Analogies

Analogy, the most valuable of instruments in the maturity of jurispru­dence, is the most dangerous of snares in its infancy. Prohibitions and ordinances, originally confined, for good reasons, to a simple description of acts, are made to apply to all acts of the same class, because a man menaced with the anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it.

H.s. Maine, Ancient Law (1861)^{[15] [16] [17]}

We can be very sure that prehistoric humans were analogising to each other for many millennia. Analogy is an important skill in the art of communication, af­ter all. But the word itself is obviously Greek. If αναλογiα originally conveyed the mathematical proportions of logoi or reckonings, it may well have also been a handy device in legal thought, if not in international relations. Following the work of Polly Low, Alberto Esu also rejects the view that Greeks were somehow bereft of any ideas or institutions of international (or inter-poleis) law; indeed, Athenians and their neighbours often drew analogies from their own domestic politics for application in respect of foreign relations in trade and war.^π,

Borrowing the word, and maybe even a form of the technique, from the Greeks, analogia became one of the essential arts of persuasion by the age of the Roman Republic.

As the church came to develop its own doctrinal law - the canon law - analogy became a common feature within it. Applications of analogy, amid all the expansion and contraction of polities that took place between 500 and 1100, could be surprising. Zachary Chitwood draws our attention to Nikon of the Black Mountain, a Byzantine canonist of the eleventh century, who was motivated to develop an Orthodox approach to Muslim men and their wives through analogies. His approach was to infuse a third-century canon on �bar­barians' with a seventh-century canon on �heretics' in order to develop stand­ards for excommunication suitable for the highly particular circumstances he faced.

Over in the Latin west, Roman law was being made to account for new rela­tionships and personalities within an enlarging scope of �law', thanks in equal parts to the rediscovery of Justinian and the acceptance by universities that law was an academic discipline as well as a practical art. With regular consist­ency, analogical reasoning was deployed by glossators, post-glossators, and their students who all worked, in their own ways, to fill the voids of Roman law and bring it up to date.^{[18] [19] For example, as Emanuele Conte shows in his chapter, Roland of Lucca found recurrent need to refer to a number of Roman law state­ments about churches in order to elaborate his legal thinking about cities and public property throughout his Summa Trium Librorum (ca.}

It should not be surprising that Roman law, as a combination of principles and authorities that had been perfected by the sixth century to govern all rela­tionships between individuals within the civitas, became the first point of ref­erence for legal scholars laying the framework centuries later for relationships inter civitates. For this project to work required ostensibly comparable models of civic organisation and political language, if not of law itself. The rise and increasing sophistication of maritime trade and exploration helped in this respect, as Lorenzo Veracini hints at in his contribution to this volume, highlighting - as Conte also does - the importance of medieval Pisa in respect of both law and empire. City-states and �maritime republics' dotted along the coastline of the Mediterranean, who had for millennia been measuring their differences against each other with a bias for their own civic courts, suddenly appeared to have a lot more in common than once thought.

However, it was not until that famous series of false starts, delaying the proper commencement of the �age of discovery', that the transposition of the ideas and institutions of the �Old World' upon the �New' got underway. These were the years between 1450 and 1650, which were characterised by a series of mostly clumsy attempts at trade, conquest, and conversion abroad. Crucially, the sponsors behind such ventures - syndicates, orders, patrons, courtiers, and public authorities - turned to legal thinkers for the purposes of giving such undertakings a gloss of lawfulness. Analogies became very important in this context. Of course, they had been used commonly (and predictably) enough by jurists in Spain and Italy who were tasked with elaborating the claim of some or other prince or lord to some or other territory or waterway. But it is Hugo Grotius who is more generally revered as the most famous exponent of the method in arguments about free trade in the field of what we now call �in­ternational law'.

Once Grotius had witnessed the age of discovery give way to the age of im­perialism, generations of Europeans and Americans after him continued to persevere with the task of drawing analogies from Roman private law in the process of creating public international law. All around, the lines left on the shore by the changing tides of the sea are everywhere to be seen. So often it was the sea - and the law that Europeans held to pertain to it, as well as the people that fared it, and obviously the property and ideology they brought with them as they did - that inspired various parts of the international legal imagination, and often at different periods of expansionism: as Lorenzo Vera­cini, Mark Somos, and Matthew Crow each show in their own chapters.

In contrast to the ease with which private law ideas were used, it often proved awkward to refit the demands of early modern imperialism with any­thing that was known about the laws of public administration in ancient empires - laws which had never been all that elaborate outside of matters touching church and office. The Renaissance briefly inspired a selective inter­est with the Republican constitutional tradition, but this was relevant mostly to European political circumstances, rather than the colonies dreamed possi­ble beyond Europe. Any sage worth his salt during the sixteenth and seven­teenth centuries knew to seize upon the political ideals of Rome, in particular those of the Roman republic, mostly channelling Cicero on virtue, glory, and war (and regardless, really, of the message).^{[21] [22] [23] But to the extent that somehow Roman ideals provided a benchmark in considerations of early modern expan­sion, it was usually to contemplate diplomatic and political matters of state, or otherwise the commercial and economic concerns of the metropole.22 Few analogies (of any detail) were drawn to old Rome when it came to the legal aspects of colonial administration.}

Analogies drawn to Rome could still be invoked at key moments, it is true. The ideological tradition of the â€?British Empire' after the American crisis, and then during the scandals of Company India, was enlivened by many analogies to Rome when it came to thinking through constitutional peculiarities?³ When British orientalists, colonial officials, and jurists used philology to uncover pre­modern legal authorities in India, Rome was often the most obvious analogy, as Naveen Kanalu reveals in his chapter. Sorting through the fatwas of the â€?the great law-officer of the Othman court', William Jones likened them to the re­sponsa of Roman law. In keeping with the same overall perspective, Jones liked to compare Justinian and the Digest to Emperor Aurungzeb and the Institutes of the World Conqueror (Al-fatawa al-'alamklriyya') he promulgated.

Even if cartoons and caricatures from the same period often depicted Ed­mund Burke, engaged in the impeachment of Warren Hastings, as a Cicero of sorts, it should not be forgotten that it still made more sense to speak of an �ancient constitution' that was really a medieval one at this time.^{[24] [25] In the American colonies, the Norman yoke was invoked far more often than any Ro­man one was. This is because, as Paul McHugh shows in his contribution to this volume, legal controversies on the frontier stemmed from feudal (mis)under- standings about land and the royal prerogative. These were medieval, rather than ancient, colonial inheritances.}

For their part, non-Europeans often perceived few benefits from engaging with the western legal tradition during the earliest periods of incremental col­onisation. Most tended to refrain - at first anyway - from acknowledging it.

In the bluntest of contrasts, Europeans continued to use analogy to prop up empires within the discipline, method, and language of statecraft known, after Bentham, as international law. Indeed, international law triumphed within Eu­ropean thought essentially as a mode of legal thinking through analogy! That this occurred by measures between Hugo Grotius and LInstitut de Droit Inter­national, while most of the mass upheaval, dispossession, and unequal accu­mulation of imperialism took place, is a coincidence that cannot be excused from the minds of any of this volume's readers. �International law is but private law writ large', Thomas Erskine Holland famously lectured to an audience at Oxford in May 1878, before translating it into French for the European audience of the Revue de droit international et de legislation comparee. �C'est l'extension aux communautes politiques des idees legales qui sont appliquees originaire- ment aux relations des individus. Ses distinctions principales sont donc na- turellement les memes que celles avec lesquelles nous a familiarises depuis longtemps le droit prive'.^{[26] [27]}

The biggest anomaly within this project was the apparent arbitrariness by which some polities came to enjoy full personality akin to individuals as civi­lised, leaving others following behind them who, enjoying only partial person­ality, were relegated to the margins of international law as â€?quasi-sovereign', â€?semi-civilised' or, worst of all, â€?uncivilised'?⁷ Principally, colonised communi­ties were the ones targeted by demeaning analogies like this, but settlers could just as easily lose out. When the South African Republic was engaged in a war with the British Empire, its designation as â€?quasi-sovereign', around the time of the Hague Conference, appeared to present a series of loopholes preventing the fullest application of international legal conventions when it came to the laws of war, as Lia Brazil reveals in her chapter on the military manuals devel­oped in this period.

If these principally (but not exclusively) non-European communities were analogy's losers, its cosmopolitan victors in Europe remained utilitarian in off­setting its deficiencies with its merits. Hersch Lauterpacht himself would use the last words of his Private Law Sources and Analogies of International Law (1927) to celebrate Grotius's identification of individuals respectu totius generis humani (here was �an ideal', Lauterpacht confessed, that remained �worthy of pursuance' between the wars).^{[28] [29]}

The nineteenth century was characterised by a new verve for political and administrative reform within imperial states, coupled with an understanding of the globalisation in reach of the polities now attached to them. These condi­tions planted the seeds of legal positivism in the minds of many legal thinkers, who - allowing these seeds to germinate a little while - grasped for analogies whenever they needed to find them. Perhaps the most noteworthy aspect of this trend was the diminishing hesitance of learned legal thinkers to reach back into antiquity for their analogies. James Bryce, for example, looked to Ro­man history time and again when rationalising some of the constitutional changes that were being proposed for Ireland in the age of Home Rule, as Jor­dan Rudinsky shows in his chapter. Consumed, in his scholarly work, with some of the similarities and differences between the diffusion of laws in Ro­man and British empires, Bryce was prone to dismiss England's medieval con­stitution as an â€?immature feudality' with only â€?a Continental tinge' left by the Normans worth noticing?⁹ Another noteworthy aspect of this period, as iden­tified by Naveen Kanalu in his piece on South Asia, is a transition in the style of European thinking about the â€?pre-modern' legal cultures of colonised commu­nities: whereas the period up to the middle of the nineteenth century was dominated by a focus upon the distinction between the written and unwritten sources of Hindu and Muslim laws (which found direct analogy to lex scripta and lex non scripta), thereafter it became the style of European thinking to fo­cus upon the nature and specificity of customary law within communities.

The eccentricity of this period of academic legal and historical thought, and its distinct contribution to the jurisprudence of high imperialism and public law generally, are yet to be fully appreciated (and that is because it would appear that we are still living through this period). Feeding into these intellec­tual energies was a charge supplied by the rigorous revival of enquiry into Greek and Roman texts back in the second half of the nineteenth century: a movement pioneered by antiquarians and classicists first of all in German uni­versities, in direct view of which, but not always in agreement, the �historical school' of jurisprudence took form. Of course, it was in the wake of these intel­lectual changes that Carl Schmitt emerged to present his own analogies about empire in the context of his writings about law and the state, as Joshua Smelt­zer reveals in his chapter at the end of this volume.

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