 By: Stephen
C. Neff, Reader in Law – Public International Law, University of Edinburgh Law
School
In my line as a historian of
international law, I have become accustomed to being asked, in various
formulations, when international law began. Well, it all depends on what you
mean by "international law" -- a matter not so easily decided as
might sometimes be thought. If you mean the practice of international
law, in such forms as treaty-making or recognition of diplomatic immunities,
then international law may be safely said to go about as far back as our records
of organized political societies can be taken. That means to the practices of
the city-states of ancient Mesopotamia. (For those who seek a masterful treatment of this subject, Amnon Altman, Tracing
the Earliest Recorded Concepts of International Law: The Ancient Near East
(2500 – 330 BCE) (2012) is the book to consult.)
If, however, we pitch our sights a
bit higher and demand some kind of exposition of general principles underlying
state practice, then we must look elsewhere. To ancient China of the Warring
States era, to be precise. This was the period from 481 - 221 B.C., before the
first unification of China into a single imperial state under the Qin Dynasty.
Prior to that event, China was divided into a number of competing states,
somewhat analogous to the earlier division of the Mesopotamian flood plain into
a welter of independent city-states. The Warring States period may have been,
as the label suggests, somewhat chaotic and violent; but it was also an
immensely fruitful time for the development of China's intellectual culture.
Its most renowned figure was the itinerant scholar Kong Fu Zi -- better known,
by far, by the Latinized version of his name: Confucius. He lived in the late
Sixth and early Fifth Centuries B.C.
Confucianism, in due course, would
have much to say about politics and governance. But the famous sage did not
himself turn his wise eye to questions of international relations. That honor
fell, instead, to a thinker of the following generation: a man named Mo Di,
who was active in the late Fifth Century B.C. -- about midway between the
careers of the historian Herodotus and the philosopher Plato, to situate him in
a way perhaps more familiar to mainstream Western audiences. (The name is
sometimes transliterated as Mozi.) Whether Mo Di can really be said to have
written about international law, in our modern sense of that term, is,
admittedly, open to some question. But he did have the distinction of being
the first known person in human history to articulate certain objective,
general standards of conduct to which states were expected to comply in their
relations with one another.
Very little is known of the life
and career of Mo Di. In contrast to Confucius, who was of the minor nobility,
Mo appears to have been of humble origins. It seems likely that he was some
kind of artisan by background, partly judging from the many references to
craftsmanship and handicraft work in his writings. The name "Mo" was
an unusual one. It means "ink" in Chinese, and it has been speculated
that it might refer to a dark complexion -- or, more tantalizingly, to tattoos,
which would have been a sign of slave status or of a criminal conviction. Be
that as it may, it does appear that he was decidedly less welcome in high
circles than Confucius was. A story has come down of Mo's being refused an
audience with the king of the state of Chu because of his low status.
The Mohist corpus of writings --
about three-quarters of which have survived -- were actually compiled by Mo's
followers and not actually written by the sage himself. But they purport to be
transcriptions of the master's actual teachings. In general, the Mohist
writings present a number of instructive contrasts to Confucianism. For one
thing, Mo was sharply critical of the stress that Confucians placed upon
rituals, and especially on elaborate (and expensive) funeral ceremonies. In
addition, the Mohists had a less hierarchical system of ethics than the
Confucians did -- most notably in stressing the existence of a single set of
objective ethical standards that were universally binding on all people. This
contrasted with the Confucian emphasis on rules that differed according to the
status or position of the person concerned. In this sense, Mohism can be seen
as something of a forerunner of what would become known as the rule of law --
something that was held in rather low esteem in the Confucian tradition. The
Mohists were also distinguished from the Confucians in that their central
concern was over the general material well-being and development of society,
rather than in the practice of virtue.
By virtue of this stress on
material well-being, the Mohists have been seen as the world's first advocates
of what would come to be known as utilitarianism. This outlook was especially
vividly illustrated by the Mohist view of religion, which is given the
interesting label of "Elucidating Ghosts." This was the belief that
people should be encouraged to believe in the existence of ghosts and spirits
who reward good and punish evil -- not because such beliefs are true, but
rather because they serve to promote social and moral order. For an excellent
overview of Mohist doctrines in general, readers can usefully consult a chapter
on the subject by Chris Fraser, in Bo Mou (ed.), History of Chinese
Philosophy (2009).
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For present purposes, our interest
lies in Mo's ideas about relations between independent states. These form only
a small part of the Mohist canon of writings and must not be regarded as
constituting anything like a systematic treatise. Mo must be seen more as a
planter of seeds than as a fully fledged juridical harvester. (Incidentally,
the first book that could be called a systematic treatise on international-law
topics was, to my knowledge, written by an Islamic writer named Abd al-Rahman
al-Awza’i, who lived in Syria in the Eighth Century A.D.)
The seeds which Mo planted remain
very much the concern of international lawyers to the present day. One of the
core Mohist doctrines was labelled "Rejecting Aggression" -- a
principle which was explicitly held to prohibit the waging of aggressive war by
states. It should not be thought, however, that Mohists were idealistic
pacifists. They supported the use of force in self-defence. Moreover -- and
more interestingly -- they also supported the use of armed force for punitive
purposes, for the chastisement of wicked rulers. These views mark the Mohists
as clear progenitors of what would later be known later in European
civilization as just-war ideas.
Nor should it be thought that the
Mohists were people merely of ideas. In their practices, they provided what
appears to be history's earliest demonstration of the idea of collective
security in action. After the death of Mo, his followers came to be divided
into a number of groups, which bore some resemblance to the later monastic
communities of medieval Europe. They lived together in conditions of
discipline and austerity, under the leadership of a grand master. Teaching was
a central concern of these groups -- meaning, of course, the dissemination of
Mohist doctrines. A more apt analogy, however, might be with the crusading
orders of medieval knighthood, such as the Knights Templar in the Holy Land,
since at least some of these communities provided military services. These
chiefly took the form of assistance to cities that were being besieged by
aggressors. It is notable that a substantial portion of the Mohist writings
(about one-fifth) are devoted to the subjects of military engineering and
defense tactics.
These Mohist organizations were,
in modern parlance, non-state actors -- though, in contrast to many of their
present-day successors, they were devoted to the rule of law and the defense of
victims of aggression. Sadly, there appears to be no detailed information as
to the actual effectiveness of these groups in armed conflict.
It is intriguing to think what the
history of international law would have been like if Mohist doctrines, instead
of Confucian ones, had become dominant in China. But that was not to be.
After the unification of the warring states into a single imperial structure in
221 B.C., Confucianism gradually emerged as the dominant, official philosophy
of the country. And with the disappearance of the warring states, Mohist ideas
of non-aggression, just war, and collective security lost their relevance.
Mohism indeed died out completely in China early in its imperial history
(during the Han Dynasty, around the turn of the Christian era).
The seeds that the Mohists had
planted were cultivated and elaborated not by the Chinese but instead by
Europeans over the course of many centuries -- with this process occurring in
complete ignorance of the earlier Chinese development. As to why this was so,
a few words of speculation might be (cautiously) offered. Speaking in very broad terms, it may be said that ideas of international law -- in our modern
sense of a law governing the relations between independent states -- will
naturally flourish, if at all, in a world that is fragmented into competing
states of approximately equal strength and intellectual advancement. With the
unification of China into a single empire, these conditions ceased to apply in
the Far East.
It only remains to take note of a
certain after-life experienced by Mohism. It began to receive some attention
again in China in Eighteenth and Nineteenth Centuries, when Chinese scholars
(i.e., Confucians) began to delve into their country's distant past, in search
of indigenous ideas that might be of some use in the threatening world setting
in which China now found itself. By then, though, it was too late to build
international law on the Mohist foundation, for the European version of the
subject was by now far more highly developed. China had little, or no, choice
but to take this Western version of international law "off the shelf"
-- with, it must be said, some not-so-gentle "nudging" by European
gunboats, armies, and opium traders.
Mohism may therefore be seen as an
arrested development of international law, a sort of false dawn, or (more
positively) a premonition of much that was later to be reinvented at the
opposite end of the Eurasian land mass. As such, Mohism may appear as little
more than a quaint curiosity, a footnote in the annals of international legal
history. Still, though, it is intriguing to ponder what might have happened if
Europeans had confronted a fully developed -- and independently devised -- Far
Eastern system of international law when their traders and gunboats arrived.
For readers who relish the might-have-beens of history, speculation on this
subject can be a modern version of "elucidating ghosts."
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International
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