Imperfect Cosmopolis. Georg Cavallar

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СКАЧАТЬ the true religion is notoriously difficult to define. In cases of doubt, the rights of nations as specified in ius gentium are of primary importance, as religions are juridically equal.⁵⁹ Wolff does not edorse relativism; his juridical framework implies religious neutrality or impartiality. Finally and in agreement with some previous authors like Vitoria, Wolff accepts the true ownership of natives, employing hypothetical thinking to arrive at the golden rule and the idea of impartiality. Thus,

      no nation ought to do to another what it does not wish to be done to itself. Indeed, if it is allowable for one nation to occupy lands inhabited by another nation, because they have been hitherto unknown to it, by the same reasoning it will be allowable also for the second nation to occupy the lands of the first, or for any other foreign nation to do so.⁶⁰

      European policy of conquest, though not explicitly mentioned, is rejected with the simple, but convincing argument that it cannot be universalized.

      This kind of impartial thinking has been employed by authors before Wolff. It usually boiled down to the tricky question of whether there was a loophole left for European prerogatives to sneak in (such as the right to preach Christianity). Here, Wolff does not allow for compromises. He is culturally sensitive, not imposing European standards of statehood and sovereignty on native communities. Admittedly, ‘groups of men dwelling together in certain limits but without civil sovereignty’ are not nations but, like nomads, they have ‘jointly acquired ownership’ and must not be subject to civil sovereignty without their consent, ‘even if at the time those who inhabit the territory are not using those lands’.⁶¹ The basic units of ius gentium are families, not states.

      Finally and most importantly, there are no special rights for civilized peoples (gentes) against barbarians, who may not be expelled at will.⁶² In a footnote based on natural-law thinking that combines the notions of natural liberty, consent, culture, and injury, and contrasts them with advantage and usefulness, Wolff, while accepting the distinction between civilized and uncivilized nations, refuses to establish rights for the former to ‘subject to the civil sovereignty separate families dwelling in a certain territory or staying there’.⁶³ States do have duties towards others, but they are imperfect, so that

      no right arises to deprive another of his natural liberty without his consent or to restrict it for his benefit as much as the purpose of the state demands; for where you desire to promote the perfection of another, you have no right to compel him to allow that to be done by you.

      There is a clear criticism of Locke’s agricultural argument: ‘no right is created for you in regard to that which belongs to another, because he does not use and enjoy his own property as much as he could.’ Wolff blends three different types of arguments in the passage. First, there is the familiar language of natural law and natural rights: ‘liberty’ must not be taken from legal persons who are ‘unwilling’; free consent is required by those who are affected; nobody injures anyone just by his/her mere existence. And ‘as long as your neighbours do not injure you, no definite right arises in your favour against them’. Secondly, Wolff uses the domestic analogy to show that dispossessing ‘barbarous and uncultivated nations’ contradicts our common sense. Thirdly, Wolff rejects the (European) concept of usefulness as a basis of rights: ‘And how, I ask, can you show that for the sake of your advantage or that of another nation families may be made subject to sovereignty without their consent, when from that which is useful to you no right arises?’⁶⁴ Finally, and most importantly, Wolff hints at a new social and cultural theory which denies that agricultural or commercial societies are morally superior to nomadic forms of life.

      Wolff’s international legal theory has usually either been ignored, rejected or ridiculed. He was misunderstood even by his followers in the eighteenth century, by Michael Hanov (1695–1773) and by Hermann Friedrich Kahrel (1719–87). Some recent authors, especially Francis Cheneval, see him as a brilliant and innovative international lawyer and as one of the founding figures of modern political cosmopolitanism (see also Chapters 4 and 5).⁶⁵ In contrast to authors like Grotius and Vattel, Wolff has a systematic legal theory. For instance, he criticizes Grotius who simply juxtaposed the natural and the positive law of nations, asserting that the latter is based on the will of nations (in case of doubt, on the will of European nations). Wolff, by contrast, wants to bridge the hiatus between natural and positive law with the concept of voluntary law (ius gentium voluntarium), which is positive, but has to meet basic normative standards (and thus cannot simply be a matter of state will).⁶⁶

      Wolff’s theory is not flawless. He does not distinguish (as Kant would later do) between deontology and teleology. The norms of the civitas maxima, the democratic global commonwealth, are derived from ‘what has been approved by the more civilized nations’.⁶⁷ But on the whole, his achievement is impressive. As far as European relations to non-Europeans are concerned, Wolff’s system of ius gentium, together with Kant’s, marks the triumph of epistemological cosmopolitanism. His moral cosmopolitanism is based on universalist ethics where every human being counts. He combines this approach with a cultural theory that is sensitive to cultural difference, non-European practices and beliefs. Thus he anticipates Denis Diderot’s concept of natives as cultural beings (and not as ‘noble savages’) with a different, albeit not inferior, way of life, and contemporary forms of cultural cosmopolitanism.⁶⁸

      Emer de Vattel: the agricultural argument

      Traditionally, Emer de Vattel (1714–67) has been seen as Wolff’s pupil, who famously rejected his postulate of a civitas maxima. Wolff and Vattel do not have much in common, also – and particularly – in terms of the rights of non-Europeans. Here, it makes more sense to emphasize similarities and parallels between John Locke and Vattel.

      Probably elaborating on Grotius, Locke developed the agricultural argument fully in his Two Treatises of Government (1689). His labour theory of property was fully compatible with, and explicitly justified, European expansion at the expense of native nomadic populations. Historically, the argument applied only to a small portion of the land acquired by Europeans. However, Locke was highly selective in his use of available literature. The overall result was, as Barbara Arneil convincingly argues, the ‘defence of England’s colonial policy in the New World’ and the ‘dispossession of the aboriginal peoples of their land’.⁶⁹

      Like most natural lawyers before him, Vattel endorses the idea of an original community of ownership, for instance, when he claims that ‘the earth belongs to mankind in general’. He states that discovery establishes merely ius ad occupationem, a rudimentary and inceptive title contingent upon follow-up effective occupation. ‘Hence the Law of Nations will only recognize the ownership and sovereignty of a Nation over unoccupied lands when the Nation is in actual occupation of them, when it forms a settlement upon them, or makes some actual use of them.’⁷⁰ Vattel supplements this theory of effective occupation with the argument of better use. ‘[N]ature . . . destines the earth for the needs of all mankind, and only confers upon individual nations the right to appropriate territory so far as they can make use of it.⁷¹ Humans may only legitimately claim as much territory as they actually need and use. These humans belong to agricultural and commerical societies. Vattel distinguishes among three types of nomads. First, there are the ‘ancient Germans’ and ‘modern Tartars’, who plunder, pillage and injure others and should therefore be ‘exterminated like wild beasts of prey’. The second group of nomads, including the Native Americans, is more peaceful. However, their territory can be settled without injustice, provided sufficient land is left to them. Finally, there are the Arabs who do not use the soil efficiently, but may do it their way as long as cases of ‘urgent necessity’ of territory do not arise.⁷²

      The argument of better use is closely following Locke’s agricultural argument. Vattel’s reasoning includes СКАЧАТЬ