by Bart Schultz
harm on the whole, – though it is an excellent thing that it should be from time to time sharply criticized.
I am much interested in what you say of the perplexities of Federal States in
international relations. I suppose however that they would only come in so far as
matters of “international comity” are concerned, as distinct from matters of strict duty according to the received law of nations. I mean, at least, that U.S.A. took this view of the treatment of British niggers by South Carolina in –, for
the Federal Government is constitutionally bound to punish “offences against the
law of nations.”
I should myself be inclined to say that this distinction between Offices of
“Comity” and duties of strict obligation was required in applying my princi-
ple that “internal Constitution” cannot be an excuse for neglecting international
duty. I am particularly pleased with your approval of what I have said about this;
as it seems to me one of the points – they are perhaps few! – in which a theoretical, systematic treatment of international duty may really do practical good. For I
can hardly conceive any one approaching the subject from a theoretical point of
view, and considering the question in relation to the received principle that no
nation’s internal Constitution is to be interfered with by other nations – I can
hardly conceive him not coming to my conclusion. And yet the opposite view has
often been loudly maintained by Englishmen, at the time of the Conspiracy Bill
to which you refer and at other times. I think it partly belongs to a conviction that the moral superiority of a free country, quâ free, justifies it in taking liberties that cannot be allowed to despots!
Still on this point, as I said, I should distinguish between points of strict duty
and points of mere friendliness or courtesy. It seems to me that as regards the
latter “internal Constitution” may fairly be considered. To adapt your metaphor,
a man with a wife whom he cannot control must not be therefore excused from
paying his just debts, but he may be excused for not asking his friends to stay
with him.
Now a word or two as regards minor points of disagreement. I am afraid I have
no effective answer to what you say about my discussion of the moral validity of
compacts imposed by “unjust victors.” I am afraid it must seem all rather “in the
air,” to practical statesmen. All I would urge is that the international moralist is
bound to have some view on the morality of breaking treaties, and he cannot quite
bring himself to say that a defeated State may legitimately tear up an irksome treaty whenever it has a favourable opportunity or feels strong enough. And though
the moralist may have but little influence on the decision of such a question, do
you not think that he may have some – always supposing that a tolerably complete
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consensus of moralists could be attained? At least if the Statesmen of such a State were balanced between the pros and cons on the question of tearing up a treaty, would not the probable verdict of impartial moral opinion have some weight? And
might I not even quote the case of Russia and the Black Sea on my side? Do you
think Russia would have dared to do what she did (say) ten years earlier, and with
no excuse of breaches on the other side?
As to arbitration, – I am impressed with what you say of the objections to it
as a means of solving the minor disputes to which alone we agree in thinking it
possible to apply it effectively. Do you think that your objection would be at all
removed or diminished by adopting Maine’s suggestion (in his last posthumous
book) of a permanent Court of Arbitration appointed by the Concert of Europe
to deal with all questions that might be referred to them by any state? This seems
to me partly to get over the danger of conscious and interested partisanship of the arbitrator.
I am really most grateful to you for giving so much attention to my proofs. I
fear very few will read my chapters carefully even once, when published – except unhappy wights preparing for examination – but one must at least imagine readers,
so in writing the rest I shall imagine you.
In this remarkable letter, addressed to the former Viceroy, the “consen-
sus” of moral experts appears as possible support for Maine’s proposals
for overcoming international strife by resort to the “Concert of Europe,”
and all this as part of a finely argued plea for the practical relevance of the
moralist for the business of the statesman, in passages replete with offen-
sive remarks on race and gender. Does the satiric reference to Boädicea
suggest, with Seeley, the superiority of race to land as a criterion of na-
tional identity? Perhaps Sidgwick hoped that Lytton would learn some-
thing from the Elements, but this letter does not suggest any contempt for
this renowned Government House poet. Lytton is duly thanked in the
acknowledgments, along with Bryce, Dicey, Maitland, and others.
That Sidgwick’s gallery of competent authorities for his political writ-
ing should include so many eminent figures committed to imperial rule,
in both theory and practice, is singularly revealing, as is his jarring use
of the term “nigger.” Was he then, like his friends and colleagues, a
whole-hearted champion of “spiritual expansion,” whose views of im-
perial rule reflected fundamentally racist constructions of the populations
ruled? What, in his mind, did the growth of federation entail for the larger
world, at the hands of the “Concert of Europe”? Or were Seeley and the
rest simply more enthusiastic teachers, whose support was utilitarian in the
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shorter run? This last possibility would suggest an extreme paradox: that
Sidgwick’s esoteric morality might have been beyond the rulers as well as
the ruled.
As one would expect, Sidgwick’s deeper views do seem to be decid-
edly more complex and ambivalent than those of his colleagues. Much,
though not all, of what Sidgwick published on such issues is contained in
the chapters in the Elements on “Principles of International Duty,” “The
Regulation of War,” “International Law and Morality,” and “Principles of
External Policy,” chapters covering other concerns as well. The emphasis
is very much on colonialism – the word “imperialism” scarcely figures –
and there is a great deal of detailed comparison of the different possible
colonial situations. These issues are effectively framed in a characteris-
tically Sidgwickian way, with the stress being on how to apply ethical
criteria to larger transnational contexts, and Sidgwick is often singularly
original in his development of utilitarian thinking in connection with cos-
mopolitianism, immigration, colonization, popul
ation control, and the
development of legal and moral measures for global application. Indeed,
his case for utilitarian impartialism in international affairs, shorn of its
more offensive aspects, continues to attract defenders.
As in the letter just quoted, Sidgwick draws a crucial distinction between
international law and international morality – that is, between “rules of
strict international duty, to the performance of which a State may rightly
be compelled by force, and rules of international courtesy or comity, the
breach of which justifies – generally speaking – moral disapprobation
and complaint, but does not justify the use of violence.” This roughly
corresponds to the distinction between “legal and merely moral obligations
in the sphere of civil conduct,” though Sidgwick recognizes an inevitable
looseness in applying such terms as “law” to the international context.
In the domestic case, on his complex account, however “much I may
think that a man ought to be punished for mischief he has caused, and
however decidedly public opinion may be on my side, still if he has not
committed any act that has already been determined to be a crime either
by precedent or by statute, the judge if really an expert will not condemn
him to punishment.” The moral claim and the claim of positive law are
thus distinct. Since
it has come to be recognised that the proper source of new law is a special legislative organ distinct from the judicature, it is clearly seen that there are two distinct
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species or grades of ‘what ought to be,’ in respect of legal coercion: – there are
rules which the judge actually ought to enforce by punishing the violation, and
there are other rules which (in a sense) it ought to be his duty to enforce, but is
not. (EP )
With international law, however, as with positive versus reflective morality,
it is harder to make out the distinction between the generally accepted and
that which ought to be accepted. That is, for many “international jurists
the distinction between what is and what ought to be an established rule
seems to be obscure and imperfect,” and there appears to be “a strong
indisposition to recognise that a rule which seems to the disputant right
is not an accepted duty.” But still, there are also reasons for thinking that
international law occupies “an intermediate position between ordinary law
and ordinary morality”:
[I]n the case of international law, though there is no regular organ of legislative
innovation, the concerted action of States, in the way of treaties and conventions,
plays an important part in the introduction of changes, to which there is no
counterpart in the development of positive morality. This is due chiefly to the
limited number of the States among whom the system of rules and usages that
constitute modern international law is actually established: they are so few in all
that the agreement of even a small group of them to adopt a new rule may be an
important – in many cases even a decisive – step towards the general acceptance of
this rule. . . . Further, the concerted action . . . is not the only method by which the rules of international law have been modified; it is undeniable that international
law, like civil law, has been gradually made more definite and coherent by a series
of arguments of the ordinary legal kind, terminated in some cases by judicial or
quasi-judicial decisions; and it is conceivable that this process might be continued
until international law should reach something like the systematic precision which
parts of our own common law have attained through judicial interpretation alone.
(EP –)
For Sidgwick, this is a consummation devoutly to be wished, even if on
many crucial matters he doubts that “the currently accepted principles for
judging of international rights and wrongs have as yet been brought to legal
precision and systematic coherence.” Consequently, he thinks that it will
be very difficult to regulate satisfactorily, in this quasi-legal way, such vital
matters as “expansion into territory not yet occupied by civilised nations,”
which must “for a long time to come at any rate” be “left to international
morality, in the sense in which it is distinguished from law: and this may
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be given as a final reason for not sharing the hopes of certain optimists
who look forward to getting rid of wars between States by increasing the
use of arbitration.” (EP ) He is all in favor of arbitration, to be sure,
for both international and domestic strife, but confidence in that method
will be better advanced if the distinction between international law, as a
system of rules that experts can adjudicate on the model of law courts, and
international morality, the vaguer and more contestable set of principles,
is maintained.
Maitland had written to him:
I admire the chapter on International Law and Morality; it is the best thing that
I have read about the subject. In my view the great difficulty in obtaining a body
of international rules deserving the name of law lies in the extreme fewness of
the ‘persons’ subject to that law and the infrequency and restricted range of the
arguable questions which arise between them. The ‘code’ of actually observed
rules is thus all shreds and patches.
Still, it was clear enough that, beyond concrete particulars about the
treatment of ambassadors, noncombatants, and so forth, the general princi-
ples of international duty are “abstinence from aggression and observance
of compact,” which work rather in parallel with the individualistic prin-
ciple domestically. Sidgwick allows that, for all the differences that may
arise over particular rules meant to interpret or apply these principles,
still “the general principles on which these rules are avowedly based,
are of much wider application,” and there “seems to be no class of so-
cieties – civilised, semi-civilised, or savage – in dealing with which a
civilised State can be exempted from the obligation to observe these
principles, unless it has adequate grounds for expecting that they will
be violated on the other side.” But he does hold that in dealing “with
uncivilised or semi-civilised communities difficult questions arise as to
the interpretation of the duty of abstinence from aggression, and the
manner in which it is to be reconciled with the legitimate claim of
civilised communities to expand into unoccupied territory, and their al-
leged right – or even duty – of spreading their higher type of social
existence.” (EP ). He recognizes that, alas, “
in discussions among
civilised States as to the occupation of new territory, the claims of the un-
civilised tribes to the lands in some sort occupied by them have been usually
ignored.”
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Note here the assertion about the “alleged right – or even duty”
of spreading civilized social existence. This was a fixture – a puzzling
fixture – of Sidgwick’s political thinking:
With each successive generation the demand for expansion on the part of civi-
lized nations is likely to grow stronger; and the more serious the interests involved, the more difficult it will be to obtain acquiescence in the rules determining the
legitimate occupation of new territory, which must inevitably be to some ex-
tent arbitrary. And the question is complicated by the differences in grade of
civilization . . . for the nations most advanced in civilization have a tendency – the legitimacy of which cannot be broadly and entirely disputed – to absorb semiciv-ilized states in their neighbourhood, as in the expansion of England and Russia
in Asia, and of France in Africa. As, I say, the tendency cannot be altogether
condemned, since it often seems clearly a gain to the world on the whole that the
absorption should take place; still it is obviously difficult to define the conditions under which this is legitimate, and the civilized nation engaged in this process of
absorption cannot be surprised that other civilized nations think that they have a
right to interfere and prevent the aggression. (PE )
And in Lectures on the Ethics of T. H. Green, H. Spencer and J. Martineau,
he had also urged that the utilitarian mission is to “civilize the world,”
which may well involve “acts which cannot but be regarded as aggressive
by the savage nations whom it is their business to educate and absorb”
(GSM ).
But the upshot of this conviction is less than transparent, since Sidgwick
was of course as stringent a moralist in the international sphere as in the
national one, utilitarianism knowing no such bounds. He is emphatic in
maintaining that any claim to the effect that states are not properly subject