Home
| Databases
| WorldLII
| Search
| Feedback
Monash University Law Research Series |
Last Updated: 6 March 2012
MAKING THE WORLD SAFE FOR HOLLAND: DE INDIS OF HUGO GROTIUS AND INTERNATIONAL LAW AS GEO-CULTURE
This paper was originally published in Volume 32 of Review, 2010, p. 239.
Eric Wilson[1]
If the central thesis of The Savage Republic, my recently published
study on the relevance of world-systems analysis for the study of international
law,[2] could be
expressed in a single sentence it would be that Hugo Grotius (1583-1645) wrote
his seminal early text De
Indis[3] as part of
a systematic intellectual effort to make the world safe for Holland. I very much
understand Grotius’ project in
terms of the conceptual framework of
world-systems analysis; that Holland, or the United Provinces (the UP), as the
nascent hegemon
of the 17th century, deliberately
strove to re-constitute international public order along lines most consistent
with this hegemony.[4]
The phrase ‘making the world safe for Holland’, therefore, bears a
double meaning. In intrastate terms, it signifies
the re-configuration of the
modern world-system along the lines of the domestic constitutional arrangements
of early Dutch
republicanism.[5] In
interstate terms, it marks the first systematic effort to subordinate the
entirety of the early, or mercantilist, modern world-system
to an international
rule of law derived from ‘naturalism’, or natural law (ius
naturale). Furthermore, my reading of Grotius’ text as the juridical
expression of Dutch hegemony in terms consistent with world-systems
analysis
necessarily relies upon the three-tier division of Braudelian TimeSpace. As the
sub-title of my book implies, the political
biography of the author and the
material composition of De Indis constitute the history of ‘the
event’ (histoire
evenementielle).[6]
The broader historical framework of Dutch hegemony corresponds to the history of
‘the conjuncture’ (histoire conjuncturale). The over-arching
historical phenomenon of the modern world-system equates to the history of
‘structure’ (histoire structurale), the long wave of temporal
flow that is the qualitatively distinct TimeSpace domain of la longue
duree. By writing all three parallel chronologies and by transversing all
three waves at tactically specific junctures, I produced what
is, hopefully, a
coherent and unified work consistent with Fernand Braudel’s own
admonition.
In fact, the three different time spans which we discern are all
independent: it is not so much time which is the creation of our
own minds, as
the way in which we break it up. These fragments are reunited at the end of all
our labours. The longue duree, the conjuncture, the event all fit into
each other neatly and without difficulty for they are all measured on the same
scale.[7]
Undertaking an extended critical exegesis of an understudied Grotian text in terms of world-systems analysis forced me to substantially reconsider the relevance of Braudelian historiography. Simultaneously, the re-visitation of Braudel and the subsequent critical engagement with TimeSpace forced me to undertake a parallel critical re-appreciation of world-systems analysis and its relevance to critical international legal scholarship. This essay, following my earlier work in The Savage Republic, constitutes not merely a practical application of world-systems analysis to the early history of international law; it is also very much a critical and self-reflexive meditation on current developments within world-systems analysis and an open ended engagement with possible grounds for ‘strategic alliances’ with other forms of critical theory, including deconstruction and post-colonialism. This will be realized through a translation of the rhetorical stratagems of ‘primitive’ international legal discourse, posited here as a form of geo-culture, into the juro-political references and vocabulary of the early modern world-system. As I will prove, situating De Indis within the TimeSpace parameters of the ‘long’ 16th century not only undermines the intelligibility of the functional and teleological view of international law; it also demonstrates that understanding international law as a variant of geo-culture directly assists world-systems analysis in surmounting two of its chief methodological problems, determinism and reductionism.
International Law and Geo-Culture
It does not take long for anyone working with
contemporary world-systems analysis to recognise that the field is undergoing a
fundamental
transition in theory and methodology, one that is of tremendous
relevance for critical legal studies and the history and philosophy
of
international law. Expressed in the simplest terms, world-systems analysis has
sought to un-encumber itself of the intellectual
legacy of its broadly
neo-Marxist origins; theoretical innovations in other fields—including
History, Philosophy, and Literary
Criticism—have forced world-systems
analysts to confront their intellectual heritage of teleology and functionalism.
In truth,
world-systems analysis has had a complex and at times contradictory
relationship with historical materialism. Sympathetic critics
of Immanuel
Wallerstein, such as Anthony Giddens, have clearly recognized this, labelling
world-systems analysis as a ‘generalized
critique of endogenous models of
change.’[8] For
Giddens
A key part of Wallerstein’s approach depends on the idea that
phenomena of basic importance to capitalism including its class
system—cannot be interpreted in ‘internalist’ terms but have
to be understood in the context of the world economy
as a whole. When
‘capitalism’ is seen to refer to the world capitalist economy, we
see that it does not involve a single
axis of class domination, but two. One is
that of wage-labour and capital. But this dimension has from the early origins
of capitalism
been interwoven with the spatial hierarchy in the
‘international’ division of labour, setting off core from
periphery.[9]
Accordingly, world-systems analysis is best understood as ‘an
interpretation that strongly emphasizes the regionalization of
political and
economic systems and which, thereby, lays stress upon spatial features of social
organization and
change’.[10] As
a result, the ‘very term ‘international’ only has
full meaning with the emergence of nation-states which, because of their
strictly demarcated
character, give a very particular shape to
‘internal’ versus ‘external’
relations.’[11]
The problem here is obvious and takes two different forms, one for the Marxist
scholar and one for the non-Marxist scholar. For the
former, Wallerstein’s
eclectic materialism effectively bars him from formulating a persuasive, or even
coherent, theory of
state formation. If the ‘State’ is both the
product and the instrument of class forces, then in order for there to be
the
historical genesis of a ‘modern world-system’ of States within the
16th century, there would necessarily have existed a
‘class’ that was both global and capitalist which, in the general
Marxist
view, was simply not the
case.[12] For the
Marxist, Wallerstein’s efforts depend upon a simplistic crypto-Weberian
‘circulationism’: capitalism equals
exchange for
money.[13] Neither
Wallerstein nor Andre Gunder Frank can demonstrate the existence of a capitalist
global class prior to the nineteenth century.
Instead, they are reduced to
surreptitiously recruiting amorphous worldwide trading networks to perform the
function that would be
undertaken by the (absent) capitalist world class or
‘State’.[14]
For the latter, world-systems analysis is irredeemably reductionist:
‘Wallerstein’s arguments involve an uncomfortable
amalgam of
functionalism and economic reductionism. In these respects [despite the
neo-Weberian overtones] they are certainly closer
to commonly held presumptions
of Marxism.’[15]
Hence
[T]he marked tendency of Wallerstein’s standpoint to downplay
the impact of specifically political and military factors upon
processes of
social change in the modern world. States appear as territorial subdivisions
within gross economic sectors of the world
economy, not as organizations able to
mobilize other forms of power other than economic power and with interests other
than economic
interests.[16]
In recent years world-systems analysis has offered a spirited rejoinder to
both sets of critique. Against the Marxist, Wallerstein
has repeatedly offered a
robust defence of circulationism as a valid conceptual model for capitalism as
well as providing the more
accurate account of the nature of the early
capitalist
world-economy.[17] On
a more theoretically abstract level, and of much greater importance to
Wallerstein’s more recent work, has been the wholesale
repudiation of the
innate teleology of the classical nineteenth-century theories of state and class
formation that is replicated
by orthodox Marxist scholarship. I am almost
compelled to label this development as ‘the return of Braudel’:
Wallerstein’s
own rediscovery of the enormous potential for social science
provided by Braudel’s post-classical theory of TimeSpace, derived
from a
radically anti-teleological approach to geo-spatiality. Of vital importance was
Wallerstein’s signature notion of the
‘axial division’ of the
world-system. Infused with Braudelian notions of TimeSpace, world-systems
analysis was able to
formulate a thoroughly anti-reductive—in fact, almost
relativistic—notion of the ontological correspondence between the
plurality of ‘spaces’ and the plurality of cultural systems
and
social structures. For Wallerstein
Rejecting [the] nineteenth-century view
was a crucial step in the development of world-systems analysis. The classic
liberal-Marxist
view was based on a [teleological] theory of stages of
development that occurred in parallel ways in units of analysis called states
(or societies or social forms). It missed what seemed to us the obvious fact
that capitalism in fact operated in a system in which
there were multiple
modes of compensating labor, ranging from wage labor, which was very widely used
in the richer, more central zones, to various forms
of coerced labor in the
poorer, more peripheral zones (and in many other varieties in between). If one
did one’s analysis state
by state, as was the classical method, it would
be observed that different countries had different modes of compensating labor
and
analysts could (and did) draw from this the conclusion that one day the
poorer zones might replicate the structure of the richer
zones. What
world-systems analysis suggested was that this differential pattern [axial
division] across the world-economy was exactly
what permitted capitalists to
pursue the endless accumulation of capital and was what in fact made the richer
zones richer. It was
therefore a defining structural element of the system, not
one that was territorial or
archaic.[18]
Not surprisingly, we have witnessed in recent years a series of widening
bilateral discussions taking place between analysts such
as Wallerstein and
Giovanni Arrighi with their ‘post-‘ or ‘open’ Marxist
counterparts, most notably Etienne
Balibar and David Harvey. Of even greater
importance, however, has been what I might call ‘the epistemological
turn’
undertaken by world-systems analysis. As Wallerstein’s own
work makes clear, the axial division of layer creates a globally
multiform
‘social space’ in which differential relationships of labor and,
therefore, localizable systems of social value
and cultural meaning, may emerge
and co-exist—separate in space but concurrent in
time.[19] And this, in
turn, raises the possibility of the radical relativisation of knowledge within
the world-system. Wallerstein’s
own writings evidence this
‘epistemic turn’ through their recent prioritisation of geo-culture,
the generic de-notation
of the manifold, and at times contradictory, ideological
and legitimation apparatuses of the modern
world-system.[20] In
very broad terms, Richard Lee has remarked upon world-systems analysis’
evolving concern with what he calls the ‘third
arena’, the
epistemologically unifying domain
[O]f cognition and intentionality, giving
to the long-term cultural domain the same structural centrality that production
and distribution,
the economic, and coercion and decision-making, the political
have long enjoyed. The objective is to connect the ideal and the material
in the
sense that there is a structure of knowledge of historical capitalism (most
basically, the divorce of facts and values) that
shapes what actions are at any
time considered to be legitimate and effective; who it is thought can act and
what it is thought they
can do. Categories get constructed, naturalized, and
essentialized. Not only do we have to re-historicize these continuities, we
need
to see how they have functioned, especially how [the] unwritten (cheap)
consensus [has operationally prevailed] over (expensive)
coercion in the process
of the accumulation of surplus over the past five
centuries.[21]
There is clearly a ‘double movement’ at work here:
world-systems analysis moves beyond a reductive materialism and functionalism
through investing geo-culture with an autonomous causality. Conversely, the
modern word-system itself, the primary unit of analysis,
is understood to
constitute a pluralistic society of relativistic
power-knowledge[22]
complexes and structures; as a result, the epistemology of the analyst
‘must be both nomothetic and idiographic, or rather
it can be
neither.’[23]
Lee has elaborated at great length on this point.
The future is determined by
present agency from materials of the past, but its structure remains
unpredictable. The world-systems
perspective radically reinstates history into
the study of social change on a world scale, without however reinventing
‘total
history’. Radical because...world-systems analysis repudiates
the premises of nineteenth-century social science. Change of
conjuctures
is embedded in longue duree structures (cycles with trends). By positing
a unique, temporally bounded, and spatially delimited (but expanding) social
system
defined by the axial division of labour as the coherent unit of analysis,
it respects both idiographic particularism and nomothetic
universalism...
Process is the watchword; being is always
becoming.[24]
If ‘re-historicizing’ is the term that Lee uses to denote
world-systems analysis’ post-Marxist shift from the macro-level
concern
with structure to the micro-level domain of the ‘event’—the
contingent, the immediate, the local—then
I would suggest that what we are
observing here is a tentative engagement with
deconstruction.[25]
Wallerstein has made this move explicit through his new emphasis upon the
centrality of contemporary ‘knowledge movements’,
which he
identifies, somewhat imprecisely, with ‘deconstruction, postmodernism,
postcolonialism, poststructuralism, [and] cultural
studies.’[26]
Lee has made a similar identification of ‘convergent interests’
between world-system analysis and deconstruction.
The postmodern makes sense
only in relation to the modern—that is, to those processes guaranteeing
the primacy of endless accumulation;
and to the modernist consciousness in the
form of the concepts of progress, chronological historical time, and
representational realism
(where a turning point was reached with the invention
of perspective in the fifteenth century at the beginning of the history of
the
modern
world-system).[27]
For the world-systems analyst, ‘post-structuralism’[28] may best be understood as a foundational ‘turn’ within post-Marxist critical theory towards a heightened self-reflexivity grounded upon a privileging of the textual, the discursive, and the literary as the ‘primary unit of analysis’. Post-Structuralism’s self-conscious emphasis upon the inherent politicisation of all forms of language compels it to focus upon the historical preconditions governing the production and ‘policing’ of discourse. Inverting the teleological impulses of classical nineteenth-century social theory, post-structuralism advances a theoretical understanding of the political nature of all speech as an historically embedded enterprise that both elides and supersedes the deterministic and reductive logic of Marxism.[29] At first glance world-systems analysis and ‘deconstruction’[30] would appear to be antinomies, the former asserting the primacy of structure and the dominance of the center over the periphery as against the latter’s anarchic subversion of all totalising systems of meaning. In many ways the relationship between the two replicates the inherent tensions between structuralism and post-structuralism. World-systems analysis, as a form of historical sociology, always runs the risk of acting as an essentializing discourse insofar as it prioritises structure, primarily at the expense of the event; as Braudel usefully reminds us, nomothetic social science ‘is virtually horrified by events. Nor is this without reason: short time is the most capricious, the most deceptive duration.’[31] However, it is this self-same ‘structuralism’ that makes world-systems analysis a viable form of historical sociology in the first place; indeed, without making the claim too strongly, it is the systematic translation of the basic precepts of Braudelian historiography into the terms of a practical research agenda. And it is the very ‘neo-Braudelian’ nature of this research agenda that points to certain overlapping areas of concern and broad similarities of approach between the two schools that would at first evade the attention of the casual observer, not the least of these a latent anti-essentialism. For Wallerstein, the ‘meaning’ of every State is exhaustively defined by its position vis-à-vis every other State within the entirety of the world-system, a mutually constitutive process of identity formation. Although thoroughly integrated, the world-system, precisely because it is premised upon the absence of centralizing political structures, is radically de-centralized. As with deconstruction, world-systems analysis rejects the totalising logic of a unified (and unifying) ‘self’ or ‘subject’, preferring instead a radically polycentric model of intestate relations.[32] Hegemony is the antithesis of empire;[33] the world-system ‘lacks a central actor in its recounting of history.’[34] In marked contrast to other theories that prioritise a particular set of actors, such as the proletariat for Marxism or the Nation-State for Realism, world-systems analysis postulates that all international actors
[J]ust like the long list of structures that one can enumerate, are the products of a process. They are not primordial atomic elements, but part of a systemic mix out of which they emerged and upon which they act. They act freely, but their freedom is constrained by their biographies and the social prisons of which they are a part.[35]
Wallerstein’s sentiments accord remarkably well with Jacques
Derrida’s post-Sausserean ruminations on langue et parole, in which
the singular unit of meaning is governed solely by its position within a complex
chain of other signs and
signifiers.[36] Not
surprisingly, then, we witness recurrent attempts by Wallerstein to personally
engage with deconstruction, or ‘cultural
studies’, a development
that seems to have been occasioned by his realization of the potential in
appropriating relativistic
knowledge structures as contemporary forms of
anti-systemic
movements.[37]
Contrary to the views of its critics, Wallerstein writes
The fundamental
intention of cultural studies is not a sort of nihilistic destruction of
knowledge, the total solipsistic relativism
peddled by a few
extremists...[rather, it is to demonstrate the fact that] particularistic canons
have been put forward as universal
norms is a product of the unequal hierarchies
of the modern world system, and has served to sustain those in power in this
system.[38]
The quest for a ‘strategic alliance’ with the new Critical
Theory, in turn, leads Wallerstein to undertake two additional
moves. First, he
shifts his concern to the epistemic problem of Universalism, the meta-narrative
level totalising of Modernity as
a global discursive formation; ‘Among the
specificities of the capitalist world-economy was the development of an original
epistemology which it then used as a key element in maintaining its capacity to
operate.’[39] As
against the legion of apologists for modernity, Wallerstein argues that
‘Universalism is always historically
contingent.’[40]
The contingent, or ‘constructed’, nature of Universalism underpins
Wallerstein’s second move: the entry into dialogue
with the amorphous
discourse known as post-colonialism, which serves as a vital link between
world-systems analysis and
deconstruction.[41]
Post-colonial discourse acts as a transverse mode of critique of an
international order, both public and private, operating within
the historical
traces of European imperialism; expressed in terms of the world-system, this
means the forcible transformation of
the non-European regions into a global
periphery and semi-periphery to the core zone of western Europe.
Post-colonialism provides the discursive space within which I situate my own
deconstructive critique of De Indis. ‘All systems are historic, and
all of history is
systematic’[42];
ergo, world-systems analysis ‘is indeed a grand
narrative.’[43]
World-systems analysis aids the critical legal
scholar[44] by
providing him or her with a viable form of ‘grand narrative’,
compatible with post-colonialist critique, within which
to embed their
deconstructive work against orthodox, mainstream, or ‘liberal’
accounts of international law. According
to Wallerstein
When we return to
grand narratives, we face two different questions, it seems to me. One is to
assess the world, I would say the world-system,
in which we are living, and the
claims of those in power to be privy to, and implementation of, universal
values. The second is to
consider whether there are such things as universal
values, and if so, when and under what conditions we might come to know
them.[45]
For the analyst, like the post-structuralist, to be against ‘the
concept of timeless [essential] structures does not mean that
(time-bound)
structures do not
exist.’[46]
Rather, the philosophically savvy analyst, invested with deconstructive insight
and sympathetic to the broad objectives of the post-colonialist
project, must
operate within a zone of highly self-critical philosophical reflexivity and
successfully navigate the rhetorical migrations
between ‘icy
essentialism’ and ‘chaotic
heterogeneity’.[47]
This results in a second ‘double movement’, forcing the analyst to
carefully circumvent a counter-essentialist ‘anti-euro-centric
euro-centrism’. Hence, Wallerstein’s call, following Edward Said,
for the analyst to be ‘non-Orientalist’.
To be non-Orientalist
means to accept the continuing tension between the need to universalise our
perceptions, analyses and statements
of values and the need to defend their
particularist roots against the invasion of the particularist perceptions,
analyses, and statements
of values coming from others who claim that they are
putting forward universals. We are required to universalise our particulars
and
particularize our universals simultaneously and in a kind of constant
dialectical exchange, which allows us to find new syntheses that are then of
course intently called into question. It is not an easy
game.[48]
But it is a ‘game’, and a decidedly post-Marxist one; no final resolution of antitheses here. The entire basis of the attractiveness of post-colonialism to the critical legal scholar lies precisely in its potential to deconstruct the entirety of the multiple linkages between international law-as-discourse and international law-as-European-imperialism. For post-colonialism, the western State is incorrigibly imperialist; ergo, the historical emergence of international law is synonymous with the wider process of empire-formation.[49] The crucial point here for the notion of international law as geo-culture is that empire-formation is not merely an exercise of material power but equally one of power-knowledge, deploying its own taxonomy, vocabulary, schema, nomenclature, and rhetoric.
International law, therefore, is a particularly ripe target of the sort of deconstructive critique undertaken by both world-systems analysis and post-colonialism. International law as a variant of geo-culture is revealed immediately through critical reconsideration of the role played by legitimacy and the various discourses of legitimation in securing what we conventionally refer to as ‘international public order’, the juro-political phenomenon of a hegemonically driven form of interstate relations. As ‘cost efficient’ hegemony ultimately devolves upon the volitional consent of the manifold sovereigns, the ideological compliance and ‘coercive socialization’ of the members of the global community become indispensable to the practical operations of the modern world-system. An uncommonly naked example of this, and of the pronounced functionalism of international legal discourse, is the work of the liberal apologist Thomas Franck, who artfully enfolds functional jurisprudence into normative liberal governance.
That international ‘law’ is not law in the positivist sense may be irrefutable but is also irrelevant. Whatever label attached to it, the normative structure of the international system is perfectly capable of being studied with a view to generating a teleological jurisprudence. Indeed, international law is the best place to study some of the fundamental teleological issues that arise not only in the international, but also in the national legal systems.[50]
Franck has identified the four primary indicators of what he identifies as
‘rule legitimacy’[51] within the
international community as ‘determinacy, symbolic validation, coherence
and adherence to normative
hierarchy.’[52] As should be clear by
now, what Franck’s sanitized view of international law obviates is
precisely what a critical legal scholar
such as Martti Koskenniemi posits as
essential: asymmetrical relationships of political power. For Franck
The special value to both national and international jurisprudential inquiry of studying the international system...lies in its unalloyed noncoercive state...A teleology that makes legitimacy its hypothetical center envisages...the possibility of an orderly community functioning by consent and validated obligation, rather than by coercion. This is surely the realistic approach to an international jurisprudential teleology: one that examines the objective properties of the global rule system so as to study whether and how it may advance or perfect itself in accordance with the propensities of those observable properties.[53]
For Koskenniemi, however, international law is a ‘process of
articulating political preferences into legal claims that cannot
be detached
from the conditions of political contestation in which they are
made.’[54] In language that is bound to
appeal to the world-systems analyst, Koskenniemi openly identifies international
law with hegemony,
affording what is in effect a re-definition of international
law as the geo-cultural expression of ‘hegemonic contestation’.
By ‘hegemonic contestation’ I mean the process by which international actors routinely challenge each other by invoking legal rules and principles on which they have projected meanings that support their preferences and counteract those of their opponents. In law, political struggle is waged on what kind of words such as ‘aggression’, ‘self-determination’, ‘self-defense’, ‘terrorist’, or jus cogens means, whose polity will they include, whose they will oppose. To think of this struggle as hegemonic is to understand that the objective of the contestants is to make their political view of that meaning appear as the total view, their preferences seem like the universal preference.[55]
The diverse and variegated linkages that can be established between
international legal discourse and the political praxis of legitimacy
enables
Koskenniemi to perform a deconstructive critique of the universalist pretensions
of international law that uncannily resemble
Wallerstein’s critique of
universalism as the epistemological foundation of geo-culture.
In political
terms, this is visible in the fact that that there is no representative of the
whole that would not be simultaneously
a representative of some particular.
‘Universal values’, or the ‘international community’,
can only make
themselves known through the mediation by a state, an organization
or a political movement. Likewise, behind every notion of universal
international law there is always some particular view, expressed by some
particular actor in some particular situation. This is
why it is pointless to
ask about the contribution of international law to the global community without
clarifying first what or whose view of international law is meant.
However universal the terms in which international law is invoked, it never
appears as an autonomous
and stable set of demands, over a political actors, as
a way of dressing political claims in a specialised technical idiom in the
conditions of hegemonic
contestation.[56]
The world-systems dimension of international law as hegemonic geo-culture places it at the centre of the juro-political process of global governance, the accumulative structural asymmetries of the liberal world order masquerading under the universalist ‘neutrality’ and ‘objectivity’ of the international rule of law. As my exemplar text De Indis makes clear, the Grotian discourse of international law directly equates to the phenomenon of Dutch hegemony in each of the three domains of Braudelian TimeSpace: event, conjuncture, and structure.
Event, Conjuncture, Structure: De Indis and TimeSpace
It is one of the central, and most revealing, conceits of international law that its ‘father’, or seminal, figure is also the ‘author’ of an entire legal tradition traditionally known as the ‘Grotian Heritage’. This generic term signifies a set of outstanding concerns within the governance of international public order, including peaceful dispute resolution, multi-lateralism, humanitarian intervention, and universal human rights—in essence, liberalism as geo-culture.[57] The notion of the Grotian Heritage as either inherently liberal or pacifistic constitutes an egregious example of ideological mystification. Consistent with his overall purpose of legitimising the Dutch Revolt against Spain (1555-1609) as a lawful act of national liberation, Grotius’ central juridical concern was to re-formulate the late medieval tradition of ‘just war’ (bellum iustum) as a governing principle ideally suited to the legal contours of the early modern world-system.[58] In analytical terms, the genesis of the Grotian Heritage is little more than the authorial superimposition of the interstate constitutional arrangements of the nascent Dutch Republic, effected through a systematic conflation of early international law (iure gentium) with Roman civil law (ius civile).[59] The historical emergence of Grotian discourse proves inextricable from the unique contours of the hegemonic contestation of the ‘long’ 16th century. Accordingly, the three domains of TimeSpace—event, conjuncture, structure—will govern my reading of De Indis as the bearer of the signs of the legal text as the medium of liberal geo-culture: symbolic validation, coherence, determinacy and normative hierarchy.
The Event: Symbolic Validation
The composition of De
Indis (1603-1608) was prompted by the privateering of the Portuguese carrack
the Santa Catarina in the Strait of Malacca on 25 February 1603 by the
Dutch admiral Jacob Heemskerck, Grotius’ own
cousin.[60] The total
value of the prize was in excess of three million Dutch
guilders.[61] The
seizure of the carrack itself may have served as the immediate cause of the
formation of the Dutch East Indies Company (the VOC),
the joint-stock
corporation serving the politically useful function of coordinating the smaller,
disparate and less efficient privateering
operations of independent provincial
Dutch traders. Apart from facilitating intrastate formation within the allegedly
‘united’
Dutch
provinces,[62] the
incorporation of ‘the Company’ heralded a new phase in Luso-Dutch
interstate rivalry, marking a shift in Dutch naval
tactics from purely defensive
to largely aggressive military and para-military operations. That same year, VOC
captain Steven van
der Hagen was ordered by the Company to suspend purely
mercantile operations and initiate military action against both the Portuguese
and Spanish vessels, and to open diplomatic communiqué with all
indigenous authorities in vital port and coastal regions (Cambay,
Calicut,
Dubhol, Kandy) who might be interested in entering into an anti-Iberian military
alliance. From 1606 until 1609, with the
entry into force of the Twelve-Year
Armistice with Spain, all VOC admirals were expressly instructed by Jan Company
‘to enter
into military alliances and contracts with as many local princes
as possible and to offer military assistance to those who wanted
to drive the
Portuguese
out.’[63] Not
only did the VOC create an entire network of collaborationist local rulers
(‘compradors’) the Company effectively
monopolised the exercise of
all formal Dutch state-action within the Indian Ocean world economy.
Although there is no general consensus concerning the authorial motive for
composition, De Indis is generally interpreted as a legal brief
legitimating the seizure of the Santa
Catarina.[64]
Until recently, the text has been viewed as doubling as an extended reasoned
exercise in moral suasion against the powerful bloc
of Anabaptist and Mennonite
shareholders whose theological pacifism led them to question the legitimacy of
privateering as a means
of furthering otherwise acceptable endless capital
accumulation.[65] It
appears more likely that the composition of De Indis was not centred upon
the parochial objective of legitimating privateering per se, but upon the wider
act of apologia; providing symbolic validation of the United
Province’s shift towards maritime predation as a calculated strategy of a
hegemonic
contestation between two
States.[66] Indeed, it
is precisely because the author was so thoroughly embedded within a singular
event within the contours of the modern world-system
that Grotius’
performance of symbolic, or even ‘mythical’, self-validation may be
so easily perceived.
The mythical fabric of international culture permits
[all] sovereigns to assert international law without defending its national
authority.
Self-validation occurs through the manipulation of cultural language,
symbols and history. In this cultural soup, myth can acquire
a flavour of
legitimacy capable of producing psychological obligations in sovereigns.
Symbolic authority can be conferred on international
rules and institutions in
many ways. Rulers may be validated through ritual. Institutions may be validated
through architecture,
transferred authority (like famous leaders) or other
cultural attention. Alternatively, rules and institutions may become
authoritative
because of their pedigrees, their ‘historical origin’
and cultural ‘deep-rootedness’. International Law’s
weaknesses
are in some sense irrelevant; self-validation sanctions the international
law-myth.[67]
Herein, the liberal re-presentation of unequal hierarchies of power as
‘legitimacy’ does indeed serve a functional or
instrumental
purpose.
Liberal ideology makes political choice look either like
unquestionable ‘natural’ law or logical compulsion. In this sense
it
mystifies and obfuscates the international order it has established. Both the
anthropological and ideological theories make sense
of international law’s
authority by showing the manner in which sovereigns self-validate international
law. Liberal ideology
provides sovereigns with a self-validating escape from the
need to reason to their acceptance of international law’s authority.
Sovereigns embrace the purported naturalness and coherence of an ethical theory
that is sovereign-centric. In turn, this allows them
to believe
in[68] the neutrality
of the liberal theory of politics and the liberal theory of adjudication.
Sovereigns thus come to accept the authority
of international law and the rule
of law as a neutral, determinant, and coherent system, when, in fact, it is none
of those
things.[69]
Both the composition of De Indis and the later significance awarded
it as a landmark of international legal discourse are inextricable from the
contemporaneous dual
transformation of the modern world-system: the shift of the
European core zone from Lombardy/Mediterranean to the northwest/Atlantic,
and
the self-aggrandizing transition of regionally bounded sub-system to the
globally encompassing capitalist
world-economy.[70]
However, ‘new’ intra- and interstate systems were wholly derivative
from an earlier heterogenous system of sovereign
and quasi-sovereign
personalities. The political landscape inhabited by De Indis is a
profoundly alien one by contemporary state-centric standards, with its
exhaustive identification of legal personality with national
agency. By 1500,
Europe consisted of a multiversum of competing sovereign forms: the
Papacy,[71] the city-
leagues (the
Hansa),[72] the
Italian
communes/city-states,[73]
the imperial free-city
states,[74] the Holy
Roman Empire,[75]
feudal principalities (for example, the Duchy of Burgundy), and the
‘international’ regulatory and joint-stock trading
companies. All of
these followed a strict logic of non-territoriality and none of which were
easily reconcilable with the modern
requirements of ‘statist’
structure. In this regard, the arguably ‘pre-modern’ nature of the
Grotian text[76] is
the faithful reproduction of contemporary international
relations:[77] the
‘main “source” of the Grotian system is to be found in the
author’s experience of international relations
and his extensive knowledge
of contemporary diplomatic
history.’[78]
It is also of decisive importance that all four—the ‘failed’
Iberia and the wholly ‘successful’ UP,
UK, and the
USA[79]—have
been predominantly maritime powers; ‘the modern world system is,
characteristically and importantly, an oceanic
system.’[80]
There appears to be a necessary historical correspondence between successful
naval mastery and effective interstate
hegemony.[81] As the
prototype of Venice clearly demonstrated, thalassocracy has proven most
competitively cost-efficient and profit maximizing.
The most significant
achievement for each [Nation-State] on the road to hegemony was primacy in
productive efficiency within the World-Economy.
One of the reasons each was able
to achieve this superiority was the fact that it had not invested heavily during
[the pre-hegemonic
period] in creating a large army. However, each had created a
large merchant marine which, in addition to its obvious economic function,
supported the ability of this state to sustain a large naval force. It is indeed
probably the case that a key factor in the ability
of the state that won out in
the struggle to achieve hegemony (won out against its major rival) was the fact
that it had not invested
in a large
army.[82]
Philip E. Steinberg has employed the intriguing term of
‘force-fields’ to signify the taxonomic classification of oceanic
space as a material foundation of international public order: ‘the sea was
an area for collecting and projecting social power
but it was not treated as a
space of value (or place) in its own
right.’[83] The
absence of a (relatively) large army was not only cost-effective (re. Venice),
but it permitted surplus value to be more profitably
re-invested in a blue water
fleet, itself an indispensable military prerequisite to assert hegemonic control
over international transit
routes, the material sinews of the
world-economy.[84] It
is significant that De Indis is centred upon a sustained dual discussion
of both bellum iustum (‘the just war’) and mare
liberum (‘the free seas’), the two foundational pillars of
international law. While all of the other early legal scholars tend
to focus on
either one or the other (predominately the former), it is only Grotius who
authors a text that expressly synthesized
the two domains. In a deeper sense,
bellum iustum and mare liberum actively enter into a highly
symbiotic relationship: the need to protect the freedom of the high seas itself
serves a legitimate
grounds for the just war; lawful warfare is necessary to
preclude Portugal’s imposition of mare clausum (‘the closed
seas’). The discursive necessity of subjugating oceanic diversity to
juridical uniformity underlined the
universal transposition of European
bellum iustum to international order now guaranteed by the
‘true’ hegemon Holland whose status is symbolically validated by its
lawful
seizure of the Santa
Catarina.[85]
De Indis, therefore, is the textual site of the discursive re-production
of the international political dynamic of a world-system hegemon
committed to
ceaseless capital accumulation and global naval supremacy, the oceans itself
constituting an indispensable geo-spatial
correlative of the world-economy. The
high seas serve as the medium for the successful projection of hegemonic sea
power, the naval
armature policing the politically enabling myriad networks of
the world-economy. Conversely, the high seas act as a conduit for long-reach
maritime commerce and traffic, the economic sinews of the world-system, which
both subsidises and encourages further hegemonic penetration
into various
regional sub-systems. This point was not lost on Grotius.
I know that the
very foundations of... Iberian power lie, not in the Low Countries nor in Spain,
but in the transoceanic regions from
which the said people derive their wealth
and the means to maintain their public largess and their wars. But I also know
that they
have gained for themselves in those distant lands as much hatred as
power, and that the Dutch ought to make use of that hatred if
they wish to see
the war ended. The North must unite with the farthest Orient, in order that the
despotism which has spread to every
quarter of the world may be
overthrown.[86]
With remarkable prescience, Grotius recommends the intentional bankrupting of
the Habsburg world-empire as an integral part of Dutch
hegemonic strategy.
In
[the] future, [the Spanish] will provide us perforce with similar
spoils,[87] an
alternative which obviously would result in tremendous benefits both for our
state and for our private citizens, or else they
will be obliged to turn from
their attacks upon others in defence of themselves, keeping innumerable ships
for their own protection
in East Indian waters, strengthening their colonies
with fortifications, and (most troublesome of all!) maintaining a suspicious
vigil overall things at one and the same time. The numerous and heavy expenses
thus to be incurred will drain away not only all the
private profits of the
Portuguese, but also the whole of the East Indian revenue accruing to their
state itself, the unwavering enemy
of Dutch liberty. One can readily perceive
how extremely profitable both of these consequences will be for our own state.
For everyone
knows that money constitutes the sinews of war and that, just as it
is of the greatest importance [in war] to supply oneself with
money, so the
precaution of next greatest importance is to prevent the foe from being supplied
with it. Accordingly, if all the produce
and revenue from Philip’s East
Indian possessions can be encumbered with a burden of expense equal to that
already laid upon
certain European possessions of
his,[88] it must
surely follow that the future management of the war will prove much easier for
us. For no one can doubt that the aid received
from Spain through Italian
transactions is the chief means of prolonging that war, inasmuch as the Dutch
would long since have brought
the affair to a conclusion if their resources had
been matched solely against the revenue derived from another part of the Low
Countries.
If, then, Spanish revenues fail—and with them, the credit
necessary to procure additional funds—what outcome is to be
expected other
than a military insurrection leading to a great
revolution?[89]
Finally, De Indis served as the necessary template for the re-presentation of international juro-political relations through the world-system’s medium of hegemonic transition. The internal logic of the interstate political system discursively governing the outward expression of international legal language can be shown, as praxis, to be one of hegemonic rivalry and exploitative domination, the instrumental reason of military conflict, monopolistic economics, and unlimited capital accumulation. In terms of discourse, not only does Holland master the oceans, its mastery is both the precondition and the result of the Republic’s strict conformity with the legal requirements of just war. Simultaneously, the republican UP, as both the law-making and law-enforcing State, is both practically and rhetorically committed to the freedom of the seas, a totalising act of symbolic validation that establishes the identity of the Republic as the true hegemon in contrast to the failed hegemony of Iberia.
Conjuncture: Coherence and Determinacy
The establishment of the material conditions
governing the emergence of the statist forms of territoriality and capitalism is
as central
to the world-system as it is to both the Grotian Heritage and to
international law.
Only the modern world-system (the capitalist
world-economy) has evolved a political structure composed of states, each of
which claims
to extensive ‘sovereignty’ in a delimited geographical
area, and which are collectively bound together in an interstate
system. Such a
political structure is in fact the only kind of structure that can guarantee the
persistence of the partially free
market which is the key requirement of a
system based on the ceaseless accumulation of capital. Capitalism and the modern
state-system
were not two separate historical inventions (or conceptions) that
had to be fitted together or articulated with each other. They
were obverse
sides of a single coin. They were both part of a seamless whole. Neither is
imaginable without the other. They were
simultaneously developed, and neither
could continue to exist without the
other.[90]
The internal political logic of this interstate societas is, in turn,
governed by the seminal notion of hegemony.
Hegemony is what occurs in a
world-economy, one that has not become a world-empire. The political
superstructure of a world-economy
is not a bureaucratic empire but an interstate
system composed of allegedly sovereign states. And a hegemonic state is not
simply
a strong state, nor even simply the strongest single state within the
interstate system, but a state that is significantly stronger
than other
strong...
states.[91]
The last point needs to be re-emphasised; a central tenet of world-systems
analysis is precisely that ‘the emergence of a world
market was dependent
on the pluralistic structure of the European (and, subsequently, the global)
political
system.’[92] If
we shift our focus of analysis from the event to the conjuncture, we are able to
detect a parallel shift in the operation of legal
geo-culture from symbolic
validation to coherence and determinacy. By coherence I mean the capacity of
international law to achieve
a degree of self-grounding legitimacy as measured
by its capacity to afford juridical expression to the wider social system within
which it is embedded. In other words, the coherence of international law is the
sign of its virtually ‘organic’ relationship
with the contours of
the international juro-political landscape, law and society co-joined through a
symbiotic process of mutual
self-determination.
Wilhelm G. Grewe has
placed the concept of hegemony at the centre of his magisterial legal history,
The Epochs of International Law. Grewe folds international law into the
juro-political act of the legitimation of hegemonic interstate relations,
virtually reducing
it to the epiphenomenal. Hegemony is inseparable from the
broader juridical construction of ‘legal order’, the
‘normative
image of a natural state of order’, exhibiting both
utopian and apologist characteristics.
The totality of diverse legal rules
deserves to be called a legal order if it deals with the totality of facts
needing to be regulated
legally in a manner which corresponds to the specific
intellectual, cultural, social and political situation in question and which
establishes directions for existing in this situation. In other words, the
principal context in which individual legal rules and
institutions are found is
not logical, but
morphological.[93]
Crucially, hegemony is not identical with Empire, which implicitly
presupposes a monist juro-political regime. Rather, hegemony is
founded upon
expressly pluralistic principles, reflected through the alternating
geo-political strategies of ‘domination’
(Herrschaft) and
‘influence’ (Einfluss), the later, because of its
predominately non-military nature, the more cost efficient of the
two.[94] The complex
interplay between material and ideological factors parallels, in turn, a
concomitant rivalry among contending conceptions
of international legal order.
‘This order emerges in every age as a result of the struggle of the legal
and political ideas
and positions of the rival powers of that age, in which the
leading power succeeds in making its ideas and positions prevail and
in securing
recognition of their natural
effectiveness.’[95]
The notion of hegemony as cultural Einfluss—or
geo-culture— renders its practical enforcement inextricable from
the wider process of juro-political legitimation.
Hegemony is... something
more and different than domination pure and simple: it is the additional
power that accrues to a dominant group by virtue of its capacity to lead society
in a direction that not only serves the dominant
group’s interests, but is
also perceived by subordinate groups as serving a more general interest. It is
the inverse of the
notion of ‘power deflation’ used by Talcott
Parsons to designate situations in which governmental control cannot be
exercised
except through the widespread use or threat of force. If
subordinate groups have confidence in their rulers, systems of domination can be
governed without resorting to force. But if that confidence wanes, they
cannot... When such credibility is lacking, we shall speak
of ‘dominance
without
hegemony’.[96]
The agonistic pluralism of values, in turn, reflects a correlative plurality
of legal personalities.
In sum, an international legal order can only be
assumed to exist if there is a plurality of relatively independent (although not
necessarily equal-ranking) bodies politic which are linked to each other in
political, economic and cultural relationships and which
are not subject to a
superimposed authority having comprehensive law-making jurisdiction and
executive competence. In their mutual
relations these bodies politic must
observe norms which are deemed to be binding on the basis of a legal
consciousness rooted in
religious, cultural and other common
values.[97]
The ‘true’ hegemonic actor, in either statist or non-statist form, succeeds in achieving recognition as a ‘surrogate of sovereignty’,[98] the sole agent capable of regulating global governance through its effective performance of the indispensable ‘anti-anarchical’ function.
There is a necessarily Foucauldian dimension to hegemony, as it exists
only through the successful exertion of material and ideological
power as
against some oppositional force.
[99] By this logic, it stands that no
imperial system could ever be a ‘true’ hegemon; the abolition of all
contending identities
and value systems would itself be identical with the
abolition of power. Hegemony, as the practical expression of international legal
order, requires a relative ‘dis-unification’ of geo-territorial
space(s), logically negating the existence of imperium. This, in turn,
serves as the juro-political corollary of the economic logic of the capitalist
world-system, which requires a disaggregated
political system: ‘the
imperial framework established political restraints which prevented the
effective growth of capitalism,
set limits on economic growth and sowed the
seeds of stagnation and/or
disintegration.’[100]
From Grewe’s perspective, the sub-text of the ‘Grotian
Moment’—alternatively, the ‘Spanish Epoch’
(1494–1648)[101]
of the ‘long’ sixteenth century
(c.1450–1640)—consists precisely in the ultimate failure of
the Iberian powers to successfully attain ‘true’
hegemonic status,
through either the successful application of military force (Herrschaft)
and of ideological legitimation (Einfluss). As Wallerstein succinctly
summarises: ‘From the sixteenth century on, the nation-states of western
Europe sought to create
relatively homogenous national societies at the core of
empires[102]...[the
establishment of the balance of power represented] the defeat of an attempt to
create political empires that would match economic
areas.’[103]
The crucial element missing from Grewe’s account, however, is an adequate
historical methodology; world-systems analysis provides
the necessary
supplement.
The contours of the capitalist world-economy establish the
operational determinacy of historical causation. The determinacy of
the
world-system, therefore, directly corresponds to the determinacy of legal
geo-culture: the expression of the constitutionality
of the system on a level of
analysis superior to that of the symbolically self-validating acts of the
individual actors (Holland
versus Portugal). In other words, the true legal
identity of each individual actor is determined by its localizable position
within
the over-arching totality of the structured system. It is necessary to
appreciate the nuanced interactions between the different
levels of analysis at
this ‘two-fold’ conjuncture: the macro-level of the interstate
modern world-system and the comparative
micro-level transformation of the
pre-1500 European world system/sub-system. Prior to the rise of the modern
world-system, Europe,
like the other regional trading blocs of the world (the
Indian Ocean; Ming China; Moghul India) formed a ‘sub-system’
or
local ‘world’ economy of its
own.[104] The
structural transformation of (western) Europe from a sub-system to a
‘true’ or ‘modern’ world-system
was the replication on
the interstate plane of the triumph on the micro-level of an ascendant form of
early/pre-industrial capitalism
over an entrenched feudal order. The
‘core’ of this sub-system was Lombardy, especially the principal
city-states of
Milan, Florence and, most importantly, both Genoa and
Venice.[105]
Parallel
to this structural transformation was the shift away from traditional military
and political patterns of ‘territorialism’
to a new configuration of
state-war-market relations.
Central to [the European sub-system] is the
definition of ‘capitalism’ and ‘territorialism’ as
opposite modes
of rule or logic of power. Territorialist rulers identify power
with the extent and populousness of their domains and conceive of
wealth/capital
as a means or a by-product of the ‘endless’ pursuit of territorial
expansion [T-M-T]. Capitalist rulers,
in conflict, identify power with the
extent of their command over scarce resources and consider territorial
acquisition as a means
and a by-product of an ‘endless’ accumulation
of capital [M-T-M]... The differences between the two logics can also be
expressed in terms of the metaphor of the states as ‘containers of
power’.[106]
Territorialist rulers tend to increase their power by expanding the size of the
container. Capitalist rulers, in contrast, tend to
increase their power by
piling up wealth within a smaller container only if it is justified by the
requirements of the accumulation
of
capital.[107]
Vital to the transformation of the European world system into the modern
world-system were an inter-locking set of institutional changes
within the core
states of the pre-modern system, initially centred in Venice, ‘the true
prototype of the capitalist state’,
which most successfully co-joined the
‘twinned’ activities of war- and state-making; that is, the
self-sustaining internalisation
of protection
costs.[108] The
monopolistic capitalism of the oligarchic
regime[109]
compelled Venice to seek a more sustainable cost-benefit alternative to
territoriality. This was achieved through a dogmatic reliance
upon strict
balance of power
considerations,[110]
the Communes effectively thwarting the expansionist ambitions of both the Empire
and the Papacy.[111]
The complimentary reliance upon naval superiority and mercenary troops
underwrote a viable self-sustaining ‘protection-producing
industry’,
enabling the transformation of organized forms of violence into a long-term
source of
revenue.[112]
This final point appears even more self-evident when one realizes that the
modern world-system is the practical realization of
the material policing of the
hierarchical divisions between the core and periphery.
The activities of the
more productive nodes [of the world-system] have tended to be geographically
concentrated in a few, relatively
small areas of the world-economy, which we may
collectively call the core zone. The less profitable nodes tend to have their
units
of economic activity more geographically dispersed, most of these units
being located in a much larger area we may call the peripheral
zone. But while
core and periphery are terms of geographical origin and geographical
consequence, they are not used here primarily
as spatial terms, but rather as
relational terms. A core-periphery relation is the relation between the more
monopolized sectors
of production on the one hand and the more competitive on
the other, and therefore the relation between world capital and world labour;
but it is also a relation between stronger capitalists and weaker capitalists.
The major consequence of integrating the two kinds
of activities is the transfer
of surplus-value from the peripheral sector to the core sector, that is, not
merely from the workers
to the owners but from the owners (or controllers) of
the of the peripheral productive activities to the owners (or controllers)
of
the core activities, the big
capitalists.[113]
There are three essential components of the modern world-system. Firstly, the
hegemonial interstate system emerged symbiotically with
a global(ising)
capitalist world-economy. On one level this implies the analytical
inseparability of statist and market forms: ‘the
States are...created
institutions reflecting the needs of [trans-national] class forces operating in
the world
economy.’[114]
On a deeper structural level, capitalism forms the indispensable economic
context for hegemonic contestation; non-capitalist economies,
because of lower
rates of efficiency, prove unable to sustain modern interstate
competition.
Hegemony in the interstate system refers to that situation in
which the ongoing rivalry between the so-called ‘great powers’
is so
unbalanced that one power is truly primus inter pares; that is,
one power can largely impose its rules and its wishes (at the very least by
effective veto power) in the economic, political,
military, diplomatic and even
cultural arenas. The material base of such power lies in the ability of
enterprises domiciled in that
power to operate more effectively in all three
major economic arenas—agro-industrial production, commerce, and finance.
The
edge in efficiency of which we are speaking is one so great that these
enterprises can not only outbid enterprises domiciled in other
great powers in
the world market in general, but quite specifically in very many instances
within the home markets of the rival powers
themselves.[115]
Secondly, the political logic of both intra- and interstate actors is
structurally embedded within the operational logic of the entirety
of the
world-system; the correct ‘unit of analysis’ is now understood to be
the totality of the capitalist
world-economy.[116]
Within world-system terms, hegemony refers only to
Situations in which the
[competitive] edge is so significant that allied major powers are de facto
client states and opposed major
powers feel relatively frustrated and highly
defensive vis-à-vis the hegemonic power...[However, there is never] any
moment
when a hegemonic power is omnipotent and capable of doing anything it
wants. Omnipotence does not exist within the interstate
system.[117]
Hegemony, therefore, is not a state of being but rather one end of a fluid
continuum which describes the rivalry relations of great
powers to each
other.[118]
The operational pairing of hegemony with geo-cultural legitimation and the
correlative inter-dependency between hegemony and
capitalism[119]
dictates that the historically ‘true’ hegemons—the successor
‘commercial republics’ of the UP, UK,
and the USA— be both the
most successful practitioner and advocate of liberalism and free market
economics during its prescribed
period of hegemonic
Einfluss.
Hegemonic powers during the period of their hegemony tended
to be advocates of global ‘liberalism’. They came forward
as
defenders of the principle of the free flow of the factors of production (goods,
capital and labour) throughout the world-economy.
They were hostile in general
to mercantilist restrictions on trade, including the existence of overseas
colonies for the stronger
countries. They extended this liberalism to a
generalized endorsement of liberal parliamentary institutions (and a concurrent
distaste
for political change by violent means), political restraints on the
arbitrariness of bureaucratic power, and civil liberties (and
a concurrent open
door for political
exiles).[120]
When reading De Indis, it is often easy to forget what a
revolutionarily capitalistic text it is. Nowhere is this more evident than
Grotius’ ‘twinning’
of the freedom of the seas (mare
liberum) with the unconditional right of freedom of trade (liberum
commercium). The text’s taxonomic re-classification of the high seas
as legally free directly facilitates the unlimited expansion of free
trade, the
summum bonum of the embryonic capitalist world-economy. Both mare
liberum and liberum commercium are presented as ‘sign’s
of Holland’s status as successful hegemon, a hegemony legitimated and
governed by natural
law.
We hold that, by the authority of that primary aw of
nations whose essential principles are universal and immutable, it is
permissible
for the Dutch to carry on trade with any nation
whatsoever...Consequently, anyone who abolishes this system of exchange [the
Portugese],
abolishes also the highly prized fellowship in which humanity is
united. He destroys the opportunities for mutual benefactions. In short, he
does violence to nature herself...In Seneca’s opinion, the supreme
blessing conferred by nature resides in these facts: that by means of the
winds she brings together peoples who are scattered in different localities, and
that she distributes the sum
of her gifts throughout the various regions in such
a way as to make reciprocal commerce a necessity for the members of the human
race.[121]
A more ambitious geo-cultural legitimation of the capitalist world-economy
can scarcely be imagined. Even more crucial is the manner
in which the
conjuncture of the world-economy rhetorically enforces the symbolic validation
of inter-state rivalry; for Grotius,
any breach of liberum commercium
serves as a legal basis of bellum iustum, consistent with the overall
normative framework provided by natural
law.[122] And
Holland’s hegemonic function in enforcing the freedom of both the high
seas and international trade is the nexus with the
third element of the
conjuncture: the collective emergence of the Nation-States of western Europe as
the self-regulating intra-hegemonic
‘core zone’ of the world-system,
with the remnants of international society being banished to either the
‘semi-periphery’
(Russia; the Ottoman Empire) or the
‘periphery’ (the Americas; the Indian Ocean).
Given slightly
different starting points, the interests of various local groups converged in
northwest Europe, leading to the development
of strong state mechanisms, and
diverged sharply in the peripheral areas leading to very weak ones. Once we get
a difference in the
strength of these state mechanisms, we get the operation of
‘unequal exchange’ which is enforced by the strong states
on the
weak ones, by core states on peripheral
areas.[123]
‘Unequal exchange’, of course, receives formal juridical
expression through the ‘lines of amity’ settlements
of the
Westphalian
System.[124] The
totality of the Westphalian interstate system constitutes the material basis of
Grewe’s international legal order and the
juro-discursive subject of
international law. Both the world-system and the world-economy emerged in
cognisable form in the mid-16th century, the exact same
period as the ‘classical era’ of international law. The common
historical denominators that link
all of these phenomena are western colonialism
and European global hegemony, that, through legal geo-culture, perform the
regulatory
task of governing the capitalist world-economy.
The
Nation-State, the primary signifier of both international law and the Grotian
Heritage, is, itself, an inherently expansionistic
construct, simultaneously the
cause and the effect of the political logic underlying the interstate
system—the discursive object
or ‘field’ of international legal
praxis—that created the functional and ‘rational’ necessity of
episodic
military conflict. world-systems analysis labels this interstate
‘eternal recurrence of the same’ as the ‘Long
Cycle’ or
‘periodic hegemony’.
The inter-state structures are governed by a
longer cyclical process that we may call the hegemonic cycle. Just as capital
accumulation
is maximized in the modern world-system when it operates via the
media of a partially free market...so it is the case that capital
accumulation
is maximized when the inter-state structures veer neither towards the extreme of
world-empire (a single overarching
political structure) nor towards the extreme
of the relative anarchy that derives from a situation in which there are
‘multiple
great powers’ all of somewhat equal overall strength
(military/political/economic/social). The ideal situation in terms of
capital
accumulation for the system as a whole is the existence of a hegemonic power,
strong enough to define the rules of the game
and to see that they are followed
almost all of the time [i.e. structural and relational power]. When rivalry is
replaced by hegemony
as [the] systemic condition, it does not mean that the
hegemonic power can do anything; but it does mean that it can prevent others
from doing things that will significantly alter the rules. The search for
hegemony in the interstate system is analogous to the search
for monopoly in the
world production system. It is a search for advantage never quite totally
achieved.[125]
Accordingly
Hegemony involves more than core status. It may be defined as
a situation wherein the products of a given core state are produced
so
efficiently that they are by and large competitive even in the other core
states, and therefore the given core state will be the
primary beneficiary of a
maximally free
world-market.[126]
The ‘liberal’ hegemon, in its historically necessary dual role as both as ‘surrogate government’ and enforcer of free trade, or liberum commercium, necessarily produces greater long-term benefits to rival core zone states; the Grotian Heritage serves as the discursive formation of the trajectory of Dutch hegemony, situated within the juro-political landscape of the capitalist world-economy. Thus, for Wallerstein, the grand narrative of the ‘sixteenth century is the story of how Amsterdam picked up the threads of the dissolving Hapsburg Empire, creating a framework of smooth operation for the world-economy that would enable England and France to begin to emerge as strong states, eventually to have strong “national economies”.’[127] The contending hegemonies of France and Britain in the 18th and 19th centuries, with the concomitant universalisation of the Nation-State form, signified the completion of the transition of the early modern capitalist world-economy to the modern world-system, subordinate not to the world government of territorial empire but to the historically determined system of decentralized and self-regulating global governance. Hegemony determines the nature and the ‘meaning’ of both the world-system and the legal geo-culture that governs it and invests it with juro-political coherence.
Structure: Normative Hierarchy
The central constitutional feature of the early
modern world-system—a decentralized capitalist world-economy that
precluded
imperial structures—required a legal geo-culture that was highly
ontological. The geo-cultural landscape of the ‘long’
16th century in fact constitutes the historical
embodiment of the central tenets of Koskenniemi’s groundbreaking
deconstruction
of international legal theory, From Apology to
Utopia.[128] For
Koskenniemi, international law is understood as an eternal ‘rhetorical
oscillation’, or ‘migration’,
between two contending poles of
legal speech: statist positivism and anti-statist natural law. Modern
international law emerges from
States but, paradoxically, its meaning and
application is not reduced to these same States because of the imminent risk of
defection
and the subsequent weakening of international public order; therefore,
a constant rhetorical movement to natural law is required
in order to maintain
an adequate degree of law-rule compliance by
States.[129] This
perpetual migration may be understood as an alteration between
ontological/normative and non-ontological/non-normative forms
of legal
reasoning. In the ‘long’ 16th century,
however, such a binary strategy was not viable as all forms of jurisprudence
were naturalist and, therefore, ontological/normative
to some degree. Therefore,
my own works seeks to expand upon the latent deconstructive potential of David
Kennedy’s seminal
article ‘Primitive Legal
Scholarship’.[130]
In Kennedy’s historical taxonomy the Grotian Heritage is classified as one
particular example of primitive legal scholarship
(c.1500–1648).
From a critical theory perspective, De Indis, now unfamiliarly
categorised as a ‘pre-modern’ text, may be re-interpreted as a
textual expression of a newly emergent
form of early modern global governance;
an ‘event’ expressing a ‘conjuncture’ contained within a
‘structure’.[131]
This structure is the longue duree of TimeSpace within which De
Indis invests the totality of the world-system with a normative hierarchy.
Although Kennedy does not employ the term, primitive legal scholarship is
a juridical example of the wider discursive formation
of Scholasticism.
This method, which was first fully developed in the early 1100s, both in law and theology, presupposes the absolute authority of certain books, which are to be comprehended as containing an integrated and closed body of doctrine; but paradoxically, it also presupposes that there may be both gaps and contradictions within the text: and it sets as its main task the summation of the text, the closing of gaps within it, and the resolution of contradictions. The method is called ‘dialectical’ in the twelfth-century sense of that word, meaning that it seeks the reconciliation of opposites.[132]
Primitive legal scholarship replicates all of the central features of Scholasticism, both in its resolution of analytical and synthetic approaches and in its virtual identification of legal with theological discourse. Accordingly, there is a naturalist-derived collapse of law into morality.
Unlike traditional scholars, primitive scholars do not distinguish between legal and moral authority, national and international law, or the public and private capacities of sovereigns... The primitives develop elaborate distinctions between various types of law—civil, natural, divine, etc., but they are differences of form or concreteness, not of binding power... Similarly, natural law and international law are not distinguished.[133]
International public order is invested with a ‘normative holism’—in James Boyle’s terms, a ‘deep normative order’[134]—that provides international law, as the geo-cultural discourse of such an order, with an underlying and unifying hierarchy of norms.
The primitives do not distinguish municipal law from international law, nor the law which binds sovereigns in their relations with their citizens. The primitive text envisions a single law which binds sovereigns and citizens alike. Propositions of civil law about self-defence are easily transposed into discussions of inter-sovereign relations. Both are governed by the same moral-legal order. Although the primitive may suggest that sovereigns and citizens are bound by different rules (the sovereign may have a higher duty to inquire into the justice of war, for example, than the citizen), he generally does not differentiate between two spheres of legal competence and activity... Such differences as exist seem to flow from differing capacities within a unified moral-legal system.[135]
What Kennedy and Boyle fail to mention, however, is that primitive legal
scholars relied upon two distinct, or ‘competing’ forms of
natural law theory. The Italian Humanist Alberico Gentili (1552–1608)
operated
within the Aristotelian tradition, which classified natural law as
habitus or socialitas, a recurrent or dispositional pattern of
human behaviour (impetus naturalis), universally
demonstrated.[136]
For Aristotle and the Civic Humanists of the 15th
century, the universe is grounded upon an anthropocentric form of metaphysics,
which we would label as ‘thin’
ontology:[137]
‘The natural world is a uniform and harmonious creation in which the
constitution of every individual part reflects the structure
of the hole. Man,
as an integral and exalted part of that world, is built to the same
specifications as the
universe.’[138]
Other primitive scholars operating within the Scholastic tradition, such as
Francisco Vitoria (1480–1546) and Francisco Suarez
(1584–1617),
adopt the theocentric approach of Thomism, grounded upon a ‘thick’
ontological classification of ius naturale as a direct emanation of
lex aeterna: ‘Since all things which are subject to divine
providence are regulated by the Eternal law... it is clear that all things
participate
to some degree in that law, in so far as they derive from it a
certain inclination to those actions and aims which are proper to
it.’[139] What
we witness here is a ‘weaker’ variant of modern law’s
alteration between the ontological and the non-ontological.
While
Aristotelianism clearly relies upon the transcendental—that is, the true
‘meaning’ of the profane world is
guaranteed by criteria that are
not wholly empirical—it nevertheless places far less reliance than does
Thomism upon the determinant
operation of the supra-sensory realm (i.e.
‘God’). The Scholastic shift to lex aeterna, by contrast,
signifies the transition of ius naturale from the Social to the
‘onto-theological’; De Indis is very much a Scholastic text,
which accords well with J.L. Brierly’s declaration that Grotius was
‘above all else a
theologian’.[140]
And Grotius leaves us in no doubt concerning the inherently theological nature
of his text: ‘The act of commanding is a function
of power, and primary
power over all things pertains to
God,[141] in the
sense that power over his own handiwork pertains to the artificer and power over
their inferiors, to their
superiors.’[142]
Furthermore, the ontological ‘turn’ of Scholasticism facilitates a
wholly derivate and un-critical reliance upon classical
authority, resulting in
the total abnegation of authorial originality, which fits perfectly with De
Indis’ almost neurotic obsession with citation.
Primitive Legal Scholarship connects legal authority and doctrinal results in a direct and unproblematic fashion. Specific authoritative propositions about peace, justice or the natural order are linked unproblematically with doctrines. The doctrines are valid because the authoritative propositions are valid. Relatively little energy goes into interpretation—even less into methodological elaboration or argument. Typically, if primitives criticize each other at all, they begin with a statement of their opponent’s doctrinal position and an assertion that it is wrong. They then elaborate a connection between some principle or some authority and their preferred solution, leaving the reader to dismiss the false view once the true connection has been carefully made.[143]
Prima facie, this may appear to invalidate a central component of my
argument; De Indis’ ‘embeddedness’ within primitive
legal scholarship would seem to preclude the applicability of
Koskenniemi’s
binary model precisely through the apparent absence of
positivism from primitive legal
discourse.[144] I
argue, however, that even within the ‘primitive’ De Indis
there are discernible traces of the quintessentially modern ‘discursive
oscillation’. The crucial point is that the rhetorical
migration was not
between the meta-level antinomies of positivism and naturalism, but within a
‘micro-’ or ‘restrictive’
oscillation between contending
sub-discourses within naturalism, namely the rhetorical competition between
‘thick’ and
‘thin’ ontology which directly equate to
Thomist lex aeterna and Aristotelian habitus respectively. In a
sense, there is no ‘true’ Grotian legal ontology; there is only an
alternating ‘thickening’
and ‘thinning’ of ontology, a
rhetorical effect achieved through this discursive oscillation between the
contending poles
or antinomies. I read De Indis as being premised upon
four cardinal antinomies, each signifying ‘micro’-shifts between
‘thick’ and ‘thin’
ontology: these are
Scholasticism/Civic
Humanism,[145]
imperium/dominium,[146]
mare liberum/mare
clausum,[147]
and
piracy/privateering.[148]
These discursive oscillations between the respective poles inhabit the specific
contours of the world-economy. The 17th century
constituted a qualitatively distinct phase within the global evolution of the
modern
world-system,[149]
witnessing the ‘fracturing’ of trans-national legal space and the
accompanying birth trauma of the colonialist interstate
system. The rise of an
authentically ‘inter-national’ plane corresponded to a discursive
shift from ‘thick’
towards ‘thin’ ontology,
habitus largely—albeit not completely—supplanting lex
aeterna over the course of the 18th
century.[150]
Although Wallerstein has focussed the greater part of his efforts on the late
19th and 20th centuries, the
time-frame when the modern world-system attained the zenith of its development
under the British and the American
hegemonic periods, it is fairly simple to
project some of his most critical theoretical insights backwards into the
16th and 17th centuries, the
conceptually distinct ‘pre-modern’ phase of the
world-economy.
From this perspective, primitive legal scholarship can be
interpreted as a logically necessary juro-political construct discursively
correlative with the practical requirements of an ‘early’ or
‘primitive’ system of global governance, with
the historically
requisite form of geo-culture resulting from the violent transition from
Portuguese/Iberian to Dutch hegemonic
periodicity.[151] A
critical deconstruction of De Indis reveals that the foundational
precepts of natural law are best understood as an early variant of Universalism,
the ubiquitous ‘clusters
of rules’, including mare liberum
and liberum commercium, as expressions of a normative holistic
order.[152] As with
the world- system that it seeks to determine, De Indis displays a
thoroughly heterogenous concern with the multiversum of legal identities
and personalities; the State, although clearly present within the text as the
competing hegemons of Holland and
Portugal, merely constitute a singular example
of trans-national juro-political actor whose actions are strictly governed at
all
times by the ius naturale that ontologically descends from the
universal lex aeternae. The civic, or ‘positive’, law of the
State (ius civile), while paramount within its own domain, is both
juridically and ontological subordinate to transcendental Universalism. This
anti-statist
‘deconstructive heteronomy’ is, in fact, perfectly
consistent with the heterogenous logic of the early modern world-system
of the
‘long’ 16th century; the
‘State’, as a relative new-comer to the international arena, was
merely a recent addition to a host of stock
characters. The early modern
world-system and, through it, early modern capitalism, although predicated upon
a single over-arching
division of labour, nevertheless constituted an internally
coherent network of multiple polities, not by happenstance but as ‘obverse
sides of the same
coin.’[153]
Nothing else better exemplifies how natural law performed the function of
policing normative holism in the 16th and
17th centuries that liberalism and universalism have
performed from the 19th to
21st centuries.
Given the particular
configurations of the world-system, natural law, in competition with its main
contemporary ideological rival
civic
humanism,[154]
proved itself best adapted to express the juro-political imperatives of a
heterogenous modern world-system’s polyarchy of early-state,
sub-state,
and non-state actors. The de facto hegemonic ‘responsibility’ of
global governance devolved upon natural law
as the discursive legitimation of
trans-national order in the absence of a practicable
world-empire/imperium. Precisely because European/core zone hegemony was
only commencing in the 16th century, the universal
exportation of the Nation-State system had not yet been effected by the time of
the Grotian Heritage. Core
zone hegemons were, in conjunction with a plethora of
non- and pre-State actors, units, territories, and empires (e.g.
‘India’;
‘China’; ‘the East Indies’),
effectively belaying the applicability, or even the relevance, of a realist
statism.
Grotius’ discursive continuity with the thick ontology of the
Scholastic variant of primitive legal scholarship is underlined
through his
‘apologetic’ role of legitimating Holland’s position within
the world-economy. Like Kennedy, Grewe
classifies Grotius as the final
representative of a qualitatively distinct early phase of international
law—the Spanish Age—corresponding
to a unique rhetorical deployment
of naturalism.
The most famous name in international law in the Spanish Age
remains that of the Dutchman Hugo Grotius. It is, nevertheless, justified
to
call this epoch the ‘Spanish’ Age of international law because the
ideas held by the States which fought against Spain
were not only marked by the
colour of this age but also entangled in a polemical dependence on Spanish ideas
and concepts. Grotius’
famous treatise on the Freedom of the Seas [Mare
Liberum][155] is
a classic example of this
relationship.[156]
Herein, ‘the colour of this age’ historically corresponds to the political logic of hegemonic periodicity prevailing between ‘Iberia’ (Portugal and Spain) and the United Provinces. Furthermore, the practical medium of global interaction was the world-economy; that is, ‘private’ or ‘economic’ entities, such as the incorporated Regulated or Joint-Stock companies—most notoriously, the VOC—themselves effected vital international political transactions and were, therefore, accredited with either a partial or a plenary form of legal personality. During the Grotian Moment, Holland/UP did not globally construct a single polity (i.e. an ‘empire’), but a multi-polity of both public/political and private/economic sovereignties and quasi-sovereignties. The oligarchic Dutch ‘State’ and its juro-political counterpart the VOC, governed, with variable levels of effectiveness, a plurality of trade-networks, international commercial entities, and military outposts, with all of the most vital of ‘characterising’ statist functions, such as war-making and treaty-signing, being actively shared between them. The rhetorical contours of the allegedly ‘modern’, and ‘progressive’, Grotian Heritage corresponding perfectly to the inherent, and irreducible, pluralism of the early modern world-system; far from serving as the harbinger of some kind of ‘humane governance’,[157] Grotius is the tireless advocate of virtually all of the most ‘illiberal’ characteristics of sixteenth-century global governance, most notably the (quasi-) sovereignty of trans-national trading corporations; the radical privatisation of international political authority and legal personality; the quasi-statist functionality of organised crime; and the furtherance of the colonialist dispossession of Indigenous Peoples.[158]
Conclusion: Ontology as Governance
The translation of De Indis into the
conceptual framework of world-systems analysis yields valuable insights for both
the analyst and the critical legal scholar.
Not only does the Grotian text bear
all four of Franck’s ‘signs’ of international law, but it also
clearly illustrates
how these signs double as the signifiers within TimeSpace of
a localizable process of hegemonic contestation. The tactical requirements
of
this hegemonic contestation, in turn, explain the author’s turn towards
the ontology of naturalism as the only viable discursive
basis of the
‘rule legitimacy’ that the hegemonic modern world-system required.
Additionally, this helps us resolve one
of the outstanding issues in Grotian
scholarship. The author’s underlying continuity with primitive legal
scholarship is deductively
inferred from the text’s two signature
characteristics: the attribution of a normative, or holistic, order to
interstate relations,
and the constitutional re-formulation of this order in
strict accordance with the operation of the early modern world-system, a global
social system based upon ‘extensive commodity chains of production that
cross multiple political
boundaries’.[159]
De Indis systematically expresses the meta-normative
‘language’ of primitive international law as both textual and
material praxis,
thereby legitimising the structural power of Dutch hegemony.
Simply put, the text ‘translates’ the operational requirements
of
the world-system (practice) into the discursive terms of a highly ontological
form of naturalist jurisprudence (theory).
Kennedy has claimed that he
‘cannot think of another legal discipline’ besides international law
‘in which the
basic organising ideas of the liberal state are so visible
in the doctrinal
structure.’[160]
World-systems analysis demonstrates why this must necessarily be the case; both
naturalism and its secular twentieth-century successor,
liberalism, form a
central pillar of geo-culture, the ideological legitimation apparatus of the
interstate system that simultaneously
doubles as the operational domain of
international law. It is precisely this ‘lingering presence’ of an
ontologically
grounded rule legitimacy that continues to ‘haunt’
mainstream international legal theory and practice. Thus, when a progressive
scholar legal scholar such as Philip Allott proclaims that international law
possesses a ‘three-fold social
function’,[161]
he is not only invoking the deep normative holism of natural law, he is also
unconsciously evoking Wallerstein’s notion of
geo-culture. For the
analyst, ‘liberalism’ signifies national self-determination,
developmentalism, the universality
of moral and cultural values, the objective
nature of science and technology (i.e., an intelligible world-order),
progressivism,
and democratic
governance.[162]
Through a series of precise mimetic substitutions—science for recta
ratio, universalism for ius naturale—liberalism, as
contemporary geo-culture, is able to re-present itself as both the historical
successor to and philosophical
surrogate of naturalism. Thus, in Allott’s
own words
In international law, there is really only one problem, what to do
about natural law. In this sense natural law should be understood,
not in the
religious sense which would be to explain its existence in terms of the divine
origin of nature [lex aeternae], but in a secular system. The question
raised by natural law is whether it can be said that a legal system, such as
international
law, should conform to some general underlying pattern or
principle, or whether it must be said that the rules of international law
must
justify themselves in their own terms and in terms of their end-purposes being
useful to, and accepted by,
States.[163]
The vital link here is, of course, provided by the concept of governance, the ‘command mechanism of a social system and its actions that endeavor to provide security, prosperity, coherence, order and continuity to the system.’[164] Operationally, governance proves inextricable from legitimacy,[165] the voluntary obedience of the actors in a system to consensus-generated, inter-subjective values.[166] Although not necessarily supported by ‘any legal or constitutional authority’, legitimacy exists wherever some sort of governance system predictably and effectively guarantees the completion of those tasks ‘that have to be performed to sustain the routinized arrangements of prevailing order and that may or my not be performed by government.’[167] Finally, governance is the mode of political control ideally suited to the practical requirements of the radically heterogenous world-system. The capitalist world-economy requires global governance precisely because the preconditions for global government, or ‘empire’, are absent—an absence that is the outcome of strict historical necessity. For both the analyst and the international lawyer
What we need is a conceptualisation that enables us to penetrate and understand government-like events that occur in the world of states even in the absence of government...Global governance is governing without sovereign authority, relationships that transcend virtual frontiers. Global governance is doing internationally what governments do at home.[168]
The naturalist ontology of the Grotian Heritage bequeaths us a system of
global governance that, through deconstructive critique,
stands revealed as
being as ontological and as anti-positivist as the primitive legal scholarship
from which it descended. As James
N. Rosenau has observed
Such an
ontology—and the paradigms that flow from it—should recast the
relevance of territoriality, treat the temporal
dimensions of governance as no
less important than the spatial dimensions, posit as normal shifts of authority
to sub-national, trans-national,
and nongovernmental levels, and highlight the
porosity of boundaries at all levels of
governance.[169]
In short, Rosenau’s ontology of global governance is identical to the metaphysical foundation of contemporary geo-culture. The modern world-system, no less than the geo-culture that legitimises it, is a prisoner of its own universalist ontology. This is the domain not only of world-systems analysis but of deconstruction as well.
[1] Senior Lecturer,
Public International Law, Monash University, Melbourne. The author would like to
thank Ms. Shing Khoo for her valuable
assistance in preparing this text for
publication.
[2] Eric
Wilson, The Savage Republic: De Indis of Hugo Grotius, Republicanism, and
Dutch Hegemony in the Early Modern world-system (C.1600-1619) (Leiden:
Martinus Nijhoff,
2008).
[3]
‘Concerning the Indies’, but more commonly known as De iure
praedae, ‘Commentary on the Law of Prize and Booty.’ For a full
length discussion concerning the problematic title of the text,
see Eric Wilson,
‘On Heterogeneity and the Naming of De Indis of Hugo
Grotius’, The Journal of the Philosophy of International Law, I/1
(2006), 121-41,
passim.
[4]
This is, of course, the privilege of the hegemon. ‘The most that can be
said about a hegemonic power is that it will seek to
construct an international
order in some form, presumably along lines that are compatible with its own
international objectives and
domestic structures.’ John G. Ruggie,
“Multilateralism Matters”, in id (ed.) Multilateralism
Matters (New York: Columbia University Press, 1993), 1-25 at
25.
[5] See Wilson,
The Savage Republic, chapters four through six, 189-391,
passim.
[6]
Biographical excursus in fact proved indispensable to the finished work, despite
my original intent to the contrary. ‘Traditional
History is concerned with
the short time span of biography, of the event. It is not the sort of time which
is of any interest to
economic or social historians.’ Fernand Braudel,
‘Toward a Historical Economics’, in id, On History (Chicago:
The University of Chicago Press, 1980), 83-90 at
86.
[7] Fernand
Braudel, ‘History and the Social Sciences’, in id, On
History, 25-54 at
48.
[8] Anthony
Giddens, The Nation-State and Violence. Volume Two of a Contemporary Critique
of Historical Materialism (Cambridge: Polity Press, 1985),
161.
[9] Ibid.
165.
[10] Ibid.
166.
[11] Ibid.
170. Emphasis in the
original.
[12] For
my own treatment of world-system analysis’ treatment of the
‘problem’ of State and class formation, see Wilson,
The Savage
Republic,
86-93.
[13] Giddens
makes this same point, although in less hostile terms. For him,
Wallerstein’s circulationism puts him closer to Weber
than to Marx in
offering an ‘essentializing’ definition of capitalism, which is
understood as ‘the sale of product
in a market for profit’ rather
than as the master-sign of a particular configuration of the totality of
social/class forces.
Giddens,
166.
[14] For a
classic neo-Marxist expression of this view, see Theda Skocpol,
‘Wallerstein’s World-Capitalist System: a Theoretical
and Historical
Critique’, American Journal of Sociology, 82/5, (1977),
1075-97.
[15]
Giddens, 167. See R.W Connell on this point: ‘Wallerstein repeatedly
speaks of struggle and practice, but it is hard to feel them in his more
general formulations.’ Cited in Giddens, fn. 22 at
359.
[16] Ibid.
168.
[17] See
Immanuel Wallerstein, World-Systems Analysis: an Introduction (Durham:
Duke University Press,
2004).
[18]
Immanuel Wallerstein, The Uncertainties of Knowledge (Philadelphia:
Temple University Press, 2004),
92-3.
[19] It is
important to note that world-system’s continuing focus upon labor, a
central component of its broadly neo-Marxist heritage,
allows it to continue to
operate as a coherent ‘meta-narrative’ while simultaneously escaping
the double trap of teleology
and determinism through its Braudelian emphasis
upon geo-spatial localisation/pluralism. Therefore, Wallerstein is able to
‘re-visit’
the otherwise difficult problem of ‘the grand
narrative’ with no serious risk of philosophical incoherence; for a fuller
discussion, see below. Once again, the ‘return of Braudel’ proves
vital.
[20]
Immanuel Wallerstein, Unthinking Social Science; the Limits of the
Nineteenth-Century Paradigm, 2nd edn (Philadelphia:
Temple University Press, 2001), 7-22; Immanuel Wallerstein, After
Liberalism (New York: New Press, 1995), 1, 49 and
72-122,
[21]
Richard Lee, personal communication with the author. The ‘past five
centuries’, of course, is the Braudelian longue duree, or
‘long wave’, of the macro-unit level of analysis, the Modern
world-system
itself.
[22] This
term is derived from the work of Michel Foucault. See Michel Foucault,
Power/Knowledge: Selected Interviews and Other Writings 1972-1977. Edited
by Colin Gordon (Brighton: The Harvester Press,
1980).
[23]
Wallerstein, Uncertainties,
148.
[24] Richard
Lee, ‘Structures of Knowledge’, in Terence K. Hopkins and Immanuel
Wallerstein (eds.), The Age of Transition: Trajectory of the World-System,
1945-2005 (London: Zed Books, 1996), 178-206 at
202.
[25] Wilson,
The Savage Republic, chapter two, 57-135,
passim.
[26]
Wallerstein, Uncertainties,
146.
[27] Lee,
23.
[28]
A highly unsatisfactory and frequently misleading term that I employ as a
generic de-notation of what might be clumsily referred
to as ‘post-Marxist
French critical
theory’.
[29]
An observation that has been made supremely well by Wallerstein’s own
part-time open Marxist collaborator Etienne Balibar on
Marxism’s failure
to self-reflexively understand itself as an ideological construction. For
Balibar, ideology ‘points
to the element in which philosophy itself is
formed, not just as something “unthought” within it, but as a
relation to
social interests and intellectual difference itself, a relation
forever irreducible to a simple opposition between reason and
unreason...However,
the most flagrant of Marxism’s shortcomings has been
precisely the blind spot which is its own ideological functioning, its
own
idealization of the “meaning of history”, and its own transformation
into a secular mass, party and State religion
have represented for it.’
Etienne Balibar, The Philosophy of Marx, Trans. Chris Turner (Verso:
London, 1995),
120-21.
[30] In
this paper I eschew all attempts to define this term with precision. Wallerstein
appears to be deploying the collected writings
of Jacques Derrida as a generic
term for post-Marxist, or ‘New, Critical Theory’ in general. See fn.
28, above.
[31]
Cited in Immanuel Wallerstein, European Universalism: the Rhetoric of Power
(The Free Press: New York, 2006) at
75.
[32] See
Terence K. Hopkins and Immanuel Wallerstein, ‘Capitalism and the
Incorporation of New Zones into the World-Economy’,
Review, X/5-6,
Supp. (1978),
763-79.
[33] Eric
R. Wolf, Europe and the Peoples Without History (Berkeley: University of
California Press, 1997),
3-23.
[34]
Wallerstein, World-Systems Analysis,
21.
[35]
Ibid.
[36] Wilson,
The Savage Republic,
60-3.
[37]
Wallerstein, European Universalism, passim.
[38] Wallerstein,
Uncertainties,
69.
[39]
Wallerstein, European Universalism,
48.
[40]
Wallerstein, Uncertainties,
47.
[41] Wilson,
The Savage Republic, 72-109,
passim.
[42]
Wallerstein, European Universalism,
82.
[43]
Wallerstein, World-Systems Analysis,
12.
[44] As with
‘post-structuralism’, ‘critical legal scholarship’
eludes precise definition. I a using the term
here in a rather simple sense,
indicating the professional legal scholar who is employing the categories of
Critical Theory in elucidating
the nature, object, and purpose of international
law.
[45]
Wallerstein, European Universalism,
39.
[46]
Wallerstein, World-Systems Analysis,
21.
[47] Not
surprisingly, the overriding political goal of
post-colonialism—emancipation—necessarily imposes strict limits to
the degree of its direct engagement with
deconstruction.
[48]
Wallerstein, European Universalism, 48-9. Emphasis added. For
Wallerstein’s critical engagement with Edward Said’s
Orientalism, see ibid,
34-49.
[49] For the
standard contemporary account of this argument, see Anthony Anghie,
Imperialism, Sovereignty and the Making of International Law (Cambridge:
Cambridge University Pres,
2004).
[50] Thomas
Franck, ‘Legitimacy in the International System’, in Martti
Koskenniemi (ed.), International Law (New York: New York University
Press, 1992), 157-211 at
158-59.
[51]
‘The legitimacy of a rule, or of a rule-making or rule-applying
institution, is a function of the perception of those in the
community concerned
that the rule, or the institution, has come into being endowed with legitimacy:
that is, in accordance with the
right process.’ Ibid.
163.
[52] Ibid.
157.
[53] Ibid.
162.
[54] Martti Koskenniemi, ‘International Law and Hegemony: A Reconfiguration’, Cambridge Review of International Affairs, 17(2), 2004, 197-218 at 198-99.
[55] Ibid. 199.
Emphasis
added.
[56]
Ibid.
[57] See
Wilson, The Savage Republic, chapter one, 17-56, passim, but
especially
51-6.
[58] Ibid.
chapter six, 349-91,
passim.
[59]
Gary Ulmen, ‘Towards a New World Order: Introduction to Carl
Schmitt’s The Land Appropriation of a New World’,
Telos, 109
(1996), 3-27 at
17-19.
[60]
Described in Hugo Grotius, [De Indis] De Iure Pradae Commentarius. Comentary
on the Law of Prize and Booty, trans. Gwladys L. Williams and Walter H.
Zeydel (Wildy & Sons: London, 1964), 306–17. See also C. G. Roelofsen,
‘Grotius
and State Practice of His Day’, Grotiana, NS 10
(1989), 3–46, passim, and Martine van Ittersum, ‘Hugo Grotius
in Context: Van Heemkerck’s Capture of the Santa Catarina and its
Justification
in De Jure Praedae (1604-1606)’, Asian Journal of the
Social Sciences, 31/3 (2003), 511-48 at 514–20 and
526–34.
[61]
The Catarina was condemned as ‘a good and just’ prize by the
Dutch Admiralty Court on 9 September, 1604. J.H.W. Verzijl, The Law of the
Maritime Prize (Part IX–C of International Law in Historical
Perspective) (Dordrecht: Kluwer, 1992), 10. See Van Ittersum,
‘Hugo Grotius in Context’,
passim.
[62]
See Wilson, The Savage Republic, chapter five, 261-347,
passim.
[63]
Neils Steensgaard, Carracks, Caravans and Companies: The Structural Crisis in
the European-Asian Trade in the Early 17th Century
(Denmark: Studentlitteratur, 1973),
244–45.
[64]
Van Ittersum has usefully discussed the multi-faceted juro-political nature of
the text, which unevenly combines elements of both
legal memorandum and
political pamphlet.
Although De Jure Praedae cannot be called a legal brief in the
technical sense of the word-it is half theory, half apology—the manuscript
does exemplify
the classical principles of forensic rhetoric formulated by
Cicero and Quintilian. Its representation of events always serves to
justify
Dutch trade and privateering in the East Indies.
Van Ittersum, ‘Hugo
Grotius in Context’, 513–4. It has been conclusively shown that
De Indis was never actually submitted in the pleadings concerning the
Santa Catarina. C. G. Roelofsen, ‘Some Remarks on the
“Sources” of the Grotian System of International Law’,
Netherlands International Law Review, 30 (1983), 73–80,
passim.
[65]
This interpretation has been powerfully critiqued by Martine van Ittersum,
Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of
Dutch Power in the East Indies (1595–1615) (Leiden: Brill, 2006),
167–77.
[66]
From the perspective of the VOC, the Admiralty verdict of lawful prize
had settled all the legal aspects of the case. They realized, however, that
it would take more than a verdict to win widespread political
support for their
cause, both domestically and internationally. They needed Grotius to advertise
Portuguese iniquity to an audience
that was not privy to Amsterdam courtrooms or
the assembly hall of the Estates of Holland—potential allies like the
kings of
France and England, for example, and the Estates of Utrecht,
Overijisel, Gelderland, Friesland and Groningen.
Van Ittersum, ‘Hugo
Grotius in Context’,
524.
[67] Nigel
Purvis, ‘Critical Legal Studies in Public International Law’,
Harvard Journal of International Law, 32/1 (1991), 81-127 at
112.
[68] Or,
merely cynically ‘assert’?
[69] Ibid. 113.
See Shirley V. Scott, ‘International Law as Ideology: Theorizing the
Relationship between International Law and
International Politics’,
European Journal of International Law, 5/3 (1994), 313–25,
passim.
[70]
On the spatial demarcations of world economies and world systems, see Fernand
Braudel, The Perspective of the World (vol. iii of Civilization and
Capitalism 15th –
18th Century) (New York: Harper & Row,
Publishers, 1984), 21–45.
We may deduce that a world-economy is a sum of individualized areas, economic
and non-economic, which it brings together; that it
generally represents a very
large surface area (in theory the largest coherent zone at a given period, in a
given part of the globe);
and that it usually goes beyond the boundaries of
other great historical divisions.
Ibid.
24.
[71] Hendrik
Spruyt, The Sovereign State and its Competitors: An Analysis of Systems
Change (Princeton: Princeton University Press, 1994),
34–57.
[72]
Ibid.
109–29.
[73]
Ibid.
130–50.
[74]
Ibid. 118–20 and
172–78.
[75]
Ibid.
114–17.
[76]
See below.
[77]
Roelofsen, ‘Grotius and State Practice of His Day’, 16 and
44–6.
[78]
Roelofsen, ‘Some Remarks on the “Sources” of the Grotian
System of International Law’, 79.
[79] In essence,
it is an indispensable prerequisite for hegemony that the hegemonic State be the
single most successful in both manipulating
and regulating the global capitalist
economy. In other words, in addition to being the most militarily powerful, the
hegemon must
necessarily be, in both absolute and relative terms, the most
successful free-market nation. The historical ‘paradox’
of Iberia
was that both Portugal and Spain militarily succeeded in establishing the
material parameters of the world-system but failed
to achieve the requisite
degree of systemic capitalist transformation, both nationally and
globally.
[80]
George Modelski and William R.Thompson, Seapower in Global Politics,
1494–1993 (London: Macmillan Press, 1988), 4.
[81] Geoffrey
Parker, ‘Europe and the Wider World, 1500–1750: the Military
Balance’, in James D. Tracy (ed.), The Political Economy of Merchant
Empires (Cambridge: Cambridge University Press, 1991), 161–95,
passim.
[82]
Immanuel Wallerstein, ‘The Inter-State Structure of the Modern
world-system’, in Steve Smith, Ken Booth and Marysia Zalewski
(eds.),
International Theory: Positivism and Beyond (Cambridge: Cambridge
University Press, 1996), 87-109 at 99. ‘The great technological
“revolution” between the
fifteenth and eighteenth centuries were
artillery, printing and ocean navigation... Only the third—ocean
navigation—eventually
led to an imbalance, or “asymmetry”
between different parts of the globe.’ Fernand Braudel, The
Structures of Everyday Life: the Limits of the Possible (vol. i of
Civilization and Capitalism 15-18th Century)
(New York: Harper & Row Publishers, 1981), 385. Intriguingly, Otto
Hintze has argued that national reliance upon maritime forces, or
‘Navalism’, facilitates State development
through pre-empting the
emergence of Absolutism.
A military system whose centre of gravity is in sea power will influence the
organization of the State in its own peculiar way, different
from the way of the
Continental military system [that incorporated the ‘failed’ hegemons
of Iberia and, arguably, France].
Land forces are a kind of organization that
permeates the whole body of the State and gives it a military cast. Sea power is
only
a ‘mailed fist’ reaching out into the world; it is not suitable
for use against some ‘enemy within’... Land
forces have stood since
the beginning in more or less intimate alliance with the propertied classes;
they still carry something of
a feudal tradition in them. Sea power lacks all
feudal vestiges. To an eminent degree it serves the interests of trade and
industry.
Its place is with the modern forces in life, simply by virtue of the
vital importance that technology and capital have in its development.
Sea power
is allied with progressive forces, whereas land forces are tied to conservative
tendencies.
Otto Hintze, ‘Military Organization and the Organization of
the State’, in id., The Historical Essays of Otto Hintze, ed. Felix
Gilbert (Cambridge: Cambridge University Press, 1975), 180-215 at
214.
[83] Philip E.
Steinberg, The Social Construction of the Ocean (Cambridge: Cambridge
University Press, 2001),
69.
[84]
Wallerstein, ‘The Inter-State Structure of the Modern-World System’,
99–100:
In each case [of hegemonic transition], the sea(/air)-power defeated the
land-based power. In each case, the power committed to maintaining
the basic
structure of a capitalist world-economy won out against the power that was
pushing in the direction of transforming the
system into a world-empire [i.e.,
territorialism]. In each case the thirty years’ war itself was the
decisive factor in achieving
the necessary marked superiority in productive
efficiency within the World-Economy as a whole and in particular relative to the
main
rival [Portugal/Venice; Holland/Portugal-Spain; England/France;
USA/Germany-Japan]. In each case, the war itself increased enormously
the
military strength of the putative hegemonic power. And in each case, the drive
to achieve hegemonic status had been a very long
process, stretching over many
decades at least. The end of each thirty years’ war marked a significant
stage in the contraction
of the inter-state system: the Treaty of Westphalia,
the Concert of Europe [Utrecht; Vienna], and the United Nations. Each time,
the
hegemonic power sought to create an order in the system that would guarantee its
economic advantage over the long
run.
[85] See
Wilson, The Savage Republic, chapter four, 189-261,
passim.
[86]
Grotius, De Indis, 345. For the ramifications of this ‘Infidel
alliance’, see Wilson, The Savage Republic, chapter eight, 467-512,
passim.
[87]
The Santa
Catarina.
[88]
Given the context of the Dutch Revolt, presumably this refers to Flanders, the
Netherlands, and
Germany.
[89] Ibid.
349–50. See also, ibid.
350–1.
[90]
Purvis, ‘Critical Legal Studies in Public International Law’,
89.
[91] Giovanni
Arrighi, ‘The Three Hegemonies of Historical Capitalism’,
Review, 13/3 (1990), 365–408 at
375.
[92] Robert
Gilpin, War & Change in World Politics (Cambridge: Cambridge
University Press, 1981),
131.
[93] Wihelm G.
Grewe, The Epochs of International Law (New York: Walter de Gruyter,
2000), 32.
[My] starting point was the history of modern international law, and [my]
endeavour not so much the systematic presentation of that
history as its
morphological division, its periodisation, and the development of a system of
typological concepts. This task has
been seriously neglected in the study of
international law up to the present day [1943] in contrast to the situation in
which those
who study politics and constitutions find themselves...By contrast,
the establishment of typological concepts in international law
is still so
underdeveloped that, when one speaks of ‘classical international
law’, one can by no means be certain of
being properly understood.
Ibid. 1.
[94]
See Eric Wilson, ‘ “Much Wailing and Gnashing of Teeth”: On
the Loneliest Superpower and the Flailing of Impotent
Limbs’, Monash
University Law Review, 29/2 (2003), 410–16,
passim.
[95]
Grewe, 275. ‘Historically, every approach in the past to a world society
has been the product of the ascendancy of a single
power.’ Edward H. Carr,
The Twenty Year’s Crisis 1919–1939: An Introduction to the Study
of International Relations (London: Macmillan, 1954),
232.
[96] Giovanni
Arrighi and Beverly J. Silver, ‘Introduction’, in id. (eds),
Chaos and Governance in the Modern World System (Minneapolis: University
of Minnesota Press, 1999), 1–36 at
26–27.
[97]
Grewe, The Epochs of International Law, 7.
The political and international legal programmes of the modern European
States were all, however, expressions of ideologies of national
expansion. The
stronger the leading position of the particular predominant power, the more that
State marked the spiritual vision
of the age, the more its ideas and concepts
prevailed, the more it conferred general and absolute validity on expressions of
its
nationalist expansionist ideology.’
Ibid. 23.
[98]
Kenneth M. Waltz, A Theory of International Politics (Reading:
Addison-Wesley, 1979),
16.
[99] ‘One
exists only when fixed in definite relations of domination.’ Michel
Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan
Sheridan (Harmondsworth: Penguin Books, 1979),
291.
[100]
Immanuel Wallerstein, The Capitalist World-Economy (Cambridge: Cambridge
University Press, 1979),
37.
[101] Grewe,
The Epochs of International Law,
137–275.
[102]
Immanuel Wallerstein, The Modern World-System I: Capitalist Agriculture and
the Origins of the European World-Economy in the Sixteenth Century (New
York: Academic Press, 1974),
20.
[103] Ibid.
184.
[104] A
‘sub-world’ system does not have to be truly global, merely
‘larger than any juridically-defined unit.’
Wallerstein, The
Modern world-system I, 15. The European world system, however, was unique
among all of the various sub-systems of the world in being subject to an
inherently
unlimited expansionism. See Robert Bartlett, The Making of Europe:
Conquest, Colonization and Cultural Change 950–1350 (Princeton:
Princeton University Press, 1993), 5–23 and
243–68.
[105]
William H. McNeill, The Pursuit of Power: Technology, Armed Force, and
Society Since A.D. 1000 (Chicago: University of Chicago Press, 1982),
63–116, passim; Edwin S. Hunt and James M. Murray, A History of
Business in Medieval Europe, 1200–1550 (Cambridge: Cambridge
University Press, 1999),
87–90.
[106]
See Giddens,
13.
[107]
Giovanni Arrighi, ‘The Three Hegemonies of Historical Capitalism’,
Review, 13/3 (1990), 365–408 at
372.
[108] See
Wilson, The Savage Republic, chapter seven,
passim.
[109]
‘If there has ever been a state whose executive met the Communist
Manifesto’s standard of the capitalist state (‘but
a committee for
mapping the common affairs of the whole bourgeoisie’) it was fifteenth
century Venice.’ Ibid. 373. For
Braudel, ‘to say central zone or
capitalism is to talk about the same reality.’ Braudel, The Perspective
of the World,
57.
[110]
Grewe, 19–22; Herbert Butterfield, ‘The Balance of Power’, in
Herbert Butterfield and Martin Wight (eds), Diplomatic Investigations: Essays
in the Theory of International Politics (London: George Allen & Unwin,
1966), 132-48 at 133–8; J.S. Watson, The Evolution of International
Society: A Comparative Historical Analysis (New York: Routledge, 1992),
160–2.
[111]
‘The balance of power among the emerging dynastic states of Western Europe
was instrumental in preventing the logic of territorialism
from nipping in the
bud the rise of capitalist logic within the European system of rule.’
Arrighi, ‘The Three Hegemonies
of Historical Capitalism’,
373–4.
[112]
Ibid. 374: Enough “ money circulated in the richer Italian towns to make
it possible for citizens to tax themselves and use
the proceeds to buy the
services of armed strangers [mercenaries]. Then, simply by spending their pay,
the hired soldiers put these
monies back into circulation. Thereby, they
intensified the market exchanges that allowed such towns to commercialise armed
violence
in the first place. The emergent system thus tended to become
self-sustaining”.
[113]
Wallerstein, ‘The Inter-State Structure of the Modern-World System’,
88.
[114]
Immanuel Wallerstein, The Politics of the World-Economy: the State, the
Movement, the Civilizations (Cambridge: Cambridge University Press, 1984),
33.
[115] Ibid.
38–9. ‘The earlier winners in the struggle for world leadership owed
a significant proportion of their success
to their ability to obtain credit
inexpensively, to sustain relatively large debts, and generally to leverage the
initially limited
basis of their wealth to meet their staggering military
expenses.’ Karen A. Rassler and William R. Thompson, War and
State-Making: the Shaping of the Global Powers (Boston: Unwin Hyman, 1989),
89.
[116]
Wallerstein, Modern World-System I,
3–8.
[117]
Otherwise, the hegemon would constitute an
empire.
[118]
Wallerstein, The Politics of the World-Economy,
39.
[119]
‘Hegemony...refers to that short interval in which there is a
simultaneous advantage in all three economic domains’ of the
agro-industrial, commercial, and financial/banking.’ Ibid.
41.
[120] Ibid.
41.
[121]
Grotius, De Indis, 218. Emphases added. For a full length discussion, see
Wilson, The Savage Republic, chapter four, 189-260,
passim.
[122]
See below.
[123]
Immanuel Wallerstein, The Capitalist World-Economy (Cambridge: Cambridge
University Press, 1979),
18.
[124] See
Wilson, The Savage Republic,
25-7.
[125]
Wallerstein, ‘The Inter-State Structure of the Modern-World System’,
89.
[126]
Wallerstein, The Modern world-system II: Mercantilism and the Consolidation
of the European World-Economy, 1600-1750 (New York: Academic Pres, 1980),
38.
[127]
Wallerstein, The Modern world-system I,
199.
[128] Martti
Koskenniemi, From Apology to Utopia: The Structures of International Legal
Argument (Helsinki: Lakimieslitton Kustannus,
1989).
[129] To
show that an international law exists, with some degree of reality, the modern
lawyer needs to show that the law is simultaneously
normative and
concrete—that it binds a State regardless of that State’s behavior,
will or interest but that its consent
can nevertheless be verified by reference
to actual State behavior, will or interest.
Ibid.
2.
[130] David
Kennedy, ‘Primitive Legal Scholarship’, Harvard International Law
Review, 27/1 (1986),
1-98.
[131]
Koskenniemi, From Apology to Utopia,
52–83.
[132]
Harold J. Berman, Law and Revolution: The Formation of the Western Legal
Tradition (Cambridge: Harvard University Press, 1983), 131. See ibid.
141–2.
[133]
Kennedy, ‘Primitive Legal Scholarship’,
7–8.
[134]
James Boyle, ‘Ideals and Things: International Legal Scholarship and the
Prison-House of Language’, in Martti Koskenniemi
(ed.), International
Law (New York: New York University, 1992), 121-53. Here, of course,
‘deep’ signifies
‘ontology’.
[135]
Kenedy, ‘Primitive Legal Scolarship’,
8.
[136] Anthony
Pagden, ‘The Preservation of Order: The School of Salamanca and the Ius
Naturae’, in F. W. Hodcroft et al. (eds.), Mediaeval and
Renaissance Studies on Spain and Portugal in Honor of P.E. Russell (Oxford:
Society for the Study of Medieval Language and Literature, 1981), 155-66 at
159.
[137] See
Wilson, The Savage Republic, chapters three and four, 137-260,
passim.
[138]
Pagden, ‘The Preservation of Order’, 157; Jeanine Quillet,
‘Community, Counsel and Representation’, in J.
H. Burns (ed.),
The Cambridge History of Medieval Political Thought c.350–c.1450
(Cambridge: Cambridge University Press, 1988), 520–72 at
528–31.
[139]
Pagden,
159.
[140] J.L
Brierly, The Law of Nations: An Introduction to the International Law of
Peace (Oxford: Clarendon Press, 1995), 19. For an earlier expression of
these views, see Eric Wilson, ‘Mare Liberum and Opinio
Juris: A Grotian Reading of the North Sea Continental Shelf Cases’,
Monash University Law Review, 28/2 (2002), 299-326,
passim.
[141]
Or, Providence, the master-signifier of universal lex
aeternae.
[142]
Grotius, 8.
[143]
Kennedy, ‘Primitive Legal Scholarship’,
5–6.
[144]
Ibid. passim. On this very point, See David Kennedy, International
Legal Structures (Baden-Baden: Nomos Verlags-geschellschaft, 1987), 203, for
his discussion of Grotius and Selden.
In their self-assured tone and in their moral and political certainties,
these debates seem archaic and antiquated, even quaint. They
seem to belong to a
different form of society, a barter society of rural yeomen, a society in which
free individuals encountered
each other in simple, human interactions: in short,
the world ideologically portrayed in the great contractarian social theories
of
the Renaissance and Enlightenment. Our moral and intellectual interest is
stirred by these debates, though their archaism makes
our practical relationship
to their ideas, at best one of
nostalgia.
[145]
Wilson, The Savage Republic, chapters five and
six.
[146] Ibid.
chapter
three.
[147]
Ibid. chapter
four.
[148] Ibid.
chapter
seven.
[149] Carl
A. Hanson, ‘The European “Renovation” and the Luso-Atlantic
Economy, 1560–1715’, Review, IV/4 (1983), 475–530 at
476–87.
[150]
This was finalized in Vattel’s ‘proto-positivist’ doctrine of
ius voluntarium. Arthur Nussbaum, A Concise History of the Law of
Nations (New York: The Macmillan Company, 1962), 156–64; Grewe,
358–60 and
374–7.
[151]
See Wilson, The Savage Republic, chapter four, 189-260,
passim..
[152]
Although space does not permit an extended discussion, it is interesting to note
that the two pioneering nation-states of the ‘Scientific
Revolution’, a pivotal event in geo-culture of the Modern world-system,
were the first two successful hegemons, the United
Provinces and the United
Kingdom. One must wonder whether the epistemological prejudices of both
primitive legal scholarship and
early modern Science constituted a unified
geo-cultural phenomenon.
[153]
Wallerstein, ‘The Inter-State Structure of the Modern-World System’,
89.
[154] See
Wilson, The Savage Republic, chapters three and four, 137-260,
passim.
[155]
A surreptitiously selective edited version of C. XI of De Indis,
published separately in 1609. For discussion, see Wilson, The Savage
Republic,
405-16.
[156]
Grewe, 24.
[157]
See, for example, Richard Falk, ‘The Grotian Quest’, in Falk et al
(eds.), The Future of the International Legal Order. Volume One: Trends and
Patterns (Princeton: Princeton University Press, 1969), 36-42,
passim.
[158]
See Wilson, The Savage Republic, chapter eight, 467-512,
passim.
[159]
Wallerstein, ‘The Inter-State Structure of the Modern world-system’,
87-8.
[160] David
Kennedy, ‘International Legal Education’, Harvard International
Law Journal, 26/2 (1985), 361-84 at
378.
[161]
‘(1) Law carries the structures and systems of society through time, (2)
Law inserts the common interest of society into the
behavior of society-members,
and (3) Law establishes possible futures for society, in accordance with
society’s themes, values
and purposes.’ Philip Allott, ‘The
Concept of International Law’, in Michael Byers (ed.), The Role of Law
in International Politics: Essays in International Relations and International
Law (Oxford: Oxford University Press, 2000), 69-89 at
69.
[162]
Wallerstein, After Liberalism,
49.
[163] Philip
Allott, ‘Language, Method and the Nature of International Law’,
British Yearbook of International Law, 45 (1971), 79-135 at
100.
[164] James
N. Rosenau, Along the Domestic-Foreign Frontier: Explaining Governance in a
Turbulent World (Cambridge: Cambridge University Press, 1997), at
145.
[165]
Anne-Marie Slaughter, ‘Governing the Global Economy Through Government
Networks’, in Michael Byers (ed.), The Role of Law in International
Politics International Relations and International Law (Oxford: Oxford
University Press), 177-206 at
195-6.
[166]
James N. Rosenau, ‘Governance, Order and Change in World Politics’,
in James N. Rosenau and Ernst-Otto Czempiel (eds.),
Governance Without
Government: Order and Change in World Politics (Cambridge: Cambridge
University Press, 1992), 1-29 at
4.
[167] Ibid.
6.
[168] Laurence
S. Finkelstein, ‘What is Global Governance?’, Global
Governance, 1 (1995), 367-72 at 368 and
369.
[169] James
N. Rosenau, ‘Toward an Ontology for Global Governance’, in Martin
Hewson and Timothy J. Sinclair (eds.), Approaches to Global Governance
Theory (Albany: State University of New York Press, 1999), 287-301 at
288-89.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UMonashLRS/2010/9.html