Pufendorf (1632–94) has also been included among those European authors who justified colonialism.48 If we take a closer look at his major work, The Law of Nature and Nations (1672), however, we get a very different picture. It is true that his theory is more state-centered, moving away from the idea of a moral community of humankind, and favouring states (rather than individuals) and their interests instead. But Pufendorf is fair enough to include non-European communities, even if they should not meet modern European standards of statehood. Like Gentili before him, Pufendorf mentions the Chinese as a people that avoids contacts with foreigners, and is justified in doing so.49 In another passage, he explicitly rejects Vitoria’s reasoning in favour of Spanish perfect hospitality rights. Pufendorf dismisses Vitoria’s first just title of ‘natural partnership and communication’. The perfect right of ownership trumps the imperfect right to visit and live in foreign countries. The property-holder simply has ‘the final decision on the question, whether he wishes to share with others the use of his property’.50 Pufendorf adds the pragmatic consideration that any unrestricted influx of immigrants who might stay for an unlimited period of time may have detrimental effects on the native community. In the language of natural law, this inflow could conflict with the community’s duty of self-preservation. Secondly, there is no natural, enforceable right to trade. Again, the natives have to grant permission and may renounce it ‘if the well-being of the state demands it’. Thirdly, Pufendorf rejects Vitoria’s claim that a unilateral grant of rights is unjust. Pufendorf asserts that rights do not have to be symmetrical in this respect. In matters of imperfect obligations, a property-holder can be ‘more liberal to one than to another’. This gave the Japanese, for instance, the right to admit Dutch traders, but refuse admission of other Europeans. Here and in other instances, Pufendorf applies the domestic analogy. In this case, he argues that the relationship between communities can be compared with the owner of a garden who grants exclusive privileges to one of her/his neighbours.
Pufendorf also refuses to accept Grotius’ incipient agricultural argument (the claim that native nomads do not really own their land because they failed to enclose and farm it permanently). He stresses the factor of agreement rather than natural rights. Rejecting Grotius’ subtle distinction between (European) effective occupation and (native) dominion, Pufendorf asserts that if no individual owner can be detected, the land ‘should not at once be regarded as unoccupied, and free to be taken by any man as his own, but it will be understood to belong to the whole people’.51
Pufendorf explicitly refers to the Amerindians when he criticizes Francis Bacon’s claim that Europeans have a right of humanitarian intervention to stop acts of cannibalism and human sacrifice. Like Bacon, most authors before Pufendorf took this right for granted. In Pufendorf’s account, state or community rights trump those of the global moral community. (He might argue that they serve the latter, albeit indirectly). There is clear indication of a paradigm shift. State sovereignty entails a strict duty of non-intervention. Foreign states may only intervene if their own citizens are victimized, provided that they have come as ‘innocent guests, or driven by storms’. Pufendorf distinguishes between foreign visitors who come to visit ‘as enemies and robbers’, and those who behave peaceably or are in need of help. An explicit reference to European colonialism is missing, but perhaps implied: ‘For only in the last case does a right of war lie with those whose citizens are treated with such cruelty, not in the others.’52 In sum, there are no special rights for Europeans. Pufendorf rejects the Aristotelian doctrine of natural slavery as implausible and conflicting with natural equality, and any titles of conquest based on civilization.53
Christian Wolff: the first culturally sensitive international legal theory
The innovative international legal theory of Christian Wolff (1679–1754) has rarely been appreciated. Brett Bowden is a case in point. He asserts that Wolff’s belief in European civilization is biased: the first step is the familiar distinction between civilized and barbarous nations. Next there is the assertion that ‘nations ought to be civilized’.54
From this assessment, it was just a short leap to the assumption that it was the task of the civilized to assist with the training of the uncivilized in their aspiring to the realms of the ‘civilized world’, should their minds be so pliable and adept at accepting such conditioning.55
This phrasing creates the impression that Wolff was one of the accomplices of colonialism. The opposite is true. Like Gentili or Pufendorf before him, Wolff defends Chinese isolationist policy. The Chinese have a perfect right to restrict or altogether refrain from international trade and commerce ‘for the purpose of preserving their own interests’. Wolff interprets Chinese intentions, claiming that the government was interested in perfecting the state, which is of course compatible with the duty of self-perfection. Wolff does not stress the right of self-preservation or self-defence, but points out instead that the Chinese are entitled to keep their morals ‘pure and uncorrupted’.56 If Chinese policy is perfectly lawful, Wolff nevertheless hints at the possibility that it may be imprudent, an argument elaborated on by political economists like David Hume and Adam Smith (see Chapter 3 below). Foreign commerce ‘makes a nation rich, consequently powerful’.57 Nations which refrain from it, Wolff suggests, might gradually lose their power, actually China’s fate in the nineteenth century.
Like Pufendorf, Wolff rejects any exclusive rights for Europeans. The right of each nation to decide on foreign commerce effectively abandons Vitoria’s first title. Nations may persuade, but must never force or compel others to embrace their religion. Unlike Vitoria and Francisco de Suárez, Wolff makes sure that no back doors are left open. If other nations reject ‘the true worship of God . . . that must be endured’. Probably again referring to Chinese practice, Wolff holds that states may expel missionaries, prohibit their entrance and ban their books.58 Wolff’s system of natural law allows for a clear distinction between rights and religion. He holds that, given religious pluralism in the world, 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