found its reflection in hard facts. There is no denying the fact that private actors have more often than not achieved powerful positions in international finance and trade. Some international corporations operate budgets that are considerably higher than those of economic weak developing countries. But in no case have international corporations or alliances from the private sector openly challenged the authority vested at the intergovernmental level. It remains a paradigmatic pillar of the international system that public authority trumps private economic power.17

Specificities of the Legal Sources Listed in Article 38 ICJ Statute Our focus on hierarchically superior norms in international makes it necessary first to have a close look at the different categories of legal sources listed in Article 38 ICJ Statute. International Treaties Article 38 ICJ Statute mentions as the first category of sources ‘international conventions’ or treaties, which require the consent of their participants. In fact, treaties are instruments of self-commitment. The Charter deems it to be self-evident that States seek to regulate their relationships with other nations through their own initiative by way of mutual accommodation. Yet treaties constitute at the same time the primary means for the legal regulation of matters of general interest. No other tools are available for that purpose. The Vienna Convention on the Law of Treaties (VCLT) of 23 May 196918 provides essentially for just one regime applicable to all categories of treaties. The Charter has abstained from setting forth a procedure by virtue of which regulations affecting the common interest of the international community

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could be elevated to a higher rank in the hierarchy of legal sources. Even ‘world order projects’ are confined to remaining at the level of ordinary treaty law. It took enormous efforts to reach at the Paris Climate Change Conference of 2015 full approval (consensus) of the text of the agreement on climate protection19 by all nations attending the meeting.20 Treaties concluded between States, even multilateral treaties, constitute jus dispositivum; that is, they can be amended by the parties, and they can be denounced and may be used to establish new rules that abrogate rules of customary law. Thus, treaty law cannot be characterized as perpetual law that by its very essence will continue for long periods of time. No hierarchy exists. Even the Charter of the United Nations constitutes a multilateral treaty that enjoys a certain degree of legal superiority over other treaties only by virtue of Article 103. International Customary Law Customary international law constitutes the second source of international law indicated in Article 38 ICJ Statute. Customary law continues to play an important role in international relations. Customary practices were the origin of the progressive emergence of a system of normative propositions in inter-State relations. Codification of general rules of universal law could only begin after organizational structures encompassing institutions and mechanisms had arisen for commercial and humanitarian purposes in the late nineteenth century, in respect of world order issues in the course of the twentieth century. This process of transition from unwritten to written law was reinforced through the United Nations. Article 13(1)(a.) of the Charter explicitly mandates the General Assembly to ‘encourag[e] the progressive development of international law and its codification’. For assistance in the accomplishment of this task, the ILC was established, and it has not remained the only body engaging in development and codification of international law.21 Notwithstanding all the efforts invested in this endeavour, to date multilateral treaties cover only a part of those international matters that require legal regulation. Customary law continues to fill in the lacunae left by black-letter law as the outcome of the codification process. Given the uncertainties surrounding unwritten law, the ILC has sought to identify and consolidate its main parameters. In 2018, the outcome (‘draft conclusions’) on ‘identification of customary international law’ was not approved by the General Assembly but simply taken note of.22 Customary law has all the potentialities of a universal regime. It arises from a process in which States are the main actors. It is their practice that provides the substance of any imaginable rules, and it is their opinio juris which must support that practice, characterized by the conviction that either the conduct factually observed is obligatory under law or it is fully in accordance with law. This does not mean that customary international law is nothing else than treaty law established tacitly, without any formal requirements. As suggested by the text of Article 38(1)(b.), the ICJ has clarified in its jurisprudence that practice

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must be ‘settled’ but need not be totally coherent and uniform. The relevant early statements of the ICJ regarding the essential features of customary international law in the North Sea Continental Shelf cases of 196923 have only recently been confirmed by the Hague judges in their advisory opinion concerning the Chagos Archipelago.24 The ILC’s draft conclusions follow closely the ICJ jurisprudence. Regarding the practice element, Conclusion 8 specifies: Practice must be sufficiently widespread and representative, as well as consistent.25

Given their origin as universal law, the rules of customary international law apply to every State. However, they do not generally qualify as obligations erga omnes. Customary international law is generally flexible as jus dispositivum and may yield to conflicting treaty law mutually agreed. Thus, most of the relationships governed by customary law are of a bilateral nature only. A breach of a customary obligation in the relationship between two States does not affect other States. But no State may unilaterally shed the obligations arising from that body of law. Additionally, the tertiis rule applies. Neighbours may by mutual consent agree on particular regulations for their respective fishing zones—but are prevented from enacting such special rules with effect also for other States. Moreover, customary rules serving the general interest of the international community are beyond the reach of the sovereign discretion of any individual country. Their breach may confer on any third State the right to react within the framework delineated by the ARSIWA project (Art. 48), which may become essential for the protection of the global commons beyond national jurisdiction. Customary international law is in continuous movement following the evolving practice. Its flexibility in following that practice is its weakness, but at the same time its strength: not even a powerful State is in a position fundamentally to change the substance of the extant rules, since only a general practice may modify the substance of a rule. One of the central issues of customary law is whether an individual State can escape the reach of a specific rule. On the basis of two obiter dicta of the early jurisprudence of the ICJ that never have been reconfirmed,26 a theory has emerged according to which a State that persistently opposes a practice in statu nascendi to become a normative proposition will not be bound after the rule has come into existence. It figures prominently in the Restatement of the Foreign Relations Law of the United States.27 Special Rapporteur Wood has included this view in the set of draft conclusions finally adopted by the ILC, reserving instances of jus cogens .28 The issue is highly controversial.29 It does not correspond to the development of the law of the sea where all the former rules on the territorial sea have been displaced by the new concepts of the exclusive economic zone and the territorial sea, consolidated by UNCLOS, even for States that have not become parties to UNCLOS.

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General Principles of Law In the current debates on jus cogens and obligations erga omnes, attention has always been directed on the possible hierarchical elevation of customary law and treaty law to a higher hierarchical level. The practice of the ICJ has generally preferred to avoid basing itself on general principles to resolve a dispute. Yet in the field of humanitarian law in particular, the Martens Clause30 has the potential to grow into hard law, jus cogens .

The ‘Super-Norms’: Jus Cogens and Obligations Erga Omnes Jus cogens and obligations erga omnes emerge from the ordinary normative sources as classes of rules and principles deemed to serve as determinative pillars of the global order. At the same time, two essential mechanisms should not be overlooked. On the one hand, the Security Council is vested under Chapter VII of the Charter with extensive powers, and the criteria for recourse to those powers (‘international peace and security’) may be flexibly interpreted to meet the requirements of almost any actual situation of urgency.31 The General Assembly has above all authorized it to take appropriate measures in instances where massive crimes against basic human rights are being committed (responsibility to protect).32 Moreover, the international community has at its disposal the mechanism of international criminal justice to prosecute the perpetrators of such crimes. Unfortunately, after the end of the country-specific courts established by the Security Council,33 only the International Criminal Court (ICC) remains whose statute34 comprises only 123 States members (April 2023), with a long list of absentees, among them three permanent members of the Security Council, China, Russia and United States. Realistically speaking, jus cogens and obligations erga omnes play hitherto only a complementary role. But they remain as beacons of the common conscience of mankind. Jus Cogens Jus cogens , not mentioned in Article 38 ICJ Statute, has arisen from international practice, decisively promoted by the writings of scholars that seek to find a rational justification for the recognition of norms that do not originate from a planned law-making process. Historical Background The concept of jus cogens was already discussed during the nineteenth century. Prominent writers asked whether, e.g., a treaty providing for slave trade services could be considered unlawful and consequently invalid.35 Within the nationalist climax of positivism in the second half of the nineteenth century and the first half of the twentieth century, actual recourse to a general concept

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of jus cogens was considered a more or less aberrant idea.36 After the horrors of World War II, however, the mood changed. A general longing for the restoration and maintenance of moral values brought back the wish to conceptualize international law as a body of rules permeated by the basic values underlying its positivist manifestations. When the ILC had been entrusted with elaborating a codification of the general international law of treaties,37 the topic was inevitably raised again. In the ILC, the views were shared until the end of the deliberations,38 and at the Vienna Codification Conference in 1965 heated debates continued, Luxembourg appearing as the harshest opponent of a regime that might ‘create confusion’.39 Eventually, overcoming the divergences, agreement could be reached on two provisions, Article 53 and Article 64 determining that international treaties violating ‘a peremptory norm of general international law’ ( jus cogens ) are ‘void’. Some States deemed this restriction of treaty-making power to be so intrusive and unacceptable that they refused ratification of the VCLT after its adoption. France has maintained its negative attitude until this very day.40 Substantive Content Strangely enough, the VCLT has abstained from defining jus cogens in substantive terms.41 The definition it provides is an essentially formal one: a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Yet these characteristics relate jus cogens to the core of the international legal system. Its rules, which are classified as pertaining to general international law, must be accepted and recognized by the international community of States, i.e., those entities in which authoritative public power resides.42 Thus, it is clear that jus cogens does not have a natural-law character, deriving from a divine or other transcendental authority. Through their factual practices, States create for themselves their own codes of conduct. Progressive Consolidation At the initial stage, the establishment of jus cogens in Articles 53 and 64 VCLT was just a claim only faintly supported by authoritative voices. It stands to reason that the two provisions, enshrined in a conventional instrument, could not by themselves create a new category of legal rules with a legal authority higher than other such instruments. The paramount authority of jus cogens can have its foundation only in universally shared moral considerations underlying the legal sources of positive law. It was therefore decisive whether international judicial and diplomatic practice would accept that indeed the international legal order contains non-derogable principles that may not be deviated from under any circumstances, in whatever form.

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When the ICJ first had to deal with issues of genocide in connection with reservations that had been made by some States when ratifying the Convention on the Prevention and Punishment of the Crime of Genocide (henceforth: Genocide Convention),43 it emphasized the specific characteristics of a crime ‘which shocks the conscience of mankind’, without however resorting to the terminology of jus cogens that was introduced more than a decade later by the VCLT.44 In 1986, when adjudicating the famous dispute between Nicaragua and the United States, it referred to views according to which the prohibition of the use of force constituted a conspicuous example of jus cogens but avoided explicitly endorsing that view.45 In 1996, still shying away from the clear-cut terminology of jus cogens , the ICJ specified in its advisory opinion on nuclear weapons that international humanitarian law contained a number of ‘intransgressible’ principles that required absolute respect.46 In later decisions, the ICJ overcame that linguistic hurdle, referring without any hesitation directly to jus cogens , thus giving its benediction to the controversial concept.47 In the more recent past, the ICJ has begun to deal fairly comfortably with this notion which seems to have lost definitively its character as a revolutionary novelty to be handled with great caution.48 Strangely enough, however, in the Chagos case it abstained from explicitly characterizing self-determination as a norm of jus cogens ,49 confining itself to classifying it as producing effects erga omnes.50 Other international courts have also made recourse to jus cogens , in particular in respect of genocide and torture.51 Following its current tendency to codify the sources of international law, the ILC commenced in 2015 a similar project on Jus cogens , appointing its South African member Dire Tladi as Special Rapporteur on the topic. The wealth of the materials assembled by him proves without any doubt that jus cogens rules constitute a special class of legal norms with some legal primacy. Full unanimity now seems to exist in that regard between legal doctrine and practice. The Special Rapporteur made at the same time an effort to find a general definition of jus cogens . His conclusion, again based on a comprehensive review of the available materials, to the effect that jus cogens reflects and protects the fundamental values of the international community,52 was accepted by the Commission itself on first reading in draft conclusion 3: Peremptory norms of general international law ( jus cogens ) reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable.53 In substantively identical terms, but using different words former ILC member Alain Pellet has aptly coined the formula that norms of jus cogens ‘constituent le socle minimal de la solidarité entre les membres de la société internationale contemporaine’ (constitute the minimum basis of solidarity between the members of the contemporary international society).54 All the examples of jus cogens norms that have been identified in the codification work of the ILC meet these general definitions.55 The list comprises only wellestablished norms, refraining from setting forth, notwithstanding the current

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pressures, any legal proposition concerning the protection of the environment or the world climate.56 Emergence of Jus Cogens as Norms of Ordre Public in International Law Since the entry into force of the VCLT on 27 January 1980 not a single treaty has been challenged before the ICJ as violating a rule of jus cogens . Understandably, however, international practice and the community of international lawyers did not accept that those rules, which give expression to the core substance of international law, should remain paralysed by a narrow definition in Articles 53 and 64 VCLT. After it had been clarified by general consensus that jus cogens protects the basic values of the international community, it became logically inconsistent to argue that it had no other function than to invalidate treaties incompatible with its norms. Remaining true to its gist, it has to be applied as yardstick also to unilateral acts and moreover to factual measures.57 Where an observer closely watches the developments regarding jus cogens and its classification, they hardly find a single issue where the debate centred on the compatibility of a treaty with the fundamental values enshrined in the top hierarchical class of universal legal norms.58 Instead, questions are regularly put as to the evaluation of unilateral legal acts or factual conduct as breach of a peremptory rule of law. Accordingly, jus cogens has definitively lost its place as a concept primarily pertaining to the law of treaties. It has become a principle of the ordre public international with an unlimited scope of application within the field of international law.59 Given this new philosophy of jus cogens , the question arises whether acts of international organizations also have to abide by any applicable norms of jus cogens . Within the World Organization, the issue might become relevant particularly in respect of the determinative power of the Security Council under Chapter VII. No truly valid grounds can be brought forward against such an extension ratione personae of jus cogens .60 The Security Council is within the World Organization the institution with the strongest decisionmaking power, but it is also an institution that may occasionally be led into serious error by political considerations, notwithstanding the veto power of the permanent members. It has been endowed with extraordinary authority to deal with international conflicts through issuing binding orders against States, seriously affecting their sovereign status. But those powers are tied to its mandate as defined in the Charter. The Security Council has not been established as the master of the world, it is authorized to operate only within the confines of the mandate conferred on it by the members of the World Organization within the confines of the rule of law.61 Thus, the Security Council lacks any power to decide on the existence of States or their boundaries, nor could it, in accordance with its general mandate, engage in strategies that deeply hurt entire populations. To make determinations on the forced transfer of human beings to some other place of abode (or detention) would flatly breach the

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most elementary human rights of the affected groups of the victims. Determinations as those made by the Potsdam Conference of 194562 on massive populations transfers lie outside its province of jurisdiction.63 Where jus cogens operates as an instrument to secure the ordre public international, it passes from the area of international treaty law to that of state responsibility. The consequences of a breach found to exist are far more complex than the nullity ordered by Articles 53 and 64 VCLT.64 Generally, recourse will have to be made to the Articles on State responsibility (ARSIWA) adopted by the ILC in 2001.65 In fact, those Articles state explicitly that they shall apply in case of a ‘serious breach by a State of an obligation arising under a peremptory norm of general international law’ (Article 40(1)). The issue requires particular attention inasmuch as according to the premises of jus cogens it needs to be clarified whether the consequences of the breach of a jus cogens norm differ from breaches of ordinary rules of international law. Legal Consequences In the ILC, a controversy broke out in 1976 when the then Special Rapporteur on the topic of State responsibility, Roberto Ago, introduced the concept of ‘international crimes’, suggesting that in the case of such serious breaches of international law a sanctions regime should be established whose gravity would adequately mirror the gravity of the relevant offences.66 The issue dragged on for decades until in 2001 the final draft on Responsibility of States for internationally wrongful acts (ARSIWA) could be adopted.67 Only some of the consequences originally envisaged were finally accepted. In particular, the idea of imposing harsher measures of reparation where jus cogens crimes had been perpetrated was abandoned.68 Other consequences have been shaped in the judicial practice. Under general international law, three issues require particular attention. First of all, the question was debated whether a jus cogens breach works like a call to the other members of the international community to act for the restoration of the legal situation. In fact, Article 41 ARSIWA stipulates a duty of cooperation for all States to bring to an end any breach of a peremptory norm and enjoins them not to recognize as lawful any situation brought about by such a breach. This duty constitutes a fairly mild sanction but may nonetheless prove effective.69 Second, in respect of classic inter-State law, it may be asked whether a State loses its immunity which it normally may oppose to any claim brought against it in connection with an activity carried out by it jure imperii. In the dispute between Germany and Italy about the breaches committed by Italian courts and tribunals through entertaining private reparation claims in instances where crimes under international law had been committed by German military and police units during Italy’s occupation from September 1943 to 1945, Italy relied essentially on the argument that due to the invocation of such serious crimes, amounting to a breach of jus cogens rules, sovereign immunity could not be invoked by the respondent. The ICJ rejected this argument70 because it

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would render nugatory the defence of sovereign immunity, eventually opening after an armed conflict the gates of civil justice in cases with an intergovernmental character to large numbers of persons, thereby destroying any prospects for a return to peaceful conditions by agreeing on collective compensation, a formula that has shown its great value in the history of international law. The private justice system is not equipped to deal with millions of alleged criminal occurrences that took place on foreign soil under factual circumstances that an individual judge in another country is unable to ascertain. The proposition of natural justice: nemo judex in re sua, also speaks against disregarding sovereign immunity in such instances.71 Third, the parallel question of whether the jurisdiction of the ICJJ should be open to any State alleging to be a victim of a breach of a jus cogens norm has also been answered in a negative sense by the ICJ.72 Its Statute defines its jurisdictional powers with great care, basing itself on the key consideration that the ICJ’s jurisdiction requires invariably the consent of both litigant parties. To bestow on the ICJ jurisdiction for any disputes allegedly involving jus cogens crimes would fundamentally alter its role, could attract an unforeseeable number of cases with high political tension accents and would eventually jeopardize the acceptance of its decisions. The principle of consent for jurisdiction may appear as an outdated device of blockade, but it cannot be simply abandoned at the present stage where adjudication by a neutral third party has not been compulsorily established at universal level. The transformation of the draft conclusions adopted on first reading into a body of rules approved by the UNGA cannot be an easy-going process, given the tremendous consequences in particular for the powers of the Security Council. Obligations Erga Omnes Some authors have written lengthy articles and even books on the distinction between norms of jus cogens and obligations erga omnes.73 Quite a fair number of these scholarly comments seem to be misguided because they ignore the diverging perspectives underlying the two concepts. Regarding jus cogens , the focus was, as from the initial stage, directed on the substantive quality of the wrongful act concerned, the gravity of the breach alleged to exist and to be combated by the relevant norm. Little attention, on the other hand, was devoted to the consequences of such a breach. The only consequence provided for in Articles 53 and 64 of was the nullity of the wrongful treaty concerned (Article 69 VCLT), and the precautionary mechanism foreseen to secure legal certainty. Recourse to the International Court of Justice (Article 66(a) VCLT) covers only the straightforward question whether a treaty finds itself in conflict with a jus cogens norm. Article 66 (a) VCLT does not extend additionally to other legal configurations. In any event, never has a claimant attempted to seize the ICJ with a view to obtaining a determination on a controversial issue related to jus cogens .

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The concept of erga omnes obligations had its point of departure in the Barcelona Traction case where the ICJ, shortly after the adoption of the VCLT, had to adjudicate a case of diplomatic protection by Belgium against Spain on account of wrongful conduct of the Spanish authorities vis-à-vis a corporation that had its registered office in Canada but where the majority of the shareholders were Belgian nationals. Under general international law, every State has a right to protect its nationals against unlawful conduct of another State. Yet the shareholders were affected only indirectly as a consequences of the damage inflicted on Barcelona Traction. The ICJ did not accept a right of diplomatic protection in such circumstances, pointing out that a distinction had to be made between obligations operating only in the bilateral relationship between the State of nationality of the injured nationals and other instances arising from the outlawing of acts of aggression and genocide, and also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. In such instances, as the Court said: all States can be held to have a legal interest in the protection of the rights allegedly having suffered damage,74 which means that procedurally they are granted standing to sue.

It stands to reason that the offences characterized as creating erga omnes obligations are more or less the same as the breaches of jus cogens obligations.75 This is also expressed fairly explicitly in recent decisions of the ICJ.76 Only the perspective changes. When focusing on jus cogens , the analysis takes into account mainly the material gravity of the relevant wrong. Where erga omnes obligations are discussed, on the other hand, the question is primarily whether a State not directly affected by the act in issue is entitled—or even obligated—to take steps, including countermeasures, against the wrong-doing State and whether in proceedings before an international court it has standing to sue. Thus, the concept of erga omnes obligations introduces the international community in procedural terms as guarantor of those core principles of the international legal order. Following up on this basic concept, the ARSIWA articles, which apply more or less indiscriminately both to breaches of jus cogens and of obligations erga omnes, recognize a right of third States to remind the author State of the reparation duties resulting from its wrong-doing and requesting cessation (Article 48(2)). Additionally, as already pointed out, they set forth the rule that where jus cogens or erga omnes obligations have been breached third States have an obligation not to recognize the situation brought about by the breach or to render assistance to maintain that situation (Article 41(2)).77 Lastly, States are called upon to cooperate with a view to bringing to an end the relevant breach and its consequences (Article 41(1)). Following up on this proposition, in a recent advisory opinion—Chagos case—the ICJ stated that third States have

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an obligation to cooperate with the United Nations with a view to remedying the unlawful situation by completing the decolonization of Mauritius.78 On the other hand, the ILC has not been able to postulate for every State a right to take countermeasures as guardian of the common interest: Article 54 ARSIWA confines itself to stating that States not directly injured are entitled to take ‘lawful measures’, thus leaving the controversial issue conspicuously open. This was a compromise formula since consensus could not be reached among the members. While jus cogens rules can arise only on the basis of customary law, erga omnes obligations can have their foundation also in treaty law, in particular in treaties combating genocide, torture or slavery, if and to the extent that the states parties have a common interest in achieving the objectives of the treaty concerned.79 Mostly, the conventional norm then has as its corollary a customary rule of identical substantive content. However, where an erga omnes obligation is derived from a treaty stipulation, it may have the additional advantage of a jurisdictional clause that opens the way to the ICJ in terms of jurisdiction. The recent case of The Gambia v. Myanmar shows the potentialities of an erga omnes obligation in combination with a jurisdictional clause. The Gambia, in no substantial way related to Myanmar, has brought an action against Myanmar, invoking the commission of acts of genocide and acting as the guardian of basic values of the international community.80 There can be no doubt that massive support from outside for the conduct of the proceedings has been provided to the Gambia for its courageous judicial action. The case of Whaling in the Antarctic, the ICJ has relied on the doctrine of erga omnes obligations without openly acknowledging this approach.81

Conclusion The international legal order continues to have its main foundation in the principle of sovereign equality of States and the prohibition, derived therefrom, of the use of force. The Security Council is the main institution charged with monitoring and enforcing this core principle of the international legal order and has been equipped with appropriate powers to assume this task. Through decades of the development of conventional and customary law, many additional guarantees for a peaceful world have been established, in particular for the protection of human rights. On the normative plane, a true international community has taken shape. In substantive terms, the two concepts of jus cogens and obligations erga omnes embody the core of the values shared by humankind. However, the legal mechanisms designed to protect the new rights outside the Charter are generally fairly weak. In the field of human rights, proceedings generally terminate with recommendations. Regarding jus cogens as a general norm of ordre public international, no specific mechanism for its enforcement has been created in inter-State relationships.82 Likewise, erga omnes obligations provide only limited opportunities to impose sanctions against wrong-doing States. The two concepts provide to any State,

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or within a specific system of a multilateral treaty, appropriate standing to defend the general global interests by seizing the ICJ to the extent that the general jurisdictional requirements are met. Such strategies presuppose, however, the willingness of a government to assume the burden of a vigilante. Currently, one does not perceive at the global level any such willingness on the part of the membership of the United Nations to enhance the enforcement potential of the international community.83 Only when a State has a personal interest in enforcing the relevant rule will it normally be motivated to introduce such an actio popularis before the ICJ.84 Even for essential world order projects, flexible procedures under soft-law terms are generally preferred to settle controversial issues. The Paris Climate Agreement85 provides in that regard the most conspicuous example.86 Some hope may be gleaned from the fact that in proceedings for the delivery of an advisory opinion jus cogens and obligations erga omnes may play a vital role.

Notes 1. The most notorious discussion was delivered during the eighteenth century by Immanuel Kant, Zum ewigen Frieden: Ein philosophischer Entwurf , 1795, translated as: Toward Perpetual Peace: A Philosophical Sketch, 1991. 2. See ILC Special Rapporteur Dire Tladi, Fourth report on peremptory norms of general international law ( jus cogens ), A/CN.4/727, 31 January 2019, paras 62–68. See also Dire Tlade (ed.), eremptory Norms of General International Law (Jus Cogens): Diquisitions and Disputations (Leiden: Brill / Nijhoff, 2023). 3. ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, 14, 100, para 190. 4. UNGA Res. 2625 (XXV), 24 October 1970, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. 5. The Changing Structure of International Law (Columbia University Press, 1964) 60–62. 6. Note 4. 7. As ‘subsidiary means for the determination of rules of law Article 38(1)(d) lists ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations’. 8. For an insightful discussion of that approach, see d’Argent, Pierre, ‘Sources and the Legality and Validity of International Law. What Makes Law International?’ in Besson, Samantha and d’Aspremont, Jean (eds.), The Sources of International Law (OUP, 2017) 541, 546–554. 9. See, e.g., Anand, R.P., ‘Attitude of the Asian-African States Towards Certain Problems of International Law’, 15 (1966) ICLQ 55–75; Baxi, Upendra, ‘What May the ‘Third World’ Expect from International Law?’, 17 (2006) Third World Quarterly 713–725; Bedjaoui, Mohammed, Pour un nouvel ordre économique international (UNESCO, 1979). Comprehensive discussion in retrospect: Galindo, George Rodrigo, ‘Customary International Law and the

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11.

12.

13. 14.

15. 16.

17. 18. 19. 20. 21.

22. 23.

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Third World. Do Not Step on the Grass’, 16 (2017) Chinese Journal of International Law 251–270. Even Makau Mutua, ‘Why Redraw the Map of Africa—A Moral and Legal Inquiry’, 16 (1995) Michigan Journal of International Law 1113, one of the fiercest critics of the Euro-centric system of traditional international law, affirmed that ‘African states … subscribe to international law’ (ibid. 1123). In the same vein Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP, 2005) 202–203, denies that international law was ever rejected in toto by developing States. See, e.g., Makau Mutua, ‘What is TWAIL?’, 94 (2000) ASIL Proceedings 31– 38; Okwu Okafor, Obiora C., ‘Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective’, 43 (2005) Osgood Hall Law Journal 171–192; Chimni, B.S., ‘Customary International Law: A Third World Perspective’, 112 (2018) AJIL 1–46. Palestine, the only traditional unit without self-rule, has been granted by the UN General Assembly the status of a non-member observer State, UNGA Res. 67/19, 25 November 2012. Makau Mutua (note 11). In the 2021 general debate in the UN General Assembly, President Xi Jinping said: ‘In the world, there is only one international system, i.e., the international system with the United Nations at its core. There is only one international order, i.e., the international order underpinned by international law. And there is only one set or rules, i.e., the basic norms governing international relations and under pinned by the purposes and principles of the UN Charter’, UN doc. A/76/PV.3, 21 September 2021, Annex VI, 70. UNGA Res. 2625 (XXV) (note 4). The ICJ has recognized the Declaration as an act reflecting accurately the applicable seven ground norms of the international legal order, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 [Chagos case], Advisory Opinion, 25 February 2019, ICJ Reports 2019, 95, 131, para 155. Thus, the primary responsibility to promote and protect human rights lies with the State, UNHRC Res. 17/4, 16 June 2011. 1155 UNTS 927. https://unfccc.int/sites/default/files/english_paris_agreement.pdf. Currently, only six States remain aloof from the Paris Agreement: Eritrea, Iraq, Iran, Libya, Turkey, Yemen. The development of the Law of the Sea had initially been entrusted to the ILC, and on the basis of its preparatory work, the first Law of the Sea Conference held in the spring of 1958 adopted four separate conventions. However, it was later determined to assign the further mise à jour of the Law of the Sea to a political body, the Law of the Sea Conference, which adopted the UN Convention on the Law of the Sea on 30 April 1982, see UN, The Work of the International Law Commission, Vol. I (7th ed. 2007) 124–132. Annex to UNGA Res. 73/203, 20 December 2018. ICJ, North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, 20 February 1969, ICJ Reports 1969, 3, 44, para 77. ICJ, Chagos case (note 15), ICJ Reports 2019, 95, 131, para 149.

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25. Draft Conclusions on identification of customary international law (note 21). 26. ICJ, Asylum case (Colombia v. Peru), Judgment, 20 November 1950, ICJ Reports 1950, 266, 277–278; Fisheries case (United Kingdom v. Norway), Judgment, 18 December 1951, ICJ Reports 1951, 116, 131. 27. American Law Institute, Restatement of the Foreign Relations Law of the United States, Vol. 1 (American Law Institute, 1987) 25, § 102, Comment d. 28. Draft conclusions on identification of customary international law (note 21), Conclusion 15. 29. Negative assessment by Bandeira Galindo, George Rpdrigo, ‘Customary International Law and the Third World: Do Not Step on the Grass’, 16 (2017) Chinese Journal of International Law 251, 266–268. 30. Note 2. 31. See, e.g., SC Res. 2565 (2021), 26 February 2021, in respect of COVID-19. 32. UNGA Res. 60/1, World Summit Outcome, 16 September 2005, para. 139. 33. International Criminal Tribunal for the Former Yugoslavia; International Criminal Tribunal for Rwanda. 34. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3. 35. Two great European authors should be mentioned in particular, Heffter, August Wilhelm, Das europäische Völkerrecht (Berlin, 1844) 147–148: ‘the introduction or maintenance of slavery can never be validly pledged’; Bluntschli, Johann Caspar, Das modern Völkerrecht der civilisirten Staten (Nördlingen, 1868) 234: ‘Treaties the content of which violates the generally recognized human rights or the binding rules of international law are invalid’. For a broad historical overview, see the Special Rapporteur of the ILC on the topic of jus cogens, Dire Tladi, First report, A/CN.4/693, 8 March 2016, paras 18–27. 36. For the dynamic force of moral considerations in the development of jus cogens , see Special Rapporteur Tladi’s First Report (note 34) paras 51–60. 37. The topic was chosen for codification already at the first session of the ILC in 1949, see UN, The Work of the International Law Commission (7th ed., 2007) 143. 38. See the official commentary on Article 37 of the I0C draft (the earlier version of Article 53), YbILC 1966. Vol. II, 24, para 66. 39. See First report by the ILC Special Rapporteur on jus cogens , Dire Tladi (note 34), para 34. 40. Explained by Ruiz Fabri, Hélène, ‘La France et la Convention de Vienne sur le droit des traités: Eléments de réflexion pour une éventuelle ratification’, in Cahin, Gérard et al. (eds.), La France et le droit international (Paris: Pedone, 2007) 137–167. 41. Explained by Suy, Eric, in Corten, Olivier and Klein, Pierre (eds), The Vienna Convention on the Law of Treaties. A Commentary, Vol. II (OUP, 2011) 1228, margin number 11. 42. ‘International community’ or ‘international community of States’ is a controversial definitional problem, see Allain, Jean, in Tladi (book, note 2) 68 et seq. 43. 78 UNTS 277. 44. ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, 28 May 1951, ICJ Reports 1951, 15, 23,

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45. ICJ, Military and Paramilitary Activities in and Against Nicaragua (note 3), ICJ Reports 1986, 14, 100, para. 190. 46. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, 226, 257, para. 79. 47. ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (République Démocratique du Congo v. Rwanda), ICJ Reports 2006, 31–32, para. 64; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment. 26 February 2007. ICJ Reports 43, 110–111, para. 161. 48. ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, 20 July 2012, ICJ Reports 2012, 422, 457, para. 99. Strangely enough, however, it did not explicitly mention jus cogens , restricting itself to pointing out the erga omnes effect of the right of self-determination, 49. Regretted by Judge Cançado Trindade in his separate opinion in the Chagos case (note 15), ICJ Reports 2019, 156, 207, para. 168. 50. Chagos case (note 15), ICJ Reports 2019, 95, 139, para. 180. 51. International Tribunal for the former Yugoslavia, Prosecutor v. Anto Furundžija, No. IT-95–17/1, Judgment, International Tribunal for the Former Yugoslavia, 10 December 1998, Judicial Reports 1998, paras. 153–156: Inter-American Court of Human Rights, Espinoza Gonzáles v. Peru, Judgment, 20 November 2014, Series C, No. 289, para. 141. 52. Second report, A/CN.4/706, 16 March 2016, para. 22. 53. ILC, [2019} Report, A/74/10, 142, para. 56. 54. ‘Le Droit international à la lumière de la pratique: L’introuvable théorie de la réalité’, Cours général de droit international public, Recueil des cours de l’Académie de droit international de La Haye 414 (2021) 203. 55. See the list adopted by the ILC on first reading, [2019] Report of the ILC, A/ 74/10, para 56, annex: (a) the prohibition of aggression; (b) the prohibition of genocide; (c) the prohibition of crimes against humanity; (d) the basic rules of international humanitarian law; (e) the prohibition of racial discrimination and apartheid; (f) the prohibition of slavery; (g) the prohibition of torture; (h) the right of self-determination. 56. The objections raised by R Kolb, in Tladi (book, note 2) 21–43, are mainly based on technicalities, ignoring that such basic concepts cannot provide detailed answers to all specific situations. Full support for the ILC’s definition by P Galva ◠ o Teles, in Tladi (book, note 2) 44–67. 57. The classification of torture as a crime violating a norm of jus cogens is the most telling example. 58. The only such instance seems to have been the dispute between Portugal and Australia regarding the treaty concluded on 11 December 1989 between Australia and Indonesia on the Timor Gap, a planned zone of cooperation, see ICJ, East Timor (Portugal v. Australia), Judgment, 30 June 1995, ICJ Reports 1995, 90, 98. para. 18. 59. See de Wet, Erika, ‘Sources and the Hierarchy of International Law: The Place of Peremptory Norms and Article 103 of the UN Charter within the Sources of International Law’, in The Sources of International Law (n 8), 625, 631. 60. The ILC’s draft conclusions (note 52) provide indeed for the primacy of jus cogens (16), a thesis that will not easily be endorsed by the permanent members of the Security Council. See in the literature, e.g., Costelloe, Daniel,

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62. 63. 64. 65. 66. 67. 68.

69. 70. 71. 72.

73.

74. 75.

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in Tladi (book, note 2) 441, 445 (negative); Lemos, Miguel, ‘Jus Cogens Versus the Chapter VII Powers of the Security Council: With Particular Reference to Humanitarian Intervention and Terrorism’, 19 (2020) Chinese Journal of International Law 1, 27–52; Tomuschat, Christian, ‘The Security Council and Jus Cogens ’, in Cannizzaro, Enzo (ed.), The Present and Future of Jus Cogens (Rome: Sapienza, 2015) 7–97. The Study Group of the ILC on Fragmentation of the ILC did not include in its final report the conclusions drawn by Martti Koskenniemi, A/CN.4/L. 682, 13 April 2006, para. 346, that provisions of the Charter or resolutions of the Security Council conflicting with jus cogens were invalid, see Report of the Study Group, YbILC 2006 II/2, 176, 183, para 40. In Kadi, the Court of First Instance of the European Union determined that the Security Council was bound by jus cogens and had to abide by crucial procedural guarantees, Case T-315/01, Judgment, 21 September 2005, [2005] ECR II-3659, margin notes 226–230. https://www.nato.int/ebookshop/video/declassified/doc_files/Potsdam% 20Agreement.pdf. Cf. R.M. Douglas, Orderly and Humane. The Expulsion of the Germans After the Second World War (New Haven and London: Yale University Press, 2012). See Gastorn, Kennedy, ‘Defining the Imprecise Contours or Jus Cogens in International Law’. 16 (2017) Chinese Journal of International Law 643, 659. YbILC 2001 II/2, 26.ement. Fifth Report on State responsibility, YbILC 1976 II/1, 3: the decisive provision, draft article 18, at 54. Note 64. For the discussion on whether the ARSIWA should be converted into a treaty instrument, see Arman Sarvarian, ‘The Ossified Debate on a UN Convention on State Responsibility’, 70 (2021) ICLQ 769–798. Lucid elaboration by Aust, Helmut Philipp, in Tladi (book, note 2) 227, 242– 255. ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening ), Judgment, 3 February 2012, ICJ Reports 2012, 99. For a full discussion, see Valentina Volpe et al. (eds.), Remedies Against Immunity? (Springer, 2021). ICJ, East Timor (Portugal v. Australia), Judgment, 30 June 1995, ICJ Reports 1995, 90, 102, para. 29; Armed Activities (note 46), ICJ Reports 2006, 31– 32, para. 64; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 3 February 2015, ICJ Reports 2015, 3, 47, para. 88. Mention should be made in particular of Gaja, Giorgio, ‘Obligations and Rights Erga Omnes in International Law’, Annuaire de l’Institut de droit international 71-I (2005) 119–151, 189–202; Picone, Paolo, Comunità internazionale e obblighi ‘Erga omnes ’ (Napoli: Jovene Editore, 2013); Ragazzi, Maurizio, The Concept of International Obligations erga omnes (OUP, 2010). ICJ, Barcelona Traction, Light and Power Company (New Application: 1962) (Belgium v. Spain), ICJ Reports 1970 3, 32, para. 33. Therefore, the ILC did not deem it necessary to launch an additional project of codification on Obligations erga omnes.

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76. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 3 February 2015, ICJ Reports 2015, 3, 46, para 87. Agreeing to this conclusion: Crawford, James, ‘Responsibility for Breaches of Community Norms: An Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts’, in Fastenrath, Ulrich et al. (eds.), From Bilateralism to Community Interest. Essays in Honour of Judge Bruno Simma (OUP, 2011) 224, 230; Klabbers, Jan, International Law, 2nd ed. (CUP, 2017) 146; Tomuschat, Christian, ‘Reconceptualizing the Debate on Jus Cogens and Obligations Erga Omnes— Concluding Observations’, in Tomuschat, Christian and Thouvenin, Jean-Marc (eds.), The Fundamental Rules of the International Legal Order (Martinus Nijhoff, 2006) 425, 429–30; Special Rapporteur on jus cogens, Dire Tladi, Third Report, A/CN.4714, para. 105. The British House of Lords, A and Others v. Secretary of State for the Home Department, Judgment, 8 December 2005, [2005]. 77. Confirmed by the ICJ in its advisory opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, 136, 199, paras. 154–159; operative part, 202, section D. 78. ICJ, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, ICJ Reports 2019, 95, 139, para. 180; operative part, 140, para. 5. 79. ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal ), Judgment, 20 July 2012, ICJ Reports 2012, 422, 449/50, paras. 68/69. 80. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Order, 23 January 2020, ICJ Reports 2020, 3; Judgment, 22 July 2022, ICJ Reports 2022. 81. ICJ Reports 2014, 226, 245–46, paras 39–40. 82. Cassese, 160, asks whether jus cogens may be called a ‘flop’. 83. See Bills, Amanda, ‘The Relationship between Third-party Countermeasures and the Security Council’s Chapter VII Powers: Enforcing erga omnes Obligations in International Law’, 89 (2020) Nordic Journal of International Law 117–141. 84. A typical configuration of that type was the case ICJ, Whaling in the Antarctic (Australia v. Japan, New Zealand intervening ), Judgment, 31 March 2014, ICJ Reports 2014, 226. 85. Note 18. 86. Illustrated by Tomuschat, Christian, ‘Enforcement of International Law’, 79 (2019) Heidelberg Journal of International Law 579–631.

References Besson, Samantha, and Jean d’Aspremont. 2017. The Sources of International Law. Oxford: Oxford University Press. Bills, Amanda. 2020. The Relationship Between Third-party Countermeasures and the Security Council’s Chapter VII Powers: Enforcing Obligations Erga Omnes in International Law. Nordic Journal of International Law 89: 117–141.

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Cassese, Antonio. 2012. For an Enhanced Role of Jus Cogens. In Realizing Utopia: The Future of International Law, ed. Antonio Cassese, 158–171. Oxford: Oxford University Press. Costelloe, Daniel. 2017. Legal Consequences of Peremptory Norm in International Law. Cambridge: Cambridge University Press. Crawford, James. 2011. Responsibility for Breaches of Community Norms: An Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts. In From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma, ed. Ulrich Fastenrath, Rudolf Geiger, DanielErasmus Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Vedder, 224–240. Oxford: Oxford University Press. de Hoogh, André. 1996. Obligations Erga Omnes and International Crimes: Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States. The Hague: Kluwer Law International. de Wet, Erika, and Jure Vidmar, eds. 2012. Hierarchy in International Law: The Place of Human Rights. Oxford: Oxford University Press. Douglas, R.M. 2012. Orderly and Humane: The Expulsion of the Germans After the Second World War. New Haven and London: Yale University Press. Gaja, Giorgio. 2005. Obligations and Rights Erga Omnes in International Law. Annuaire de l’Institut de droit international 71-I: 119–151, 189–202. Gastorn, Kennedy. 2017. Defining the Imprecise Contours of Jus Cogens in International Law. Chinese Journal of International Law 16: 643–662. Hannikainen, Lauri. 1988. Peremptory Norms (Jus Cogens) in International Law. Helsinki: Finnish Lawyers’ Publishing Company. Kolb, Robert. 2015. Peremptory International Law: Jus Cogens. Oxford: Oxford University Press. Lemos, Miguel. 2020. Jus Cogens Versus the Chapter VII Powers of the Security Council: With Particular References to Humanitarian Intervention and Terrorism. Chinese Journal of International Law 19: 1–52. Linderfalk, Ulf. 2020. Understanding Jus Cogens in International Law and International Legal Discourse. Cheltenham: Edward Elgar. Orakhelashvili, Alexander. 2009. Peremptory Norms in International Law. Oxford: Oxford University Press. Pellet, Alain, and Daniel Müller. 2019. Comments on Article 38 of the Statute of the International Court of Justice. In The Statute of the International Court of Justice: A Commentary, ed. Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm, and Christian Tomuschat, 819–962. Oxford: Oxford University Press. Ragazzi, Maurizio. 2010. The Concept of International Obligations Erga Omnes. Oxford: Oxford University Press. Tladi, Dire. Reports on Peremptory Norms of General International Law (Jus Cogens). UN docs. A/CN.4/963, 8 March 2016; A/CN.4/706, 16 March 2017; A/CN.4/714, 12 February 2018; A/CN.4/727, 31 January 2019. Tomuschat, Christian. 2015. The Security Council and Jus Cogens. In The Present and Future of jus cogens, ed. Enzo Cannizzaro, 7–97. Roma: Sapienza Università Editrice. Tomuschat, Christian, and Jean-Marc Thouvenin. (eds.). 2006. The Fundamental Rules of the International Legal Order: Jus Cogens and Erga Omnes. Leiden: Martinus Nijhoff.

CHAPTER 23

Self-Determination and Secession: An Act of Collective Emancipation Costas Laoutides

Introduction From Scotland in the United Kingdom to Rakhine State in Myanmar and from Quebec in Canada to Ambazonia in Cameroon secessionist claims are ablaze in contemporary international politics. The way those claims are addressed by state governments may vary from the civilized politics of referenda, as in Scotland and Quebec, to active suppression and full-scale asymmetric warfare as in the cases of Rakhine and Ambazonia. Regardless of the level of civility in dealing with claims to self-government and independence, the common theme across government responses is the reluctance, if not denial, in granting independence. The unwillingness by the affected states as well as the international community to accept secessionist claims is derived politically and legally from the notion of territorial integrity which has been the backbone of the post-Second World War international security architecture aptly encapsulated as a core international norm in the United Nations Charter. The respect to territorial integrity runs counter to another international norm, that of the selfdetermination of the peoples which, unlike the respect to territorial integrity, has been subjected to different interpretations and a systematic narrowing down of the horizon of cases that could fall under its application. This has been empirically evident in the way the international community cautiously avoided the justification of several secessionist cases on the basis of self-determination C. Laoutides (B) Deakin University, Melbourne, VIC, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_23

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during and after the Cold War. To this end, creative terms such as dissolution (as in former Yugoslavia) or voluntary disassociation (as in the Soviet Union) have been employed to justify the change of territorial borders and state creation whilst in many other cases claims were rejected as in the case of the Kurds in Iraq and Syria. It is worth noting here that to date and despite the reluctance of the international community towards secessionist movements there is not a clear international rule that prohibits such an act. This ambivalence has also been fuelled by another paradox evidenced on a number of historical and contemporary cases. There has been a number of instances where secessionist/separatist movements have managed to fulfil the conditions of statehood including the exercise of effective control on territory but yet they are not recognized as such by the international community (see Transnistria or Somaliland). The combination of these factors, namely the lack of an international framework to regulate secession with a simultaneous selective denial of secessionist claims, has fuelled a lively debate on whether secession is a question of law or fact (Christakis 2006; Radan 2015). The interweaving between norm evolution and international practice on territorial separatism is present throughout the chapter. In the first part, I discuss the evolution of the concept of individual self-determination and its transition to the realm of collective self-determination underpinned by the principle of nationalities. I then proceed with the main theoretical approaches for the justification of secession based either on a primordial or remedial right. I conclude with a suggestion for an outcome justification for secession based on an emancipatory understanding of self-determination.

Individual and Collective Notions of Self-Determination The first step in unpacking the relation of self-determination with secession is to explore the notion of self-determination and its evolution in political thought and international practice. For many thinkers, from the seventeenth century onwards, individual self-determination is linked with free will and free agency. One who has free will can determine oneself and vice versa. Accordingly, self-determining human beings are autonomous free agents with respect to some of their actions, thus one being free means one is self-determined (Chapell 2005). This proposition, formulated in the work of John Locke, Jean-Jacque Rousseau and Immanuel Kant among others, suggests humans are not elements in the composition of natural order possessed of natural rights but it is rather the individuals with self-imposed norms that determine themselves as free and moral beings (Beran 1998; Kedourie 1993). Because individuals have to make choices based on reason that are informed by moral values, self-determination makes individuals humans. As moral agents, humans have a duty to respect the self-determination of all other individuals. This interaction generates a right to individual self-determination (Weitz 2015).

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The transition from the individual to collective self-determination can be traced in the American Declaration of Independence of 1776 and the French Declaration of the Rights of Man and of the Citizen of 1789. The American Declaration begins with a reference to the need of “one people to dissolve the political bands which have connected them with another” and declares: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.

Similarly, the French declaration proclaims in Article 2 “the final end of every political institution is the preservation of the natural and imprescriptible rights of man”, whilst Article 3 asserts that the “basis of all sovereignty lies, essentially, in the nation”. Both documents locate the source of collective selfdetermination in the people which in the case of the French declaration was identified with the nation. The identification of the people with the nation culminated in the principle of nationalities which reconciled individual rights with the rights of nations. Several Enlightenment and nineteenth-century thinkers subscribed to the principle of nationalities including Jean-Jacque Rousseau, Jeremy Bentham, Giambattista Vico, Johann Gottfried Herder, Johann Gottlieb Fichte and Giuseppe Manzini among others. Invariably these thinkers argued that the locus where the individuals can pursue selfdetermination and protect their individual rights is the self-determining nation (Heraclides 2020; Weitz 2015). Individuals could be free only in a community that shares a common culture, thus individual self-determination and collective, national and self-determination are inseparable. John Stuart Mill (1910, 360) concretely summarizes this line of thought: Where the sentiment of nationality exists in any force, there is a prima facie case for uniting all the members of the nationality under the same government, and a government to themselves apart…Free institutions are next to impossible in a country made up of different nationalities.

This idea was perceived as a universal truth in no need for further qualification thus obvious and unquestionable (French and Gutman 1974). The territorial manifestation of national self-determination is the notion of independent statehood. In other words, the institution that expresses the self-determining nation is the territorial state within which self-government is achieved (Waters 2020). In the early 1800s, there was a substantial number of national groups with a sense of collective identity, thus some of the first cases of secessionist self-determination movements included the Wars of Independence in Latin America, Haiti, Greece and Belgium (Hroch 1995).

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In the long nineteenth century, the principle of national self-determination was the main ideology that underpinned the redrawing of the map in Europe and set a new criterion for international political organization. The core idea was that humans are grouped into nations and each nation had the right to constitute an independent state, thus only nationally homogeneous states were legitimate. Such an understanding of political organization led to two different types of redrawing borders and peoples; on the one hand, there was a process of secession where the dismemberment of the Ottoman and AustroHungarian empires led to the formation of a number of nation-states whilst, on the other hand, several independent sovereign units were unified to forge larger national states such as Italy and Germany. In 1905, Lasa Oppenheim notes the dynamism of the new ideology as he observes: The principle of nationality is of such force that it is fruitless to try to stop its victory. Whenever a community of many millions of individuals, who are bound together by the same blood, language, and interests, become so powerful that they think it necessary to have a State of their own, in which they can live according to their ideals, and can build a national civilization, they will certainly get that State sooner or later. What international politics can, and should do, is to enforce the rule that minorities of individuals of another race shall not be outside the law, but shall be treated on equal terms with the majority. (Oppenheim 1905 [1937], 81 in Heraclides 2020, 9–10)

Oppenheim also captures a major issue that is the product of the exact correlation of state boundaries and nations, namely the tension in the relations between ethnic majorities and minorities that inhabit the same territory. The presence of ethnic groups different to the dominant one presented a problem to the degree that these minorities could not join in building the public culture and the character of the nation. Minorities were perceived as anomalies within the nation-state which should reflect one monolingual culture (Hayes 1960). The minorities’ challenge to the ideal “one nation one state” led to versions of collective self-determination described as authoritarian nationalism (Freeman 2019). The latter informed policies of ethnic assimilation, ethnic cleansing and genocide. However, assimilationist policies often led to increased political awareness of the targeted ethnic communities which mobilized and claimed independent statehood (Guelke 2012). By the end of the First World War, two versions of the principle of national self-determination have been clearly formulated. The first was associated with the then US President Woodrow Wilson, who promoted the principle of nationalities as one of the main pillars for the post-war international order based on popular sovereignty and majority rule. The political thought of the period treated nationalism and democracy as almost synonymous terms (Mayall 1990). The nation-state was regarded as the political expression of the democratic will of the people with the principle of self-determination having a dual role. First, it was seen as the principle for international re-organization

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in the post-First World War order, and second, it was the principle to guide popular governance within states. Interestingly, however, the range of application of the new political framework was limited to Europe with little leeway for expanding the principle in the colonial space of the imperial powers of the time. This was expressed politically in Wilson’s equivocal approach to the national question outside Europe (Manela 2007), but also by scholars of international law advocating a selective application of the new principle in “civilized nations”. As Bluntschli (1895 [2000], 92–93) argued: “Not every people is capable of maintaining a State, and only a people of political capacity can claim to become an independent nation. The incapable need the guidance of other and more gifted nations; the weak must combine with others or submit to the protection of strong powers”. The second version of the principle of national self-determination originates in Marxist thought. Although Marx shared with other progressive thinkers, such as Kant and Rousseau, the need for collective control as a means to overcome the alienation that renders humans “…debased, enslaved, forsaken, despicable being[s]” (Marx 2005, 182), his proposal for gaining and exercising collective control places emphasis on social rather than political autonomy (Forst 2017). Although self-determination in Marxism is emancipatory for the working class than the nation, Marx and Engels saw the national liberation movements as the transitional phase from bourgeoisie dominated to a classless socialist society. Thus, Marx and Engels supported several national liberation struggles such as the Irish, the Polish and the Italians, and in 1896 at its Congress in London, the Second Socialist International affirmed the right of nations to self-determination and opposition to colonialism. In a similar vein Vladimir Lenin (1917 [1969]) in the wake of the Russian revolution advocated the right to self-determination as he believed, in tune with other Marxists, that nationalism was a phenomenon of the capitalist era and would disappear with capitalism itself. Lenin viewed the establishment of nation-states as a vital step in the historical evolution towards a socialist society. In this light, nationalism was a progressive force insofar as it assisted feudal societies to evolve into capitalist societies. Once capitalism had become fully developed, however, as it was in Western Europe and North America, nationalism would cease to be a progressive force and would instead become oppressive. Lenin employed the principle of self-determination to achieve political and ideological objectives rather than to safeguard peoples. The socialist cause and the interest of the Revolution always took priority over the principle. The principle was valued as a tactical argument which would remain valid as long as it promoted the virtues of the class struggle (Laoutides 2015). Both versions of national self-determination were not realized in a catholic fashion. After the Paris Peace Conference in 1919, the principle was applied only on the defeated side of the Great War. Borders changed, some countries expanded their territories, like Romania and Greece, whilst new independent states appeared such as Poland, Czechoslovakia and the Baltic nations. Yet, despite the excitement that was generated in imperial colonies before and

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during the Peace Conference for the change that self-determination could bring to colonial peoples, the principle was not extended to the colonies, and finally, it was not incorporated in the Covenant of the League of Nations. It appeared that not all peoples were entitled to the same principle (Manela 2007). Similarly, although Marxism promoted the principle of selfdetermination and a right to secession was nominally recognized in the Soviet Constitution, writing in Pravda on 21 February 1918 in favour of the BrestLitovsk peace treaty Lenin asks rhetorically: “Who should be put first, the right of nations to self-determination, or socialism?” And he answers: “Socialism” (cited by Cassese 1995, 18). Although the principle of national self-determination was designed to allow peoples to achieve emancipation, the national dimension of the principle inflamed and justified oppression against minorities. During the interwar period, intolerance to ethnic diversity became the norm, since ethnic pluralism was seen as weakness in the emerging world of nation-states. The minority protection regime promoted in the League of Nations was inefficient to withhold suppression policies against ethnic minorities. In Turkey, for example, during the first few decades after the creation of modern Turkey in 1923, the Kurds were sent to the gallows “for having claimed that the Kurds existed” (Nezan (aka Kendal) 1980, 77). In 1945, the United Nations Charter signalled the new architecture of international peace and security, part of this new world order was the principle of self-determination, which was included in the Charter after the insistence of the Soviet Union (Russell 1958). Interestingly, the wording of the new norm referred to the self-determination of the peoples instead of nations (UN Charter Article 1 paragraph 2 and Article 55). The definition about who the people was remained vague until the General Assembly’s Resolutions 1514(XV) and 1541(XV) in 1960 which stepped towards the articulation of general standards that forged the principle of self-determination as a right applicable only to peoples under colonial rule. The next major step in the UN practice was the inclusion of self-determination in the International Covenant for Civil and Political Rights (ICCPR) and the International Covenant for Economic, Social and Cultural Rights (ICESCR) both adopted in 1966. In the identically worded Article 1, both Covenants restate the right of self-determination as stated in the General Assembly’s Resolution 1514 (known as the Declaration on the Granting of Independence to Colonial Countries and Peoples): “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. The inclusion of self-determination in the two Covenants made the norm an essential prerequisite for any meaningful presence of individual human rights since they can genuinely be realized only in a polity, which is self-determined (Thürer and Burri 2008). However, the consensus has been that the principle applies to majorities of people in a given geographical jurisdiction, thus secession by

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numerical minorities was not acceptable and they were treated as breaches of the norm of territorial integrity (Hannum 1993). The Helsinki Final Act of the Conference for the Security and Cooperation in Europe (CSCE 1975) echoed the link between individual human rights and collective self-determination marked in the UN practice (Higgins 2003). Principle VII of the Final Act commits member states to the protection of human rights including the rights and fundamental freedoms of persons that belong to national minorities, and Principle VIII reaffirmed that “all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development” (Higgins 2003). There is a view shared among scholars and practitioners that the drafters of the Final Act wanted a text where self-determination would not imply secession but yet would allow for change of borders in Europe (Heraclides 2020; Sadigbayli 2013). The friction was coming from the tension between not recognizing the right to self-determination to national groups found in many European countries—such recognition could lead to secessionist claims, and keeping open the possibility for the unification of Germany (Hazewinkel 2007). To this end, the final text combined the acknowledgement that frontiers of states can change peacefully (Principle I) with the protection of individual rights of members of national minorities (Principle VII) and the right to self-determination (Principle VIII). The international practice towards the right to self-determination of the peoples in the UN and the CSCE until the end of the Cold War can be summarized by the following points: 1. The right to self-determination was entitled to colonies (non-selfgoverning territories) or the majority within a given territorial state. 2. Unilateral (non-consensual) secession by minorities was unfavourable (but not illegal). 3. Change of territorial borders (either secession or unification) was recognized only if there was consent and it was peaceful. The anti-secessionist sentiment of the international community has been confirmed by the fact that during the Cold War, only one case of secession (out of more than thirty cases) was recognized by the UN, that of Bangladesh (Heraclides 1992). In tune with the international practice several, scholars and jurists subscribed to the colonial interpretation of the right to selfdetermination (Shaw 1986; Higgins 1994; Gros Espiell 1980; Cristescu 1981; Quane 1998; Michalska 1991). However, a different view to the colonial-only argument has been developed, which became more popular after the end of the Cold War. According to this view, the right to self-determination cannot only be applied to former colonies, but ought to be extended, beyond the colonial context, to metropolitan territories where the inhabitants do not share

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in the government of the region or the state. Based on the “consent of the governed”, according to these analyses, the UN implicitly provided a justification for legitimate action against illegitimate authority (Brownlie 1970; Buchheit 1978; Crawford 2005; Dugard 2013; Musgrave 1997). Secession (as a manifestation of self-determination) is not outlawed because this would be incompatible with the concept of “the consent of the governed” that underpins the course of human rights as the cornerstone of just and equal societies. Therefore, secession is seen as a remedial last resort that would not stir further separatist sentiments (Tomuschat 2006).

Theoretical Approaches to Secessionist (External) Self-Determination The end of the Cold War came with the break-up of Czechoslovakia, Yugoslavia and the Soviet Union. Whilst the first was separated into the Czech Republic and Slovakia in a peaceful and consensual manner, the latter two generated a number of separatist armed conflicts from Bosnia-Herzegovina to the Chechen wars, which led to war crimes and crimes against humanity. Apart from the former Eastern Europe, secessionist conflicts flared up in other parts of the world: Somaliland, Tamil Tigers in Sri Lanka, the Kurds in Turkey and Iraq, the Moro region in the Philippines and the South Sudan were just a few examples of secessionist conflicts, which came out of limbo after 1990. The increased number of self-determination movements calling for independence intensified the debates in the international community and scholarship about when a right to secession must be recognized.1 A number of taxonomies in the literature categorize the different approaches to secession based on a range of different criteria (Moore 1998, 2001; Norman 1998, 2003; Buchanan 1997; Freeman 1999; Song 2003; Mancini 2012; Heraclides 2020). This section loosely follows the distinction between just cause or remedial theories, national self-determination theories and choice theories which also reflects opposing views around the question of agency (individual rights versus collective rights). Remedial or Just Cause Theories Just cause theories of secession argue in favour of a remedial right to secede. The term “remedial right” means that there is a general right to secede for groups that have suffered certain kinds of injustices, which cannot end until the group is no longer part of the state. Elements of a remedial approach to secession can be found in the writings of early modern thinkers and onwards. Johannes Althusius, writing on how a polity can respond to tyrannical rule, suggests: One of the estates, or one part of the realm, can abandon the remaining body to which it belonged and choose for itself a separate ruler or a new form of

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commonwealth when the public and manifest welfare of this entire part altogether requires it, or when fundamental laws of the country are not observed by the magistrate but are obstinately and outrageously violated. (Althusius 1603 [1995], 197)

Similarly in the Interwar period, two international lawyers André Mandelstam (1926) and Robert Redslob (1931) defended the possibility of secession as a remedy to grave violations of basic human rights (Heraclides 2020). In the context of the Armenian Question Mandelstam argues: The humanitarian interventions undertaken by the Powers in Turkey in the course of the nineteenth century created, without any contradiction, a customary right in favor of the oppressed nations of the Ottoman Empire, a right, so to speak, that persists. In the case of this particular oppressed [Armenian] nation, this right, which at first was to protect the primordial interests of man [le intérêts primordiaux de l’homme, life, liberty, and equality], was with time, because of the incorrigible tyranny of Turkey, transformed into a guaranteed right to autonomy and the right to secession. (Mandelstam 1926 in Watenpaugh 2014, 162, emphasis in the original)

Subsequently, remedial secession was rehearsed and expanded by international law scholars in the aftermath of the genocidal violence in Bangladesh in 1971 (Buccheit 1978). Different remedial theories focus on different kinds of injustices: some on prior occupation and seizure of territory (Duursma 1996; Brilmayer 1991, 2000); some on serious violations of human rights including genocide; others view discriminatory justice as sufficient to legitimate secession (Norman 1998). The main proponent of the remedial approach is Allen Buchanan who argues that a group is required to demonstrate both that it has a valid claim to the territory it wants to withdraw from the state—such as showing that the group was illegally incorporated into the state—as well as that the group is a victim of systematic injustice or exploitation or that its culture is seriously imperilled (Buchanan 1991, 2004). There is a legitimate right (to secede/revolt) only if it is necessary to remedy an injustice. Implicitly the remedial theories of secession suggest a conception of the legitimacy of states. In this view, states exercise legitimate authority over territory only if they treat citizens justly. By suggesting a strong link between secession and human rights, this kind of argument grounds the ethics of secession within the generally accepted framework of human rights, and a generally accepted theory of state legitimacy. Remedial right theories receive a number of critical questions. The first is about their tendency to legitimize the status quo, it is assumed that the current state quo is fair. However, such a static approach does not recognize the dynamic character of territorial change and subsequently does not scrutinize the historical processes of border formation, which is assumed to be essentially just (Laoutides 2015; Mancini 2012). The second point of contention is related to the difficulty to define injustice. Apart from extreme cases, injustice

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can be questioned and subjectively defined by different parties to the conflict. More indirect forms of injustice without a clear discriminatory framework can pose a challenge, how can we distinguish between relative deprivation and an acceptable redistribution of wealth, or what is economic exploitation in a “milk cow” context, where affluent regions contribute more materially, and how this balances out with non-quantifiable advantages, that rich regions receive by virtue of their membership to the state (Heraclides 2020). Another point of critique relates an intimate relationship between gross violation of human rights and certain identity groups. Remedial approaches do not clarify what groups fall within the spectrum of the remedy. In other words, it is not clear which groups have a right to secede, if their human rights are grossly violated. The lack of clarity seems to promote a tacit acceptance that a remedial right to secession is recognized to ethnic groups only. National Theories of Secession Similarly to remedial approaches, contemporary national theories of secession have evolved from the principle of nationalities that dominated political thought during the nineteenth and early twentieth centuries. National theories are premised on the moral value of the nation as a distinct and homogenous community. Whilst early approaches placed emphasis on the exclusionary aspects of national groups, contemporary theories have attempted to reconcile the intrinsic value of the group with the individual interests of its members. Accordingly, it is suggested that, by acknowledging their national identity, individuals also recognize that they have particular obligations to fellow members of their nation (MacCormick 1982, 1994, 1996; Margalit and Raz 1990; Tamir 1993; De-Shalit 1996; Nielsen 1998). The emphasis on the ethical significance of national membership paves the way for a concrete argument in favour of national external self-determination (Miller 1993, 1994, 1995, 1998, 2000). As far as possible, each nation should have its own set of political institutions, which allows it to decide collectively those matters that are the primary concern of its own members (Miller 1995). Individual identity is socially embedded, mainly in national culture and since individual identity deserves respect, then nationality as a constitutive factor of individual identity has ethical significance (Tamir 1993; MacCormick 1982). Because individuals identify with the local community, they acknowledge obligations to members of the particular community that are distinct from the obligations owed to people generally. Likewise, individuals expect that other members of the community feel the same obligations towards them, although this mutuality is not described in strict reciprocal terms. The national culture is preserved best through statehood and thus states with strong national identities are more likely to realize social justice within their borders (Tamir 2019). Accordingly, nationalism is not a threat to democracy and open societies, but rather a condition for them because it guarantees solidarity among the citizens, who share common values, beliefs and sentiments (Miller 2019). For national theories,

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the right to secession depends on the existence of the nation that is connected to a particular territory, the historical homeland. There is an emphasis on the impact of cultural activities of nations over territory. Specific practices related to the use of land such as buildings, monuments or economic activity create a relationship between people and the land, which is constitutive of the social imaginary of nations. The territory obtains cultural traits, which feed back into the national narrative of long national presence in the land. Thus, there is a dynamic osmosis between national culture and territory that, according to this view, creates a right for the nation over the land (Kolers 2009). The national approach to secession has received substantial criticism on several fronts. According to one count, there are no less than 1,203 ethnic groups in the world with population more than 500,000 that have developed a separate identity, and hence, could substantiate a right to secede (AMAR 2021). This can be a recipe for conflict and war especially when different groups may have legitimate claims over the same territory, typical examples are the conflicts in Kosovo and Palestine (Judah 2008; Gans 2008). Furthermore, an argument in favour of secession on the basis of nationality does not address the multinational/multiethnic character of the majority of states. The right to secede appears to be based on a geographic or demographic position and not a right based on moral considerations (Pavkovic 2011). Prioritizing the majority nation creates the potential for discriminatory practices for those who are not willing to conform to, what Miller (1995) calls, the “public culture”. It has been recognized that nations can claim self-government only to territories where presently the nation is a majority (Moore 2001). This argument sets the foundation for a demographic race between different ethnic groups that co-inhabit the same territory in a bid for each of them to become a majority and justify a right to secession and self-government. Such an approach also enhances the construction of siege narratives where fear of a future demographic change in favour of the minority can fuel animosity by the majority, this has been one of the arguments made by Buddhist nationalists against the Rohingya minority in Myanmar (Ware and Laoutides 2018; Laoutides 2021). In addition, although the majority of secessionist movements are based on national identity, there is a number of cases which are simply distinct societies separate from the dominant centre (see for example Transnistria and Katanga) or they are based on other ascriptive ties than nationality, such as South Sudan and the Moros in the Philippines (Heraclides 1991). Secession as an Individual Choice The final group of approaches considered here argues that freedom of association and democracy must be the driving principles for any redrawing of territorial borders. With emphasis on individual agency and autonomy choice, theories of secession underline the individual right to political association with the consent of the individual being the basis of political obligation, which legitimizes the state. Therefore, individuals within a state should be able to define

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and redefine the boundaries of the political community without necessarily demonstrating that they are victims of an injustice. The will of a territorially concentrated majority to secede should be expressed in a referendum (Beran 1984, 1987, 1988, 1998; Copp 1997; Gauthier 1994; McGee 1992, 1994; Philpott 1995, 1998; Wellman 1995, 2005). Choice theories interpret a group’s right to self-determination as a right derived from the right to selfdetermination of individuals who are free to associate. Inherent in this position there are two basic liberal axioms: that every human has a right to political self-determination, and that opposing claims to self-determination can only be resolved through majority decision (Schmücker 2011). Choice theories are regarded as the most permissive approaches to secession and as a result choice theorists introduced a number of conditions that need to be met in order for a group to be granted the right to secede. Harry Berran (1984, 30–31) for instance outlined a number of conditions that can block a group from exercising the right to secede, such as that “the group is not sufficiently large to perform the required political functions of a state; it will not permit sub-groups to secede; it wishes to exploit or oppress a sub-group within itself which cannot secede in turn; it occupies an area that if seceded would create an enclave; it occupies territory which is culturally, economically, or militarily essential to the existing state and has a disproportionally high share of the economic resources of the existing state”. In a similar and more open fashion Christopher Wellman (2005) suggests that any group has a right to secede, if it is able and willing to assume the basic responsibilities of an independent state, and it will not undermine the parent state’s ability to continue assuming the same responsibilities in the remaining constituents. Essentially the conditions offered tend to link the will of peoples to change territorial borders with assurances that the political stability will not be put in jeopardy. By aggregating individual choices based on autonomy and freedom of association choice, theories offer a political and territorial right to secession. Copp (1997) suggests that self-determination can be granted to populations who are settlers on a territory or they claim this territory for historical reasons. However, what is unclear, as we saw in national theories earlier, is what should happen when two communities may have equally legitimate claims over the same territory. However, the historical aspect of the claim to territory seems to be based on tradition than consensus. The community has to historically prove its long presence over a territory before it can claim a right to secession with a referendum. If tradition predates consensus, then the link between community and territory, to qualify a right to secession, has to be supported by pre-democratic elements based on national/ethnic identity (Mancini 2012). Choice theories allow for recursive secession to occur based on majority vote, if a group votes to secede and within the new territorial state there is a minority, this minority can exercise the right to secede by majority vote. This process leads to an ongoing fragmentation of international borders rendering them quite changeable and fluid (Pavkovic 2011). Apart from the practical

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implications on international peace and security, the permissible character of secession by choice theories has lent some support to the argument posed by Wayne Norman (1998, 40) who suggests that choice theories outline “a theory of political divorce without considering at all a theory of political marriage”. In other words, choice theories do not consider what states do or need to do to form and maintain political communities within which human rights are upheld and the public good is distributed equally. Although choice theories are based on universal values, they seem to be applicable to individuals and groups that are in an advantageous position. Majority decisions do not guarantee the fate of those who disagree with a decision to secede. The promptness for political divorce makes the non-secessionist a powerless minority deprived of its right for self-determination. The majority rule as the ultimate criterion for legitimacy entails the risk the new (post-secession) frontiers to end up being just as undemocratic as the old ones were.

Conclusion The question of secession continues to be the most controversial aspect of political self-determination. Whether it is seen as a remedy to an injustice or, a primary individual or collective right, secession will continue to appeal as a territorial means to resolve political conflicts. All three approaches that discuss the right to secession reflect, in different ways, the core idea of moral and political autonomy of the individual and the collective. However, political autonomy can be achieved also within the present territorial states through various ways of decentralization of political rule that can minimize secessionist tendencies and lead to meaningful self-determination without changes of territorial borders. Such solutions can be formulated and realized on the basis of two conditions. First, existing states need to demonstrate preparedness to accept diversity and inclusion by agreeing to effective participation in the political process of sizeable distinct communities. Otherwise, existing states unwilling to devolve political power will have to face the option of partition. This is a response to an international practice that seems to prioritize territorial integrity over human rights. Second, there is a need for the international community to depart from ad hoc solutions to the question of secession and proceed with a legal framework that can assess secessionist claims. By formulating a coherent and systematic international response to the question of separatism, little room will be allowed for raw power and violence to determine the territorial status of human communities. Overcoming the taboo of secession by de-sacralising, the notion of the territorial integrity of the state is of paramount importance as it will open the discussion about when and how territorial integrity should (or should not) be respected. The need to address secession does not necessarily imply that territorial separatism is (or should be seen as) the ultimate method of resolving conflicts between socio-political groups. It could be argued that by legitimizing secession, in essence, we encourage the maintenance of the existing

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state system, thus minimizing the possibility of moving towards other forms of political association, which would not be state-centred. The re-examination of the principle of self-determination, which features highly in recent literature (Laoutides 2015; Stilz 2015; Waldron 2010; Waters 2020), however, constitutes a clear indication towards the direction of new forms of political organization. By paying close attention to the circumstances through which the state has emerged as the main political actor in the past few centuries, we can appreciate the association of self-determination, statehood and secession, and subsequently challenge it. For human improvement moves forward to the new rather back to the old (Williams 2003, 70).

Note 1. There is a long debate in practice and scholarship on how to address claims for self-determination without leading to independent statehood. The most prominent example is the conception of internal self-determination and how it interacts with models of devolution (Heraclides 2020; Dugard 2013).

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Sadigbayli, R. 2013. Codification of the Inviolability of Frontiers Principle in the Helsinki Final Act: Its Purpose and Implications for Conflict Resolution. Security and Human Rights 24 (3–4): 392–417. Schmücker, R. 2011. Remedial Theories of Secession. In The Ashgate Research Companion to Secession, ed. A. Pavkovic and P. Radan, 399–412. Furnham: Ashgate. Shaw, M. 1986. Title to Territory in Africa: International Legal issues. Oxford: Clarendon Press. Song, X. 2003. A Unified China or an Independent Taiwan? A Normative Assessment of the Cross-Strait Conflict. In Contextualising Secession: Normative Studies in a Comparative Perspective, ed. B. Coppieters and R. Sakwa. Oxford: Oxford University Press. Stilz, A. 2015. Decolonization and Self-Determination. Social Philosophy and Policy 32 (1): 1–24. Tamir, Y. 1993. Liberal Nationalism. Princeton, NJ: Princeton University Press. ———. 2019. Why Nationalism. Princeton, NJ: Princeton University Press. Tomuschat, C. 2006. Secession and Self-Determination. In Secession: International Law Perspectives, ed. M.G. Cohen, 23–45. Cambridge: Cambridge University Press. Thürer, D., and T. Burri 2008. Self-Determination. In Max Planck Encyclopaedia of Public International Law, ed. R. Wolfrum. https://opil.ouplaw.com/page/788. Accessed 12 August 2021. Waldron, J. 2010. Two Conceptions of Self-Determination. In The Philosophy of International Law, S. Besson and J. Tasioulas, 397–451. Oxford: Oxford University Press. Ware, A., and C. Laoutides. 2018. Myanmar’s ‘Rohingya’ Conflict. London: Hurst. Watenpaugh, K.D. 2014. Between Communal Survival and National Aspiration: Armenian Genocide Refugees, the League of Nations, and the Practices of Interwar Humanitarianism. Humanity 5 (2): 159–181. Waters, T.W. 2020. Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World. New Haven: Yale University Press. Wellman, C.H. 1995. A Defence of Secession and Political Self-Determination. Philosophy and Public Affairs 24 (2): 142–171. ———. 2005. A Theory of Secession: The Case for Political Self-Determination. Cambridge: Cambridge University Press. Weitz, E.D. 2015. Self-determination: How a German Enlightenment Idea Became the Slogan of National Liberation and a Human Rights. American Historical Review 120 (2): 462–496. Williams, H. 2003. Kant’s Critique of Hobbes. Cardiff: University of Wales Press.

CHAPTER 24

Migration Across Borders Gillian Brock

Introduction As I write, the COVID-19 pandemic rages across the globe. Regulations govern much movement, especially across state lines. It seems we live in a decidedly closed borders world at the moment. Many will view this as an entirely good situation. After all, if we limit the movement of people across borders, we restrict opportunities for the deadly virus to spread. In the midst of this catastrophic pandemic, it seems those who are in favor of strict border controls have a strong position. Before this unwelcome turn of events for global health, a vigorous debate flourished about how open borders should be. Millions of people attempted to immigrate every year. And states were (and still are) highly selective in deciding whom to include, denying membership to many. Would-be migrants take extreme measures to enter desired destination countries anyhow, such as by paying smugglers large sums of money to guide them across deserts, hide them in refrigerated containers, or transport them in overcrowded boats, sometimes with tragic results. In the face of very restrictive policies concerning admissions, a key question dominated the normative literature on migration. Should states be more generous in allowing would-be immigrants to enter their territory, so that they admit higher numbers than they currently

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do? The next two sections focus on this core question, with section “Arguments for the State’s Right to Control Immigration” canvassing arguments for state’s rights to control immigration and section “Arguments for More Free Movement Across Borders” considering arguments for more open borders. Section “Responsibilities to Refugees” considers responsibilities to refugees, a category of migrants that are typically thought to deserve special consideration. Section “Some Further Contemporary Issues” surveys some further prominent topics receiving much attention, including normative constraints on admission policies, irregular migration, temporary migration, justice in outmigration, and critiques from critical border theorists. Section “COVID-19 and Borders: Some Concluding Reflections” reflects on the implications of COVID-19 for future debates about the importance borders should be accorded.

Arguments for the State’s Right to Control Immigration Michael Walzer (1983) argues that states are (or should be) self-determining communities and that self-determination has considerable value. A state’s ability to control borders is an important right, if it is to be self-determining. Without the ability to restrict immigration, those who are already members of the state could be significantly affected. For instance, if many culturally diverse newcomers settle, this might threaten the community’s character and distinctive identity. Although Walzer defends relatively strong rights to restrict entry, he also acknowledges that states have obligations of mutual aid (or good samaritanism) that require states to admit the desperately needy in certain cases, such as when strangers are seeking refuge. He also argues that a state may not admit guest or migrant workers to labor in the country without offering them a pathway to citizenship. So, while Walzer offers a strong defense of the right to self-determination it also includes some important normative constraints. There are several others who defend strong rights to control borders. Here I pick out just some of these prominent advocates and discuss their arguments. Christopher Wellman (2011) argues that legitimate states (i.e., ones that respect basic moral rights) have a right to political self-determination and that freedom of association is a crucial component of self-determination. Freedom of association means states have a right to refrain from associating, and so a right to deny prospective immigrants entry to its territory. A state has the right to exclude those with whom it does not wish to associate. Several of Wellman’s key arguments proceed by analogy with how freedom of association operates for individuals and small groups and how this should work for states. However, critics challenge whether we can infer anything about the state from those examples (Fine 2010; Cole 2011). Friendships, marriages, or religious associations are all intimate or expressive associations in which freedom of association might matter a great deal. However, states are qualitatively different kinds of

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groups; arguably, freedom of association does not matter in the same kind of fundamental way and so cannot ground the case for excluding prospective immigrants in the ways Wellman’s argument straightforwardly suggests. In response to such concerns, one might try to deepen the argument by showing that there is something special about our association with others, perhaps in what we have created together and to which we therefore have a right. Ryan Pevnick’s arguments might be construed in this light. Ryan Pevnick (2011) argues that citizens have rights of ownership over the fruits of their collective efforts. Citizens have labored to produce many desirable aspects of their state. For instance, citizens have raised taxation revenue to build valuable public goods, such as infrastructure or an education system. Citizens have also invested their own labors in creating and maintaining strong institutions. These are important assets in the flourishing communities that many immigrants wish to join. Citizens also make ongoing contributions to maintaining these institutions, for instance, by paying their taxes or obeying laws and thereby contributing to the maintenance of important practices necessary for their ongoing flourishing. Citizens’ valuable input into creating and sustaining these institutions gives them relevant ownership claims over the institutions, which entitle citizens to decide who may have access to the resources they have created. So, in summary, citizens have special claims to the institutions of their states and therefore important rights to exclude outsiders. One weakness with the argument is the assumption that we can draw a sharp distinction between contributions made from within the state and those outside it especially in our highly integrated, globalized world. For instance, high levels of trade among countries mean contributions to a strong domestic economy capable of sustaining robust pension or healthcare programs or other attractive domestic institutional features also rely on important international contributions. Furthermore, colonial histories have boosted institutional resilience. If that institutional strength resulted from historical processes, citizens of former empires would have some claim to enter previous colonizers’ state given the contributions of previous generations. In a different vein, some argue for self-determining communities rights to control immigration in virtue of the costs that would result if they did not have such rights. There are many concerns but several of them might be construed as detrimental effects on the very institutions and collective assets that communities need to sustain themselves well. One form of the argument emphasizes the results for democracies. For democratic institutions to function well, members of a society need a certain sense of themselves as a community, so that they will be willing to work together, to trust one another, and make sacrifices needed to sustain wellbeing for members. Some also argue that shared identity is necessary for creating and sustaining such connections (Kymlicka; Miller). These arguments have in common the worry that immigration threatens important prerequisites (or social capital), necessary to sustain well-functioning communities (Banting and Kymlicka 2017a, 2017b). Compatriots worry especially that with all these

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added demands on the welfare state, this will erode the solidarity and social capital we need to sustain such institutions. Does immigration undermine the social trust needed to sustain a welfare system? Some important empirical evidence “suggests that support for the welfare state depends primarily on features of institutions rather than on characteristics of the population” (Pevnick 2009, 149). As Cole argues, social trust can be created; we do not have to rely on its already being in the community. So, welfare institutions can create social trust, rather than the other way around. In addition, citizens often believe that immigrants displace poor citizens in certain job sectors such as those that are less skilled. While there is much empirical evidence to review, here we might note that large influxes of newcomers do not necessarily inflict negative consequences for others, as we see in cases such as the Mariel Boatlift from Cuba to Miami in 1980 that did not have negative effects on the wages of less-skilled native workers (Sumption and Somerville 2010; Card 1990). A key issue in these cases is how movement is managed and the complementary policies the state may enact to realize the positive potential of new citizens (Brock 2020).

Arguments for More Free Movement Across Borders In a classic argument, Joseph Carens (1987) argues for a position standardly but misleadingly characterized as “open borders.” His view is that “borders should generally be open … people should normally be free to leave their country of origin and settle in another” (Carens 1987, 251). He has several lines of argument for this position. One line of argument invokes a provocative analogy. He compares citizenship in Western liberal democracies to feudal privilege in being “an inherited status that greatly enhances one’s life chances. Like feudal birthright privileges, restrictive citizenship is hard to justify when one thinks about it closely” (Carens 1987, 252). In feudal societies, one’s life options were determined by accidents of birth—who one’s parents happened to be. A similar system of entrenched advantages for those fortunate to be born to positions of privilege rules our current global order. Those who live in affluent countries can expect a reasonably comfortable and secure life, and they guard their privileges by keeping out those who are born in countries where opportunities prevalent in high-income countries are not readily available. In another line of argument, Carens shows that the three dominant philosophical theories of the time (libertarianism, utilitarianism, and the Rawlsian approach) would all converge on justifying the same conclusion, namely that the position of open borders is the most defensible. In a third key strand, Carens emphasizes the importance of freedom of movement in securing many of our other freedoms and valuable pursuits. The same issues that motivate concern for freedom of movement within the state also drive concern for freedom of movement across borders.

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Many defenders of the “open borders” position have developed themes from Carens’s influential arguments. Freedom-centered arguments for open borders often maintain that for people to pursue their life plans they must be able to cross borders. For instance, to pursue religious, cultural, or career goals one needs the freedom to move to where these opportunities can be enjoyed, and these often lie outside the bounds of their state (Cole 2000; Oberman 2013). But there are also significant challenges to this line of argument. David Miller argues that freedom does not require opening borders. Rather, if a person enjoys a sufficient range of options, crossing borders cannot be justified using such arguments (Miller 2005, 2007). Freedom of movement is valuable because it protects individuals’ freedoms to pursue life projects from an adequate range of valuable options. When one’s state of residence provides an adequate range of such options, freedom to cross borders cannot be justified (Miller 2005, 2007). Closed borders also limit individual freedoms to contract with others. Suppose a farmer in Arizona needs workers and a person from Mexico is eager to do this work. If the state prohibits the farmer from contracting with the Mexican worker it is interfering with the free choices of consenting adults and also violating their freedom to contract, or so libertarians might maintain. Others are not convinced by such arguments. Insofar as the agreement between the farmer and the worker imposes costs on others not party to the transaction, those negatively affected might reasonably complain. For instance, perhaps such agreements put downward pressure on compatriots’ wages, such that they can no longer meet their basic needs. In such cases, freedom of contract may not be an overriding consideration (e.g., Song 2019). Some also worry that large numbers of culturally diverse immigrants would also present integration challenges and could threaten civil liberties (Kymlicka 2015). Some authors motivate the case for open borders through concerns for global poverty, inequality, or injustice. States should open their borders to those who suffer from these scourges. Failure to do so entrenches global injustices. One important challenge to such arguments is to query whether migration is an effective means for addressing global injustices especially global poverty. Some believe that foreign aid is a good solution to problems of global poverty (e.g., Wellman 2011). Others have the view that opening borders does not help those most in need since those who migrate are often the more advantaged of the disadvantaged, having (for instance) sufficient resources to make the trip. Yet others argue that migration actually worsens the situation of the global poor, because of the phenomenon of brain drain. The basic idea with brain drain is that when those with specialist skills emigrate in high numbers they can make things worse for those who remain, since their departure can result in a shortage of skills and undermine supply in core services such as education or health. Once again empirical evidence is clearly relevant to many of these kinds of arguments (Brock and Blake 2015; Kapur and McHale 2005).

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Utilitarians can marshal a case for open borders in several ways. If borders were open, many from poor countries would migrate to places that could improve their life prospects. Similarly, if borders were open those who currently live under tyrannical regimes would be able to move away from such situations. Furthermore, closed borders function as barriers to participation in markets and prevent people from being employed in countries where their skills are needed. Open borders allow workers to move to where they are most needed, increasing productivity and economic wellbeing. But there are also costs of free movement that a utilitarian should also take into consideration. For instance, a system of closed states may enable us to avoid a situation we could describe as a global tragedy of the commons. An important role governments play is in taking responsibility for the territory (e.g., Rawls 1999; Miller 2007). Only if countries are forced to internalize the costs of their decisions, will they take responsibility for matters in their territory that will have a bearing on how congenial life becomes in the future. Without governments being forced to take responsibility for the future wellbeing of their citizens, many of the necessary conditions that make for prosperity will be eroded. In such cases, a utilitarian might argue that a better long-term strategy would be to support a system of self-determining states, while also expanding efforts to export the economic and political arrangements that make wealthy liberal democracies desirable to so many migrants (e.g., Christopher Wellman in Wellman and Cole 2011). The right to control borders presupposes that the state has moral authority to determine who may enter or remain on its territory. Some theorists challenge this authority (Blake and Risse 2007). Mathias Risse and Michael Blake argue that all human beings are co-owners of the natural resources of the earth. So, as co-owners, they may have rights to migrate to territory that they co-own. As they develop their arguments, using the metric of population density we can calculate for any state whether it is under-using its resources. Individuals would have a claim to immigrate to any state under-using its resources. States may choose to pay compensation and restrict immigration. But Blake and Risse have made a case for more compensation to be paid to those whose permanent entry it restricts. Some authors argue that because states have harmed particular populations in the past, they should now open their borders to those migrants or their descendants who have been harmed (Wilcox 2007; Cole 2000; Gibney 1986; Van Parijs 1993). Phillip Cole offers extended arguments for this position and also constructively suggests an alternative global migration scheme that could inform a new regime of regulating borders. Here I consider his view in more detail as a strong representative argument of this group of authors. Cole argues we should situate the immigration debate in the relevant context, which includes the history of slavery and colonialism perpetrated by European powers. In addition, colonialism distorted local economies to serve the needs of the colonizers and their metropolitan economies. Our

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global migration regime, strongly shaped by colonial history, serves to maintain present global patterns of inequality of power and resources. Our current migration arrangements emerged from a period in which European nations controlled migration regimes. Members of European nations were the ones who had the “power to travel the world and exploit resources and people, and to determine the flow of resources and people to particular places to further their own interests … and the current global migration regime operates in the same way” (Cole 2011, 221–222). So when we talk about current immigration debates, we are not really discussing just the rights that one liberal state has to control its borders. Rather, we are considering a block of powerful liberal capitalist states maintaining a system that prevents “the entry of the poor and the unskilled, while at the same time seeking those it considers economically valuable from the ‘outside,’ and maintaining more or less free movement between themselves” (Cole 2011, 222). For Cole, the unjust relationships between nations in the developed world are about inequalities in power. We must change power structures and therefore control of the global migration regime. Cole’s positive proposals are based on his view that there is a universal human right to freedom of international movement. Freedom has value in itself, so we need some fairly weighty reasons to restrict it. In developing his account of what constitutes significant reasons, he appeals to an international set of principles, the Siracusa Principles, which specify when the right to emigration may be restricted. He argues that immigration should be treated in the same way as the Siracusa Principles would regulate emigration. The right of emigration is not absolute; states may limit it in times of extreme emergency. The Siracusa Principles outline the principles to be used in determining what counts as a public emergency that threatens the life of a nation and will count (as Article 12 specifies) as a “relevant threat to national security, public order, and public health or morals” (Cole 2011, 304). So as the ideas are developed, any restrictions on emigration must be (i) ones provided by law, (ii) necessary to achieve the purpose for which they were put in place, (iii) must be proportionate to those purposes, and (iv) must be “the least intrusive instrument amongst those that might achieve the desired result” (Cole 2011, 305). Cole is proposing that the same principles that govern justification of emigration restriction decisions could be used to justify immigration controls. The system of multilateral oversight that he recommends would provide an important accountability check on state’s decisions.

Responsibilities to Refugees We could generally see all the types of arguments we have been considering as positioned along a continuum from “more closed” at one end to “more open” at the other. Importantly, even those commonly aligned with an open borders position allow some permissible constraints. And even those who

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defend reasonably strong rights to close borders argue that there are important constraints on state rights to exclude, such as those presented by requirements concerning how to treat refugees or guest workers, which are all important further topics of much contemporary theorizing. Both those who defend open borders and their opponents believe there is one large category of migrant to whom we have special responsibilities. In the next two sub-sections, we consider who should count as a refugee and questions about the nature of our responsibilities to refugees. Who Counts as a Refugee? According to the 1951 Refugee Convention, a refugee is someone outside her country of citizenship facing reasonable fears about persecution inside her country of citizenship because of race, nationality, religion, political opinions, or memberships of particular social groups. As many theorists have noted, insisting on persecution as a necessary condition for refugee status is controversial. Normative attention to refugees is presumably warranted because the person is in urgent need of protection as their life or basic liberty is fundamentally threatened. So, why should it be necessary that the person also be deliberately targeted for especially bad treatment? The general facts about the situation, such as that the person is escaping violence in a civil war, would seem to be sufficient to warrant special normative attention. Several theorists, such as David Miller (2007), David Owen (2016a, 2016b), Alex Betts (2013), and Matthew Gibney (2004), have therefore provided more inclusive accounts of who should count as a refugee. These scholars tend to identify the core of being a refugee as the urgent need for protection, rather than focusing on specific sorts of reasons, e.g., state persecution, why this is the case. On such accounts, a refugee is someone who seeks residence in and protection from a state other than that of her citizenship because in her state of citizenship her fundamental human rights or basic rights and interests as a citizen are extraordinarily insecure. There are, however, problems with expanding the definition of who counts as a refugee too much so that it includes all those living in poverty, along with everyone else whose basic interests are insecure. Is there anything special about being a refugee that sets refugees apart from all the many others who have inadequate protection for their fundamental human rights? In practice, states often act in ways that suggest there is an important distinction between who counts as a refugee and who should rather be considered in a different category, such as being a so-called economic migrant. The idea in drawing this distinction is that we have important obligations toward refugees that do not apply to economic migrants. In efforts to draw some principled distinction between those who are “genuine” refugees from the rest of the global needy, some distinguish refugees by whether they can only be helped by relocation or whether we can assist them

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where they are. For David Miller, the central issue concerns whether an individual must cross a state border to have his or her human rights protected. For Miller, refugees are individuals “whose human rights cannot be protected except by moving across a border, whether the reason is state persecution, state incapacity, or prolonged natural disasters” (2016, 83). This definition has the important implication that there is no sharp divide between so-called economic migrants and political refugees. Dire economic circumstances may clearly impact on human rights such as rights to subsistence, healthcare, or basic education. But this definition need not expand to include all those suffering deprivation globally, on Miller’s view. Matthew Lister (2013) argues that those suffering human rights violations that can be helped in their own state have no right to asylum if states are willing and able to help them where they are. If, however, protection is not provided, individuals may then legitimately move to protect their human rights and they should, in such cases, be regarded as refugees. People who are being persecuted generally can’t be helped where they are so they are entitled to special treatment. Many international organizations have in fact adopted more flexible accounts than the 1951 Convention. The United Nations agency charged with responsibility for implementing assistance to refugees in our world today—the United Nations High Commissioner for Refugees or UNHCR—recognizes refugees as those “persons who are outside their country of nationality or habitual residence and unable to return there owing to serious and indiscriminate threats to life, physical integrity or freedom resulting from generalized violence or events seriously disturbing public order” (UN 1951, 201). So, in practice more expansive accounts than the 1951 Convention are used. Duties to Refugees Before we can discuss our duties to refugees, we should first review the arrangements we currently have in place for assisting refugees. In practice, refugees often flee to neighboring states as they are the most accessible and refugees often have limited means to travel further. They are frequently offered safe haven in camps. While refugee camps may provide for the most urgent needs such as those required to sustain physical life, they do not typically provide much else. So it is not surprising to learn that many refugees seek other options. Some move to cities in the host state and work illegally. Others find the prospect of paying people smugglers large sums of money to help them move to more desirable places attractive. There are two ways in which democratic states legally admit refugees today, namely through asylum and resettlement. The Geneva Convention on Refugees, the 1951 Convention, and the 1967 protocol establish the key normative principles that many democratic states still currently use in defining their responsibilities to refugees. According to the Geneva Convention on Refugees, states are not permitted to return refugees to their states of origin nor are they permitted to send refugees to any other state if doing

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so threatens their lives or liberties. This principle is known as the “principle of non-refoulement ” (principle of non-return). Changes in transportation and communication from the 1980s onwards made it possible for many people to travel to rich countries. Consequently, those claiming asylum on arrival increased dramatically. In response, Europe and North American states adopted stronger visa controls and sanctions for airlines and other carriers who transported people across borders without proper documentation (e.g., FitzGerald 2019). Another contemporary policy that has important implications for refugees is that in most states asylum claims must be filed in the first safe state after leaving the home country. Many refugees are therefore willing to take huge risks to avoid presenting themselves to officials until they reach desirable destinations. This exposes them to further hardship. Resettlement involves a state selecting refugees who are already in safe havens (usually under the care of a United Nations program) and offering them a permanent new home. The numbers resettled are tiny compared to the population awaiting resettlement. Also, unlike obligations to offer asylum, there is no generally recognized obligation for states to resettle any refugees. The current international system largely allows states to decide who and how many refugees to admit. There are three common arguments for obligations to admit refugees. One makes use of humanitarian considerations. Refugees have urgent needs for safety. States in a position to meet this need have an obligation to do so. We have a duty of rescue, according to which we have humanitarian duties to assist needy strangers when doing so involves grave harm and costs to the helpers are low (e.g., Walzer 1983; Miller 2016, 79). Arguments based on the duty of rescue and, by extension, the duty to admit needy strangers to one’s community, have a long history and include proponents such as Grotius (1925) and Kant (1991). And the grounds for this duty can be located in multiple places, including duties of mutual aid, good Samaritanism, or other faith-based doctrines. A second common argument for obligations to admit refugees applies to states that have relevantly caused or contributed to the refugees’ plight. States or other parties that have acted in ways that have created, exacerbated or in other ways contributed to the situation that refugees are now facing in their home country have special duties to them. Two common examples would be states having engaged in military interventions or supported civil conflict. A third kind of argument focuses on obligations to address the plight of refugees to correct for failures brought about by our system of sovereign states. Important proponents of such views include Emma Haddad (2008), Joseph Carens (2013), and David Owen (2020). For instance, Carens observes: “The modern state system organizes the world so that all of the inhabited land is divided up among (putatively) sovereign states who possess exclusive authority over what goes on within the territories they govern, including the right to control and limit entry to their territories” (Carens 2013, 196). Human beings are usually assigned to one of these states and, according to this line of

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reasoning, this division generally works for many citizens. This, obviously, does not work so well for refugees and so states have a collective responsibility to assist in such cases. The duty “emerges from the responsibility to make some provision to correct for the foreseeable failures of a social institution” (Carens 2013, 196). If states wish to exercise power legitimately they have duties to admit refugees when the state system has failed. Having considered some of the common arguments that ground why we have responsibilities to refugees we now turn to the content of those responsibilities. In considering our responsibilities, we should differentiate between short and longer-term obligations. Initially, our first priority should be to offer safety. This is often provided through supplying refugees protection in camps. But after a period of time and especially in the case of those in so-called protracted refugee situations (such as those that extend for a decade or more), many argue that more durable solutions should be forthcoming (e.g., Betts and Collier 2017; Carens 2013). Our first goal in considering longer-term solutions to refugee crises is to discuss how we can assist with repatriation efforts. In some cases, the crisis prompting refugees to flee is over reasonably quickly and most of the displaced wish to go home. In such cases, our efforts should go toward supporting the refugees’ wishes to return to their home countries. Duties to assist with repatriation may entail duties to help facilitate conditions conducive to repatriation, perhaps by assisting with the preconditions necessary to resolving the causes of exit such as attempting to mediate peace talks in the case of civil war. However, in many cases where the crisis has gone on for many years and reasonably few refugees can or wish to go back, what duties do we have? There are several problems with our current refugee arrangements that require reforms. There are at least two different big problems requiring different solutions that are widely discussed. The first big problem concerns the fact that our current arrangements put too much weight on where one submits a claim for asylum. Those seeking asylum must therefore often subject themselves to grave risks in efforts to seek asylum in a desirable location. Several theorists argue that we should break the link between where one requests asylum and where one receives safe haven (e.g., Betts and Collier 2017; Carens 2013). The second big problem is that of unfair distributions of burdens associated with addressing the plight of refugees especially in the long term. Many normative theorists who discuss refugees have the view that the best way to help those refugees who have been displaced for a long period of time is to offer them a new permanent home (e.g., Carens 2013; Miller 2016). This raises the issue of allocating new homes fairly among the many states that could offer such options to refugees. To address the problem of unfairness in the distribution of burdens Carens argues that we should make it a strict duty for states to take an appropriate number of refugees for resettlement. For him, the relevant factors in allocating the responsibility for refugee admissions fairly among states include:

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1. The causal connection between states and those who need assistance 2. What the refugees themselves want 3. Receiving states’ absorptive capacity (their ability to settle refugees effectively), which involves factors such as the size of the existing population in a potential recipient state, its population density, and its economic capacity. 4. There are also questions of compatibility, that is how similar refugees are (in terms of culture, religion, and ethnicity) to the population they might join, and so how likely they are to integrate well. How should we balance fairness among states with fairness for refugees in accommodating their own preferences about relocation? Understandably, refugees often want to be resettled in countries in which their family or compatriots have already gone before them; they will probably settle more effectively where others have created important social networks and opportunities. Gibney argues that what refugees have lost is much more than safety. They have lost an entire social world. They have been displaced from their communities, associations, and cultural context, all of which can be deeply important parts of their identity, life plans, and daily social experience. So, we should offer refugees a place where they can rebuild a social world that has meaning for them. We should allow refugees to settle in countries that offer them good prospects for rebuilding such a social world. So, Gibney concludes that refugees should have a significant role in determining where they will receive asylum (Gibney 2015). For others (e.g., Carens 2013), while refugees have a moral right to a safe place to live, they do not have moral entitlements to choose exactly where that safe place is located. Their preferences do have some moral weight but that weighting is relatively low and not decisive. There are several other contemporary issues concerning duties to refugees that are not focused on asylum, repatriation, and resettlement. Serena Parekh (2016) argues that we ought to reform our “temporary arrangements” so that they do not inflict the widespread harms that they currently do. For instance, ontological harms occur because stateless people are excluded, not just politically, but economically. Refugees are often prevented from participating in the global economy, as they are typically denied the right to work. They are also socially excluded because camps often separate stateless people from interacting with other members of their host society. These exclusions affect the identity of stateless people encouraging a sense of passivity, a victim rather than someone with their own active agency and capacities to affect change in their surroundings. These exclusions also undermine a sense of dignity, which is facilitated by enjoying capacities to engage in economic, social, and political life. Appreciating these harms is core if we wish to reform current measures for assisting refugees in ways that better attend to refugees’ needs. The right to work has also been championed by others who wish to link assistance to refugees with reducing conflict and promoting development. As

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one further example, Alexander Betts and Paul Collier (2017) focus on the arrangements that refugees must endure while they are displaced, especially when we consider how long the duration of being a refugee standardly is these days and the scale of the refugee problem. They focus on reforming our refugee-assisting arrangements in ways that are development oriented, that both empower refugee populations and attempt to address their needs in ways likely to benefit their own personal development and increase the chances of rebuilding strong post-conflict societies. There are many aspects to these suggestions. An important concern is that refugees are often denied opportunities to work in their host countries. Where refugees are legally permitted to work they show considerable innovation, drive, and entrepreneurship, creating successful enterprises that open up many opportunities, including employment opportunities, for others. This not only addresses some of the ontological harms to which Parekh refers but is frequently of considerable benefit to host societies.

Some Further Contemporary Issues In this section, I briefly review just a sample of additional contemporary issues receiving considerable discussion. Here I canvas very succinctly five large, prominent areas attracting much attention. Admissions, Culture, Citizenship Criteria, and Integration Which criteria may states permissibly use in selecting new permanent members? As some examples, may states permissibly use criteria that make reference to language ability, religion, ethnicity, culture, criminal records, or sexual orientation in such decisions? One argument strategy is to explore the significant constraints that democratic values and principles impose on democratic states’ migration policies. Using broad moral consensus on core democratic tenets can serve as a powerful moral compass in navigating immigration justice issues. Democratic commitments to ideas such as equality and freedom have important implications for immigration policy, or so such proponents argue (see especially Song 2019; Carens 2013). Discussions about who to admit raise a range of issues such as the following. May culture play a legitimate role in immigration decisions, as Walzer originally suggested? If culture can play a defensible role in immigration decisions, is it important to define national culture in ways that are accurate, inclusive, and give expression to democratic values? David Miller (2016) and Joseph Carens (2013) carve out different kinds of views in this debate. As one example consider this question: Can it be defensible to require would-be citizens who are already permanent residents to pass a citizenship test as a necessary condition for citizenship? David Miller (2016) argues that such tests can be justified, while Carens (2013) opposes their use. For Miller, these tests have considerable value in helping new members to integrate into their communities. By

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contrast, Carens emphasizes that permanent residents are social members who already belong to those communities and have a right to have that membership acknowledged. Furthermore, democratic principles require such acknowledgment. It is a fundamental democratic requirement that all who are part of a community and will be governed by its laws should be entitled to participate in the political process of making such laws. Another debate concerning culture focuses on what may be necessary to help immigrants integrate well, emphasizing the mutual adjustments that both newly settled and longer settled members need to make (Kymlicka 1995; Carens 2013; Miller 2016). Immigrants should learn about the history and important cultural practices of the host society so that they can gain an appreciation of societal expectations and to respect practices that have special significance for their fellow citizens (e.g., Miller 2016). And communities should work toward fostering sensitive awareness of all members’ core orienting beliefs, mutual understanding, willingness to accommodate reasonable concerns and to compromise, in efforts to build a sense of compassionate community co-existence (Carens 2013). Societies should attempt to create welcoming environments so that the long-settled and the more recently settled can partner to create inclusive communities where everyone can feel that they belong and have an important contribution to make (Brock 2020). Undocumented Migrants and Justice What responsibilities do we have to undocumented migrants? Do undocumented migrants have any rights? For instance, should undocumented children be entitled to free education in a state, even when parents have no legal residence permission? Should undocumented residents have access to certain services such as police protection, healthcare, or legal services necessary to secure a fair trial? And for those who have resided in a country for a reasonably long period such as a decade or more, should they eventually have access to legal residency or citizenship processes? Prominent authors in these debates argue that basic human rights can constrain what states may permissibly do with respect to the undocumented (Carens 2013; Miller 2016; Song 2019). Several maintain that undocumented migrants can have a right to remain. Several key factors that can make an important difference to how we treat undocumented migrants. These include whether human rights are in play, whether the undocumented person arrived as a child or an adult, whether the state might be complicit in the flow of undocumented migrants to the territory, general factors related to the structural legitimacy of the state system, time spent in the territory, social membership, contribution to community wellbeing, along with fair reciprocity in schemes of social cooperation. Core lines of resistance to programs of regularization, include the idea that such actions would seem to disregard the original offense and therefore perhaps contribute to a weakening of the rule of law. Critics of regularization policies argue that such actions would reward

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illegal behavior and are unfair to those law-abiding applicants who have been patiently waiting for admission while remaining in their countries of origin. By contrast, those who defend policies that provide opportunities for regularization often maintain that such actions are most consistent with justice. One argument is that such policies would give appropriate recognition to social belonging; undocumented long-term residents belong to the communities they have joined and are, after sufficient time has passed, entitled to full rights as members of those communities. The case is thought to be especially compelling for those who arrived as very young children and who know no other place as home. One innovative way to accommodate critics’ concerns involves giving migrants a chance to make amends for those past actions and earn citizenship through relevant societal contributions (Sullivan 2019). Temporary Migration and Justice Are policies of granting temporary admission for work purposes defensible? While some believe that features of the temporary employment contract are inherently exploitative (Lenard 2012; Lenard and Straehle 2010), others argue that the position of temporary workers can be fortified with adequate protection for their basic rights (Ruhs 2015; Ruhs and Martin 2008; Brock 2020). Those defending such arrangements emphasize certain ways in which current practice should be reformed. Key features included the ability of workers to change employer, regulation of the recruitment process, improvements in the channels available to workers to air their grievances and seek redress, and generally strengthening the oversight and enforcement of legal protections and contractual terms. In many cases, those mindful of the scale of unemployment in our world argue that a case can be marshaled that some temporary migrant work programs can be defensible, so long as they include sufficient protections for workers’ important human rights. Justice in Out-Migration Are there ever circumstances in which governments may permissibly regulate or restrict people in leaving a country? This debate seems especially pertinent these days, given recent pandemic related concerns. 2020 was a year filled with such restrictions. For instance, in the early days of the pandemic, the Chinese government prevented anyone who was suspected of having the virus, or who had been in contact with those who might have it, from departing China. Concerns about the spread of the disease meant that many people’s freedom to exit and enter countries was significantly curtailed. Governments have either sought to prevent or considered preventing the departure of citizens in many cases. One prominent contemporary example is that of “brain drain,” in fact the issue concerning justice in out-migration that currently commands the most attention from political theorists. This phenomenon occurs when skilled citizens leave a country in sufficiently high

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numbers that those who remain in countries of origin are greatly disadvantaged. As an example, this might occur when many healthcare workers emigrate and citizens are therefore unable to get access to the healthcare attention they need resulting in worse health outcomes. While an especially important concern in the health sector, the issues are pertinent to many areas that need skilled personnel to deliver core goods and services. These adverse impacts can greatly affect some of the poorest countries, those struggling to secure basic wellbeing for all citizens. In such cases, migration can result in significant harms for those who are left behind in countries of origin, increasing deprivation for the worst off. Critics debate how, if at all, brain drain should affect migration policy in destination or sending countries. Some believe it can give rise to obligations on the part of destination countries to deny admission to would-be migrants from adversely affected countries (Ferracioli 2018; Miller 2016). Others argue for nuanced policies that are more respectful of migrants’ interests and freedoms and yet can address the losses that would otherwise be sustained (e.g., Brock and Blake 2015). Yet others deny there is any need to take any action at all (Hidalgo 2013). Critiques from Critical Border Studies Those who are immersed in the field of critical border studies argue that once we connect processes that drive movement within the state with drivers across state borders, we see a number of common elements that should be studied and tackled together. For instance, we see that powerful multinational corporations have shaped migration through foreign investment, activities, and structural processes, that drive both intra-state movements (such as from rural to urban environments) and movements from low-income to high-income countries, forcing vulnerable people to leave their homes (Sager 2018). In addition, critical border studies theorists challenge other key assumptions, by engaging with the following kinds of questions: Do migration debates wrongly assume that sedentariness is the natural state, and that those who adopt a more nomadic lifestyle are defective? Do dominant migration debates invoke a constricted model of identity and membership in assuming a container model of state and society (namely, that every state includes only one society and that everyone belongs in only one container)? An appreciation of multiple identities, forms of community, and patterns of migration, both within and outside the state, might appear to challenge presuppositions embedded in dominant perspectives (Sager 2018).

COVID-19 and Borders: Some Concluding Reflections What does the COVID-19 situation augur for theorizing about international movement and the political institutions that manage it? As I write, international travel has just begun to pick up again and it is forecast that we will

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return to pre-pandemic levels in the next year or two. Certificates of vaccination are becoming commonly required in order to enter or exit various states. International travel is likely to become even more filled with administrative requirements than previously and possibly include health checks at points of departure and arrival. Government authorizations to travel may also include the further gathering of data to prove that one is fit for travel and the mandatory use of contact tracing apps, which can speed up notification to those who might be in contact with someone who contracts Covid. One hope is that the pandemic might help us better appreciate that we live in a highly interdependent world. Our fates are intertwined and, on so many issues, sustained, cooperative action is necessary to address our shared problems effectively. If the virus flourishes in various parts of the world it significantly affects a nation state’s own goals, suppressing global economic activity and thwarting citizens’ plans. Consider how trade, supply chains, and access to essential goods have all been significantly affected by the pandemic. This realization might also be behind increasing efforts from the Global North to share vaccines and vaccine producing technology with those in the Global South, where the pandemic currently rages and serves as a breeding ground for worrying variants. The world has successfully united to contain disease before, such as in the quest to eradicate polio and smallpox. We may all be fighting an invisible enemy, but it is an enemy that is common to all human beings on the planet. To address our common problems we often need better institutional structures that can facilitate the necessary international cooperation, coordinating efforts, and helping us share associated responsibilities in ways that are sensitive to many different features, such as our varying capacities to assist. Whether or not we think borders should be more open or closed than they currently are, it is hard to avoid the conclusion that more cooperation across borders is essential to all nations’ flourishing in our highly interconnected world.

References Banting, Keith, and Will Kymlicka. 2017a. Introduction: The Political Sources of Solidarity in Diverse Societies. In The Strains of Commitment: The Political Sources of Solidarity in Diverse Societies, ed. Keith Banting and Will Kymlicka, 1–59. Oxford: Oxford University Press. ———, eds. 2017b. The Strains of Commitment: The Political Sources of Solidarity in Diverse Societies. Oxford: Oxford University Press. Betts, Alexander. 2013. Survival Migration: Failed Governance and the Crisis of Displacement. Ithaca: Cornell University Press. Betts, Alexander, and Paul Collier. 2017. Refuge: Rethinking Refugee Policy in a Changing World. New York: Oxford University Press. Blake, Michael, and Mathias Risse. 2007. Migration, Territoriality, and Culture. In New Waves in Applied Ethics, ed. Jesper Ryberg, Thomas Peterson, and Clark Wolf. Aldershot: Ashgate.

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———. 2020. Justice for People on the Move: Migration in Challenging Times. Cambridge: Cambridge University Press. Brock, Gillian, and Michael Blake. 2015. Debating Brain Drain: May Governments Restrict Emigration? Oxford: Oxford University Press. Card, David. 1990. The Impact of the Mariel Boatlift on the Miami Labor Market. Industrial and Labor Relations Review 43 (2): 245–57. Cornell University. Carens, Joseph. 1987. Aliens and Citizens: The Case for Open Borders. The Review of Politics 49: 251–273. ———. 2013. The Ethics of Immigration. Oxford: Oxford University Press. Cole, Phillip. 2000. Philosophies of Exclusion: Liberal Political Theory and Immigration. Edinburgh: Edinburgh University Press. ———. 2011. Part Two. In Debating the Ethics of Immigration: Is There a Right to Exclude?, ed. Christopher Heath Wellman and Phillip Cole, 159–313. New York: Oxford University Press. Ferracioli, Luara. 2018. International Migration and Human Rights. In The Oxford Handbook of International Political Theory, ed. Chris Brown and Robyn Eckersley, 520–532. Oxford: Oxford University Press. Fine, Sarah. 2010. Freedom of Association Is Not the Answer. Ethics 120 (2): 338– 356. FitzGerald, David Scott. 2019. Refuge Beyond Reach. New York: Oxford University Press. Gibney, Matthew. 1986. Strangers or Friends: Principles for a New Alien Admissions Policy. Westport, CT: Greenwood Press. ———. 2004. The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees. Cambridge: Cambridge University Press. ———. 2015. Refugees and Justice Between States. European Journal of Political Theory 14: 448–463. Grotius, H. 1925. De Jure Belli Ac Pacis Libri Tres, Book II, trans F.W Kelsey. Washington, DC: Carnegie Institution. Haddad, Emma. 2008. The Refugee in International Society: Between Sovereigns. Cambridge: Cambridge University Press. Hidalgo, Javier. 2013. The Active Recruitment of Health Workers: A Defence. Journal of Medical Ethics 39: 603–609. Kant, Immanuel. 1991. Political Writings, 2nd ed., ed. H. Reiss, trans. H.B. Nisbet. Cambridge: Cambridge University Press. Kapur, D., and J. McHale. 2005. Give Us Your Best and Brightest: The Global Hunt for Talent and Its Impact on the Developing World. Washington, DC: Center for Global Development. Kymlicka, Will. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Oxford University Press. ———. 2015. Solidarity in Diverse Societies: Beyond Neoliberal Multiculturalism and Welfare Chauvinism. Comparative Migration Studies 3 (17): 1–19. Lenard, Patti Tamara. 2012. Why Temporary Labour Migration Is Not a Satisfactory Alternative to Permanent Migration. Journal of International Political Theory 8 (1– 2): 172–183. Lenard, Patti Tamara, and Christine Straehle. 2010. Temporary Labour Migration: Exploitation, Tool of Development, or Both? Policy and Society 29: 283–294. Lister, Matthew. 2013. Who Are Refugees? Law and Philosophy 32: 645–671.

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Miller, David. 2005. Immigration: The Case for Limits. In Contemporary Debates in Applied Ethics, ed. Andrew I. Cohen and Christopher Heath Wellman, 363–375. Oxford: Blackwell. ———. 2007. National Responsibility and Global Justice. Oxford: Oxford University Press. ———. 2016. Strangers in Our Midst: The Political Philosophy of Immigration. Cambridge, MA: Harvard University Press. Oberman, Kieran. 2013. Can Brain Drain Justify Immigration Restrictions. Ethics 123 (3): 427–455. Owen, David. 2016a. In Loco Civitatis: On the Normative Basis of the Institution of Refugeehood and Responsibilities for Refugees. In Migration in Political Theory: The Ethics of Movement and Membership, ed. Sara Fine and Lea Ypi, 269–289. Oxford: Oxford University Press. ———. 2016b. Refugees, Fairness and Taking up the Slack. Moral Philosophy and Politics 3 (2): 141–164. ———. 2020. What do we owe refugees? Cambridge. Polity Press. Parekh, Serena. 2016. Refugees and the Ethics of Forced Displacement. New York: Routledge. Pevnick, Ryan. 2009. Social Trust and the Ethics of Immigration Policy. The Journal of Political Philosophy 17 (2): 146–167. ———. 2011. Immigration and the Constraints of Justice: Between Open Borders and Absolute Sovereignty. Cambridge: Cambridge University Press. Rawls, John. 1999. The Law of Peoples. Cambridge, MA: Harvard University Press. Ruhs, Martin. 2015. The Price of Rights. Princeton, NJ: Princeton University Press. Ruhs, Martin, and Philip Martin. 2008. Numbers vs. Rights: Trade-Offs and Guest Worker Programs. International Migration Review 42 (1): 249–265. Sager, Alex. 2018. Towards a Cosmopolitan Ethics of Mobility. Cham: Palgrave Macmillan. Song, Sarah. 2019. Immigration and Democracy. New York: Oxford University Press. Sullivan, Michael J. 2019. Earned Citizenship. Oxford: Oxford University Press. Sumption, Madeleine and Somerville, Will. 2010. The UK’s New Europeans: Progress and Challenges Five Years after Accession. Migration Policy Institute, The Equality and Human Rights Commission (January). Van Parijs, Philip. 1993. Marxism and Migration. Marxism Recycled 140–52. Cambridge: Cambridge University Press. Walzer, Michael. 1983. Spheres of Justice. New York: Basic Books. Wellman, Christopher Heath. 2011. Part One. In Debating the Ethics of Immigration: Is there a Right to Exclude?, ed. Christopher Heath Wellman and Phillip Cole, 13– 154. New York: Oxford University Press. Wellman, Christopher Heath, and Phillip Cole. 2011. Debating the Ethics of Immigration: Is There a Right to Exclude? New York: Oxford University Press. Wilcox, Shelley. 2007. Immigrant Admissions and Global Relations of Harm. Journal of Social Philosophy 38 (2): 274–291.

CHAPTER 25

Remedying Cosmopolitan Wrongs: Indigenous Peoples, Kant, and Historical Injustice Timothy Waligore

Introduction In Toward Perpetual Peace and the Doctrine of Right, the first part of The Metaphysics of Morals , Immanuel Kant discusses his novel juridical category of “the right of the world citizen” or “cosmopolitan right.”1 This category outlines principles that ought to rightfully govern interactions between individuals and peoples of the Earth, considered even apart from a shared legal order. Kant says in Perpetual Peace that cosmopolitan right is “limited to conditions of universal hospitality” (1996, 328, 8:357 PP). Kant says prospective settlers from faraway lands must obtain free and informed consent before any settlement on the lands of Indigenous peoples. Kant condemns Europeans who turn the right to visit into conquest, saying they violate the cosmopolitan right to hospitality. Yet what should happen generations after the first violations of cosmopolitan right occur? Should cosmopolitan wrongs done to Indigenous peoples be redressed? This chapter examines the extent to which cosmopolitan right, and Kantian political and legal theory more broadly, might or might not provide justifications for remedying historical injustice done to Indigenous peoples, and support Indigenous struggles for land, territory, and self-determination. Kant can be seen as exploring what we today call “international political theory.” Kant is not simply concerned with justice within a state, but with T. Waligore (B) Pace University, New York, NY, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_25

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the interconnections between the domestic, international, and cosmopolitan levels. Kant defines “public right” as the sum of all laws that must be publicly promulgated to realize universal freedom (1996, 455, MM§43 6:311). Kant famously states in Perpetual Peace that every state should have a republican constitution (1996, 322, PP 8:349). This claim falls within Kant’s first level of public right, “domestic civil right,” which roughly concerns justice within a state. Kant also famously argues free states should form a league of nations (1996, 325–326, PP 8:354). This claim falls within his second level of public right, “international right,” which roughly concerns justice between states (excluding non-state peoples). The third level is cosmopolitan right, which concerns individuals and peoples (including non-state peoples). Kant tightly links the three levels of public right, saying if one is absent, “the framework of all the others is unavoidably undermined and must finally collapse” (1996, 455, 6:311 MM§43). Each of these three frameworks of public right analyzes different relationships (between individuals, states, and/or peoples) and is relevant for different contexts. Kant does not discuss what happens when injustices in one context create factual conditions that would normally make relevant a different framework of right. I suggest the entire framework of right would collapse without principles governing unjust contextual transformations. This could require intermediate contexts and historically informed frameworks of justice/right. I argue Kant’s spirit of cosmopolitan right—emphasizing Indigenous selfdetermination—may persist in a seemingly “domestic” context of justice created through cosmopolitan wrongs. This contrasts with treating Indigenous claims within a fully domestic framework of justice. One argument from domestic egalitarian distributive justice is that a state should counteract the cultural disadvantages faced by Indigenous peoples by giving them groupdifferentiated rights, including self-government rights. This argument refers to a state treating its citizens with equal respect.2 In contrast, I argue Indigenous peoples’ persisting status as peoples may refer to world citizenship. Past and persisting cosmopolitan wrongs may inform what is the appropriate framework of justice/right. This Kantian approach also differs from backward-looking “libertarian” approaches to rectifying historical international injustice. Daniel Butt argues that states benefitting from colonialism should pay reparations, even if this would put those compensated above a minimum threshold of disadvantage and increase inequalities. Calculations of the amount owed reference a counterfactual situation where only just interaction occurred (2009, 117–118). Historical entitlement approaches place independent normative importance on returning stolen land and honoring past treaties. On these approaches, past injustice affects what results from the application of a backward-looking framework of justice; however, past injustice does not change the fundamental framework of justice/right. Kant’s “cosmopolitan right” differs from “cosmopolitan global justice” theories that focus on alleviating prospective disadvantage for all individuals.

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For these theories, whether disadvantage was caused by past injustice is normatively irrelevant, except for diagnostic purposes or forward-looking reasons of rebuilding trust (cf. ch. 13 of Tan 2022). Indigenous rights might be justified as remedial rights for special disadvantages they face internationally.3 Global justice theories may have a singular global context, making contextual transformations irrelevant. A different approach is that Indigenous peoples should be able to make claims within their own intellectual and cultural frameworks and/or focus on revitalizing the core of their own traditions (Tully 1995; compare Turner 2006; Alfred 1999). Indigenous peoples have their own views of land, self-determination, and/or sovereignty (Corntassel 2008; Napoleon 2005; Coulthard 2014; Alfred 1999). Before directly discussing cosmopolitan right, the first section of this chapter examines Kant’s theory of property and the state. Invoking Kant’s idea of provisional rights, I argue that states, particularly settler states, should respect Indigenous peoples’ historical titles.4 While other scholars have made similar arguments about provisional property, I further extend my argument to territorial jurisdiction, shared sovereignty, and independence. The second section examines the specific contours of cosmopolitan right. Against other interpretations, I argue Kant’s cosmopolitan right embodies a spirit concerning the risks of cultural interaction and when groups may reasonably demand limited or different forms of interaction, particularly due to historical injustice. This spirit of cosmopolitan right can be inflected “domestically” and made relevant to politics at a more “localized” level, including Indigenous struggles for sovereignty. The third section discusses the limits of and objections to using Kantian justifications in this context.

Provisional Right, Indigenous Peoples, and the State The German word for “cosmopolitan right” is Weltbürgerrecht, which literally translated means “the right of the world citizen.” The word “right” translates the German Recht /recht. Recht does not easily translate into English and is roughly a mixture of “law,” “justice,” and “right.”5 Recht refers to a system of juridical principles for regulating actions for which external lawgiving is possible, as opposed to regulating people’s inner motivations (which is covered under the doctrine of virtue, the second part of The Metaphysics of Morals ). Kant also refers to “a right” corresponding to others’ duties. Additionally, specific actions can be “right” (not impermissible) to do. Kant views right as having systematicity. Kant’s Universal Principle of Right (UPR) states: “Any action is right if it can coexist with everyone’s freedom in accordance with a universal law…” Hindering such actions is wrong. It is right to use coercion on those infringing on freedom (1996, 386–388, 6:229–232 MM). In The Metaphysics of Morals , Kant divides his discussion of the doctrine of right into “private right” and “public right” (1996, 368–369, 6:210 MM).

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“Public right” concerns laws that require public promulgation, as discussed above. “Private right” concerns laws that may be grasped a priori by reason. Private right concerns relations between parties in “the state of nature” prior to a civil condition (1996, 397, 6:242 MM). Private right largely concerns how objects in the external world may rightfully come to be acquired. Kant distinguishes acquired rights from innate rights. There is only one innate right, which belongs to all human beings in virtue of their humanity. This is the universal right of freedom, freedom-as-independence from being constrained by the discretionary choice of another, insofar as this is compatible with the freedom of others. Your innate right involves “innate equality, that is, independence from being bound by others to more than [you] can in turn bind them” (Kant 1996, 393–394, 6:237–238 MM; Ripstein 2009). Your innate right includes bodily integrity: you cannot be dragged from the ground you lie on or have an object you presently hold (like an apple) snatched from your hand. Others wrong you when doing that, even if you have not acquired that thing as your belonging. However, they wrong you simply because you rightfully physically possess something when you are holding it. Something external is rightfully yours (it belongs to you) if and only if, when you leave the land or no longer physically possess the object, others would wrong you by using it (Kant 1996, 402, 6:247–248 MM§4). Kant states you originally have nothing external as yours (1996, 411, 6:258 MM§10). For Kant, saying “this is mine!” is a problematic claim. It claims to put others under a moral duty through unilateral action, imposing potentially burdensome limits on what others may freely use, simply by your say-so. At the same time, Kant says exclusive control of external objects and land is necessary for freedom (1996, 404–406, 6:246–247 MM). We require secure domains of freedom where we can enact our purposes knowing others cannot interfere. Human beings are embodied rational agents dwelling on a globe of earth and water (see Flikschuh 2000; Ripstein 2009). Each human being originally has a right to be where they find themselves by nature or chance, apart from their will. Your right to be somewhere differs from a right to a lasting residence or specific area that you can count on to rightfully use to accomplish your long-term ends (Kant 1996, 414, 6:262 MM§13). Kant has a complicated, hard-to-interpret argument about how a “permissive law” allows parties to unilaterally acquire external things as their own, despite its problematic aspects (1996, 404–406, 6:246–247 MM). What’s important here is parties presuppose obligations to each other when claiming property (Flikschuh 2000, 141). Parties making those claims implicitly commit themselves to exiting the state of nature and entering a civil condition united by a common will. Kant’s view of property is midway between those of Thomas Hobbes and John Locke. For Hobbes, property rights do not exist in the state of nature. Property only exists after government is founded (Hobbes 1998, 85, 96). Indigenous “property” would be subject to the whim of the sovereign. For Locke, natural property rights exist in the state of nature (1988, book II, chapter V). Property can be unilaterally acquired there through a person’s

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labor. For Locke, the purpose of government is protecting pre-existing natural rights to life, liberty, and property. Government is illegitimate if it takes property without consent. Kant distinguishes between provisional rights and conclusive property rights. In §8 of the Doctrine of Right, Kant indicates property rights are only possible in the state. If you declare an object to be yours, you are saying others are obligated to refrain from using the object. This involves an acknowledgment of a universal and reciprocal rule by which you are also obliged to refrain from encroaching on their belongings. Each must provide an assurance of this. Specifically, each must enter a civil condition: the state provides this guarantee through coercive power and public lawgiving (1996, 409, 6:255–256 MM§8). This might seem to make Kant like Hobbes. However, in §9 of the Doctrine of Right, Kant immediately says having external things as yours must be possible in any condition, including the state of nature. He introduces the idea of provisional rights in the state of nature. You can have comparatively rightful possession to your holdings, if you hold it in anticipation of a future civil condition, with the presumption that it will be ratified as conclusive by a state. Others act unilaterally by trying to forcibly take it from you (1996, 409–410, 6:256–257 MM§9). Provisional acquisition is “true” acquisition because it is done “with a view to [the civil condition] and to its being brought about, but prior to its realization” (1996, 416, 6:264 MM§15).6 Kant differs from Locke in several ways. Locke thinks property is a relation between a person and a thing (hence his famous metaphor of mixing labor with land). For Kant, property is a relation between one party and other parties with respect to use of a thing. Locke thinks it’s morally optional to join the state. For Kant, anyone who claims property must (at least be ready to) enter a rightful condition. Those unavoidably side-by-side are under a duty of right to leave the state of nature and settle their disputes by law, not by force. Jeremy Waldron (2000) calls this Kant’s proximity principle. At the level of domestic right, the proximity principle means persons may force others to fulfill this duty and leave the state of nature or their vicinity (Kant 1996, 451–456, 6:307–313 MM§§42–44). Second, Locke has a culturally specific way of how first acquisition of land happens: it requires European-style agriculture. Locke says “Indians” in the Americas acquire the animals they hunt and the fruit they gather through their individual labor, but do not through these activities acquire land (Tully 1993, 141–146). Others are free to fence in hunting grounds and farm it and unilaterally acquire the land as their own. This widespread (though not universal) view among Europeans helped justify settlement on so-called “empty” land (terra nullius ). In contrast to Locke, Kant is quite clear that non-sedentary peoples, such as hunter-gathers and pastoralists, can acquire land through first acquisition. Kant asks: “[I]n order to acquire land is it necessary to develop it (build on it, cultivate it drain it, and so on)? No.” Kant asks whether hunters

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and pastoralists can “resist” planters from using their land and answers: “Certainly, since as long as they keep within their boundaries the way they want to live on their land is up to their own discretion (res merae facultatis ).” Kant says the land collectively belongs to the people in Mongolia (1996, 417, 6:265– 266 MM§15). Kant arguably accords important respect to choices made by people about their collective way of life (for a strong version of this claim, see Muthu 2000). I have argued elsewhere that a provisional property claim can be seen as an attempt to legislate justice in the state of nature consistent with a universal system of freedom.7 Kant says unilateral acquisition “conforms with the law of everyone’s outer freedom…only insofar as it is the first taking possession” (1996, 415, 6:263 MM§14). Declaring this object is yours involves “giving a law that holds for everyone” (1996, 407, 6:253 MM§7). Kant may mean that you are saying your will to use it as you please need not conflict with the Universal Principle of Right. Valid provisional acquisition anticipates how your claimed domains, and your manner of acquisition, could fit with a legal system compatible with universal freedom. However, because there are actual and potential clashes about what is the correct view of justice, people claiming external acquisitions are obliged to leave the state of nature and subject themselves to authoritative judgments about what is right. Unilateral and uncoordinated attempts to reason about justice are not enough (Waldron 2006). However, upholding precedential legislation has value when deciding what a new system will look like. Kant opposes revolution, as this involves a radical break from all existing laws (1996, 300–301, 8:301–302 TP). As forms of reasoning prior to the state, provisional acquisitions are worthy of some degree of respect as precedents of a sort rather than starting from ground zero. Notably, Kant thinks the duty to leave the state of nature exists because and only if provisional rights already exist there (1996, 456, 6:312–313 MM§44). So, they may be seen as historical rights prior to the state.8 Provisional rights are not full-blown Lockean natural property rights, but they are “true” acquisitions (1996, 416, 6:264 MM§15). Kant is clear the state must secure, not allot, property (1996, 410, 6:256 MM§9). The historical reasons for why justice requires us to leave one historical context (the state of nature) have normative relevance for the framework of right appropriate for the new context (the civil condition). Historical titles should affect the legitimate terms of the new regime. It is hard to see why provisional rights would require leaving the state of nature if they should not be respected in some fashion within the civil condition (Pippin 2006, 445–446n42). Provisional rights are presumptively valid, but overridable for certain legitimate purposes (Stilz 2014, 215). Kant uses the “idea” of the original contract (which is not a historical document) as a test of legitimacy (1996, 459, 6:315 MM§47). If the people could not possibly have agreed to the current arrangement of property rights, it does not pass this test. The sovereign is not bound to honor them, at least not in perpetuity (1996, 296–297, 8:297 TP). Citizens must be free, equal,

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and independent. They cannot be authors of the law if they are economically dependent on the will of others. Kant’s own conclusion is that persons economically dependent on others are “passive” citizens and should not be able to vote (1996, 457–459, 6:314–315 MM). However, a Kantian-style argument could justify the state creating the conditions for all persons to be independent. This may have the effect of reducing inequality, but nothing said so far entails Kant has, or should have, a commitment to a substantive principle of egalitarian-leaning distributive justice like the difference principle (Rawls 1971). This Kantian-style argument could be consistent with largely respecting Indigenous rights while modifying them to secure others’ rights and independence. This justification could answer complaints that Indigenous peoples should not have “too extensive” tracts of land, without resting on an inflexible, libertarian view of natural rights. A similar argument could be made for territorial rights. The prior territorial rights and political independence of a people not part of a particular state could leave a moral residue akin to provisional property rights. What I call a “historicized” proximity principle says the history of how we came to be “unavoidably” side-by-side can affect what those terms of sharing should be (Waligore 2009). A weak version of this is that a sovereign state should be guided by this moral residue to grant differential citizenship rights, including cultural autonomy, cultural protections, and self-government (compare Montero 2022). Kymlicka has argued (on non-Kantian grounds) that the way Indigenous peoples were “incorporated” into a state (by force or treaty) provides reasons for them having group-differentiated rights that other groups cannot invoke (1995, 116–120). Indigenous scholar Dale Turner (2006) argues Kymlicka assumes Indigenous peoples are already unproblematically incorporated “within” the larger settler state. A stronger version could extend further to shared sovereignty, legal pluralism, and treaty-federalism, where Indigenous self-government rights and sovereignty are not seen as delegated, but as springing from their own source of prior and inherent sovereignty (see, e.g., Barsh and Henderson 1980; Tully 1995). More strongly, Indigenous peoples, and colonized peoples more generally, can assert their independence (compare Alfred 1999). One might object that these are incompatible with Kant’s idea of the original contract where citizens are free, equal, and independent. My response is that past injustice may change what publicly counts as justice or change what public laws are required for enjoying freedom (Waligore 2016; cf. Basevich 2020). For Kant, public right necessarily involves publicity, as it is the “sum of the laws that need be promulgated generally in order to bring about a rightful condition” (1996, 455, 6:311 MM§43). However, Indigenous peoples have often been treated as if they are racially inferior and incapable of self-rule, with this being used as a justification for dispossession of law-making capacities and self-government. There have been attempts to forcibly assimilate Native Americans and turn them into individual state citizens rather than tribal members.

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Historical injustice can make it so a rightful condition would be realized by something other than “standard” Kantian civic equality, given past attempts to coerce them to be civic “equals.” Indigenous peoples might reasonably believe such status does not publicly affirm their dignity or protect them from domination from settler society. Historical injustice may alter what conditions people may reasonably claim are required for them to enjoy freedom. In Perpetual Peace and elsewhere, Kant speaks in general terms about how the establishment of peace requires an assurance (1996, 322, 6:348–349 PP). Non-ideal conditions of historical injustice may alter what forms of assurance may be reasonably expected and thus what public right requires. This objection also misses that there are three interconnected levels of public right. Kant emphasizes the global nature of provisional and conclusive acquisitions. Provisional acquisitions ratified by a single state are not conclusive vis-à-vis the entire world. Kant says that “such acquisition will always remain only provisional” unless the original contract “extends to the entire human race” (1996, 418, 6:266 MM§15). So, we will need to look beyond civic equality (equality as citizens within a state) to equality between citizens of the world. As I explore in the next section, a properly analyzed spirit of cosmopolitan right shows that historical injustice undermining trust can affect the just terms of interaction globally. This historicized spirit of cosmopolitan right can also be “domestically inflected” to justify treating Indigenous peoples as peoples, especially following cosmopolitan wrongs.

Historical Injustice and the Spirit of Cosmopolitan Right Kant writes: “Cosmopolitan right shall be limited to conditions of universal hospitality” (1996, 328, 8:357 PP). Kant’s limited right to hospitality tries to balance making possible interactions between faraway individuals and groups while recognizing the dangers of such interactions and providing some protections, especially in the wake of historical injustice. Kant speaks of “the right of citizens of the world to try to establish community with all and, to this end, to visit all regions of the earth” (1996, 489, 6:353 MM§62). At the same time, Kant writes in Perpetual Peace that the locals can turn a visitor away, “if this can be done without destroying him, but as long as he behaves peaceably where he is, he cannot be treated with hostility” (1996, 329, 8:358 PP). In an unpublished draft to Perpetual Peace, Kant expands on this no-destruction exception, arguing that the “a ship that seeks haven in a storm…cannot be again chased into driving danger from the coast…in which he saved himself” (2016, 221, 23:173 DPP). Kant says the right to visit is not a right to compel trade, settle, or conquer. He condemns bringing in soldiers under the pretext of establishing trading posts. Kant condemns the “inhospitable behavior” of “civilized” European states, saying “the injustice they show in visiting foreign lands and

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peoples (which with them is tantamount to conquering them) goes to horrifying lengths” (1996, 329, 8:358–359 PP). When opposing the idea that the lands of the Americas were ownerless (terra nullius ), Kant specifically refers to cosmopolitan right: “The principles that allege conformity with the right of possession applied to newly discovered lands that are believed to be barbaric and inhabited by unbelievers, as goods without owners, acquired without the assent of the inhabitants and even with their subjugation, are completely opposed to the cosmopolitan right to limited hospitality” (2016, 222–223, 23:174, emphasis added). Settling in the neighborhood of a people may take place only with their informed consent, even if the people do not constitute a state by Kant’s standards. The right to visit is not “a right to make a settlement on the land of another nation (ius incolatus ); for this, a specific contract is required” (1996, 489, 6:353 MM§62). Kant has no patience for the possible excuse that without forcible colonization, entire areas of the Earth would be left unpopulated or outside a condition of right. Kant says in The Metaphysics of Morals that distant outsiders cannot force local peoples in a civil union: Lastly, it can still be asked whether, when neither nature nor chance but just our own will brings us into the neighborhood of a people that holds out no prospect of a civil union with it, we should not be authorized to found colonies, by force if need be, in order to establish a civil union with them and bring these human beings (savages) into a rightful condition (as with the American Indians, the Hottentots and the inhabitants of New Holland); or (which is not much better), to found colonies by fraudulent purchase of their land, and so become owners of their land, making use of our superiority without regard for their first possession. (1996, 417-418, 6:266 MM§15)

He answers that it is “easy to see through this veil of injustice…which would sanction any means to good ends” (1996, 418, 6:266 MM§15). Kant’s proximity principle does not allow this. Kant does allow newcomers to settle far enough away from where another people resides if “there is no encroachment on anyone’s use of his land” (1996, 490, 6:353 MM§62). Whatever the problems with this, Kant notably defines “encroachment” and “use of land” in terms attentive to cultural differences between some native peoples and Europeans. If local inhabitants use vast tracts of land for their way of life, informed consent is required to settle there. He writes that if the local “people are shepherds or hunters (like the Hottentots, the Tungusi, or most of the American Indian nations) who depend for their sustenance on great open regions, this settlement may not take place by force but only by contract, and indeed by a contract that does not take advantage of the ignorance of those inhabitants with respect to ceding their lands” (1996, 490, 6:353 MM§62). This contrasts with Thomas More, Thomas Hobbes, Emer Vattel, and many others who said that non-sedentary peoples could be constrained to occupy smaller tracts of lands, change their way of

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life, and make more “productive” use of their land; if they did not make way, others could wage war on them (Tuck 1999, 232–233). Kant does say the cosmopolitan right to visit cannot be annulled simply because of possible abuses. However, he praises Japan and China for “wisely” placing restrictions on interaction with such “guests” following their experiences with them. Kant says China allows “access but not entry” and Japan allows access to only a “single European people, the Dutch, but excluding them, like prisoners, from community with the natives” (1996, 329–330, 8:359 PP). Kant approves of them drastically curtailing the extent of the right to visit following historical injustice (Muthu 2000; Waligore 2009; compare Niesen 2007). I think it is helpful, as Waldron (2000) does, to temporarily put aside the specific theses that Kant holds in cosmopolitan right and ask what sort of juridical category cosmopolitan right is.9 As an analogue, consider Kant’s argument that all nations should voluntarily form a peaceful federation. This is a thesis within international right. One may agree that Kant’s juridical category of international right is useful, but still reason within it to argue for a different thesis, such as a world state. Waldron wants us to ask: what sort of attitude does Kant evince when talking about cosmopolitan right? What sorts of things does Kant rule out by even asking us to use this category? Waldron does not tie himself to the particulars of Kant’s views, but instead, asks: what is the “spirit” of cosmopolitan right? Waldron says Kant evinces a certain “attitude” toward interaction of peoples of different cultures and toward sharing a land with those with whom we are unavoidably side-by-side (2000). For Waldron, the spirit of cosmopolitan right is that peoples and cultures must share the Earth and come to terms with each other, despite possible risks, as shown by Kant saying the right to visit is not annulled because of possible abuses. Waldron says we are obligated to come to terms with those we are unavoidably side-by-side now, even if some are here because of historical injustice. Waldron further says that if we take this spirit of cosmopolitan right and inflect it into the domestic arena, the spirit of cosmopolitan right is against “identity” politics that present yourself and your culture as non-negotiable (2000). The discipline of politics involves finding solutions despite disagreements. Waldron criticizes backward-looking historically based arguments calling into question the unitary sovereignty of the state or according priority to Indigenous peoples in determining constitutional arrangements (2013). Waldron says Kant’s attitude toward the right to visit shows his opposition to cultural purity and isolation (2000). However, Waldon seems to conflate demands for cultural purity and isolation, on the one hand, with demands for cultural integrity and managing the extent of interaction, on the other. Kant’s spirit of cosmopolitan right does not exclude the latter. Indeed, properly understood, the domestic inflection of cosmopolitan right more closely matches this.

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Kant’s cosmopolitan right requires Indigenous peoples’ consent before any extensive interaction takes place. Waldron correctly says we would not expect Kant to include any right to visit if Kant completely opposed cultural interaction. However, Kant himself has a minimal right of hospitality balanced between allowing the right to make offers of further interaction and the right to refuse. It becomes clear Kant’s right to visit is rather minimal when we compare it to earlier thinkers who spoke of hospitality and the right to visit but framed these in terms much more advantageous to Europeans. For example, the Spanish scholastic Francisco de Vitoria, often called a “father of international law,” said in 1539 that Indians in the Americas had duties of hospitality to trade with Europeans, let them settle on their lands, and share natural resources. Failure to provide hospitality could be a cause for war (de Vitoria 1991). The visitors presented themselves in a non-negotiable fashion. Waldron’s view of hospitality seems closer to Victoria’s than Kant’s. I worry an over-extensive right to visit deemphasizes the anti-imperial thrust of Kant’s own version and threatens to send a message that colonialism could be justified. If we are inflecting a conception of the spirit of cosmopolitan right domestically, what would that spirit look like if reapplied to its original cosmopolitan context? I think a Kantian proximity principle need not demand that disputes be resolved in the context of a unified domestic legal system that has coercive power to enforce one set of solutions as just and authoritative for a unitary political community. First, the differentiations between the three different levels of right already suggest different versions of the proximity principle are relevant for the different contexts. When talking about unavoidably sharing the Earth, this might only require loose interaction, not extensive interaction. Kant’s global proximity principle at the level of cosmopolitan right emphasizes consent, not coercion. Second, I suggest the proximity principle may be “historicized.” How we came to be in close, unavoidable proximity in a local territory can be relevant for what the legal and other arrangements for sharing the land should be. If proximity came about through cosmopolitan wrongs, then the spirit of cosmopolitan right ought to help guide our interactions. The domestic inflection of cosmopolitan right means people seemingly deprived of their sovereignty may demand to still be treated as peoples and citizens of the world, not merely citizens of a state. At the very least, they can demand an account of contextual transformation: what arguments support saying their status has changed from being peoples who are citizens of the world to mere individual state citizens? Why do they not have a right to independence, a hybrid form of citizenship, shared sovereignty, or self-determination? Third, past injustice can make it more reasonable to refuse forms of minimal interaction. Kant praises China and Japan for virtually sealing off their countries in the wake of historical injustice. A domestic inflection of cosmopolitan right would allow Indigenous peoples to take a prudent stance and refuse more extensive engagement in reaction to historical injustice.

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Challenges to Invoking Cosmopolitan Right for Redress This section addresses three challenges to attempting to use Kantian arguments to redress cosmopolitan wrongs. One challenge becomes apparent when we recall that Kant famously condemns revolution. In the final paragraph of his writings on cosmopolitan right, Kant compares the pretext of violent settlers who claim they want to bring the world out of a lawless condition to the “pretext of revolutionaries within a state” who would overturn the existing regime with the supposed aim of setting things right for the future once and for all (1996, 490, 6:355 MM§62). However, Kant says once revolution has (unjustly) occurred, people should obey the new power established (1996, 465, 6:353 MM). So, on a Kantian account, should violations of cosmopolitan right be condemned when they occur, but not corrected after? One possible answer allows redress but bars the use of force. Another possible response draws from an exception to obeying the new power: Kant says the right of a deposed monarch to gain their throne back cannot be challenged since the insurrection was unjust. Interestingly, Kant asks whether “other powers” are “therefore authorized and called upon to restore by force the old constitution in any other state where the presently existing constitution has come about by revolution? These questions belong to the right of nations” (1996, 465–466, 6:323 MM). Are Indigenous peoples who have held (at least partial) sovereignty more like deposed sovereigns who can fight back and appeal to other nations? Or are they more like individual citizens who must obey? Another possible response draws from how Kant says other states can be called upon to stop states that violate treaties (1996, 487, 6:349 MM§60). In international right, Kant confines this to state-to-state treaties. But could it apply to violations of treaties with Indigenous peoples under cosmopolitan right? Domestic right is not the only level of right, so such appeals do not necessarily involve an abandoning of right, so feared by Kant. Also relevant is Peter Niesen’s (2014) argument that Kant has a theory of restorative justice for international and cosmopolitan law. After any genuine peace treaty, Kant says, “old claims” cannot be revived as causes for future war (1996, 317, 8:333–334 PP). Niesen notes this might only exclude force as a means. Just as property claims remain provisional and anticipate a future state, territorial rights of states remain provisional until ratified under an anticipated, future cosmopolitan constitution. The losers in the race for global appropriation have a claim for compensation for the vulnerabilities the division of territory imposes on them (Niesen 2021). The cosmopolitan constitution could redress historical injustice. Niesen argues the content of cosmopolitan law is itself provisional and subject to discussion. Cosmopolitan law is not just the product of a theorist’s mind, but needs to be worked out among different parties and held to be authoritative, even if not enforceable, against states’ unilateral decisions (2021).

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If Niesen is correct, it matters who authors the cosmopolitan constitution. In line with Niesen’s argument, I note the significant difference between (a) restoring a people’s status as a people after the cosmopolitan constitution comes about, who then could be part of the decision-making process, and (b) restoring a people’s status as a people now, if only in anticipation of their status as a people being ratified in the future. With the latter, Indigenous peoples would be authors, not just objects, of cosmopolitan law now, likely with different results. (Compare how Indigenous peoples helped shape international law through drafting the United Nations Declaration on the Rights of Indigenous Peoples.)10 A cosmopolitan constitution is unlikely to be a world state. The “domestic” inflection of cosmopolitan right could justify various arrangements now such as federalism and shared sovereignty. A second challenge asks why we should use Kant given his Eurocentrism and racism. Regarding the former, while this chapter has emphasized Kant’s anti-imperial intent, Valdez (2019) presents a strong case that Kant was concerned that colonial violence upset peace in Europe. Still, Kant could also have been concerned about Indigenous peoples (Valdez allows this possibility).11 For race, Kleingeld (2014) argues that in the 1780s and early 1790s, Kant did not merely echo racial prejudices, but endorsed European colonialism and non-white slavery. He devoted much energy to formulating and defending a systematic theory of race, which divided humanity into four races, with whites on top. However, in the mid and late 1790s, Kant came up with the new juridical category of cosmopolitan right, and he strongly condemned colonialism. Kleingeld claims that Kant also shifted his views on race and says cosmopolitan right is a manifestation of this (2014, 55). She notes Kant condemns the slave trade as “an offense against the hospitality of black peoples” (2016, 222, 23:174 DPP). Kleingeld says that in the sections on cosmopolitan right in Perpetual Peace and The Metaphysics of Morals , Kant “explicitly assigns full juridical status to humans on all continents” (Kleingeld 2014, 55, my emphasis). I agree Kant’s writings on cosmopolitan right mark an important shift in his view of the juridical status of non-Europeans. However, it does not follow this status must be a “full” and equal status. According status within cosmopolitan right could still be compatible with hierarchy (Valdez 2019). Kant says all women are “passive” citizens within a state. For Kant, why couldn’t there be “passive” “citizens of the world” based on race or culture?12 As Charles Mills notes when writing on Kant’s racism, the practice of treaty-making with Indigenous peoples did not mean they were treated as unequivocal equals; the US Supreme Court accorded Native Americans a second-class status as “domestic dependent nations” (Mills 2017, 109–110). Mills himself provides a possible response by calling for a reconstructive project, an anti-racist liberalism that theorizes about non-ideal conditions, drawing in part on Kantian resources. Basevich (2020) takes up Mills’s project, arguing further that understanding Kant’s philosophy of race is key to adapting Kant’s ideas of publicity and citizenship for reforming racial injustice. Fisette

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(2022) adapts Kant’s legal philosophy to argue reparations for slavery are owed to the dead (not their living heirs); he says this framing resonates with strands of Black thought. I argued in the first section of this chapter that historical injustice can change what is required for public right. A Kantian argument might claim the transatlantic slave trade was a cosmopolitan wrong that requires reparations for Africans (and others). A new framework of right could demand restructuring a global order fundamentally shaped by enslavement. Mills’s project of “Black Radical Kantianism” draws from Black thinkers and Kantian liberalism (without focusing on cosmopolitan right). An analogous project (“Indigenous Cosmopolitan Kantianism”) would draw on Kantian cosmopolitan right and Indigenous thought. This leads to the third challenge, that Kant’s theory relies on views of land, property, and authority that conflict with Indigenous worldviews. For Kant, a property right is an intellectual relation between persons with respect to a thing. Kant says it is “absurd to think of an obligation of a person to things or the reverse” (1996, 413, 6:260 MM§11). In contrast, many Indigenous peoples see themselves as having responsibilities to the land and as belonging to the land, rather than the land belonging to them. They often conceive of themselves as in reciprocal relationship with land and other non-human entities (see e.g., Coulthard 2014, on grounded normativity). One possible response is to admit the limits of this chapter’s analysis but say there may be value in showing how certain strands of western liberal thought could support Indigenous rights, sovereignty, and struggles. An overlapping consensus might be achievable. Additionally, liberal cosmopolitan theories may have more resonance. But a deep worry is Indigenous peoples could only invoke Kantian resources if they accept Kantian sovereignty, both political (ultimately, Indigenous rights are subject to decisions by a state or cosmopolitan constitution) and intellectual (by being compelled to use Kant’s categories to vindicate their claims). At a basic level for Kant, the justification for any claims to property and territorial rights depend on being in or anticipating a future civil condition. Provisional rights might look suspiciously weak when actual historical practices are examined. At least for most of Canada’s history, Aboriginal title in Canada did not involve robust property or self-government rights, but weak usufructuary interests (Christie 2022). Recent Canadian Supreme Court cases, which seemingly take a more expansive view of Aboriginal title, have nonetheless held that title “crystalized” with the imposition of Canadian sovereignty (Christie 2022). This may sound not unlike provisional rights becoming conclusive. One possible response is this criticism applies only to weak versions of provisional rights discussed in this chapter’s first section, not to the strong versions supporting robust Indigenous sovereignty discussed there. However, even if this distinction can be justified in theory, what Indigenous title means in practice may be under the control of settler courts and legislatures (see Christie 2022). Katrin Flikschuh makes an intriguing argument that may help provide a response. She says Kant’s general form of justification is from the first-personal

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perspective. Justification shows a person what she is committed to given what she already experiences and accepts (Flikschuh 2017, 358). Because of this, Flikschuh says Kant’s duty to leave the state of nature is not unconditional (alternatively, it is limited in scope). Those who claim provisional property use a concept that already includes the idea of being obligated to respect others’ belongings, including being willing to give an assurance by entering the civil condition (Kant 1996, 409, 6:255–256 MM§8). However, those who do not claim property are not already using this concept and do not necessarily have this obligation. Flikschuh says Kant did argue—and must argue—that nonsedentary people who did not make property claims would not have a duty to join a state, either with distant others or with each other (2017; compare Niesen 2007). Kant does seem to talk as if non-sedentary people own land when he says people can settle only through a treaty that does not take advantage of their ignorance. But Flikschuh says this might mean nomadic peoples saw treaties as allowing shared use of land and were unaware that Europeans took treaties to be ceding ownership (2017, 354). Flikschuh thinks Kant allowed for deep and permanent differences in cultures and beliefs. Flikschuh’s analysis of Kant’s first-person form of justification suggests a Kantian could— and must—give justifications to Indigenous peoples connecting with their own views of land.

Conclusion I have explored whether Kant’s view of property and three levels of right, especially cosmopolitan right, might support the struggles of Indigenous peoples for land, rights, and sovereignty. Kant’s ideas might be altered to support these while still being recognizably Kantian in spirit. This might include the domestic inflection of cosmopolitan right, the historicized proximity principle, and invoking provisional rights. Additionally, in non-ideal contexts of historical injustices, different forms of assurance and public laws might be required. It remains uncertain whether challenges arising from Kant’s conservatism, Kant’s racism, and Kant’s reliance on views of land and authority opposed to Indigenous worldviews can be fully addressed. The arguments explored in this chapter show that there are promising resources within a systematic understanding of Kant’s moral and political philosophy for developing a Kantian theory of historical redress for cosmopolitan wrongs. Acknowledgements The author thanks Katie Unger, Athena Waligore, Howard Williams, and two reviewers for their comments. I am grateful to Kant scholars across the globe for conversations over the years. I thank the Dyson Faculty Summer Research Program at Pace University for providing funding enabling this research.

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Notes 1. Unless otherwise noted, citations to Kant’s work begin with pagination from The Cambridge Edition of the Works of Immanuel Kant, specifically Kant (1996) or Kant (2016), followed by the volume and page number of the Academy edition of Kant’s works, and abbreviation for the work, and (if appropriate) a section number. MM = Metaphysics of Morals [section numbers will be to the Doctrine of Right ]. PP = Perpetual Peace. TP = On the Common Saying: That May Be Correct in Theory, but It Is of No Use in Practice. DPP = Drafts for Towards Perpetual Peace. For quotations, emphases are in the original, unless noted. 2. See Kymlicka’s characterization of his “equality argument” (1995, 116). Kymlicka complicates matters by adding the “history argument” (1995, ch. 6), referred to in the section on “Provisional Right, Indigenous Peoples, and the State”. 3. Anaya (1996) argued international law in 1996 protected such rights. 4. Kant speaks of provisional “mine and thine” and provisional “acquisition,” but does not, strictly speaking, use the term provisional “property” rights. I nonetheless use it here. 5. See Mary Gregor’s translator’s note (Kant 1996, 357–359). 6. Hasan (2018) calls a similar interpretation he defends “anticipatory provisionality.” 7. See my unpublished manuscript, “An Inconvenient Imperative: Kant, Climate Justice, and Historical Emissions,” and a different unpublished manuscript cowritten with Jeremy Waldron. 8. Possible physical conflicts or disputes over innate right do not trigger this duty, apparently. 9. I draw here on Waligore (2009). As explained there, I owe much to Waldron despite our disagreements. 10. See Barsh (1994). I am not endorsing the Declaration, nor saying Barsh would. 11. I do not have space here to respond to Valdez’s challenging argument that Kant is working within a problem space that is not useful. But the third challenge below raises not dissimilar concerns. 12. Kant of course still refers to many non-Europeans as “savages,” but even if he did not, my point would hold.

References Alfred, Taiaiake. 1999. Peace, Power, Righteousness: An Indigenous Manifesto. Don Mills, ON: Oxford University Press. Anaya, S. James. 1996. Indigenous Peoples in International Law, 1st ed. New York: Oxford University Press. Barsh, Russel Lawrence. 1994. Indigenous Peoples in the 1990s: From Object to Subject of International Law? Harvard Human Rights Journal 7: 33–86. Barsh, Russel Lawrence, and James Youngblood Henderson. 1980. The Road: Indian Tribes and Political Liberty. Berkeley: University of California Press. Basevich, Elvira. 2020. Reckoning with Kant on Race. The Philosophical Forum 51 (3): 221–245.

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Butt, Daniel. 2009. Rectifying International Injustice. Oxford: Oxford University Press. Christie, Gordon. 2022. The Supersession of Indigenous Understandings of Justice and Morals. Critical Review of International Social and Political Philosophy 25 (3): 427–442. Corntassel, Jeff. 2008. Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous-Rights Discourse. Alternatives: Global, Local, Political 33 (1): 105–132. Coulthard, Glen. 2014. Red Skin, White Masks. Minneapolis: University of Minnesota Press. de Vitoria, Francisco. 1991. On the American Indians. In Political Writings, ed. Anthony Pagden and Jeremy Lawrance, 231–292. Cambridge: Cambridge University Press. Fisette, Jason R. 2022. At the Bar of Conscience: A Kantian Argument for Slavery Reparations. Philosophy & Social Criticism 48 (5): 674–702. Flikschuh, Katrin. 2000. Kant and Modern Political Philosophy. Cambridge: Cambridge University Press. ———. 2017. Kant’s Nomads: Encountering Strangers. Con-Textos Kantianos 5: 346– 368. Hasan, Rafeeq. 2018. The Provisionality of Property Rights in Kant’s Doctrine of Right. Canadian Journal of Philosophy 48 (6): 850–876. Hobbes, Thomas. 1998. Leviathan, ed. J.C.A. Gaskin. Oxford: Oxford University Press. Kant, Immanuel. 1996. Practical Philosophy, trans. Mary Gregor, ed. Mary Gregor. Cambridge: Cambridge University Press. ———. 2016. Lectures and Drafts on Political Philosophy, ed. Frederick Raucher. Cambridge: Cambridge University Press. Kleingeld, Pauline. 2014. Kant’s Second Thoughts on Colonialism. In Kant and Colonialism, ed. Katrin Flikschuh and Lea Ypi, 43–67. Oxford: Oxford University Press. Kymlicka, Will. 1995. Multicultural Citizenship. Oxford: Clarendon Press. Locke, John. 1988. Two Treatises of Government, Student ed., ed. Peter Laslett. Cambridge: Cambridge University Press. Mills, Charles W. 2017. Black Rights/White Wrongs: The Critique of Racial Liberalism. New York: Oxford University Press. Montero, Julio. 2022. Colonialism and Rights Supersession: A Kant-Inspired Perspective. Critical Review of International Social and Political Philosophy 25 (3): 331–346. Muthu, Sankar. 2000. Justice and Foreigners: Kant’s Cosmopolitan Right. Constellations 7 (1): 23–45. Napoleon, Val. 2005. Aboriginal Self Determination: Individual Self and Collective Selves. Atlantis 29 (2): 1–21. Niesen, Peter. 2007. Colonialism and Hospitality. Politics and Ethics Review 3 (1): 90–108. ———. 2014. Restorative Justice in International and Cosmopolitan Law. In Kant and Colonialism, ed. Katrin Flikschuh and Lea Ypi, 170–196. Oxford: Oxford University Press.

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———. 2021. Vulnerability, Space, Communication: Three Conditions of Adequacy for Cosmopolitan Right. In The Public Uses of Coercion and Force: From Constitutionalism to War, ed. Ester Herlin-Karnell and Enzo Rossi, 64–77. Oxford: Oxford University Press. Pippin, Robert. 2006. Mine and Thine? The Kantian State. In The Cambridge Companion to Kant and Modern Philosophy, ed. Paul Guyer, 416–446. Cambridge: Cambridge University Press. Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. Ripstein, Arthur. 2009. Force and Freedom. Cambridge, MA: Harvard University Press. Stilz, Anna. 2014. Provisional Right and Non-state Peoples. In Kant and Colonialism, ed. Katrin Flikschuh and Lea Ypi, 197–220. Oxford: Oxford University Press. Tan, Kok-Chor. 2022. What Is This Thing Called Global Justice? 2nd ed. New York: Routledge. Tuck, Richard. 1999. The Rights of War and Peace. New York: Oxford University Press. Tully, James. 1993. Rediscovering America: The Two Treatises and Aboriginal Rights. In An Approach to Political Philosophy: Locke in Contexts, 137–176. Cambridge: Cambridge University Press. ———. 1995. Strange Multiplicity. Cambridge: Cambridge University Press. Turner, Dale. 2006. This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy. Toronto: University of Toronto Press. Valdez, Inés. 2019. Transnational Cosmopolitanism: Kant, Du Bois, and Justice as a Political Craft. Cambridge: Cambridge University Press. Waldron, Jeremy. 2000. What Is Cosmopolitan? Journal of Political Philosophy 8 (2): 227–243. ———. 2006. Kant’s Theory of the State. In Toward Perpetual Peace and Other Writings on Politics, Peace, and History, ed. Pauline Kleingeld, 179–200. New Haven: Yale University Press. ———. 2013. Supersession and Sovereignty. Julius Stone Address (August 3, 2006): NYU School of Law, Public Law Research Paper No. 13-33. Waligore, Timothy. 2009. Cosmopolitan Right, Indigenous Peoples, and the Risks of Cultural Interaction. Public Reason: Journal of Political and Moral Philosophy 1 (1): 27–56. ———. 2016. Rawls, Self-Respect, and Assurance: How Past Injustice Changes What Publicly Counts as Justice. Politics, Philosophy & Economics 15 (1): 42–66.

CHAPTER 26

Women and War Caron E. Gentry

and Rebecca Wilson

This chapter will look at the scholarly trajectory of ‘women and war,’ tracing out how feminism’s increasing complication of gender and gender binaries has changed the study of women and war. Fundamentally, this chapter believes that gender, as a social construction, is reliant upon performative idealisations of masculinity and femininity that are intimately tied to how IR understands war and violence (Elshtain 1987; Goldstein 2001; Sjoberg 2009). Gender ‘refers to the socially learned behaviours, repeated performances, and idealised expectations that are associated with and distinguish between the proscribed gender roles of masculinity and femininity’ (Peterson and Runyan 2010, 2). When a subject or an object is gendered, this means that certain expectations are automatically imparted. These expectations are related to the socially constructed gender binary between what is masculine and feminine. As a construction, masculinity conveys logic, rationality, dispassion, and autonomy as well as a natural infinity for violence (Hutchings 2008). In co-constitutive tension with masculinity, femininity conveys the reverse: illogic, irrationality,

C. E. Gentry (B) Faculty of Arts, Design, and Social Sciences, Northumbria University, Newcastle Upon Tyne, UK e-mail: [email protected] R. Wilson University of St Andrews, St Andrews, Scotland, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_26

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emotional, and dependent as well as peaceable passivity (Peterson and Runyan 2010, 2; Tickner 1992, 7). Thus, ‘women and war’ is shaped by how various societies and individuals understand gender. ‘Women and war’ is a well-trodden subject having dominated most of the early feminist IR scholarship (Elshtain 1987; Enloe 1983, 2000). Therefore, this chapter acknowledges the difficulty and impossibility of trying to cover the entirety of the topic. Instead, the chapter attempts to give both a historic and critical overview of one of the key debates within women and war, mainly how to locate women’s participation in war and why this location is in potential need of queering as the subject matter moves forward. In order to familiarise the reader with the literature and the evolution of thinking in relationship to ‘Women and War,’ we begin with canonical work by Jean Bethke Elshtain and Cynthia Enloe. As key thinkers, they queried where women were during war and how answering this question revealed crucial insights into the ordering of Western society and the field of International Relations more generally. Elshtain and Enloe are fundamental to the feminist IR project and without them, the veil on the gendered division of men and women’s relationship with violence and war, and how these shape ideas of citizenship and belonging, cannot be lifted. Yet, the work on women and war has advanced beyond the positioning of Elshtain and Enloe. When they both began their work in the 1980s, most Western militaries still had prohibitions against gay men and all women serving in combat. In the past forty years, that has significantly shifted. Additionally, poststructural feminism has shown that it is not enough to look at where women (or men) are, but to query how the binaries of masculinity and femininity work beyond the body into the hierarchical ordering of the international system. The chapter will proceed by looking at the foundational work of Carol Cohn in questioning the studies of women and war leads into looking at the co-constitutive relationship between gender and war, thus bringing in more recent scholarship that looks at war, masculinity, and men (MacKenzie 2015; Welland 2013; Myrttinen et al. 2017; Zalewski 2017; Howell 2018). The first section will end by looking at the work that observes and complicates the relationship between women, gender, and war. The second section of the chapter troubles the gendered binary—and its relationship to violence—by looking at work that queries the logocentrism of men as perpetrators and women as victims. This section brings in Queer theory, looking at how the very titular phrase of ‘women and war’ is itself a reproduction of heteronormative power structures. By queering women and war, or looking for the ‘and/or’ (Weber 2014, 598), one can see that women and war are more complex than the division of masculinity and femininity has allowed in the past. Instead, queering requires that one recognise that an actor often contains elements of both masculinity and femininity in a way that denies facile categorisation. In many respects, queering IR and queering war is a relatively new(er) area and work continues in this area; therefore, this section seeks to point new readers and researchers to this developing area.

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The Pioneering Legacies of Elshtain and Enloe The discussion of women and war by feminist IR scholars began, in many ways, by answering the now familiar question, ‘Where are the women?’ This is true particularly of two early scholars, Jean Bethke Elshtain and Cynthia Enloe. Even though Elshtain used political theory and Enloe more empirical investigations, they knew that locating women in war, and therefore women’s relegated relationship with state violence, demonstrated women’s relegated relationship with the state. In other words, by limiting women’s ability to participate in war-making, this limited women’s ability to participate fully in citizenship and state-making. Women’s limited participation in war was not only owed to patriarchal thinking (that women are naturally non-violent) but supportive of the patriarchy itself: men, as ‘natural’ soldiers, were the only actors granted access to the structures of power (and problematised in a later section). Jean Bethke Elshtain Jean Bethke Elshtain emerged as a leading political theorist in the 1980s with two feminist texts, Public Man, Private Woman (1981) and Women and War (1987). In Public Man, Private Woman, Elshtain (1981) examines the public/ private sphere in Western political and social life. The public/private divide is a gendered logocentrism, one where the public is associated with men and masculinity and the private with women and femininity. Greek patriarchal thought took this division as inherently natural. Due to perceived biological differences, men were more capable of the physical and intellectual demands of government, politics, war, education, and commerce. Women, as the weaker, morally inferior, and intellectually diminished sex, were limited to the private sphere. This constituted how the West shaped socio-political dynamics: images of public and private are necessarily, if implicitly, tied to views of moral agency; evaluations of human capacities and activities, virtues, and excellence; assessments for the purposes and aims of alternative modes of social organization. …Another might be: a thinker’s views on women serve as a foundation that helps to give rise to the subsequent determinations he makes of the public and the private and what he implicates and values in each. (Elshtain 1981, 4–5)

Such binary thinking organised social and political life, practices from which Western society has only begun to escape (see also Pateman 1980). These essentialised divisions heavily influenced how men and women’s participation in war was perceived and thereby dictated. Elshtain borrows from Hegel when she discusses the Beautiful Soul and the Just Warrior dichotomy in her second feminist monograph, Women and War. During war, women and men’s functions were historically characterised very differently. Women serve as the Beautiful Soul, the romanticised, nurturing women who remain in the home, symbolically representing the nation (see also Yuval-Davis 1999)

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as something the Just Warrior, the chivalrous, honourable male soldier defends from the field of battle. By troubling the Just Warrior/Beautiful Soul binary, Elshtain hopes to trouble the gendered nature of citizenship, where full or true citizenship can only be garnered via (just) war-making. Historically, citizenship has been foregrounded in conflict: the legacy of the warrior citizen means that ideas of citizenship are born from a militarised and thus masculinised understanding (Elshtain 1987, 48). If women are not able or expected to soldier and thereby represent their country politically, a different or lack of citizenship is formed (Nagel 2005, 408). Yet, in Women and War Elshtain (1987) stops short: instead of undoing the gendered division of war-making, she wishes to, in some ways, uphold it by recognising women’s (gendered) wartime contributions as worthy enough to make them full citizens in their own right. Cynthia Enloe Enloe picks upon similar characterizations of women and men in war and how deviating from these characterizations of women as passive and men as fighters pose problems. For instance, in reflecting on the Amazons of Greek mythology, Enloe (1983, 117) observes that these female warriors were ‘always’ ‘portrayed as inhabiting a region just beyond the borders of the known world and that What is “wrong” about the Amazons is not only that they are women who fight using military equipment and tactics, but that they live without men. They govern themselves and require heterosexual sex only periodically for the functional purposes of procreation. Male warriors have imagined Amazon women as a military challenge and a sexual challenge… …These warrior women, these “unnatural” creatures, capture the imagination of societies that are struggling to redefine social and political relationships. (Enloe 1983, 117)

The connection between women and war as unnatural is historic as one can see in Machiavelli’s discussion of virtù and fortuna. Masculine virtù embodies boldness, bravery, aggression, and decisiveness while feminine fortuna was less resolute, hesitant, and infirm. During the 1500s, women on the battlefield ‘symbolised social chaos;’ they were seen as camp followers, i.e. prostitutes, that posed a problem to discipline. Such thinking influenced the debate on integrating women into the military in the 1900s as well as integrating them into combat in the 1990s and 2000s. Integrating women into the military began in earnest during World War II, but recruited women were given gendered tasks—typing, note taking, cleaning—and they were quickly demobilised (Enloe 1983, 123, 161).

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After the war, integration of women into the US military at the very least was slow. Exaggerated care was given to controlling women’s uniforms (everything from bra, slip, panty, and pantyhose was regulated [Enloe 2000, 271]) and to demonstrating the different in women’s inability to perform in combat. Studies were conducted on pregnancy, upper-body strength, and menstruation—anything to block women from full integration (Enloe 1983, 138–139). General Barrow, Commandant of the US Marines in the 1980s, stated that War is man’s work. Biological convergence on the battlefield would not only be dissatisfying in terms of what women could do, but it would be an enormous psychological distraction for the male who wants to think that he’s fighting for that woman somewhere behind, not up there in the same foxhole with him. It tramples the male ego. When you get right down to it, you’ve got to protect the manliness of war. (Enloe 1983, 153–154)

War, Masculinity, and Men Thus, it becomes imperative to the question of women and war to interrogate the co-constitutive nature of gender and war and how this defines what is feminine or masculine both inside and outside of conflict. Carol Cohn’s work helps to make this transition. Cohn looks at the role of women in war, focusing on the intersections of gender and armed conflict within the discourses of security (Cohn 1987, 1993). Her work guides us towards preventing generalisation of the role of women in war by highlighting that women are not a monolithic group. Instead, she highlights the multiplicity of numerous social, cultural, economic, and political factors, which often evolve into contradictory and competing interests among women, shaping then their response to war and conflict (Cohn 2013). More specifically, Cohn argues that ‘one cannot understand either women’s relation to war or war itself without understanding gender and understanding the ways that war and gender are in fact mutually constitutive’ (Cohn 2013, 17). Recognising the complexity of identity within war and conflict and the co-constitutive nature of war allows feminism to move the question away from ‘women and war’ to ‘gender and war’ and the implications of this thinking on masculinity and men. The Co-constitutive Nature of War Indeed, Kimberly Hutchings (2008) believes war and war-making determine what masculinity is; they cannot be understood apart from each other. Furthermore, In Gendering Global Conflict, Laura Sjoberg (2013, 44) argues that while ‘feminist approaches to theorising war… see war as a gendered concept, a gendered event, a gendered logic, and a gendered performance,’ they have not taken these arguments far enough (Sjoberg 2013, 78). Because war is dependent upon masculinity, gender ‘is fundamental to [war theories and theorising] …and inseparable from them’ (Sjoberg 2013, 13). Thus, this

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section will begin by looking at the feminist work that has shaped our thinking on masculinity and war, before turning to recent scholarship that insists that if feminists look at ‘women and war’ then feminists should also study ‘men and war’ as also complex and shaped by power structures (Myrttinen et al. 2017). To begin, as alluded to above, understandings of the ideal human are far too tied to what is masculine as determined by biological determinist fallacies about ‘inherent’ and ‘natural’ characteristic traits of the ‘sexes,’ of which there are (supposedly only) two: male and female. Here, a universal voice is constructed that is limited to masculine values, and the citizen as the male. Conceptions of citizenship are dependent upon ideas of rationality and autonomy (Pateman 1980), both of which are masculine (Tickner 1992, 63). The notion of the citizen functions as another binary, it is explicit to the internal/external or citizen/outsider, which itself functions through masculine notions. The creation of citizenship is formed through the rights of the insiders compared to those external to the community. Thus, ‘citizenship embodies a rationalist, contractual understanding of relationships between members of specific communities and between citizens and “foreigners”’ (Steans 2012, 59). Instead, it is imperative to view the body, sex, and gender as social and political constructions (Butler 1990; Shepherd 2015, 27)—and thus this implicates the imperative to see society, soldiering, citizenship, and war as social and political constructions. For instance, the valuing of masculine traits above feminine ones becomes evident in how Enloe, and later Megan MacKenzie (2015), look at where women are in war: historically ignored and marginalised. Thus, what is the relationship between the military and hegemonic masculinity? Hegemonic masculinity is the ideal form of masculinity performed by men with the most power attributes, who not incidentally populate most global power positions—typically white, Western, upper-class, straight men who have conferred on them the complete range of gender, race, class, national, and sexuality privileges. (Peterson and Runyan 2010, 7)

This idealised masculinity is transposed to the state—qualifying the state, a sovereign, autonomous, rational actor, as a masculinised actor and nonstate actors as feminised ones (Tickner 1992, 42). As ‘strength, power, autonomy, independence and rationality, are all typically associated with men and masculinity’ (Tickner 1992, 3), masculinised states are the primary agents of International Relations and the most valued agents as defenders of security (Tickner 1992, 3). For example, the ‘values and assumptions that drive our international system are intrinsically related to concepts of masculinity’ (Tickner 1992, 17). In Beyond the Band of Brothers, Megan MacKenzie (2015) queries how the myth that women cannot fight sustains women’s combat exclusion, upholding the ‘band of brothers’ and the fraternal nature of war-fighting. She additionally problematises the notion that the lifting of

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women’s combat exclusion will actually make significant and real change. Instead, MacKenzie recognises that the masculine nature of war will always be imposed, forcing all soldiers to conform to masculine values, regardless of their gender identity. On this score, it becomes clear that gender is not just a way of thinking about men and women and their particular roles, but that war, violence, and statecraft itself is a gendered business. Iris Marion Young explores how the connection between men, masculinity, soldiering, and citizenship implicates the state as a masculine actor that embodies the protector. Using gender as a tool for interpretation she argues (2003, 2): An exposition of the gendered logic of the masculine role of protector in relation to women and children illuminates the meaning and effective appeal of a security state that wages war abroad and expects obedience and loyalty at home. In this patriarchal logic, the role of the masculine protector puts those protected, paradigmatically women and children, in a subordinate position of dependence and obedience.

Hence, the state becomes a form of protection but also a place of control for the women and children seen as vulnerable and thus in need of protection from the heroic male (Elshtain 1987)—something Enloe (1990) determinedly collapsed into ‘womenandchildren’ as a fallacy used to invoke patriarchal protectionism. This enables the masculine state to assert power through the notion of protection; yet this power is one in which the state exploits its citizens for its own gain (Young 2003, 6). In further examining the relationship between statecraft and masculinity, Hooper states that that is a circular process; not only does masculinity enforce IR, but IR is ‘heavily implicated in the construction and promotion of AngloAmerican models of hegemonic masculinity – and that this role continues in connection with globalisation’ (2015, 219). Hooper highlights (2015, 219): Particular models of masculinity are hidden in the methods; they inhabit the theories as shadowy subtexts to the stated subject matter, and rivalries between different masculinities inform paradigmatic and methodological debates—all in a glamorous international arena that is symbolically separated off from the rest of society as an all-male sphere.

Here, it is important to note that there are multiple hierarchies within masculinity, with hegemonic masculinity being seen to be more valued than subalternate forms of masculinity in addition to masculinity being valued above femininity. Together, the ‘band of brothers’ and the socially cohesive nature of the military creates a particular form of masculinity, a militarised one that Sandy Whitworth defines as

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toughness, obedience, discipline, patriotism, lack of squeamishness; avoidance of certain emotions such as fear, sadness, uncertainty, guilt, remorse and grief; and heterosexual competency. (Whitworth 2008, 114 in Peterson and Runyan 2010, 164)

These factors coalesce into a gendered structure of war. War is not just fought by masculine men but is a masculine event in a masculinized system, where men, masculinity, and war exist within an interdependent constitutive relationship (Hutchings 2008). As Marysia Zalewski (2017, 203) articulated recently: Militaries most surely have violence at their heart; …this violence persistently masquerades as something “other” through its sanctioning by the state. Buried in this authoritative frame is a quagmire of hidden violence—state violence itself, gender/sex violence, the violence of colonialism and racial brutality. Paradoxically, the presence of these contradictions makes militaries a significant maker of gender (and other) boundaries, but also extremely vulnerable to their exposure given the colossal amount of work needed to maintain the web of illusions…

Feminism and other critical theories uncover these illusions, showing them as fragile and weak, but necessary to maintaining the masculine ordering of the international system. Men and War Yet, in this larger critique of hegemonic masculinity and war, feminism has perhaps neglected how masculinity also operates on men. While the earlier work on women and war highlight the harm to women, it often showed how men gained a seemingly more privileged position from this patriarchal ordering. Yet, more recent work on men, masculinity, and war destabilises this assumption. In their special issue on military masculinities, Chisholm and Tidy (2017, 99) identify an ‘emerging curiosity within accounts of military masculinities’ which ‘concerns the silences within and disruptions to our well-established and perhaps too comfortable understandings of and empirical focal points for military masculinity, gender, and war.’ In that special issue, Myrttinen et al. (2017, 105) argue that ‘equating violence and hegemonic masculinity, military/militarised masculinities, and violent, homophobic, and misogynistic behaviour’ is reductionist. Yet, in many studies on gender and war men and boys, and their masculinities, have mostly been invisible. When they are mentioned, it is mostly implicitly as perpetrators of violence (often utilizing the language of violent/hegemonic/militarized masculinities), but occasionally also as potential partners for positive change and as potential victims, in particular of conflict-related sexual violence. (Myrttinen et al. 2017, 105)

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Instead, scholars are missing something fundamentally important that ‘men and masculinities’ may ‘reproduc[e]’ conflict but they may ‘also potentially en[d] patterns of violent conflict’ (Myrttinen et al. 2017, 105–106). Because research has tended to conflate hegemony, violence, and masculinity, it has failed to recognise the complexity of masculinity—much like Cohn noted regarding the complexity of femininity and how that determined a range of women’s responses to war. There is also a warning to heed here as well. First, just as Myrttinen et al. (2017) begin to complicate how feminism understands men and war, further work explored below begins to destabilise any consolidated notion of a militarised masculinity. While this, just as the interventions that men and masculinity can be forces for peace, is necessary, Marsha Henry (2017) in the same special issue reminds readers to be mindful of power differentials and how power has always worked in multiple, cross-cutting ways to disempower people, and throughout history, this has historically been women and women of colour at that. Thus, to focus on men and masculinity could be a form of recentring power—of bringing the focus back onto men and not refocusing the lens to look at the stories of women. This is a rather important message to heed—and a tightrope to walk—as the conversation about women and war continues to evolve into gender and war and what gets included (or not) in this conversation. Perhaps then the next step is to look at how the gender binary can be further eroded and broken down.

Problematising the Binaries The importance of the work in this section is to highlight how feminist scholarship has begun to show the falsity of the masculine/feminine binary in regard to war and violence. Two specific literatures will be examined: the work on the relationship between women, gender, and terrorism and the work that troubles the interdependency of masculinity and militarisation. The work covered in this section would not have been possible without the earlier women and war literature highlighted above, and therefore this work is able to go one step further and begin to nascently ‘queer’ the women and war conversation. Emerging primarily in the mid-2000s, feminist scholarship on terrorism and political violence began to trouble the gender-essentialising frames that dominate historical approaches to women and war (see Gentry and Sjoberg 2011, 2015; Sjoberg and Gentry 2007; Parashar 2014, 2009; Alison 2009). Terrorism Studies tended to approach men’s political violence as politically driven and rational in strategy—very much borrowing from the ideas of the natural alliance between men, masculinity, soldiering, and violence. Yet, when looking at women’s involvement in terrorism, women were viewed as driven by personal motivations and sometimes under the control of men (see Gentry and Sjoberg 2011, 2015; Sjoberg and Gentry 2007). Thus, the Just Warrior and Beautiful Soul dichotomy was crudely re-inscribed within Terrorism Studies, but within a very warped framework (see Gentry 2009).

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This is internally linked to the prefixed identity of women as life-givers and men as life-takers (Elshtain 1987, 165). The blocking of women’s pathway to citizenship enforced the gendered division of the male public and female private sphere (Elshtain 1987, 93). The female as the mother is a prominent motif in the construction of gendered behaviour, particularly when looking at violence. The notion of women as life-giver, as the bearer of a child, legitimises women as peace-keepers through this maternal, passive role (Segal 2008, 23). This focus on women’s behaviour due to their (potential) motherhood is essentialised and restricts a woman’s identity to her sexed body and limits how a woman can be constructed as a multidimensional agent. Because women’s involvement in terrorism disrupts gendered notions of violence, their behaviour is seen as illegitimate and thus needs to be cast in a light that forces the audience to re-evaluate their gender and make it conform again to stereotype. For instance, when focusing on gendered behaviour, the narration of women’s motivation through the narrow lens of maternity distorts the discussion on women who commit acts of violence. The role of the mother is a principle metanarrative of female agency. Caron Gentry’s (2009, 242) notion of ‘twisted maternalism’ outlines this, exploring how female Palestinian suicide bombers are removed from agency due to their maternal or child status, objectifying the women. Twisted maternalism is one way of making sense of women’s violence within a familiar script of femininity (even if it is a warped one). Yet, maternalism is not the only way of discursively dismissing female agency. As Caron Gentry (2020, 87) has written previously: One of the first pieces on women and terrorism described these women as not ‘rational’ but ‘emotional’ (Anonymous 1976, 245). Therefore, their ‘violence will in all probability stem not from dedication to the particular cause…but from blind obedience to another more personal cause’ (Anonymous 1976, 245). H. H. A. Cooper’s (1979, 153-154) work compares them to the Gorgons of Greek mythology and describes them as “childish” imitators of the men. Female terrorists are “obsessive” and “pathological” and, hence, “it is useless to inquire why women become terrorists” (Cooper 1979, 153-154). As a radical feminist Robin Morgan believes that violence is innately patriarchal, therefore, she argues that female terrorists are in the “harem” of male terrorists—that the primary reasons for the involvement was owed to the sexual attraction between (weak, apolitical) women and the ultimate bad boy male terrorist (Morgan 1989). One of the West German GSG-9’s, the SWAT-team like unit created to combat the Marxist-Leninist Red Army Faction, commands was “shoot the women first” (MacDonald 1991). This stemmed from a belief that the women revolutionaries were unpredictable and more prone to violence than the men revolutionaries (MacDonald 1991).

Given this long-standing legacy within Terrorism Studies to see women’s political violence is something quite alien and quite apart from men’s political

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violence means that feminists had (and still have) quite a bit of work to do in troubling these binaries. Feminist literature on women’s involvement in political violence has in some way been to complicate the assignment, or lack thereof, of agency to said women by Terrorism Studies (see Gentry and Sjoberg 2015; Third 2010; Åhäll 2012; Auchter 2012). Thus, much of the feminist work in this area theorises agency via a relational autonomy framework (see Gentry and Sjoberg 2015) or through an understanding of Judith Butler’s performativity (Åhäll 2012). Both of these approaches recognise that women (and men) make choices based upon both cultural legacies that allow actors to act (or not) in particular ways. They recognise that women (and men) can only understand their impetus and even their ability to act within particular structural and societal frameworks. Thus, it is not that women only act from personal reasons and that men only act for political reasons, but that both women and men may utilise political violence and terrorist activity for both personal and political reasons. Indeed, what is personally motivated versus what is politically motivated is not necessarily easy to separate and clearly categorise. Furthermore, this need to gender political violence—to see men’s violence as rational and political and women’s as personal and emotional—is transposed onto the state level, just as the divisions of women and war are. If the state is gendered masculine (Tickner 1992; Hooper 2015) and the state is the sole possessor of the legitimate use of force, then state violence is gendered masculine and all that masculinity entails—rationality, logic, strategy, and, key to this, legitimacy (see Sjoberg 2009; Gentry 2020). Given that masculinity/ femininity exist in a binary, if state violence is masculinised then terrorist violence is feminised as irrational, hyper-violent, and illegitimate (see Gentry 2020). This dichotomisation of state legitimate violence vs non-state illegitimate violence travels back down to the personal level as well. As the agent of the state, a counter-terrorist operatives, such as law enforcement personal, intelligence, or military members, are almost presumed to be always rational and always legitimate, which serves to reinforce terrorist violence as irrational and illegitimate in spite of the claims that it is political and rational. Yet, Critical Terrorism Studies scholarship, and feminists working alongside it, have begun to problematise the binary of state legitimate violence against non-state illegitimate violence. It has done so by querying the notion that states cannot be terrorists (see Blakeley 2009; Jackson 2005), thus beginning to ‘queer’ (as explained below) the counter-terrorist as an and/or counterterrorist/terrorist figuration—in other words, recognising that both identities that signify legitimacy and illegitimacy may reside in the same actor. Thus, the work done by feminists on women who ‘gender bend’ by being violent agents preceded and worked alongside Critical Terrorism Studies own ‘bending’ of terrorism dichotomies. This opens the door to queering the women and war narrative and how we see the relationship between war, violence, and gender. The more recent work on militarised masculinities does something similar. As Hutchings (2008) argues, militarisation and masculinity mutually reinforce

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each other, to the point that they may be difficult to extricate from one another. Indeed, this relationship is assumed to be so close it forced Maya Eichler (2014, 82) to ask, ‘how can militarised masculinity be transformed, or, more fundamentally, how can masculinity be demilitarised?’ Yet, emerging feminist scholarship wants to problematise what has perceived to be both foundational and a given. For instance, Julia Welland (2013, 883) takes feminism to task for ‘(re)produc[ing]’ the militarised masculine subject. She argues that feminist scholars ‘wor[k] through and within a “generalised story”’ that leads to the ‘ontological solidification of the subject’ even if their aim is to disrupt it (Welland 2013, 883). Instead, we need to look at what lies outside of the conventional story of militarised masculinity, recognising that in the margins are elements that disrupt conventions, ‘remind[ing] us of the impossibility of a stable and “complete” militarised masculinity’ (Welland 2013, 902). The idealisation of a militarised masculinity—as stabilised by feminists and as desired by the military—both depend upon the notion that homosexuality is unwelcome. Yet, Welland argues that homosexuality exists as a haunting on the periphery of military life. Because training, life in the barracks, and camaraderie are all closely related to Queer theorist Eve Kofosky Sedgwick’s notion of ‘homosociality,’ this proximity constantly compels militarised masculinity to reassert the perfect soldier as asexual. Thus, in some ways, militarised masculinity can be queered as one dependent upon both an asexual and homosexual script. Alison Howell (2018, 118) similarly attempts to destabilise ontological notions of militarisation: Embedded in “militarisation” is a theorisation of “before and after”—of movement from a non-militarised (or less-militarised) state to a militarised one. This erroneously assumes there ever was a peaceful domain of “normal” or “civilian” politics unsullied by military intrusion: a false and dangerous assumption that lulls us into faith in the naturally peaceful nature of “normal” politics.

Howell argues that militarisation is not an exception to a norm of nonmilitarised people, society, and politics, but instead is a ‘concept [that] underestimates the extent to which we live with war.’ Thus, she begins to blur the boundary between a militarised support for war or the acceptance of the war-machine as Enloe once argued: To be militarised is to adopt militaristic values (e.g., a belief in hierarchy, obedience, and the use of force) and priorities as one’s own, to see military solutions as particularly effective, to see the world as a dangerous place best approached with militaristic attitudes. (Enloe 2007, 4)

Howell (2018, 119) instead finds that peace and war are a both/and condition of being because war permeates the very everyday lives of particular individuals: ‘those who are racialised, disabled, or poor…are subject to war-like (martial) forms of politics.’

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The work in this section is particularly important to moving the legacies of women and war forward. Instead of remaining within the simplistic binaries of where war assumes women are not violent and men are simply violent, where it assumes that there are discreet times of war and discreet times of peace, this work begins to queer—to undo, complicate, and make messy—the ease with which we depend upon binaries.

Queering Women and War Queer theory helps to critically question knowledge by focusing on pluralist regulation of monolithic knowledge; this chapter therefore argues that ‘women and war’ by looking solely at women and war has in some level perpetuated monolithic knowledge on war. Working in conjunction with the scholarship presented in the previous two sections, Cynthia Weber examines the power in crafting sovereign and sexualised figures, within the existing notion of modern statecraft as modern ‘mancraft’ (Weber 2016, 4). Weber, like others before her, critiques the figure of a singular subjective man, which works as the fulcrum of Western knowledge production (Weber 2016, 192). The use of statecraft as mancraft legitimises the notion of the ‘sovereign man’ as it is presented as singular, pre-existing, and ahistorical. Therefore, queer theory is very useful in deconstructing the sovereign man and therefore offers an alternative platform to view the masculine production of war. Weber (2014, 598) introduces her reader to ‘queer logics’: Queer IR scholars employ methodologies that…do not seek to uncover “the truth” of sexed, gendered, and sexualized bodies, assemblages, institutions, and orders (Foucault 1997). For in what I call a queer logic of the and/or, such “truths” are never stable and their representation is never guaranteed; therefore, any attempt to represent them as if they were stable is understood as a political act.

Thus, to continually call a subject matter by ‘women and war’ replicates the gendered power structure that there is an inherent division forever keeping women and femininity outside of war and war-making. This is simply a very basic reproduction of heteronormativity, which assumes that people fall into one of two ways of being—male or female—and that these lead to complementary sexual, biological, and social functions. Reconsidering ‘women and war’ through the lens of queer logics would contest those exclusively binary expressions of ‘difference’ that demand that all subjectivities can be and can be known as singularly signifying subjectivities across every potential plural register they occupy or engage. Therefore, the persistence of men-as-soldiers is put into doubt. The rejection of the monolithic within queer logic means that this plurality is central in creating a more inclusive and applicable theory in international relations. Weber argues in Queer International Relations (2016) that the

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autonomous sovereign man, as described above, that is the basis for the state, is also a sexualised sovereign man, one that projects authority outside of the state. Thus, there are four ‘undesirable’ figures in IR that upset Westphalia-as-Sovereign Male: 1. Unwanted im/migrant 2. The terrorist 3. The Underdeveloped 4. The Undevelopable These four characters impede the sovereignty of the state and do so from an and/or position. All four have been presented as binaries and as of primarily existed outside of the state’s sovereign borders. Yet, Queer theory reveals that all four figurations are both inside and outside of the state and they all cast doubt onto the sovereign civilisational progressivity of the modern state–even though they are narrated to (re)confirm the very idea of a state as sovereign, civilised, and progressive. Queer theory’s aim to disrupt, agitate, and challenge the hegemonic formations of IR that are inherently dependent upon binary formations enables a way past the binary thinking inherent within International Political Theory and how we approach gender and war. Queering war makes ‘the understanding that codes and practices of “normalcy” simultaneously constitute “deviancy,” exclusions, and “otherings” as sites of social violence’ (Lind 2014, 601; see also Peterson 2014, 604). In relationship to this sense of interrogating what is ‘normal’ gender relations in war, Queer theory ‘investigate[s] how queer subjectivities and queer practices… are disciplined, normalised, or capitalised upon by and for states’ (Weber 2014, 597). Therefore, Queer scholarship ‘track[s] when queer figurations’— like a woman who is violent—‘emerge and how they are normalised’—in the section above through maternalism—‘and/or perverted’—as monstrous— in ways that ‘challenge but also support heterosexual, heteronormative, cis-gendered, homonormative, homophobic, and trans*phobic assumptions, order, and institutions’ (Weber 2014, 598). What we are arguing is that early literature on women and war replicated heteronormative hierarchies, particularly in Elshtain’s acceptance of women’s citizenship as valued via her work in the private sphere. In this vein, V. Spike Peterson (2014, 605) points out that ‘the continuity of state formations’ is ‘enable[ed]’ through ‘the normalisation of heteropatriarchal principles’ which ‘secur[e] appropriate social reproduction [,] reliable transmission of property, and citizenship claims.’ Moreover, ‘the making of states is the making of sex’ (Peterson 2014, 605). Therefore, the way ‘women and war’ maintains in some respect women-as-outside-of-war re-secures the hetero-patriarchal state and thereby the hetero-patriarchal nature of war. Queer theory further builds upon this and the binary logic (logocentrism) of heteronormativity is replicated and projected internationally. Order (resting

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on the masculine association of rationality and order) versus anarchy (discursively linked with the feminine qualities of irrationality, chaos, and hysteria) is another logocentric binary, one that Queer theory in IR ‘explicitly engage[s]’ ‘as normal vs perverse’ and, more specifically, as ‘hetero/homo-normative vs queer’ (Weber 2014, 597). This speaks back to Enloe’s (1983, 117) discussion of Greek patriarchy and the chaos of the Amazons in the space beyond the borders [see for instance Elshtain 1987; see also Enloe’s (1983, 117) discussion of Greek patriarchal-order and what lurked or loomed beyond]. Queer theory, then, interrogates creatively the (overly) simplistic rendering of heteronormativity infused-IR.

Conclusion As important as ‘women and war’ is as a subject matter within International Relations and political theory, it can no longer be understood as simply looking at the barriers to women’s involvement in war and war-making. Instead, ‘women and war’ is a discursive phrase that replicates hierarchical and hetero-patriarchal relationships between gender and violence. The main thrust of this chapter is to trace out the evolution of women and war scholarship before ending with how Queer theory can be used to complicate ‘women and war.’ This chapter understands that the early scholarship, with a focus on Elshtain and Enloe’s contributions, sought to answer ‘where are the women?’ Without answering such a fundamental question, none of the resulting scholarship could have been produced. It is only with the answers they gave the burgeoning feminist scholarship within IR that we could begin to further problematise the relationship between gender and violence. Of particular importance was to not just see where women and men were located in war, but how states and war are understood as masculine, reinforcing patriarchy and women’s (and some men’s) lowly status within it. For this chapter, scholarship on gender and terrorism and militarised masculinity are the logical inheritors of both Elshtain and Enloe’s legacies. These literature complicated the either/or notion of women as Beautiful Souls and men as Just Warriors. Instead of unwittingly reproducing the binary of Beautiful Soul/Just Warrior, more recent feminist literature, like that on gender and terrorism or on masculinity and the military, helps to complicate any sense of the gender binary in relation to war and war-making. These literature work in tandem with Queer theory, as they all begin to trouble the natural association of masculinity with war and femininity with peace. Queer theory instead looks to complicate the simplicity of ‘women and war,’ forcing scholars to see this phrasing, again, as a form of hetero-patriarchal maintenance, further subjecting particular individuals to oppression and harm.

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Correction to: Amílcar Cabral and the International: Race, Colonialism, Liberation Branwen Gruffydd Jones

Correction to: Chapter 12 in: H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_12 The original version of the book was inadvertently published with an incorrect author’s last name as ‘Jones’ instead of ‘Gruffydd Jones’ in the online version of Chapter 12, which has now been corrected. The correction to the chapter has been updated with the changes.

The updated version of this chapter can be found at https://doi.org/10.1007/978-3-031-36111-1_12

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1_27

C1

Index

A abolition, 190–192, 329 the abolition of slave trade and slavery, 186, 194, 330 aboriginal, 496 absolutism, 112, 167 Abu Shama, 131 Acanthus, 50, 52, 61–64 Achenwall, Gottfried, 172 Adam and Eve, 93, 94, 160 Addams, Jane, 197 Adler, Emmanuel, 42, 43, 308, 310, 311, 314, 315, 318, 319 administration, 44, 111, 117, 122, 127, 152, 261, 272, 292–294, 417 admission, 463, 473, 477, 478 admission policies, 22, 464 Admissions, Culture, Citizenship Criteria, and Integration, 475 Adorno, Rolena, 153 Adorno, Theodor, 209, 360, 405 aeroplane(s), 231 affection, 76, 79, 139, 213, 258 Afghanistan, 18, 297, 339, 340 Africa Africa in the (re)making of the international legal and economic order, 275 African South, 269, 270, 275

Africa’s lawyers: between imperial legacies and transformations in global capitalism, 271 Law in the African “post-colony”: two tales of globalization, 265 Law in the African post-colony: the puzzle of legacy, 268 North Africa, 6, 7, 192, 258 South Africa, 12, 13, 161, 289 aggression, 11, 32, 210, 307, 313, 345, 346, 405, 436, 441, 504 agriculture, 180, 234, 265, 361, 487 agronomy, 226, 227 Aguilar, Jose Manuel de, 156 Alfred, Taiaiake, 485, 489 Algeria, 91, 258, 259, 261 Alighieri, Dante. See Dante All Minorities At Risk (AMAR), 455 Alonso, Angela, 193 Althusius, Johannes, 452, 453 America(s). See also United States (US) North America, 143, 161, 449 The American declaration, 447 Western/American imperialism, 286, 293 Anaya, S. James, 498 Anderson, Benedict, 410 Andrade, Mário Pinto de, 227, 228, 230, 234 Angell, Norman, 195

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 H. Williams et al. (eds.), The Palgrave Handbook of International Political Theory, International Political Theory, https://doi.org/10.1007/978-3-031-36111-1

519

520

INDEX

Anghie, Anthony, 186, 192, 266, 439 Animus dominandi, 97–99, 102–104 anthropology, 89, 90, 92, 95, 99, 101, 102, 104, 106, 175, 267 anticolonialism, 12, 14, 185, 188, 190, 196, 227, 253 Cabral and anticolonial thought, 236 anti-hubris, 207, 211, 212 anti-Semitism/anti-Semitic, 210 Aquinas, Thomas, 7, 70, 153, 342, 346, 383 arbitration, 186, 187, 190, 194–198 Archard, David, 414, 415 Arendt, Hannah, 12, 147, 212, 333, 405 aristocratic/aristocracy, 249, 257, 258, 261, 287, 372 Aristotle, 5, 69, 74, 75, 77, 79, 116, 148, 152–154, 156, 159, 323, 365 Armitage, David, 4, 171 Arndt, Johannes, 169 Aron, Raymond, 100, 419 art, 54, 75, 173, 214, 215 art history, 207, 212, 214, 215 emotions and art history, 212 Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), 429, 434, 436, 437, 442 Ashworth, Lucian M., 217 Asia, 41, 121, 149, 187, 234, 253, 275, 284, 296, 370, 412 assimilados , 228, 229, 235 Assmann, Jan, 359 association, 69, 75, 76, 81, 91, 195, 200, 227, 276, 291, 310, 343, 369, 390, 391, 407, 455, 456, 458, 464, 465, 515 Athens, 3, 47, 48, 51–53, 55, 60–63, 65, 70, 72, 148, 161 Atlantic, 274, 371 Atlantic-Pacific, 19, 370 Augustine, Saint Augustine’s Anthropology and Politics, 90 Augustine political philosophy, 95 Australia(n), 13, 18, 339, 351, 411, 441 authority epistemic authority, 315, 318

legitimacy of indigenous political authority (right to colonise), 149, 159 political authority, 103, 112, 116, 162, 386 The UN Charter as the Centre of Legitimate Normative Authority, 424 autonomy, 14, 21, 52, 109, 122, 174, 175, 238, 272, 284, 324, 325, 328, 366, 368, 384, 391, 392, 399, 411, 413, 449, 453, 455–457, 489, 501, 506, 511 Axial age Second Axial Age of Law, 355, 357, 362 The Second Axial Age: Law that is Emancipatory, 365 Third Axial Age of Global Constitutionalism, 19, 355, 357, 362, 368 Ayyubids, 130, 134

B Babel, 98 Babylonian Captivity, 110 Bajer, Fredrik, 195 Balkan(s), 170 Bangladesh, 451, 453 bank/banking, 253, 297 barbarian, 42, 55, 56, 74, 153, 156, 158, 159, 177, 186, 255, 261, 287, 328, 361 Barcelona, 190, 436 Barker, Ernest, 414 Bartholdt, Richard, 198 Bauer, Thomas, 357, 360 Bayart, Jean-François, 268, 270 Becket, Thomas, 355 Beestermöller, Gerhard, 199 Behr, Hartmut, 206, 207, 209, 211, 216 Belgium, 13, 193, 411, 419, 436, 447 belief, 2, 5, 10, 17, 37, 42, 49, 80, 83, 90, 92–97, 101, 104, 105, 109, 112, 123, 128, 159, 174, 210, 254, 295, 296, 298, 310, 328, 332, 343, 349, 361, 404, 410, 413, 454, 476, 497, 510, 512

INDEX

Bellarmine, Robert, 170 Bell, Duncan, 206, 211 Benhabib, Seyla, 333 Bentham, Jeremy, 16, 174, 180, 295, 447 Beran, H., 446, 456 Berding, Helmut, 192 Berlin, 193, 200, 230, 262, 368, 409, 419, 440 Berman, Harold, 356, 365–367, 369 Bernasconi, Robert, 330 Berran, Harry, 456 Betts, Alex, 470, 473, 475 Bible (The), 98, 110, 113, 115, 160 Blickle, Peter, 369 Bloch, Marc, 355, 356, 368, 371 Bluntschli, J.K., 440, 449 Bodin, Jean, 19, 382–385, 388, 389, 398 Bodin on Sovereignty, 382 Boehm, Christopher, 361 Bogues, Anthony, 239 Boisen, Camilla, 8 Bolshevik(s), 253 Bolt, Ernest C., 198, 199 Bond, P., 266 Boniface VIII, 110, 115, 381 Bonner, Ali, 92, 93 Bonner, Gerard, 90 Booth, Ken, 406 border(s) arguments for more free movement across borders, 466 Covid-19 and borders: some concluding reflections, 478 critiques from critical border studies, 478 open borders, 22, 463, 464, 466–470 Borges, Sonia, 228 Bosbach, Franz, 170 Boucher, David, 5, 70, 72, 152, 157, 161, 406 Boucheron, P., 275 boundaries, 6, 7, 21, 40, 82, 121, 149, 155, 161, 173, 176, 310, 342, 382, 394, 395, 405, 412, 415, 426, 433, 448, 456, 488, 508, 512

521

the early modern European background: transcending or dissolving boundaries, 173 Bourdieu, P., 273 bourgeoisie, 252, 449 Bowden, Brett, 15, 287 Brace, Laura, 190 brain, 467 brain drain, 467, 477, 478 Brandt, Reinhard, 175, 176 Brandt, Willy, 210 Brasidas, 5, 49, 50, 52–54, 59–65 Brasidas’ Military Campaign in Processual Context, 59 Brazil, 190, 193, 228, 233 Brereton Report, 18, 339, 351 Brett, Annabel S., 173, 177 Brilmayer, L., 453 Britain, 3, 13, 14, 90, 97, 187, 189, 191, 192, 195, 231, 251, 261, 404, 414 British Empire. See Empire British Peace Society, 190 Brock, Gillian, 19, 21, 22, 466, 467, 476–478 Broomhall, B., 418 Brown, Chris, 69, 341, 345, 366, 367, 381, 382 Browning, G.K., 326, 331 Brown, Peter, 366 Brundage, J.A., 272, 366 Brunée, Jutta, 307, 315, 316 Brunkhorst, Hauke, 16, 18, 19, 356, 357, 369 Bryan, William Jennings, 199 Brythonic, 91, 97 Buber, Martin, 361 Buchanan, A., 305–310, 312–314, 316, 318, 319, 452, 453 Buchheit, L., 452 Buchwalter, Andrew, 330–332 Buck-Morss, Susan, 330 Bull, Hedley, 4, 405, 406, 419 Bundy, McGeorge, 208, 209 Burckhardt, Jacob, 212, 214, 215 Burgis, T., 270 Burke, Edmund, 96 Burns, Tony, 16, 17, 49, 50, 53, 59, 60, 331

522

INDEX

Bush, George W., 18, 286, 292, 293 Butt, Daniel, 484

C Cabo Verde, 225–227, 239 Cabral, Amílcar Cabral and anticolonial thought, 236 Cabral and the international, 226 ‘The Weapon of Theory’, 231, 233 Caesar, Julius, 77, 119 Calhoun, Craig, 407 Cape Verde. See Cabo Verde capitalism, 246, 251–253, 265, 267, 277, 285, 286, 370, 449 capitalist, 189, 251–253, 358, 370, 449, 469 Africa’s lawyers: between imperial legacies and transformations in global capitalism, 271 Caputiati, 368 Carens, Joseph, 466, 467, 472–476 Caribbean, 190, 228, 233, 370, 371 Carnap, Rudolf, 207 Carr, E.H., 100, 211, 404, 405 Casanova, José, 171 Cassese, A., 418, 443, 450 Catholic, 18, 114, 121, 149, 170, 171, 178, 333, 343, 356, 371, 449 Catholic Concordance. See Nicholas of Cusa (Nicholas of Kues, Nikolaus von Kues) Catholicism, 114, 121, 170, 171, 178, 333, 343, 371, 382, 449 causality, 55, 275 Cavallar, Georg, 10, 169, 171–180, 187, 397 Ceadel, Martin, 195 Chabal, Patrick, 226, 232 Chakrabarty, D., 276 Chandler, David, 405 Chanock, M., 266, 269 character, 3, 11, 53, 58–61, 71, 75, 97, 105, 114, 120, 121, 139, 140, 155, 226, 230, 231, 236, 237, 252, 254–256, 305, 313, 315, 323, 328, 329, 373, 394, 395, 410, 425, 431, 432, 435, 448, 453, 455, 457, 464 Charles V, King, 153, 154, 170

Chatterjee, Partha, 232 Cheneval, Francis, 172 Chilcote, Ronald, 226, 232, 236 child/children, 10, 59, 70, 74, 76, 94, 174, 216, 255, 274, 275, 287, 476, 477, 507, 510 Chimni, B.S., 439 China/ese ancient China, 40 Chinese philosophy, 29, 33, 38, 42, 43 Chinese School of International Relations, 38 Gender in Chinese Thought, 39 Christ, Jesus Christian, 6, 7, 73, 91, 111, 112, 118, 120, 171 Christian-commonwealth school, 168, 169 Christianity, 6–8, 71, 73, 90, 91, 96, 105, 110, 113, 149, 152, 155, 157, 175, 191 early Christianity, 1 early modern Christianity, 6 church, 7, 8, 11, 18, 91–93, 95–97, 109–115, 118–120, 122, 133, 136, 137, 140, 149, 150, 170, 258, 341, 356, 357, 363, 364, 366, 367, 369, 381 Cicero, 5, 6, 10, 69–83, 175 citizen/s, 5, 20, 31, 62, 72, 76–80, 114, 126, 127, 141, 161, 175, 176, 178, 180, 185, 193, 198, 247, 259, 294, 324, 331, 333, 341, 356, 367, 371, 385–388, 391, 392, 394, 395, 397, 408, 453, 454, 465, 466, 468, 470, 473, 475–479, 484, 488–490, 493–495, 504, 506, 507 admissions, culture, citizenship criteria, and integration, 475 citizenship, 22, 75, 79, 157, 331–333, 464, 466, 470, 475–477, 489, 493, 495, 502–504, 506, 507, 510, 514 world citizenship, 79, 185, 484 city of God, 365 civitas dei, 365 civility, 152, 409, 418, 445

INDEX

civilization, 2, 3, 11, 51, 52, 58, 98, 113, 126, 143, 193, 285–287, 289, 290, 328, 329, 448 Clarkson, Thomas, 191 class, 13, 30, 84, 175, 189, 215, 233–235, 238, 251–253, 262, 285, 293, 309, 349, 358, 360, 361, 363, 364, 366–369, 372, 383, 390, 395, 423, 430, 432, 433, 449, 495, 506 class struggle, 233, 234, 331, 449 Clausewitz, Carl von, 4, 49, 53, 64 climate, 101, 106, 319, 428, 433 climate change, 216, 425 Clinton, Bill, 291, 293 Cobb, Paul, 136, 137, 142 Cold War, 48, 168, 266, 269, 270, 285, 288, 294, 343, 446, 451, 452 Cole, Phillip, 464, 466–469 Colley, Linda, 370–372 Collier, P., 277, 473, 475 colonialism colonialism and imperialism, 23, 226, 230, 231, 246, 253, 372 cosmopolitan law and Kant’s critique of colonialism, 187 Hegel and Colonialism, 327 legitimacy of indigenous political authority (right to colonise), 149, 159 Comaroff, J., 268, 276, 277 Commentary (US monthly), 205, 206, 212, 213 Common Article 3 (CA3), 305, 317, 318. See also Geneva Conventions commonwealth, 37, 76, 79, 81, 83, 168–172, 177, 178, 383, 386, 389, 398 communication, 12, 32, 39, 40, 73, 98, 134, 151, 155, 156, 176–179, 357, 370, 472 communism communist, 32, 37, 368 communitarian, 17, 304, 307, 309, 314, 317, 319, 324, 413 community communities of practice, 310, 311, 314 global community, 10, 176, 177 political communities, 65, 75, 76, 457

523

compensation, 191, 199, 435, 468, 494 complicity, 14, 23, 240 compromise, 63, 136, 292, 437, 476 conflict, 4, 7, 19, 23, 31, 37, 48, 57, 64, 79, 80, 96–98, 100, 101, 103–105, 109, 110, 117, 126, 128–131, 143, 147, 162, 170, 179, 186, 187, 192, 197, 208, 249, 250, 265, 267, 268, 271, 272, 276, 296, 305, 313, 317, 322, 323, 327, 331, 332, 342, 362, 404, 405, 413, 418, 429, 433, 435, 442, 452, 454, 455, 457, 472, 474, 488, 496, 498, 504, 505, 508, 509 Confucianism, 4, 28–30, 33, 39, 43 Congo, 193, 194 Congo Conference, 193 Congress of Vienna, 168, 169, 190–193, 195 conquest(s), 2, 8, 51, 57, 97, 113, 119, 121, 130, 143, 151–154, 156, 162, 170, 174, 177, 186–188, 249, 342, 483 consciousness, 196, 227, 234, 250, 359, 361, 363, 369, 415 consensus, 20, 285, 292, 304, 341, 407, 414, 427, 428, 433, 437, 450, 456, 475, 496 consent, 17, 117–119, 121, 122, 171, 172, 177, 178, 193, 198, 231, 305–307, 309, 312, 313, 317, 358, 369, 383, 394, 427, 429, 435, 447, 451, 452, 455, 467, 483, 487, 491, 493 conservative/conservativism, 96, 97, 181, 205, 206, 313, 316, 317, 345, 409 Constantine I, 111 constitution First Modern Constitution of Europe, 362 global constitutionalism, 18, 307, 355, 367, 370 third axial age of global constitutionalism, 18, 19, 368 vernacular constitutionalism, 276 constructivism/constructivist, 38, 43, 51, 54, 64, 314 consumption, 191, 252, 266 continental, 9, 18, 226, 229, 240

524

INDEX

contract(s), 170, 188, 248, 266, 276, 277, 326, 382–384, 386, 388, 393–395, 467, 477, 479, 488–491 contractarian, 385, 389, 392, 395 co-operation, 427, 438 Cooper, F., 265–267, 271, 273, 275 corruption, 6, 31, 97, 110, 265, 267, 277, 290 cosmopolitan Challenges to Invoking Cosmopolitan Right for Redress, 494 Cosmopolitan law and Kant’s critique of colonialism, 187 cosmopolitan right, 178, 186, 189, 248, 483–485, 490–497 historical injustice and the spirit of cosmopolitan right, 490 cosmopolitanism dynamic commercial cosmopolitanism, 167, 176, 179 dynamic cosmopolitanism, 167 dynamic legal cosmopolitanism, 167, 176 Hegel and Cosmopolitanism, 331 political and philosophical cosmopolitanism in the eighteenth century, 185 cosmopolitical, 178 Costelloe, Daniel, 441 cotton, 252 Coulthard, Glen, 485, 496 counterpoint, 238, 239 COVID-19, 22, 37, 425, 440, 463, 464, 478 Crawford, J., 443, 452 creativity, 10, 148, 250, 348, 363, 366, 367 criminal, 94, 255, 270, 345, 398, 430, 435, 475 crop, 37, 62, 131, 271 Crouch, David, 351 crusader(s), 8, 125, 126, 128–132, 135–139, 141–143, 368 post-third crusade, 137 the third crusade, 136, 140 Crusius, Christian August, 174 Cuba, 231, 253, 286, 466 culture, 2, 4, 8, 11, 14–16, 28, 30, 31, 39, 43, 49, 52, 54, 92, 113, 152,

161, 175, 191, 228–230, 232, 234–236, 239, 240, 257, 295, 296, 324, 328, 329, 349, 372, 407, 410, 413, 415, 447, 448, 453–455, 474–476, 492, 495 admissions, culture, citizenship criteria, and integration, 475 custom, 55, 122, 158, 254, 257, 324, 327, 410

D Damascus, 131–133, 135, 141 Dante, 115 Daoism, 28, 32, 33, 35, 43 Darby, W. Evans, 196 Davidson, Basil, 226, 236 Davis, David Brion, 193 death, 6, 17, 33, 39, 61, 80, 81, 92, 113, 122, 133, 134, 137–139, 152, 155, 158, 190, 216, 339, 384, 385, 388 decentralization, 33, 256, 257, 362, 457 decolonisation, 14, 15, 20, 237, 266, 412, 427, 437 decolonial approach, 225 Dellios, Rosita, 4, 30, 33, 36 democracy, 185, 187, 198, 208, 210, 290, 292, 294, 373, 391, 392, 409, 448, 454, 455 dependency, 149, 246, 247, 269, 275, 507 dependency theory, 285 depravity, 7, 56, 93–95, 97, 99, 105 De-Shalit, Avner, 454 despot, 285, 361 despotism, 192, 255, 256, 270, 287 determination determinism, 49, 95 deterministic, 4, 55, 215, 310 self-determination, 15, 232, 316, 408–410, 412–414, 425, 432, 441, 445–452, 454, 456–458, 464, 483–485, 493 Deutsche Friedensgesellschaft (DFG). See peace societies de Vattel, Emer, 16, 161, 172, 342 development, 4, 5, 8–11, 13–15, 18–20, 27, 29, 30, 32, 36, 39, 40, 54, 55,

INDEX

57, 58, 63, 70, 73, 101, 122, 149, 167, 171, 174, 179, 197, 216, 230–232, 236, 238, 246, 248, 249, 253, 265, 266, 268, 270, 271, 285–292, 305, 306, 311, 313, 314, 319, 328–331, 342, 343, 346, 348, 350, 370, 408, 409, 412, 415, 426, 428, 429, 433, 437, 439, 440, 450, 451, 474, 475 Devetak, Richard, 207, 209 Dezalay, Sara, 13, 269–275, 277 al-Dhahabi, 138 dialogical, 239 Diarra, Judge Fatoumata, 274, 275 dictator, 268, 296 Diderot, Denise, 178 digitalization, 358 diplomacy, 4, 8, 28, 49, 60, 61, 65, 126–129, 131–133, 135–138, 140–144, 168, 199, 217, 272 disarmament, 186, 187, 189, 190, 194–196, 198, 199 disassociation, 446 discourse, 8, 10, 19, 52, 57, 58, 123, 169, 174, 192, 197, 207, 213, 217, 228, 236, 239, 266, 285, 306, 310, 311, 343, 349, 356, 361, 371, 372, 396, 413, 505 the discourse of sovereignty, 381, 382, 385, 398 discovery, 2, 6, 9, 148–150, 161, 162, 170, 177, 187, 234, 344, 345, 347 discrimination, 318, 333, 341, 372, 436, 441 dissemination, 357, 358, 370, 371 dissolution, 249, 258, 446 diversity, 412–414, 424, 450, 457 intrastate diversity, 20, 403, 413, 414, 416 multiculturalism and intrastate diversity, 412 doctrine, 7, 27, 28, 39, 70, 79, 83, 90–95, 98, 105, 111, 112, 114, 115, 119, 123, 159, 173, 177, 209, 232, 255, 262, 285, 293, 313, 317, 326, 332, 342, 343, 347, 365, 368, 369, 382, 387, 391, 395, 396, 408, 412, 432, 437, 472, 485

525

domination, 3, 11, 15, 19, 40, 97, 98, 101, 104, 106, 115, 117, 125, 148, 162, 186, 187, 231–233, 235, 236, 247, 252, 253, 258, 283, 294, 295, 361, 364, 367, 370, 372, 396, 424, 426, 490 dominium, 151, 152, 364 Donation of Constantine. See Constantine I Douglas, R.M., 442 Doyle, Michael, 55, 284, 287 drone(s), 344, 348 Duan, Demin, 12 Duby, Georges, 365 Duchhardt, Heinz, 169 Dugard, J., 452, 458 duty(ies), 6, 7, 13, 20, 70, 76–80, 83, 84, 121, 137, 150, 158, 172, 196, 285, 323, 341, 394, 396, 434, 446, 472, 473, 486–488, 497, 498 Duties to Refugees, 471, 474 the hierarchy of duties, 76 Duursma, J., 453 Dyson, Robert W., 112, 342

E earth, 3, 22, 71, 78, 82, 93, 96, 110, 112, 113, 116, 117, 121, 149, 151, 154, 155, 160, 178, 186, 248, 294, 424, 468, 483, 486, 490–493 Earthly City. See city of God Easley, Eric S., 194, 195 Eberl, Oliver, 10, 11, 186, 188, 371 ecology, 38 economics, 9, 11, 13–15, 20, 31, 37, 43, 99, 142, 179, 180, 190, 191, 211, 216, 217, 229, 231, 234, 237, 250, 252, 253, 266–269, 271, 273, 275–277, 283, 284, 286–294, 298, 331, 358, 373, 409, 412, 427, 429, 450, 451, 454–456, 468, 470, 471, 474, 479, 505 Africa in the (re)making of the international legal and economic order, 275 economic imperialism, 286, 291, 293, 297

526

INDEX

economy, 31, 33, 171, 179, 180, 190, 208, 250, 251, 266, 271, 287, 291, 292, 297, 327, 330, 465, 474 education, 12, 42, 70, 74, 148, 175, 191, 226, 228, 238, 269, 274, 333, 465, 467, 471, 476, 503 Edwards, Brent Hayes, 238 egalitarianism, 95, 307, 310 egoism, 102, 103 Egypt, 128–130, 135, 137, 138, 359 Ehrmann, Jeanette, 190 Eisenstadt, Shmuel N., 356, 359, 374 Elshtain, Jean Bethke, 23, 95, 97, 341, 501–504, 507, 510, 514, 515 emancipation, 21, 63, 171, 252, 329, 364, 367, 370, 371, 406, 409, 450 emotion, 49, 54, 55, 64, 205, 207, 212, 213, 508 emotions and art history, 212 empire British Empire, 191, 256, 293 energy, 37, 265, 363, 366, 367, 385, 495 Engelbert of Admont, 116 Engels, Friedrich, 251, 252, 356, 449 English Civil War, 48, 148 enlightenment, 12, 95, 104, 105, 115, 173, 185, 186, 238, 311, 368, 372, 373, 447 enlightened, 64, 186, 192, 257, 288, 334 environmentalism, 306 epistemology, 209, 215, 237, 238 equality, 2, 5, 32, 36, 70, 71, 73–75, 105, 169, 174, 176, 246–248, 258, 262, 317, 346, 347, 361, 368, 369, 390, 392–396, 399, 424, 425, 437, 475, 490, 498 equity, 71, 384, 427 ethics, 55, 70, 99, 100, 156, 197, 207, 208, 211, 212, 295, 344, 349, 350, 359, 367, 406, 453 ethics of war, 349–351 reflexivity and an ethics of anti-hubris, 210 ethnicity, 74, 410, 474, 475 ethnic cleansing, 448 ethnology, 267 Europe, 125

Council of Europe, 411 Eurocentric, 2, 186, 225, 233, 236, 240, 357, 362 European, 2, 3, 8, 148, 170, 189, 191, 194, 206, 207, 231, 247, 253, 259, 327, 367, 371, 415, 495 European Union (EU), 332, 333, 415, 416, 442 First Modern Constitution of Europe, 362 Societal Formations–Decentering Eurocentrism, 357 evolution, 9, 16, 18, 178, 233, 303, 306, 310, 314–319, 342, 344, 357, 358, 362, 370, 372, 408, 446, 449, 502, 515 expansionism, 7, 9, 161, 288 experience, 3, 18, 20, 42, 56, 97, 100, 102, 148, 152, 194, 197, 200, 208, 210, 216, 235, 239, 268, 349, 350, 381, 474, 497 exploitation, 22, 80, 177, 189, 229, 230, 236, 247, 250, 252, 253, 256, 266, 287, 367, 372, 453, 454

F failure, 18, 20, 37, 49, 59, 103, 196, 200, 247, 256, 268–270, 311, 330, 349, 467, 472, 473, 493 faith, 8, 10, 12, 82, 91, 94, 95, 97, 99, 102–104, 109, 110, 114, 119–121, 153, 178, 341, 366, 382, 383, 472, 512 Fakhr al-Din, 133, 134 family, 39, 41, 44, 75, 76, 175, 180, 216, 249, 273, 274, 325, 327, 332, 413, 474 Fanon, Frantz, 14, 15, 229, 233–235, 238, 331 fascism, 206, 216, 408 Fassbender, Bardo, 181, 373 Fathi Massoud, M., 268 Faudree, Paja, 150 federation, 178, 198, 199, 247, 415, 417, 492

INDEX

feminism/feminist, 23, 190, 194, 350, 371, 501–503, 505, 506, 508, 509, 512, 515 Ferguson, Niall, 30, 33, 36, 293 Fernández-Santamaria, José A., 153, 157, 159 Ferracioli, Luara, 478 feudal, 251, 258, 449, 466 Fichte, Johann Gottlieb, 180, 181, 447 Fidler, David, 291, 292 Finlay, Christopher, 340 Finnemore, Martha, 192 Fisch, Jörg, 188 Flasch, Kurt, 173 Flikschuh, Katrin, 187, 247, 397, 486, 496, 497 force, 3, 5, 7, 28, 29, 34, 37, 43, 80–82, 94, 96, 99, 119, 132, 133, 135, 136, 138, 148, 151, 153, 154, 172, 189, 196, 198, 211, 230–232, 234, 248, 251, 286, 290, 308, 309, 311, 313, 315–318, 327, 331, 339, 340, 342–345, 347, 357, 366, 367, 370, 372, 391, 394, 418, 424–426, 432, 433, 437, 440, 449, 487, 489, 491, 494, 509–512 foreign policy, 18, 50–52, 56, 60, 100, 205, 210, 405 Forst, R., 449 France, 13, 14, 111, 121, 135, 170, 187, 191, 192, 231, 258–261, 272, 274, 275, 368, 411, 431 French, 258, 259, 274 French Revolution, 96, 191, 258, 371 Franck, Thomas, 317 Frankfurt School, 209 Franks, 111, 126, 127, 130–132, 136–143 Frederick II, 109, 135, 136 Sultan al-Kamil and Emperor Frederick II, 133 freedom, 4, 14, 51, 76, 79, 93, 147, 168, 170, 172, 173, 175, 179, 180, 188, 199, 210, 231, 246–250, 254, 258, 259, 261, 262, 288, 293, 296, 324, 329, 332, 361–370, 386, 389–395, 397, 398, 409, 424, 425, 451, 455, 456, 464–467, 469, 471, 475, 477, 478, 484–486, 488–490

527

Frei, Christoph, 206, 214, 217 Freire, Paolo, 331 Freud, Sigmund, 213 Fried, Johannes, 356, 364–366 Friedman, Yvonne, 142 Frost, Mervyn, 307, 319, 396 Frowe, Helen, 341, 343, 347 future, 3, 13, 18, 21, 22, 27, 29, 34, 36, 42, 47–49, 84, 92, 101, 159, 167, 169, 176, 180, 185, 188, 190, 197, 198, 214, 248, 251–253, 288, 289, 340, 344, 348, 360, 361, 365, 385, 416, 455, 464, 468, 487, 494–496

G G7, 277 Gabriele, Matthew, 143 Galston, William, 215 Gans, C., 455 Geist , 248 Gelasian, 111, 112, 115 Gelasius, 111 Gellner, E., 410 gender, 4, 5, 22, 23, 29, 36, 39, 40, 254, 275, 332, 373, 501, 502, 505–511, 514, 515 Geneva, 208, 266 Geneva Conventions, 305, 317, 346 the Geneva League of Nations and the end of the right to war, 199 genocide, 17, 159, 306, 307, 340, 432, 436, 437, 441, 448, 453 Gentili, Alberico, 151, 155, 158 Gentry, Caron E., 19, 22, 23, 348, 509–511 Germany, 9, 13, 14, 122, 137, 194, 195, 197, 207, 210, 213, 216, 231, 418, 419, 434, 448, 451 Gibney, Matthew, 468, 470, 474 Giles of Rome, 111 global Africa’s lawyers: between imperial legacies and transformations in global capitalism, 271 globalization, 265–268, 271, 274–276, 291, 292, 297, 331, 369 global legal order, 19, 423

528

INDEX

Global South, 127, 237, 270, 276, 362, 479 Law in the African “post-colony”: two tales of globalization, 265 God, 7, 16, 18, 42, 72, 91, 93–98, 101, 105, 106, 112–115, 117, 118, 121, 131, 137, 139, 140, 148, 149, 151, 152, 154–160, 172–174, 344, 350, 356, 358, 363–365, 368, 382, 383, 386, 390 Godelier, Maurice, 361 Goldman, Loren, 181 Gong, Gerrit W., 192 good, 11, 50, 60, 61, 70, 71, 75, 77–79, 83, 91, 94, 95, 111, 114, 117, 128, 136, 140, 156, 157, 187, 195, 196, 211, 260, 274, 288, 332, 348, 383, 389, 392, 396, 415, 463, 464, 467, 472, 474, 491 public good, 79, 122, 157, 457 Gospel, 7, 115, 150, 151, 153, 171 governance, 8, 12, 29, 30, 33, 34, 36, 79, 109, 117, 118, 120, 121, 123, 256, 257, 261, 265, 267, 270, 276, 277, 288, 290, 306, 310, 316, 415, 424, 449 government, 11, 19, 20, 30, 31, 37, 78, 112, 113, 116, 117, 120–123, 134, 150, 186, 195, 197, 198, 209, 210, 230, 247, 255–257, 260, 277, 287, 289, 290, 292, 386, 389, 390, 392, 394, 415–417, 438, 445, 447, 452, 455, 477, 484, 486, 489, 496, 503 Locke’s Theory of Government, 389 Gratian, 90, 341, 366 Gratian’s Decretum, 174 Great Schism, 110, 356 Greece, Ancient, 3, 5, 49, 50, 52, 54, 57, 59–62, 342, 419, 447, 449 Grewe, Wilhelm G., 170, 192 Gröschner, Rolf, 174 Grosfoguel, Ramón, 237, 238 Gross, Leo, 168 Grotius, Hugo, 15, 16, 83, 149, 151, 158, 160, 170, 172, 342, 383, 472 Grotius, Hugo, 342 Grovogui, Siba N., 225, 233 Gruffydd Jones, Branwen, 12, 229, 231, 267

Guelke, A., 448 Guilhot, Nicolas, 206, 210 Guinea-Bissau, 225, 226, 239 Guzzini, Stefano, 206

H Habermas, Jürgen, 356, 358, 359, 361 Habib, M.A.R., 330 Haddad, Emma, 472 Hague, The, 196, 331, 429 Hailey, Lord, 284 Haiti, 190, 191, 371, 447 Hamilton, Bernice, 342 Hanke, Lewis, 153, 154, 157, 158, 161 Hannikainen, Lauri, 444 happiness, 115, 117, 212, 254 al-Harawi, 140, 141 Hardt, Michael, 251, 262, 286 Harlem Renaissance, 228, 233 Harms, Robert, 190 Harries, Owen, 293 Hartz, Louis, 208 Harvey, David, 286 Hayes, C.J.H., 448 Headley, John M., 123 Hegel, G.W.F. Phenomenology of Spirit , 322, 324, 330, 331 Philosophy of History, 3, 248, 331, 332 Philosophy of Right , 321–324, 326, 328, 330, 332 Hegel and Colonialism, 327 Hegel and Cosmopolitanism, 331 Hegel and International Relations, 324 Hegel and the forward march of spirit–the right of imperialism, 248 Hegel on Politics as a ‘Struggle for Recognition’, 322 hegemonic, 9, 172, 186, 237, 259, 269, 275, 506–508, 514 hegemony(ies), 3, 48, 62, 113, 170, 177, 285, 290, 509 Hegewisch, Dietrich Hermann, 180, 181 Henry of Troyes, Count, 140 Henry VII, 109, 116 Heraclides, A., 447, 448, 451–455, 458 heresy, 7, 92, 105, 158, 210 Heuser, Beatrice, 342

INDEX

Hidalgo, Javier, 478 Higgins, R., 451 Hirschler, Konrad, 143 historical injustice, 483, 485, 490, 492–494, 496, 497 historicity, 275 history art history, 214, 215 emotions and art history, 212 Hoar, Senator George Frisbie, 285 Hobbes, Thomas, 4, 15, 19, 48, 64, 103, 148, 171, 326, 327, 370, 382, 385–389, 391, 393–395, 398, 486, 487, 491 Leviathan, 148, 385–388, 398 Hobsbawm, Eric. J., 284, 373, 416 Hobson, J.A., 195, 283–287, 296, 297 Imperialism: A Study, 283 Hochschild, Adam, 191, 193 Hochstrasser, T. J., 383 Höfert, Almut, 364, 366, 373, 374 Hoffman, Stanley, 404 Holl, Karl, 195 honour, 32, 81, 82, 287, 322, 325, 327 hospitality, 22, 171, 188, 189, 397, 483, 490, 491, 493, 495 hostility, 189, 248, 253, 418, 490 Housley, Norman, 125 hubris, 51, 54 human, 4, 5, 21, 34, 36, 38, 40, 43, 70, 71, 74, 77, 93, 154, 173, 213, 407 human rights, 14, 16, 17, 20, 32, 127, 153, 159, 168, 191, 192, 268, 290, 295, 296, 304, 305, 307–314, 316–319, 358, 369, 389, 396, 408, 411, 412, 430, 434, 437, 439, 440, 450–454, 457, 470, 471, 476, 477 humanisation, 16, 17, 303, 304, 306–308, 310–315, 317–319 Humanisation and Contemporary International Political Theory, 307–311 humanisation and progress, 312 Humanisation in International Law, 304–307 humanitarian, 10, 15, 50, 154, 155, 192, 194, 288–291, 298, 304–306,

529

312–314, 316, 317, 333, 334, 373, 396, 428, 430, 432, 441, 472 humanitarian imperialism, 286, 288 humanity, 3, 7, 13, 16, 17, 28, 29, 69, 72–75, 77, 78, 83, 94, 97, 102, 105, 106, 112–114, 148, 150, 158, 159, 176, 192, 193, 196, 216, 217, 304–308, 310–314, 328, 329, 332, 350, 359, 365, 368, 419, 441, 452, 486, 495 Hume, David, 12, 180, 192 hunger, 356

I Ibhawoh, B., 269, 273 Ibn al-Athir, 130–132, 137, 140 Ibn Qudama, 128–130 Ibn Wasil, 130, 133–135 Ibrahim, Anwar, 296 idea, 10, 11, 19, 37, 79, 90, 162, 177, 247, 323, 369, 410, 475 the universal idea, 322 idealism, 100, 102, 142, 208, 210 identity, 6, 23, 38, 42, 55, 56, 65, 227–230, 236, 239, 260, 297, 315, 318, 323, 324, 328, 410, 414, 415, 447, 454–456, 464, 465, 474, 478, 492, 505, 507, 510 ideology, 23, 33, 38, 232, 238, 245, 408, 409, 448 Ignatieff, Michael, 287, 289, 290 Imad al-Din al-Isfahani, 131, 136, 137 immanence, 358, 365, 369 immigration, 21, 413, 464–466, 468, 469, 475 arguments for the state’s right to control immigration, 464 imperialism colonialism and imperialism, 23, 226, 230, 231, 246, 253, 372 economic imperialism, 286, 291, 293, 297 Hegel and the forward march of spirit–the right of imperialism, 248 humanitarian imperialism, 288 moral imperialism, 286, 295, 296, 298

530

INDEX

new imperialisms, 15, 268, 284, 286, 288, 297 Western/American imperialism, 286, 293 imperialist school, 168–170 imperium, 112, 113, 118, 119, 123, 366 improvement, 97, 131, 246–248, 254–256, 287, 458, 477 inclusion, 195, 288, 332, 369, 373, 450, 457 independence, 13, 14, 21, 168, 200, 226, 230, 232, 247, 249, 269, 271, 274, 284, 285, 324, 325, 328, 331, 393, 395, 396, 404, 411, 413, 445, 452, 485, 486, 489, 493, 506 India, 12, 42, 187, 191, 255–257, 359 East India Company, 256, 257 indígenos , 229 indigenous indigenous people(s), 2, 12, 22, 150–152, 154, 157, 159–162, 210, 257, 260, 369, 371, 372, 411, 483–485, 489, 490, 492–497 legitimacy of indigenous political authority (right to colonise), 159 provisional right, indigenous peoples, and the state, 485 individual, 7, 15–17, 20, 21, 28, 38, 52, 74, 76, 77, 79, 81–83, 94, 96, 103, 127, 133, 141, 149, 152, 156, 158, 172–177, 179, 181, 187, 194, 198, 206, 212, 213, 215, 246–250, 254, 260, 262, 274, 292, 295, 296, 304, 307–310, 314, 318, 321–326, 329, 332, 339, 347, 360, 368, 369, 383, 385–393, 395, 396, 398, 416, 423–425, 429, 435, 446, 447, 450–452, 454, 455 secession as an individual choice, 455 individualism normative individualism, 174, 177 individuality, 249, 323, 324, 332 industry, 160, 251, 252, 260, 270, 290 infidel, 7, 8, 12, 110, 128, 137, 148, 150–152 the recognition of non-Christians (infidel rights), 149

infrastructure, 31, 187, 265, 266, 312, 348, 465 injustice, 2, 6, 14, 21, 72, 80–82, 117, 119, 157, 162, 187, 194, 232, 247, 258, 296, 329, 330, 356, 361, 388, 397, 452–454, 456, 457, 467, 484, 485, 489–491, 493, 495 historical injustice, 483, 485, 489, 490, 492–494, 496, 497 institution(s), 6, 7, 10, 19, 34, 36, 38, 110, 113, 116, 117, 119, 122, 147, 152, 158, 227, 254, 255, 257, 258, 265, 266, 268–271, 275, 277, 289, 291, 303, 306–312, 317, 318, 328, 331, 384, 386, 390, 394, 406, 408, 415, 416, 419, 425, 428, 433, 437, 447, 454, 465, 466, 473, 478, 513, 514 international credentialed social scientists vs. critical international theorists, 207 internationalist(s), 109, 194, 197–199, 408 international treaties, 20, 427, 431 International Criminal Court (ICC), 73, 268, 274, 275, 430, 440 international law humanisation in international law, 304 international humanitarian law (IHL), 305, 306 international human rights law (IHRL), 305, 306, 309, 312 International Monetary Fund (IMF), 266, 291 international political theory (IPT), 1, 2, 12, 15–17, 64, 65, 106, 147, 162, 303–305, 307, 308, 310, 319, 322, 330–334, 483, 514 humanisation and contemporary international political theory, 17, 307 international relations (IR) Hegel and International Relations, 324 normative international relations, 406 setting the scene: international relations, 404 interpretation, 4, 5, 8, 11, 37, 51, 59, 72, 92, 93, 106, 115, 208, 215,

INDEX

345, 348, 410, 445, 451, 485, 498, 507 intertextuality, 239 intervention, 152, 154, 155, 162, 239, 253, 257, 266, 288, 289, 291, 297, 309, 313, 315, 316, 396, 472, 509 interventionism, 9, 159, 162, 288, 289, 291 invention, 210, 240, 290, 346–348, 366 investiture, 111 Iraq, 18, 126, 128, 290, 297, 314, 340, 373, 411, 439, 446, 452 Ireland, 256, 419 Isaac, Joel, 207 Islam, 127–129, 131, 137, 143, 144 Israel, 126, 361 Italy, 7, 14, 114, 121, 122, 135, 216, 231, 272, 419, 434, 448 Ittersum, Martine Julia van, 170 Ius Publicum Europaeum, 172

J James, C.L.R., 191 Japan, 13, 14, 188, 189, 284, 408, 492, 493 Jasper, Karl, 18, 355, 356, 358–362, 367 Jefferson, Thomas, 293, 372 Jeffery, Renee, 342 Jerusalem, 7, 132–138, 140–143 Jervis, Robert, 47 Jesus. See Christ, Jesus job(s), 311, 466 Johnson, Chalmers, 294 Johnson, James Turner, 344 Johnson, Paul, 289 Jotischky, Andrew, 125 Judah, T., 455 juridification, 187 jurisprudence, 128, 129, 170, 171, 214, 428, 429 jus cogens , 20, 21, 73, 306, 307, 312, 313, 315, 423–425, 429–438, 440–443 jus in bello, 80, 307, 313, 340, 346 justice natural justice, 171, 181, 435

531

The Legal Tools: Article 38 of the Statute of the International Court of Justice, 425 justice in out-migration, 22, 464, 477 temporary migration and justice, 477 undocumented migrants and justice, 476 just war theory, 16, 18, 157, 340–351 just war (right to missionary war), 149, 154 Whose just war, which theory?, 344, 348

K Kaiser Wilhelm II, 195 Kalmanovitz, Pablo, 343 Kant, Immanuel Cosmopolitan law and Kant’s critique of colonialism, 187 Kant: The Rule-of-law State and the Sovereign, 393 The Metaphysics of Morals , 188, 393, 397, 399, 483, 485, 491, 495 Toward Perpetual Peace, 185, 246, 247, 399, 483 Two critics and a realist, from Kant to Marx, 246 Kantorowicz, E., 272 Kedar, Benjamin Z., 143 Kedourie, E., 446 Keenan, George, 100 Kelsen, Hans, 208 Pure Theory of Law, 208 Kennan, George, 206, 404 Kennedy, Paul, 293 Kersting, Wolfgang, 393, 399 Kinsella, Helen, 345 Kissinger, Henry, 208 Kleingeld, Pauline, 167, 180, 185, 495 Knock, Thomas J., 198 knowledge, 71, 75, 83, 98, 102, 121, 129, 131, 132, 152, 157, 174–176, 207, 210, 211, 215, 217, 228, 237, 238, 240, 249, 266, 267, 269, 270, 311, 318, 372, 388, 513 Kofosky Sedgwick, Eve, 512 Köhler, Michael A., 128, 129 Köhn, Rolf, 363, 368

532

INDEX

Kojève, Alexandre, 330–332 Kolb, Robert, 441 Koselleck, Reinhart, 3, 148 Koutsoukis, Alexandros, 5, 49, 51, 60, 65 Krasner, Stephen D., 419 Krauthammer, Charles, 293 Krieger, Leonard, 324 Kuehl, Warren F., 197, 198 Kurds, 411, 446, 450, 452 Kurdish, 140 Kymlicka, Will, 407, 412, 465, 467, 476, 489, 498

L labour, 74, 149, 153, 160, 179, 180, 191, 253, 287, 365, 464, 487 Ladd, William, 197 Ladner, Gerhart B., 110 La Follette, Senator, 199 Langer, William L., 284, 285, 287 language, 2, 11, 12, 15, 16, 23, 42, 55, 71, 75, 76, 98, 141, 153, 161, 170, 177, 179, 186, 196, 228, 257, 287–289, 297, 306, 310, 324, 392, 406, 407, 410, 413, 448, 475, 508 Lantigua, David, 150, 153, 154, 156, 161, 162 Laoutides, Costas, 19, 21, 449, 453, 455, 458 Las Casas, Bartolemé de, 9, 149, 152–159, 161, 162 Laswell, Harold, 207 Latin America, 161, 234, 237, 253, 275, 447 law general principles of law, 20, 425, 430 humanisation in international law, 304 international customary law, 20, 424, 428 international law, 2, 5, 10, 14–17, 19, 20, 73, 127, 135, 142, 144, 168, 169, 171, 185–189, 191, 192, 195, 197, 199, 230–232, 240, 247, 275, 276, 292, 303–307, 312, 313, 315–319, 322, 324–326, 342, 357, 367, 373, 396, 403, 404, 408, 418, 419,

423–429, 431–434, 436, 438, 453, 493, 495 law in the African “post-colony”: two tales of globalization, 265 natural law, 5, 7, 9, 15, 16, 20, 70–73, 75, 76, 78–80, 83, 84, 148–152, 154–160, 170, 176–180, 191, 192, 351, 383, 390, 404 rule of law, 14, 15, 79, 84, 267–272, 290, 367, 394, 395, 409, 418, 426, 433, 476 Second Axial Age of Law, 355, 357, 362 The Second Axial Age: Law that is Emancipatory, 365 Lawson, George, 55, 207 lawyer, 13, 70, 168, 170, 172, 174, 179, 266–269, 271–274, 276, 277, 303, 304, 349, 396, 414, 424, 433, 453 Lazar, Seth, 343, 347 Lazarsfeld, Paul, 207 League of Nations, 10, 11, 13, 20, 186–188, 197–200, 217, 230, 290, 395, 403–405, 419, 424, 450, 484 the Geneva League of Nations and the end of the right to war, 199 Lebow, Richard Ned, 48, 49, 54, 58, 60, 62, 104 Lechner, Silviya, 19, 319, 398 Lee, Peter, 352 legacy, 11, 13, 28, 52, 64, 84, 89, 90, 93, 95, 143, 153, 194, 266, 268, 269, 275, 334, 418, 504, 510 Law in the African post-colony: the puzzle of legacy, 268 legal Africa in the (re)making of the international legal and economic order, 275 dynamic legal cosmopolitanism, 167 global legal order, 19, 423 international legal theory, 168, 169, 171, 181 legal revolution, 356, 367, 370, 373 legal theory, 168, 169, 171, 178, 181, 483

INDEX

Specificities of the Legal Sources Listed in Article 38 ICJ Statute, 427 The Legal Tools: Article 38 of the Statute of the International Court of Justice, 425 Worldviews as the Superstructure of Axial Turns and Global Legal Revolutions, 358 legalism, 4, 28, 30–32, 38, 42, 404 Wilsonian legalism, 404 legitimacy, 15, 16, 20, 48, 57, 118, 119, 121, 126, 127, 139, 141, 144, 161, 226, 227, 230–232, 303, 304, 309, 310, 312–317, 325, 367, 391, 453, 457, 476, 488, 511 The UN Charter as the Centre of Legitimate Normative Authority, 424 Lenin, Vladimir I., 232, 253, 285, 287, 449, 450 Lesaffer, Randall, 169, 170, 172, 181 Leverhulme Trust, 209 Levine, Daniel, 209 Lévi-Strauss, Claude, 360, 361 liberal, 12, 105, 186, 189, 194, 197, 198, 209, 231, 245, 255–257, 260, 286, 295, 307, 316, 348, 369, 404, 408, 409, 456, 466, 468, 469, 496 ‘Liberal Imperialism’: Mill and Tocqueville, 254 liberalism, 10, 38, 186, 208, 210, 245, 270, 495, 496 liberation, 12, 14, 60–63, 143, 159, 191, 225, 226, 230–236, 239, 240, 254, 261, 360, 364, 365, 367, 372, 409 national liberation, 225, 226, 229, 230, 232, 234–236, 240, 331, 449 women’s liberation, 254 Libertas Ecclesiae, 363–365 liberty, 63, 76, 168, 254, 255, 261, 297, 363, 389–391, 393, 453, 470, 487 civil liberties, 31, 188, 467 Lieven, Anatol, 293, 294 linguistic(s), 74, 75, 98, 113, 117, 150, 358, 385, 423, 432

533

Linderfalk, Ulf, 444 Linklater, Andrew, 49, 51, 56, 58, 63, 65, 168 Lisbon, 226–229, 233 literacy, 272 literature, 12, 90, 140, 206, 225, 231, 233, 236–238, 270, 284, 303, 304, 317, 341, 344, 348, 350, 441, 452, 458, 463, 502, 509, 511, 514, 515 Locke, John, 19, 149, 160, 161, 179, 180, 295, 327, 389, 390, 395, 398, 446, 486, 487 Theory of Government , 389 Lockey, Brian C., 170 Lodge, Senator Henry Cabot, 285 logic, 37, 101, 115, 117, 132, 193, 288, 294, 330, 392, 404, 413, 414, 501, 505, 507, 511, 513, 514 London, 196, 257, 266, 371, 404, 449 Lorimer, James, 195 Lossl, Josef, 92, 97 Louden, Robert B., 175 Louis IX, King of France, 135 Louis of Bavaria, 109 love, 64, 76, 83, 95, 97, 212, 213 Lupher, David, 153, 157

M MAC, 230–232 Movimento Anti-colonialista, 230 MacCormick, Neil, 415, 416, 454 Machiavelli, Niccolo, 3, 4, 6, 49, 64, 80, 504 Mack, Eric, 389, 390 Macpherson, C.B., 390 McCulloch, Jock, 239 McKinley, President, 286 McMahan, Jeff, 346, 347, 352 McNamara, Robert, 208 McNeilly, F.S., 385 McQueen, Alison, 206, 210 Madden, Thomas F., 142 Maier, Charles, 287, 288, 293 Mali, 274 Mallaby, Sebastian, 294 Mallett, Alex, 128 Mamdani, M., 272

534

INDEX

man, 7, 59, 62, 71–74, 77, 100, 103, 112, 115–117, 136, 139, 140, 155, 157, 159–161, 174, 211, 229, 250, 254, 328, 329, 332, 333, 351, 359, 360, 365, 370, 386, 387, 392, 393, 424, 447, 505, 513, 514 mankind, 74, 115, 160 Mandelstam, André, 453 Manela, E., 449, 450 Mannheim, Karl, 211 manufacturing, 252, 253 map, 41, 215, 216, 267, 308, 347, 448 mapping, 90, 162 Marcuse, Herbert, 209 marginalisation, 239 market(s), 28, 180, 217, 250, 252, 265, 266, 270, 276, 277, 290, 292, 293, 358, 468 Marxism, 232, 233, 236, 245, 449, 450 Marx, Karl, 2, 12, 232, 245, 246, 251–253, 262, 327, 333, 356–358, 361, 370, 371, 449 Das Kapital , 251 two critics and a realist, from Kant to Marx, 246 masculinist, 213 masculinity(ies), 23, 501–503, 505–509, 511, 512, 515 war, masculinity, and men, 505 Mastnak, Tomaz, 170 materialism, 232, 286 materialist, 230, 232–234 Maus, Ingeborg, 188 Mayall, J., 448 Mazzini, Giuseppe, 409 Mead, Edwin D., 197, 199 media, 31, 266, 268, 351, 357, 358, 370, 371 medieval, 6, 7, 110–114, 119, 123, 133, 139, 142, 143, 160, 181, 275, 342, 357, 382–384 Mediterranean, 113, 125, 126, 133, 142, 192, 259 Melos, 47, 50–52, 61, 65 Mendelssohn, Moses, 174 Meron, Theodor, 304, 305, 313, 315, 317 Merriam, Charles, 207 metastability, 310, 314

metropole, 227, 235, 283 Middle Ages, 7, 8, 109–114, 123, 169, 174, 357, 381 Mignolo, Walter, 237, 238 migration irregular migration, 22, 464 temporary migration, 22, 464 Temporary Migration and Justice, 477 military, 9, 11, 16, 18, 28, 32, 33, 44, 49, 52–54, 63, 80, 81, 119, 125, 126, 130, 134, 142, 144, 155, 189, 195, 210, 216, 217, 226, 231, 273, 274, 290, 294, 297, 339–341, 367, 370, 396, 434, 472, 504–508, 511, 512, 515 Miller, David, 407, 408, 415, 416, 454, 455, 465, 467, 468, 470–473, 475, 476, 478 Mill, John Stuart “Liberal Imperialism”: Mill and Tocqueville, 254 On Liberty, 255, 257 Representative Government , 255, 257, 296 Mills, Charles, 147, 162, 495, 496 mineral(s), 271, 276 minority(ies), 12, 41, 42, 186, 199, 229, 235, 272, 289, 291, 333, 346, 403, 410–414, 416, 418, 448, 450, 451, 455–457 national minorities, 451 Mirandola, Giovanni Pico della, 173 missionary, 273, 291 missionary war, 9 mission civilisatrice, 283 Mitrany, David, 217 mode, 37, 39, 147, 176, 236, 255, 256, 287, 295, 344, 348 mode of production, 232, 234, 251, 361 modern, 4, 36, 73, 84, 99, 357, 382, 513 modernity, 167, 172, 173, 176, 214, 238, 239, 276, 287, 288, 292, 410 the modern state, 2, 9, 19, 250, 309, 321, 357, 382, 395, 472, 514 Moghalu, Kingsley Chiedu, 265 Mohism, 28, 32

INDEX

Moland, Lydia L., 324, 331 Möller, Kolja, 368 Molloy, Seán, 205–207, 209, 211, 212, 246 Monahan, Michael, 330 monopoly, 9, 191, 251, 292 monotheism, 176, 363, 366, 367, 373, 374 Montesquieu, Charles-Louis de Secondat, Baron de La Brède et de, 262 Moore, M., 452 Moore, Robert I., 368, 455 morality, 16, 47, 48, 51, 56, 59, 62, 65, 69, 100, 153, 174–176, 181, 191, 192, 197, 240, 260, 315, 317, 328, 329, 344, 367, 386, 398 moral imperialism, 286, 295, 296, 298 moral universalism, 177, 295 Morgenthau, Hans J. Classical Realism–Schmitt & Morgenthau, 99 Politics among Nations , 100, 205, 212 Scientific Man vs Power Politics , 102 Moses, 118, 344 Motherby, Robert, 194 Mourad, Suleiman A, 7, 8, 128, 133, 135, 137, 141, 143 Moutinho, Mário, 228 Muldoon, James, 110, 123, 150, 170 Müller, Friedrich, 367 multicultural, 324, 411–414 multiculturalism, 412, 413 multiculturalism and intrastate diversity, 412 multinational, 266, 277, 291, 455, 478 Munzel, G. Felicitas, 175 Musgrave, T.D., 452 Muthu, Sankar, 178, 186, 488, 492 Myanmar, 437, 443, 445, 455

N Nagel, Thomas, 350 Nakhimovsky, Isaac, 180 Napoleon(ic), 190, 368, 371 nation law of nations, 7, 15, 16, 73, 76, 79, 80, 151, 168, 169, 172, 178, 185

535

nation and state, 414, 415 nation-state, 11, 20, 216, 217, 271, 273, 324, 331, 371, 448–450 national, 11, 14, 19–21, 30, 31, 38, 48, 51, 58, 100, 120, 122, 193, 208, 210, 216, 225, 226, 229, 230, 232, 234–236, 240, 252, 259, 260, 271–273, 275, 287, 289, 295, 297, 306, 324, 328, 331, 333, 356, 357, 362, 371, 373, 406–411, 413–416, 425, 426, 429, 447–451, 454–456, 469, 475, 506 national theories of secession, 454 responses to the national idea, 408 nationalism, 10, 17, 19, 20, 212, 217, 232, 236, 253, 293, 297, 324, 333, 403, 406–411, 413–416, 418, 419, 448, 449, 454 Is there a unitary understanding of the national and nationalism?, 407 National, nation and nationalism: a first look, 406 Native Americans, 148–160, 171, 177, 248, 255, 261, 489, 495 NATO, 231, 291 natural, 6, 12, 13, 34, 37, 43, 57, 73, 74, 76, 77, 79, 81, 83, 94, 97, 114, 116, 117, 121, 148, 152–155, 157, 160, 174, 175, 177–179, 216, 217, 251, 259, 266, 268, 276, 285, 289, 297, 311, 323, 328, 369, 384, 387, 390–392, 396, 407, 419, 446, 447, 468, 471, 478, 486, 488, 493, 501, 503, 506, 509, 515 natural design, 149 natural law, 5, 7, 9, 15, 16, 20, 70–80, 83, 84, 148–152, 154–160, 176–180, 351, 369, 383, 390, 404 natural rights, 148, 151, 152, 155–157, 170–172, 174, 177, 309, 389, 390, 392, 446, 487, 489 the universal natural law, 71 nature human nature, 3, 6, 8, 72, 89, 90, 93, 95, 99, 101–106, 174, 213, 254, 295, 405 the law of nature and the law of nations, 77, 79

536

INDEX

Ndlovu-Gatsheni, Sabelo J., 237, 238 Neacsu, Mihaela, 206, 214 Nederman, Cary J., 8, 70, 74, 75 Neff, Stephen C., 342 Negri, Antonio, 251, 262, 286 negritude, 228, 229, 235, 239 Nelson, Senator Knute, 285 Nestle, Wilhelm, 359 Netherlands, 14, 187, 189, 192, 417 new world, 6, 9, 148–152, 154, 159, 161, 170, 250, 259, 363, 424, 450 Nicaragua, 432 Nicholas of Cusa (Nicholas of Kues, Nikolaus von Kues), 119, 173 Catholic Concordance, 119 Niebuhr, Reinhold, 93, 206, 404 Nielsen, Kai, 407, 454 Niesen, Peter, 187, 371, 492, 494, 495, 497 Nietzsche, 214 Nigeria, 265, 272 Ninio, Julian, 293 Noah, 149, 160 Nobel Peace Prize, 195 Non-Governmental Organisation (NGO), 268 Norman, Wayne, 408, 457 normative, 10, 11, 14–17, 20–22, 58, 72, 99, 148, 149, 193, 216, 303–306, 308–316, 318, 319, 345, 348, 351, 389, 391, 392, 394, 396, 397, 399, 406, 425, 426, 428–430, 437, 463, 464, 470, 471, 473, 484, 488 normative individualism, 174, 177 The UN Charter as the Centre of Legitimate Normative Authority, 424 North, 5, 190, 208, 253, 261, 268, 269, 276, 293, 316, 372, 472 Global North, 13, 127, 143, 277, 479 Nozick, Robert, 390 nuclear, 216, 366, 367 nuclear weapons, 216, 432 al-Nuwayri, 133

O O’Donovan, Oliver, 346

O’Driscoll, Cian, 16, 18, 343, 345, 349, 351 Oakeshott, Michael, 90, 99, 101–106, 383, 385, 387 Rationalism in Politics , 102 Oberman, Kieran, 467 objectivism, 350 objectivity, 211, 325 obligation, 6, 7, 13–16, 20, 21, 72, 73, 76, 78–80, 122, 149, 150, 154–156, 159–161, 171, 178, 254, 304–307, 310, 312, 315, 317, 326, 383, 386, 388, 389, 392, 393, 399, 423, 425, 429, 430, 434–438, 442, 454, 455, 464, 470, 472, 473, 478, 496, 497 The ‘Super-Norms’: Jus Cogens and Obligations Erga Omnes , 430 Occidental, 370 Oliver of Paderborn, 138 ontology, 34, 38, 209 Onuf, Peter S., 77, 293 Oppenheim, Lasa, 448 oppression, 42, 235–237, 239, 261, 367, 372, 450, 515 optimism, 200, 217, 415 Orakhelashvili, Alexander, 444 order, 3–5, 8–12, 14, 16, 19, 20, 29, 32, 35, 36, 38, 42, 49, 60, 69, 74–76, 79, 82, 92, 95–97, 100, 103, 106, 109, 113–116, 119, 120, 122, 123, 126, 127, 129, 130, 132, 134, 137, 143, 144, 147–152, 155, 157, 160–162, 168–170, 173, 175, 176, 181, 186, 188, 194, 196, 200, 212, 214, 216, 227, 230, 233, 236, 246, 247, 249–252, 255, 259, 267, 271, 275–277, 287, 288, 291–294, 304–306, 308–319, 325, 327, 329, 341, 344, 364, 367, 369, 373, 381, 386, 387, 390, 395, 396, 406, 415, 418, 423, 424, 427, 428, 430, 431, 436–439, 443, 446, 449, 450, 456, 466, 469, 471, 479, 483, 487, 489, 491, 496, 502, 514, 515 global legal order, 423 international order, 8, 110, 168, 169, 230–232, 246, 257, 259, 261,

INDEX

276, 287, 305, 306, 308, 309, 312–315, 318, 426, 439, 448 Osterhammel, Jürgen, 178 Other, 28, 37, 42, 60, 120, 199, 217, 346, 411, 432, 434 The Image of the Other, 139 Ottoman, 192, 448 Ottoman Empire, 7, 13 Owen, Professor David, 470, 472 Owen, Robert L., 198, 199

P pacifism/pacifist, 195, 198, 213 Pagden, Anthony, 151–154, 188 Paine, Thomas, 96, 180 Palestine, 126, 131–133, 135–137, 141, 272, 439, 455 papacy, 7, 9, 10, 109–112, 115, 150 papal, 7, 110–114, 118–120, 148, 177, 356, 363, 364 papal privilege, 364, 381 Papal Revolution, 355–357, 362, 364–366, 369, 370 Parekh, Serena, 334, 474, 475 Paris, 195, 230, 277, 285 Parry, John H., 188 Parsons, Talcott, 207 Party for the Independence of Guinea and Cape Verde (PAIGC), 225, 226, 229 pathos, 275 Patlagean, Evelyne, 367 patrimonialism, 270 peace German Peace Society, 195 Justifications for Peace, 129 peace societies, 194–197 peace societies and the war referendum peacekeeping, 194 peasant, 236, 370 Pelagius, 7, 90–95, 97, 105, 106 The Pelagian Controversy, 90 Pellet, Alain, 432 Peloponnesian War, 47, 48, 54–56, 59, 63 people, 11, 13, 20, 71, 117, 161, 172, 211, 212, 250, 360, 370, 445, 450

537

indigenous peoples, 2, 12, 22, 150–152, 154, 157, 159, 161, 162, 210, 257, 260, 369, 371, 372, 411, 483–485, 489, 490, 492–497 performance, 79, 120, 290, 304, 311, 501, 505 Perry, Guy, 138 personality, 52, 323 Peter, Saint, 7, 151 Petrine Commission, 110 Petras, James, 291 Pevnick, Ryan, 465, 466 Pfaff, William, 289 Philip IV the Fair, 381 Philippines, 286, 297, 452, 455 philosopher, 2, 12, 30, 32, 33, 38, 43, 78, 118, 119, 123, 148, 158, 172, 174, 175, 245, 316, 321, 349, 355, 372, 382, 414 philosophy, 17, 28–30, 32, 34, 40, 69, 78, 105, 115, 170, 172–177, 185, 214, 246, 248, 322, 328, 331, 333, 344, 345, 347, 348, 355, 495–497 philosophy of history, 12, 17, 178–180, 246, 248, 332, 359 political and philosophical cosmopolitanism in the eighteenth century, 185 Philpott, D., 382, 456 Pico, Giovanni. See Mirandola, Giovanni Pico della Pierce, Oliver, 16, 17 Pinder, John, 194 pirates, 82, 192 piracy, 17, 192, 307 Pitts, Jennifer, 186, 262 plantations, 190, 191, 252, 327, 330 Plato, 69, 75, 76, 78, 148 platonic, 114 plurality, 396, 405, 406, 418, 513 policy, 10, 15, 30, 32, 39, 42, 60, 61, 63, 104, 188, 191, 198–200, 207–209, 266, 270, 272, 273, 292, 412, 472, 475, 478 admission policies, 22, 464 politics comparative politics, 236

538

INDEX

Hegel on Politics as a ‘Struggle for Recognition’, 322 international politics, 4, 5, 10, 11, 19, 47, 52, 54, 55, 58, 65, 98, 100, 104, 106, 213, 226, 260, 308, 310, 316, 318, 331, 343, 404, 405, 409, 413, 419, 445 modern politics, 102, 393 political authority, 103, 112, 116, 162, 386 political philosophy, 2, 5, 17, 70, 212, 246, 398 political relations, 90, 126 political sociology, 13, 267, 271 political theory, 17, 101, 105, 111, 147, 148, 211, 246, 257, 304, 321, 331, 342, 344, 406, 408, 413, 414, 503, 515 politics and international relations, 225, 322 Politics among Nations . See Morgenthau pope, 110–112, 115, 118–120, 130, 132, 151, 153, 169–171, 363–365, 368, 381, 382. See also papal population, 3, 6, 9, 12, 22, 33, 41, 62, 152, 156, 159, 161, 162, 179, 180, 190, 228, 234, 248, 250, 251, 256, 274, 277, 289, 294, 343, 396, 433, 434, 455, 456, 466, 468, 472, 474, 475 Portugal, 7, 13, 148, 187, 191, 192, 227, 230, 231, 238, 441 Portuguese, 2, 12, 151, 225, 226, 228, 230, 235, 239, 272 positivism, 206–212, 215, 430 postcolonialism postcolonial studies, 225, 330 poverty, 251, 253, 356, 467, 470 Powell, James M., 142 power, 2, 9–11, 13, 14, 23, 28, 29, 31, 33, 34, 36–39, 41, 43, 47–50, 52, 54, 56–60, 63–65, 73, 76, 77, 82, 83, 89, 90, 95, 97, 99–103, 109–115, 117–121, 123, 125, 126, 132, 133, 135, 137, 142, 143, 148, 150, 153, 154, 161, 168, 169, 173, 174, 177, 180, 189, 192–194, 196–198, 200, 205, 210–212, 215, 231, 235–237, 240, 247, 251, 253,

254, 256–260, 269, 271–274, 276, 283, 285, 287, 289, 290, 292–294, 296, 308, 310–313, 318, 319, 322, 326, 327, 329, 331, 360, 363, 365–368, 372, 373, 383–386, 389–393, 395–399, 406, 411, 415–418, 426, 427, 430, 431, 433, 435, 437, 447, 449, 457, 468, 469, 473, 487, 493, 494, 502, 503, 506, 507, 509, 513 pragmatic, 70, 90, 289, 412 pragmatism, 131, 217, 308 pragmatism, 131, 217 Pratt, Hodgson, 195 praxis, 238, 361, 372, 406 prefiguration, 215 preparedness, 13, 198, 199, 457 president, 31, 37, 153, 193, 197–199, 292, 418, 448 Price, Richard, 96 Priestley, Joseph, 96 principle(s), 6, 7, 9, 13, 16, 22, 29, 59, 69, 71–74, 76, 77, 80, 81, 83, 100, 101, 111, 112, 114, 116, 126, 136, 142, 155, 157, 175, 176, 178, 181, 192, 197, 200, 212, 230, 231, 237, 250, 254, 255, 290, 292, 293, 295, 304, 306, 307, 310, 315, 316, 318, 319, 322–328, 341, 345, 346, 348, 350, 358, 369, 382–384, 394–397, 424–426, 430–433, 435–437, 446–450, 454, 455, 458, 469–471, 475, 476, 483–485, 489, 491, 510, 514 proximity principle, 487, 489, 491, 493, 497 production, 231, 232, 239, 250–252, 276, 356–358, 373, 513 mode of production, 232, 234, 251, 361 productive forces, 231, 232, 234, 357 progress, 16, 17, 39, 96, 106, 173, 176, 178, 181, 190, 230, 246, 248, 249, 252–254, 256, 257, 259, 260, 287, 289, 308, 310, 314, 317, 318, 328, 329, 357, 360, 370, 372 humanisation and progress, 312 progressive, 14, 104, 105, 178, 196–198, 206, 239, 248, 249, 252,

INDEX

254, 255, 261, 304, 345, 357, 371, 372, 428, 431, 449, 514 Prokhovnik, Raia, 398 property, 9, 74, 80–82, 112, 114, 151, 152, 154, 156, 159–161, 179, 193, 261, 271, 369, 387, 389, 390, 392, 393, 485–488, 494, 496–498, 514 property rights, 151, 152, 154, 157, 158, 160, 161, 179, 271, 276, 486–489 protectorate, 82, 83, 289, 290 Protestantism, 249, 370 protocol, 305, 343, 471 psychiatry, 238 psychoanalysis, 214 public, 19, 31, 49, 55, 58, 75, 76, 78, 83, 104, 121, 122, 133, 135, 140, 142, 143, 148, 153, 158, 171, 172, 186, 188, 193, 194, 197, 207, 208, 210, 211, 216, 249, 255, 260, 305, 313, 339, 357, 370, 373, 382, 388–390, 393–395, 416, 427, 431, 433, 434, 437, 441, 448, 455, 465, 469, 471, 484, 486, 487, 489, 490, 496, 497, 503, 510 public affairs, 78–80, 117, 258 public good, 79, 122, 157, 457, 465 Pufendorf, Samuel, 16, 69, 83, 151, 158, 171, 179, 383 Pure Theory of Law. See Kelsen, Hans Pütter, Johann Stephan, 172

Q al-Qalqashandi, 139, 141 Quakers, 191 queer, 23, 509, 511–515 queering women and war, 513 Quidde, Ludwig, 195 Qur⊃an, 131, 143

R Rabaka, Reiland, 236 race, 4, 5, 10, 12, 22, 36, 39, 71, 73, 76, 115, 152, 178, 225–229, 238, 239, 246, 249, 255, 262, 287, 297, 328, 332, 407, 409, 448, 455, 470, 494, 495, 506

539

Race and Ethnicity in Chinese Thought , 42 racism, 236, 239, 247, 330, 495, 497 radical, 13, 14, 32, 94, 99, 100, 106, 115, 185, 187, 198, 199, 211, 228, 231, 237–240, 253, 254, 257, 258, 310, 319, 330, 331, 359, 371, 385, 394, 488, 510 Ragazzi, Maurizio, 442 Rationalism in Politics . See Oakshehott Ratzel, Friedrich, 419 Rawls, John, 468, 489 realism, 6, 10, 11, 38, 47, 51, 54, 64, 89, 93, 98–104, 106, 142, 206, 246, 262, 293, 326, 327, 399, 405, 406 Challenging the Creation Myth of Realism, 103 classical realism, 206, 208, 209, 211, 214, 405 Classical Realism – Schmitt & Morgenthau, 99 classical realism”, 89, 90, 98, 100, 104 realist, 5, 6, 8, 10, 11, 33, 38, 47, 48, 50, 51, 54, 55, 57, 58, 64, 90, 95, 98, 99, 101, 103, 105, 106, 205–207, 211–213, 216, 217, 245–247, 262, 395, 396, 398, 406 two critics and a realist, from Kant to Marx, 246 Realpolitik, 8, 131, 138, 142, 200, 259 rearmament, 186 reason, 3, 5, 7, 10, 11, 19, 49, 52, 64, 70–79, 82, 83, 92, 97, 102, 103, 106, 113, 114, 116, 117, 120, 136, 144, 152, 157–159, 172, 173, 175, 178, 179, 192, 194, 197, 213, 254, 255, 260, 286, 289, 295, 306, 309–311, 313, 314, 323, 327, 329, 333, 334, 342, 348, 351, 359, 360, 372, 383, 387, 388, 393, 394, 406, 413, 414, 431, 436, 446, 471, 486, 488, 492 rebel, 53, 92 recession, 215, 216 reciprocity, 40, 103, 172, 295, 305, 313, 476

540

INDEX

recognition, 5, 10, 17, 18, 98, 317, 322–325, 327, 328, 330, 334, 369, 372, 386, 410, 418, 430, 451, 477 Hegel on Politics as a ‘Struggle for Recognition’, 322 struggle for recognition, 322, 325, 328, 329, 331, 332 Rees, Brinley, 90–92, 94, 95, 105, 106 referendum, 198, 199, 417, 456 reflexivity, 207 reflexivity and an ethics of anti-hubris, 210 reformation, 170, 181, 356 refugee(s) duties to refugees, 471, 474 responsibilities to refugees, 22, 464, 469–471, 473 Who Counts as a Refugee?, 470 Reid, Thomas, 174 Reinhard, Wolfgang, 356, 357 relations, 2–5, 8–10, 13, 15, 19–23, 27–31, 33–35, 37–39, 41–43, 51, 58, 60, 65, 69–72, 76, 80, 82, 104, 106, 123, 140, 155, 187, 236, 238, 247, 267, 273, 274, 276, 291, 322, 326, 350, 360, 381, 384, 387, 388, 391, 395, 397, 403, 405–407, 410, 414, 416, 446, 487, 496, 505, 507, 515 social relations, 40, 231–233, 311 relativism, 211, 295, 296 religion, 6, 8, 11, 18, 19, 91, 96, 120, 123, 127, 139, 156–158, 161, 171, 295–297, 332, 355, 381, 410, 470, 474, 475 remedial, 310, 452–454 remedial right, 21, 446, 452–454, 485 renaissance, 6, 109, 111, 173, 174, 176, 179, 181, 272 Rengger, Nicholas, 90, 105, 106, 346 reparations, 81, 154, 434, 436, 484, 496 republicanism, 76, 210, 328 Requirement, the, 148, 150, 151, 384, 430 research, 12, 13, 65, 78, 131, 142, 198, 209, 227, 228, 267, 269, 275, 348, 509

resistance, 147, 157, 226, 253, 297, 371, 476 responsibility(ies), 10, 15–17, 94, 121, 149–151, 174, 176, 212, 270, 276, 307, 396, 430, 434, 439, 442, 468, 471, 473 revisionism/revisionist, 304, 307, 314, 340, 346, 347, 349 revolution, 14, 19, 190, 258, 268, 315, 356, 357, 363–365, 368–373, 389, 392, 449, 488, 494 Reza, Alexandra, 227 Richard, King, 130, 131 Richards, Henry, 195 right(s) arguments for the state’s right to control immigration, 464 cosmopolitan right, 178, 186, 189, 248, 483–485, 490–495, 497 infidel rights, 9 legitimacy of indigenous political authority (right to colonise), 149, 159 natural rights, 148, 151, 152, 155–157, 170–172, 174, 177, 309, 389, 390, 392, 446, 487, 489 provisional right, indigenous peoples, and the state, 485 Rights of the Child, 309 the Geneva League of Nations and the end of the right to war, 199 Riley, Patrick, 398 Riley-Smith, Jonathan, 135–137 Ripstein, Arthur, 394, 486 Rodney, W., 266 Roman law, 81, 114, 382 Rome Roman Empire, 6–8, 69, 96, 111, 113, 114, 116–120, 175, 294 Rome and the wider world, 80 The Holy Roman Empire, 110, 112, 114, 122 Roosevelt, Theodor, 198, 368 Rösch, Felix, 10, 11, 206–209, 211, 212, 214, 215 Rosen, Stephen, 294 Rosenwein, Barbara H., 213 Roshwald, A., 407

INDEX

Ross, Andrew, 212–214 Rothkopf, David, 286, 288 Rousseau: Popular Sovereignty and the General Will, 390 Rousseau, Jean-Jacques, 19, 174, 180, 323, 361, 389–396, 398, 399, 446, 447, 449 Ruhs, Martin, 477 rule, 3, 9, 11, 12, 14, 17, 21, 27, 33, 34, 37, 41, 62, 63, 73, 77, 78, 80, 81, 83, 97, 109, 113, 114, 116–120, 135, 136, 139, 141, 150, 158, 192, 225, 230, 231, 235, 246, 256, 257, 259, 270, 272, 275, 276, 285, 305, 341, 349, 364, 366, 372, 382–384, 387, 389, 391–394, 409, 427, 429, 433, 436–438, 446, 448, 450, 452, 457, 487, 492 Rumsfeld, Donald, 286 rupture, 238–240 Russell, Frederick H., 342, 450 Russia, 98, 192, 233, 253, 289, 356, 370, 410, 430 Rwanda/Rwandan, 289, 340, 440

S sacrifice, 152, 156, 258 Sager, Alex, 478 Saint-Pierre, Charles-Irénée Castel de, 188 Saladin al-Kamil, 130, 131, 134, 136, 137, 139–141 Santos, Boaventura de Sousa, 237, 238 Sartre, Jean-Paul, 331 Schelkshorn, Hans, 173–179 Scheuerman, William, 206, 209, 216, 217 Schmitt, Carl, 99–101, 104, 404, 405, 417, 419 Classical Realism–Schmitt & Morgenthau, 99 Schneewind, Jerome, 174 scholar, 1, 2, 16, 17, 23, 29, 30, 33, 38, 47, 48, 53, 59, 60, 69, 90, 125–129, 134, 135, 139, 140, 142, 143, 169, 174, 193, 195, 206–209, 211, 212, 215, 226, 229, 232, 237, 238, 265, 266, 284, 303–307, 314,

541

316, 319, 326, 330, 342, 343, 346–349, 382, 383, 404, 407, 408, 410, 419, 430, 449, 451, 453, 470, 485, 489, 503, 509, 512, 513, 515 scholarship, 2, 23, 60, 92, 111, 128, 129, 142, 206, 207, 209, 211, 212, 215, 216, 266, 267, 269–271, 273, 304, 319, 349, 350, 363, 452, 458, 502, 506, 509, 511–515 Schröder, Jan, 171, 172 Schuett, Robert, 213 Schulzke, Marcus, 352 Schumpeter, Joseph, 284, 285, 287 Schwartz, Daniel, 342 science, 102, 171, 193, 210, 211, 214, 238, 261, 290, 355, 360, 361, 385 Scientific Man vs Power Politics . See Morgenthau, Hans J. Scott, David, 238 Scuccimarra, Luca, 179 sea, 56, 130, 194, 251, 259, 370, 424, 429, 439 secession, 21, 411, 414, 446, 448, 450–458 national theories of secession, 454 secession as an individual choice, 455 secularisation, 171, 173, 382 security, 11, 29, 31, 32, 36, 43, 81, 117, 132, 133, 188, 199, 208, 216, 217, 297, 306, 386, 395, 406, 424, 430, 445, 450, 457, 469, 505–507 UN Security Council, 340 Seeley, John, 297 self-determination, 15, 232, 316, 408–410, 412–414, 425, 432, 441, 445–452, 454, 456–458, 464, 484 individual and collective notions of self-determination, 446 theoretical approaches to secessionist (external) self-determination, 452 separatism, 446, 457 Sepúlveda, Juan Ginés de, 148, 149, 153, 154, 156–159, 162 Seth, Sanjay, 238, 240 Shamir, R., 272 Shari⊂a, 128, 129, 131 Shaw, M., 451 Shilliam, Robbie, 225

542

INDEX

shipping, 187, 358, 370, 371 Shoah, 216 Shweder, Richard, 288 Sibt Ibn al-Jawzi, 133, 134 Siedentop, Larry, 174–177 Sigwart, Hans-Jörg, 206, 207 Siracusa Principles, 469 Skinner, Quentin, 370, 384, 387 slavery slaves, 70, 74, 143, 157, 159, 186, 190–193, 261, 271, 323, 324, 331, 361, 365 the abolition of slave trade and slavery, 186, 194, 330 Smith, Adam, 180 Smith, Anthony D., 407 Snyder, Craig, 294 social sociability, commercial, 179 social contract, 307, 385, 386, 388, 391, 392 social processes, 5, 48–52, 55, 57, 59, 60, 64, 65 social relations, 40, 231–233, 311, 317, 419 socialism/socialist, 197, 198, 408, 449, 450 societal-formation credentialed social scientists vs. critical international theorists, 207 Societal Formations – Decentering Eurocentrism, 357 Societal Formations, Worldviews, Formative Periods, 357 society(ies), 7, 8, 10, 11, 16, 17, 23, 29–32, 36, 39, 40, 43, 48, 49, 56, 61, 73, 79, 83, 91, 95–97, 102, 106, 116, 125, 128, 147, 155, 156, 159–161, 168, 172, 175–179, 189, 193–195, 210–212, 229, 231, 232, 234, 236, 248–252, 254, 255, 257, 258, 261, 262, 268, 271, 274, 275, 287, 289, 290, 292, 297, 307, 309, 310, 314–319, 323, 324, 328, 329, 331–333, 345, 346, 348, 355, 356, 358, 361, 366–368, 372, 389, 390, 396, 405, 412, 419, 432, 449, 465, 474, 476, 478, 502, 503, 506, 507, 512

sociology, 214, 267, 269, 273, 359 political sociology, 13, 267, 271 Soffer, Reba, 414 soldier, 77, 81, 346, 349, 350, 352, 368, 371, 490, 503, 504, 507, 512, 513 solidarity, 97, 177, 227, 236, 262, 359, 368, 432, 454, 466 universal, 177, 359 Solomon, Ty, 212, 213 Sommer, Andreas Urs, 179 Song, Sarah, 467, 475, 476 Sophocles, 5, 359, 360, 373 sovereignty, 2, 7, 11, 17, 19, 20, 127, 134, 141, 168–172, 307, 314, 325, 328, 342, 343, 382, 384, 396, 426, 485, 514 Bodin on Sovereignty, 382 external sovereignty, 172, 395–397 foundations of sovereignty, 19 Hobbes: The Sovereign State, 385 issue of sovereignty, 141 Kant: The Rule-of-law State and the Sovereign, 393 popular sovereignty, 176, 199, 368, 391, 392, 394, 448 Rousseau: Popular Sovereignty and the General Will, 390 the discourse of sovereignty, 381, 385, 398 Spain, 7, 8, 148, 156, 187, 191, 192, 216, 371, 411, 436 Spanish, 9, 12, 148–151, 153–159, 162, 174, 177, 191, 285, 342, 371, 436, 493 Spalding, Johann Joachim, 174 Speier, Hans, 212 spirit, 15, 30, 35, 43, 50, 59, 77, 78, 83, 181, 189, 248, 249, 257, 258, 261, 286, 330, 485, 492, 493, 497 Hegel and the forward march of spirit–the right of imperialism, 248 historical injustice and the spirit of cosmopolitan right, 490 state arguments for the state’s right to control immigration, 464

INDEX

Kant: The Rule-of-law State and the Sovereign, 393 provisional right, indigenous peoples, and the state, 485 society-of-states school, 168, 169, 171, 172, 176 state-centric, 17, 245 statehood, 306, 316, 328, 329, 357, 406, 410, 415, 418, 427, 446–448, 454, 458 states and nations, 416 the modern state, 2, 9, 19, 250, 309, 357, 382, 395, 514 world state, 188, 326, 492, 495 Steinmetz, G., 267, 269, 273, 274 stoic, 5, 10, 69–71, 114, 170, 176, 177 stoicism, 5, 6, 70, 73, 80, 83 strategy, 4, 14, 31, 43, 50, 52, 53, 60–63, 118, 130, 138, 226, 262, 267, 468, 475, 509, 511 grand strategy, 65 Structural Adjustment Programs (SAPs), 291, 292 subaltern, 237, 238 subjugation, 62, 159, 189, 190, 372, 491 Subrahmanyam, 267 suffrage, 196, 371 sugar, 190, 191, 252 Sullivan, David, 144, 477 Sultan al-Kamil, 130 Sultan al-Kamil and Emperor Frederick II, 133 survival, 9, 20, 33, 34, 56, 61, 103, 155, 252, 296, 388, 406, 425 Sutch, Peter, 16, 17 Syria, 126, 128–130, 132, 133, 141, 411, 446 Szabó-Bechstein, Brigitte, 363, 365

T Tamir, Yael, 407, 415, 416, 454 Tan, Kok-Chor, 485 taste, 257 tax(es), 31, 122, 292, 294, 364, 381, 384, 417, 465 technology, 31, 58, 479 telecommunications, 265, 266, 288

543

territory, 9, 13, 19–21, 31, 41, 113, 127, 138, 141, 161, 188, 247, 248, 258, 259, 285, 287, 294, 297, 306, 382, 388, 396, 411, 415, 417, 424, 446, 448, 453, 455, 456, 463, 464, 468, 476, 483, 493, 494 terrorism, 307, 313, 509–511, 515 Thaler, Mathias, 350 theocracy, 96, 97 theory(ies) dependency theory, 285 National Theories of Secession, 454 remedial of just cause theories, 452 theoretical approaches to secessionist (external) self-determination, 452 Third World, 269, 289 Third World Approaches to International Law (TWAIL), 426 Third Crusade, 136, 140 Thornhill, Chris, 357, 373 Tibebu, Teshale, 330 Tierney, Brian, 111, 152, 154, 177, 369, 381 Tietel, Ruti, 306 time, 3–5, 9, 13, 14, 18, 19, 23, 28, 29, 32, 33, 35, 36, 38, 39, 41, 48–50, 52, 53, 55, 59, 62, 70, 81, 91, 92, 95, 101, 104–106, 109, 114, 118, 119, 121, 125–127, 131–136, 141–143, 148, 155, 161, 174, 185, 188–191, 196, 198, 209, 211, 213, 214, 216, 226, 228, 229, 233, 245, 248, 249, 251, 255–257, 259, 267, 271, 273, 274, 284, 288–291, 294–296, 310, 315, 330, 333, 341–344, 348, 349, 357, 359–361, 365–369, 371, 372, 374, 385, 411, 414, 416–418, 424, 425, 427–430, 432, 449, 453, 466, 469, 473, 476, 486, 490 Tipps, Dean, 288 Tjalve, Vibeke Schou, 206 Tocqueville, Alexis de, 12, 192, 245, 246, 257–262 “Liberal Imperialism”: Mill and Tocqueville, 254 Tomás, António, 237–239 Tomuschat, Christian, 19, 20, 442, 443, 452

544

INDEX

Tooke, Joan D., 342 Toope, S., 315–317 torture, 14, 17, 111, 306, 307, 309, 314, 315, 388, 432, 437, 441 trade, 10, 13, 132, 136, 151, 156, 158, 168, 170, 171, 177, 179–181, 187–194, 199, 216, 247, 251, 266, 273, 274, 292, 293, 306, 323, 330, 371, 427, 430, 465, 479, 490, 493, 495, 496 tradition, 2, 4, 7, 16–18, 23, 29, 31, 43, 69–71, 73, 84, 90, 99, 103, 105, 106, 114, 148, 150, 169–171, 173, 177, 207, 225, 232, 249, 254, 260, 286, 295, 296, 304, 307, 324, 340, 344–346, 348–350, 361, 382, 395, 398, 417, 418, 456, 485 tragedy, 4, 5, 11, 50, 54, 64, 216, 217, 468 transcendence, 211, 213, 235, 236, 314, 356, 358, 369 transcendent, 149, 209, 212, 314, 365 transcendentalism, 20, 308, 311, 360, 431 transformation, 13, 34, 43, 48, 54, 56, 64, 187, 210, 215, 238, 267, 268, 273, 306, 311, 358, 369, 435, 484, 485, 493 treaty, 9, 17, 129, 133–137, 141, 153, 169, 191, 192, 286, 315, 317, 325, 428–430, 433–435, 437, 438, 441, 442, 450, 489, 494, 495, 497 international treaties, 20, 427, 431 Treaty of Westphalia, 127, 169 Trump, Donald, 127, 293, 294 trusteeship, 289, 290 truth, 3, 8, 53, 61, 73, 90, 95, 99, 103–106, 111, 115, 120, 196, 208, 210, 211, 344, 366, 447, 513 Tuck, Richard, 492 Tully, James, 485, 487, 489 Turkey, 126, 411, 439, 450, 452, 453 Turner, Dale, 334, 485, 489 Tutino, Stefania, 170

U Ukraine, 98, 314, 373

Ulich, Robert, 208 underdevelopment, 266, 267, 270 union(s), 74, 122, 178, 197, 217, 397, 491 Union of Democratic Control , 195 United Kingdom (UK), 231, 332, 411, 445 United Nations (UN) Charter of the United Nations, 230, 345, 426–428, 438 The UN Charter as the Centre of Legitimate Normative Authority, 424 UN Charter, 373, 439, 441 UNESCO, 229, 438 United Nations’ Universal Declaration of Human Rights (UDHR), 295, 305, 411 United States (US), 18, 48, 84, 207, 208, 210, 231, 277, 284, 285, 287–290, 294, 297, 330, 348, 389, 411, 417, 424, 429, 430, 432 universalism moral universalism, 177, 295 The Waning of Medieval Universalism, 122 universalist, 239, 306 Usama ibn Munqidh, 139 utilitarianism, 254, 466 utility, 72, 75, 82, 118, 254, 256 utopia, 37, 96, 102

V Valdez, Inés, 495, 498 Valladolid, 149, 153, 154, 159 value, 4, 10, 14, 21, 33, 34, 36, 42, 51, 74, 95, 97, 99–102, 106, 113, 122, 142, 229, 287, 288, 293, 295–298, 306–308, 311, 317, 323, 324, 327, 332, 333, 339, 391, 392, 409, 413, 419, 423, 431–433, 435, 437, 454, 457, 464, 469, 475, 488, 496, 503, 506, 507, 512 human values, 423 Van Cleve, Thomas C., 142 Vec, Miloš, 169 Vidal, Gore, 293 Vienna, 168, 190, 192, 207

INDEX

Vietnam, 12, 205, 209, 210, 285, 291, 410 Vincent, Andrew, 19, 20, 409, 411, 412, 417 violence, 14, 22, 52, 56, 58, 62, 63, 73, 80, 97, 98, 101, 112, 131, 135, 142, 162, 187, 189, 196, 231, 239, 240, 268, 270, 288, 295, 329, 341, 349, 360, 453, 457, 470, 471, 495, 501–503, 507–511, 514, 515 Vitoria, Francisco, 10, 148, 151–156, 158, 167, 171, 176–178, 342, 404, 493 von Benda-Beckmann, F., 268 von Martini, Karl Anton Freiherr, 172 von Suttner, Bertha, 195, 196 Vorländer, Karl, 199, 200

W Waldron, Jeremy, 160, 161, 458, 487, 488, 492, 493, 498 Waligore, Timothy, 19, 22, 489, 492, 498 Wallerstein, Immanuel, 285, 294 Waltz, Kenneth, 48, 99, 395 Walzer, Michael, 289, 306, 307, 313, 319, 342–349, 351, 396, 464, 472, 475 Just and Unjust Wars , 342, 345, 346, 349 war civilisation, civil war, war, 52 just war, 18, 80, 82, 83, 98, 101, 118, 119, 148, 150, 151, 154, 156–158, 186, 188, 304, 313, 340–345, 348–351 peace societies and the war referendum, 194 the Geneva League of Nations and the end of the right to war, 199 war, masculinity, and men, 505 World War I/First World War, 10, 13, 197, 198, 200, 208, 216, 424 World War II/Second World War, 2, 200, 208, 213, 216, 340, 424, 431, 504 war crimes, 16, 17, 73, 307, 339, 452

545

warfare, 14, 28, 32, 36, 81, 117, 125, 126, 136, 142, 143, 158, 192, 340, 344–346, 348–352, 370, 445 Warnock, Mary, 350 Waters, T.W., 447, 458 Watts, Pauline Moffitt, 173 wealth, 14, 41, 75, 83, 113, 252, 261, 291, 294, 432, 454 Weatherall, Thomas, 306, 307, 313 Weber, Max, 147, 357, 359, 360, 367, 419 Weidenkopf, Steve, 143 Weimar Republic, 213 welfare, 13, 79, 254, 255, 326, 466 Wellman, Christopher Heath, 456, 464, 465, 467, 468 Wells, H.G., 195 Wesel, Uwe, 357, 366 Westphalian order, 168, 169 The “Westphalian world order” and international legal theory, 168 White House, 209, 292, 293 Wight, Martin, 4, 405, 406 Wihl, Tim, 369 Wilberforce, William, 191 Wilcox, Lauren, 350 will, 17, 28, 93–95, 97, 98, 106, 122, 159, 172, 173, 254 free will, 91, 94, 105, 106, 173, 367, 370, 446 Rousseau: Popular Sovereignty and the General Will, 390 William of Ockham, 118 Williams, Bernard, 350 Williams, Howard, 12 Williams, Huw L., 8 Williams, Michael C., 104 William the Marshal, 351 Wilson, Rebecca, 19, 22, 23 Wilson, Woodrow, 197–200, 413, 448 Wirth, Franz, 195 Wirz, Albert, 190 wisdom, 5, 20, 71, 73, 75, 77, 78, 83, 104, 152, 173, 214, 344, 405, 406 Wolf, Eric, 233 Wolff, Christian, 16, 158, 172, 178, 404 Wölfflin, Heinrich, 212, 215 Wollstonecraft, Mary, 96, 190

546

INDEX

women, 19, 22, 23, 39, 40, 59, 70, 74, 196, 227, 236, 254, 274, 275, 296, 309, 318, 349–351, 370, 372, 495, 501–511, 513–515 International Council of Women, 196 women’s liberation, 254 Wood, Ellen Meiksins, 291 work, 1, 4, 5, 12, 16, 23, 39, 47, 65, 74, 90–93, 111, 118, 123, 136, 153, 162, 172–174, 189, 195–197, 205, 206, 212–215, 217, 226, 233, 237, 238, 250, 269, 275, 276, 284, 291, 292, 304, 308, 310, 316, 321, 343–346, 348–350, 359, 382, 393, 396, 398, 404, 405, 407, 415, 419, 432, 439, 446, 464, 465, 467, 471, 473, 474, 476, 477, 498, 502, 505, 506, 508–511, 513–515 worker(s), 236, 467 world, 20, 21, 36, 37, 76, 173, 290, 291, 479, 494, 504 world bank, 266, 268, 271, 291 world state. See state

worldview, 9, 177, 209, 213, 356, 358, 359, 362, 496, 497 societal formations, worldviews, formative periods, 357 Worldviews as the Superstructure of Axial Turns and Global Legal Revolutions, 358 Wrong, M., 269 X xenophobia xenophobic, 210, 333, 409 Y yinyang , 28, 34–38, 40, 43 Young, Robert J.C., 225, 270, 350 Yugoslavia, 289, 418, 441, 446, 452 Z Zeitgeist , 215 Ziegler, Karl-Heinz, 170 Zimmermann, Susan, 196