International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2014 Issue

Historic Moments in International Law


Where It All Began (Sort of)

Stephen C. NeffBy: 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).


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."

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at