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 the following steps. The cultivation of the soil is an obligation of natural law. There is an additional utilitarian calculation involved. Population increases make an intensive use of the soil necessary. Pastoral and hunting ways of living are no longer deemed feasible, and have to give way to an agricultural form of existence, which is economically superior. This utilitarian calculus is supported by the emphasis on effective occupation mentioned above: nomads do not occupy their hunting grounds in a strict sense, as they roam over rather than inhabit them. Vattel calls this ‘uncertain occupancy’. Actual occupation, that is settlement and use, are decisive.73 Vattel concludes: ‘[W]hile the conquest of the civilized Empires of Peru and Mexico was a notorious usurpation, the establishment of various colonies upon the continent of North America might, if done within just limits, have been entirely lawful.’74 The emphasis on the status of the Peruvian and Mexican empires as civilized supports the familiar distinction between civilized and savage peoples. The group of civilized nations is no longer exclusively European. Vattel can be defended with his insistence on the idea of impartial justice, specified in the phrase ‘if done within just limits’. In addition, sufficient land has to be left to the natives. As we have seen, however, it is up to the sovereign state to decide where to draw this line, and given the human propensity to abuse power, an assumption Vattel himself subscribes to, there was little reason to assume that the Dutch, English or French in North America would meet even this minimal requirement.
Was all this the result of Vattel’s Eurocentric bias? It is more plausible to explain the outcome with the flaws in Vattel’s overall legal theory. His work can be seen as the perfect synthesis of a refined natural law theory and actual state practice. In other words, his theory is both descending and ascending, combines a top-down with a bottom-up procedure, ‘giving to the more acceptable principles of contemporary practice the respectable and fashionable cloak of a universally binding rational rule’.75 Vattel’s theory moves towards legal positivism, with state practice becoming more important. Nations are identified with states; individuals or families do not play any significant role in his system. In these respects, he laid the foundation of classical nineteenth-century international legal theory.
Conclusion
In this chapter, I have tried to show how many interpreters lump very different authors together, assuming that they are bound together by a common ‘colonial project’. This approach is unwarranted. My own interpretation emphasizes each author’s individuality and (limited) originality, and their profound differences in terms of arguments, legal theories and judgements on non-European peoples. The main errors of the authors mentioned in the introduction