The Men of 1873

The boy in Oosterhout, whose birth and background were described in the previous article, turned sixteen in September 1873. He was attending the gymnasium, wrestling with his Greek grammar and his Latin prose, and had no notion of what took place on 8 September of that year in the Belgian city of Ghent. Yet the men who gathered there that day were raising a structure that would cut across his life in a way none of them could foresee, for they were laying the foundations of modern international law. This was the legal architecture that would lend the European claim to civilization its respectable façade, and that would furnish the colonial subjugation of Muslim peoples with its legal justification. It was an architecture, not merely a collection of rules, and its trusses were finished in Ghent before the walls were raised anywhere else.

Ghent, 8 September 1873

In the nineteenth century Ghent enjoyed a reputation as a center of intellectual and political life. It was a city of universities, factories, and Flemish cultural identity, set at the confluence of the Leie and the Scheldt, with a medieval inner city that reminded its citizens of the glory years of the Flemish city-states. In September 1873 eleven jurists of European descent gathered there for a meeting they themselves would describe as the founding of a scholarly institute for international law.

They called their institution the Institut de Droit International, the Institute of International Law. It was neither a governmental organization nor a treaty body, it claimed no legal authority, and it had no mechanism of coercion at its disposal. It was an academic society of learned jurists who believed that international law ought to be scientifically grounded, systematically developed, and advanced by neutral experts, free of the immediate interests of the states they served as jurists. The claim of independence was sincere, yet it was untenable.

The founding meeting was chaired by Gustave Rolin-Jaequemyns, a Belgian jurist and statesman who was the intellectual driving force behind the founding. Beside him sat men such as the Italian Pasquale Stanislao Mancini, the Dutchman Tobias Asser, the Swiss Johann Caspar Bluntschli, the Englishman John Westlake, the Frenchman Charles Vergé, and the Argentine Carlos Calvo. They came from different countries and from divergent legal traditions, but they shared a conviction, namely that international law was a rational science, that Europe had a duty to develop it, and that Europe had a duty to apply it. That Europe within this frame was both the lawgiver and the yardstick by which the law was measured was a circular reasoning noticed at the time by few, because for those standing inside the circle it was not a circle at all but a horizon.

Gustave Rolin-Jaequemyns

Of the eleven founders, Rolin-Jaequemyns was the most decisive. Born in 1835 in Ghent, he was a jurist, politician, and publicist. In 1868 he had founded the Revue de Droit International et de Législation Comparée, the first and leading journal of international law in French. That journal was the intellectual preparation for what in 1873 would be anchored institutionally, for it had drawn together a European readership of jurists, guided their debate, and created a common language for the discussion of questions of international law. Whoever founds a journal creates a readership, and whoever creates a readership possesses the starting point for an institution.

Rolin-Jaequemyns was no cynic. He believed sincerely in the possibility of an international order grounded in law and reason. His work on the Revue was driven by the conviction that a scientifically grounded international law could curb the arbitrariness of power politics, that it could compel strong nations to reckon with the rights of weaker ones, and that it would ultimately contribute to a peaceful order. This was a noble ideal, and it was sincerely meant.

But his conception of that order was fundamentally European. International law was, in his view, the codification of civilized intercourse between states, and the measure of civilization was European. Non-European peoples and societies fell outside this order, not primarily as a matter of racist exclusion, for most of the founders did not think of it that way, but as a matter of what he regarded as historical development. They had not yet attained the civilization that international legal equality required. This distinction had far-reaching practical consequences that he, like his colleagues, regarded as a self-evident feature of the historical situation. Such self-evidence is, in retrospect, often the most treacherous quality of an epoch.

The Civilization Principle as a Legal Category

In the international law of the nineteenth century the concept of “civilization” was not rhetorical ornament but a technical legal category. Only civilized states could form part of the international legal order, and only civilized states had rights that other states were bound to respect: the right to territorial integrity, the right to diplomatic representation, the right to the enforcement of treaties. The question of who was civilized was answered from a European perspective, and the answer was: Europe, and, with some hesitation, the American states shaped by European influence. It was a question to which only the one who posed it knew the answer.

This civilization principle was not merely a political pretension. It was a legal structure, built into the very systematics of international law, which gave European states the right to govern, reform, and transform non-European societies. The family of nations of which the international jurists spoke was by definition a European family. Non-European peoples were children who had yet to grow toward maturity, not full members of the international community, and it was the duty of the adult European states to guide them along that path. This was, in its internal logic, a paternal ideology, and as with every paternal ideology the child was the last to be consulted about what it needed.

A European state that occupied a colony was therefore acting, in the terms of this international law, not as an aggressor but as a civilizing power. The colonial subjugation of peoples not yet ripe for self-government was no violation of international law; it was the discharge of a duty to civilize. The law embraced colonialism not in spite of its universal pretensions but, in a certain sense, because of them. No civilization, no rights. No rights, no protection. No protection, no limit on what might be done to the uncivilized.

Pasquale Stanislao Mancini

The Italian Pasquale Stanislao Mancini was one of the most influential thinkers on international law of his generation. In 1851 he had delivered his famous address Della Nazionalità come Fondamento del Diritto delle Genti, an elaboration of the principle of nationality as the foundation of international law. Peoples with a common language, culture, and history had the right to a state of their own. This principle was progressive in its European application, for it supported the Italian unification, Greek independence, and the Romanian and Bulgarian national movements. It helped Europe to shape itself after the image it held of itself, a mosaic of self-conscious nations.

But Mancini’s principle of nationality contained no mechanism for its application beyond Europe. The Muslim peoples of Sumatra, the Berber tribes of North Africa, the Islamic communities of Central Asia all possessed a religious and cultural identity, in many cases far older than the identity that formed the basis of the national movement in Europe, yet that identity was not recognized by European law as a foundation for national self-determination. In European legal theory the nation was a political construction, based on language, state institutions, and constitutional tradition. An Islamic umma that drew its identity from the bond with the Prophet ﷺ and his Companions ﵃, from the shari’a and from thirteen centuries of scholarly tradition, did not fit within this framework, not because it was no nation by any measure, but because it was no nation by the European measure, and only the European measure counted.

The result was a systematic blindness. The rich diversity of Islamic political traditions, the sultanates, the emirates, the tribal federations, the scholarly republics, was seen by European theory of international law not as legitimate forms of political organization but as primitive or barbaric structures in need of civilization. The shari’a as a legal system was treated not as an equivalent of European law but as a religious practice falling outside the juridical sphere. That the shari’a was scarcely distinguishable from what in Europe was called “law,” except in its foundation, was a comparison no one made, because the outcome of the comparison would have been unacceptable.

Tobias Asser

The Dutchman Tobias Michael Carel Asser was the man who brought international law closest to home, at least for this story. Born in Amsterdam in 1838, professor at the University of Amsterdam from 1862, and later a member of the Council of State, Asser was the most prominent Dutch scholar of international law of his time. In 1911 he would receive the Nobel Peace Prize for his contributions to private international law, in particular for his work on the Hague conferences on private international law. He was a man whose reputation could be laid on a sheet of paper without a blemish.

Asser was a jurist of the Enlightenment in the best sense of the word: rational, systematic, driven by the belief that law could contribute to a more just world. He was also a man of the Dutch establishment, his contacts reaching from the academic world to diplomacy, from legal scholarship to politics. His involvement with the Institut de Droit International reflected the belief that scientifically grounded international law offered the way out of the anarchy of the international state system. That the very same scientific character could be an exterior admitting something else within was a thought not thought in his circle.

Asser and the Aceh War

Here a tension arises that the historian cannot avoid. In that same year of 1873, on 26 March, Dutch troops had set foot on Acehnese soil for the first time, in a military campaign that would grow into the longest and bloodiest war in Dutch colonial history. Aceh, the Islamic sultanate at the northern tip of Sumatra, had managed to preserve its independence for years, even after the great majority of the Indies archipelago had already been brought under Dutch authority. The sultanate was a living Islamic state with its own sultan, its own legal system, its own diplomatic traditions. By every measure worked out in the Qur’an or in the classical Islamic works on statecraft it was a legitimate political community. By the measure of Ghent it was something else.

The Dutch attack on Aceh was prompted by strategic considerations. It was feared that another European power, Great Britain or the United States, might conclude a treaty with Aceh that would undermine the Dutch position in the archipelago. The sultanate had in fact tried to conclude an agreement with the consulate of the United States, something the Netherlands regarded as a direct threat. The war that followed would last for decades and cost hundreds of thousands of lives, both Dutch and Acehnese, and would become the ultimate calling of the sixteen-year-old from Oosterhout. But that lies far ahead; for now we are speaking of his teachers.

That Tobias Asser in September 1873, only months after the beginning of this war, became a co-founder of an institute that sought to codify the foundations of international law is a historical fact that gives one pause. The tension between his universalist legal ideals and the colonial practice of the state he helped to represent was a tension that he, like his colleagues, did not experience as contradictory. Within the framework of the civilization principle the war in Aceh was no violation of international norms; it was the exercise of a responsibility to civilize. The international order codified in Ghent justified, in its very structure, the war being fought at that same moment in Sumatra. The map that was drawn and the rifles that were loaded belonged to the same table.

Johann Caspar Bluntschli and Positivism

One of the most influential thinkers among the founders, though less familiar in Dutch public memory than Rolin-Jaequemyns or Mancini, was the Swiss Johann Caspar Bluntschli. He had been a professor in Munich and Heidelberg, and had specialized in constitutional and international law. His Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt (1868) was a systematic handbook of international law that was translated into several languages and widely read in legal circles. The title itself contained the program: the modern law of nations of the civilized states, presented as a book of law. The boundaries of the project stood on the title page.

Bluntschli’s contribution to international law was the positivist foundation. International law was not a natural law that could be derived from divine or rational principles, but a positive law that arose from the customs and agreements of civilized states. This distinction had far-reaching consequences. If international law was positive and not natural, then the states that practiced it also determined its content. And the states that practiced it were the European states. Non-European states, which had not taken part in the formation of this positive law, by definition fell largely outside it. The system defined its participants, and the participants defined the system. No one could pass from outside to inside except by invitation.

Bluntschli explicitly distinguished between civilized states, which were bound by international law, and uncivilized peoples, which were not. This distinction did not originate with him; it had roots in the European legal thought of the sixteenth and seventeenth centuries, in jurists such as Francisco de Vitoria and Hugo Grotius. But in the codification that the Institut de Droit International pursued, it acquired a new precision and a new institutional anchoring. What had once been an assumption now became a paragraph.

Codification as a Seizure of Power

There is something paradoxical about the project of the Institut de Droit International that was scarcely noticed at the time but that is unmistakable in retrospect. The members of the Institute claimed that they were engaged in codifying the existing customary international law: gathering, ordering, and casting into systematic form what was already there. But codification is never a neutral activity. Whoever codifies decides what goes in and what stays out. Whoever determines the categories determines the boundaries of the law. The catalogue is, in this respect, a weapon.

The European jurists of Ghent codified the European customs and treaties that had regulated the intercourse between European states. They did not codify the Islamic customs and treaties that had regulated the intercourse between Islamic states, nor the African or Asian traditions of diplomatic exchange and warfare. Those customs existed, were in many cases as old as the European ones, and had been regarded as equally binding by the peoples who practiced them. But they did not fit into the categories the codifiers had chosen, and with that they disappeared from the view of “universal” international law. What was not in the register did not exist for the jurist, and what did not exist for the jurist might be transgressed by the soldier.

This was no conscious deception. The jurists of Ghent were convinced that they were gathering the law that existed, not that they were creating a law that did not. But their definition of “the law that exists” was restricted in advance to the European. What existed outside Europe was for them customary law of a lower order, religious usage, tribal convention. Respectable perhaps, but not legally equivalent. The claim of universality was so constructed that only what it admitted could fit within it.

The Islamic World Outside the Order

For the Islamic world the legal architecture built in Ghent had far-reaching consequences. The Ottoman Empire had, it is true, gained a certain recognition within the European system of states, particularly after the Treaty of Paris of 1856, by which the European powers guaranteed the integrity of Ottoman territory, but that recognition was fragile and conditional. It applied to a state willing to accept European legal norms and to adapt its own traditional legal system to European standards. The Ottoman Empire was, in other words, admitted on the condition that it soften its own Ottoman character. Persia, Afghanistan, and the Islamic sultanates of Southeast Asia fell largely outside the protective reach of international law. They stood, in the language of Ghent, in the waiting room of history.

The Islamic legal tradition, the shari’a in its multitude of schools and interpretations, was for European jurists no equivalent of international law but a religious-legal system of a different and, as was assumed, lower category. That the shari’a possessed a centuries-old tradition of customary international law, rules of war and peace reaching back to the earliest days of the Islamic state, rights of foreigners grounded in Qur’anic principles, principles of diplomatic exchange elaborated by generations of jurists, complete with treatises, commentaries, and a body of fatwa literature in which they had been refined: all of this was for the founders of the Institut de Droit International no relevant consideration. Knowledge that had not been systematized and catalogued by European scholars did not count in the definition of what law was. The eye of Ghent saw sharply what it wished to see, and did not see what it had never learned to see.

The Parallels with Modern Theology

The resemblance to Modern Theology, described in the first article of this series, is here no coincidence. Both movements shared an epistemic structure: the claim of European reason to universal authority over domains it judged from the outside. The Leiden School claimed the right to assess the Islamic religious texts for their historical reliability. The Institut de Droit International claimed the right to assess Islamic political societies for their level of civilization. No civilization, no law. No law, no international recognition. No international recognition, no protection against colonial intervention. The chain was not meant to be closed, but it closed itself.

Modern Theology and modern international law were, seen in this way, two arms of the same intellectual movement: the extension of the European civilizing project into every domain of human life, religious and political, with the claim of scientific objectivity as its justification. Together they created an environment in which knowledge of the Islamic world and political control over that world reinforced and underpinned each other. The arm of the scholar and the arm of the jurist reached out to each other, and the hand reached beyond them both.

John Westlake and the Boundaries of the Order

The Englishman John Westlake, one of the eleven founders, represented the Anglo-Saxon tradition of international law rooted in the practice of British colonial administration. As a member of the bar and later as a professor at Cambridge, Westlake was an authoritative commentator on the theoretical foundations of international law. His work Chapters on the Principles of International Law (1894) would appear only later, but his thinking was already influential in the eighteen-seventies.

Westlake was candid about the boundaries he drew. An international legal order required, he held, a political organization capable of concluding and enforcing treaties, a legal system that could enforce contracts, and a government able to govern its territory and protect its subjects. Where these elements were lacking, the ground for full participation in the international legal order was lacking as well.

The argument was not in itself unreasonable. The application was problematic. Who decided whether a political community was capable in the relevant sense? The European jurist. On the basis of which criteria? European criteria. To what end? The regulation of relations between European states and non-European peoples in a manner that served European interests. The judge was, in this process, a party. The party was at the same time the lawgiver.

The Islamic polities of the nineteenth century were, in Westlake’s analysis, problematic because they derived their authority primarily from religious legitimation. The sultan was caliph or his deputy. The law was the shari’a. The community was the umma. This was for Westlake not a political but a religious order, and a religious order could be no equivalent of a secular state in the European sense. That Muslim scholars had for centuries developed nuanced theories about the relation between religious and political authority, about the limits of obedience to a ruler, about the rights of non-Muslims within an Islamic state, was for Westlake and his colleagues no legal system but religious doctrine. The boundary between the legal system that was recognized and the doctrine that was ignored ran precisely where the European experience ended.

The Structure That Was Built

What was founded in Ghent was more than an academic society. It was the institutional culmination of an intellectual project that had been in the making for decades: the systematization of international law as a European science, with European norms, for a European system of states that regarded itself as universal. What was signed on a conference table in Ghent in 1873 was, in an elementary sense, the map of the world as Europe wished it to be.

That structure had three layers that supported one another. The scientific layer: international law was to be studied, classified, and set down in systematic treatises. The normative layer: international law was to set norms for the intercourse between states, including norms for the treatment of uncivilized peoples. The political layer: international law was to give European colonial expansion a legal framework that distinguished it from arbitrariness and endowed it with a civilizing imperative.

Each of these layers had its own specialists. The scholars wrote the treatises. The jurists formulated the norms. The politicians carried out the practice. But they shared a conviction that held all these layers together: Europe was the bearer of civilization, and civilization justified rule. Not permanently, the more moderate among them added, for civilization could be imparted. But for the time being: yes. No civilization, no equality. No equality, no law. And without law, only mercy, and mercy was a favor, not a claim.

A Sixteen-Year-Old and His Future

In September 1873 the sixteen-year-old Christiaan Snouck Hurgronje in Oosterhout did not know what was taking place in Ghent. But the world being built in Ghent was the world for which, without knowing it, he was being trained. His father’s liberal Protestantism, his gymnasium education in the classical languages, the intellectual climate of the Leiden Modern Theology that saturated his milieu: all these elements prepared him for a position lying precisely at the intersections of the three structures being consolidated in Ghent. The scholar. The norm-setter. The colonial adviser. He would embody all three of them, and he would embody them with a skill and a devotion that compelled his contemporaries to take him seriously, however much they differed in their judgment of what he did.

The following year, in 1874, he would complete his gymnasium and enroll to study theology at the University of Leiden. There he would find the teachers who would form the link between Modern Theology and Oriental studies. Abraham Kuenen, who would teach him the historical-critical method. Michael de Goeje, who would teach him Arabic and introduce him to the Islamic textual tradition. From theologian he would become an orientalist. From orientalist a colonial adviser. The road from Ghent to Batavia ran through Leiden, and that road is the subject of the next article.

The eleven men of Ghent had built the framework. The boy from Oosterhout would fill it.

Sources

• Wim van den Doel, Snouck, Boom (2021)
• Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, Cambridge University Press (2001)
• Antony Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge University Press (2004)
• Johann Caspar Bluntschli, Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt, Beck (1868)
• Institut de Droit International, Tableau général de l’organisation et des travaux de l’Institut (1873–1967), Bâle (1967)
• Tobias Asser, Schets van het internationaal privaatrecht, Amsterdam (1880)
• Pasquale Stanislao Mancini, Della Nazionalità come Fondamento del Diritto delle Genti, Turin (1851)
• Edward Said, Orientalism, Pantheon Books (1978)
• Ann Stoler, Race and the Education of Desire, Duke University Press (1995)