7.2 BENTHAM: AN IMPERIAL GLOBAL STRUCTURE

An intriguing but ultimately failed alternative can be found in the evolution of Bentham's thought on international law and international relations. Bentham was perhaps the only political thinker to rival Vattel's in fluence on a global scale in the early nineteenth century, with readers and correspondents from Latin America and Haiti to India and the Middle East.

Writing in the wake of the Seven Years' War and the American Revolutionary War, Bentham argued in the 1780s that the most fundamental precondition for global peace was that all states must emancipate their colonies. At this point, Bentham, unlike Vattel, conceived of the international realm as a space of empires and saw imperial ambitions and imperial violence as the greatest threats to international peace. (As I noted above, many of his French and British contemporaries shared this imperial frame, as is evident from the centrality of European imperial expansion to some of the most influential works of the 1770s and 1780s, such as Adam Smith's Wealth of Nations, or Raynal and Diderot's Histoire des Deux Indes, though Bentham was writing in a more overtly legal idiom.) Bentham's early writings on international law depict the international politics of his era as dominated by the effects of colonial expansion. Colonization was, in Bentham's words, the ‘race of vulgar ambition' and a ‘war against mankind'.^{^[495]} Above all, he saw colonies as the chief cause of war in the modern world. He cited as recent examples the war against Spain in the 1740s (the War of Jenkins' Ear), and the Seven Years' War, whose violence, he said, stretched from ‘North America to the East Indies', and which, in the needless destruction it caused Britain, demonstrated ‘the extreme folly, the madness of war'. Bentham saw a global system dominated by empires as structurally doomed to incessant violence.

Colonies provoked wars not only by multiplying the possible sources of conflict but also because in their newness, and distance from Europe, they were fraught with uncertainty, which Bentham saw as a key source of instability and aggression. His project for the codification of international law was driven by the aim of quelling conflict by reducing uncertainty. A code would do so, he thought, in part by minimizing the many offenses against international peace that were committed by sovereigns unsure of, or in good-faith disagreement about, what constituted their obligations toward one another. But the greater danger to peaceful commerce and cooperation was empire. Bentham's attention to the imperial nature of the world's major powers allowed him to see, and to make explicit, what remains possibly implicit, but certainly obscure, in Vattel: that a legal system premised on the reciprocity and equality of independent states should require first of all that they give up their empires and become, in fact, the territorially compact political communities that Vattel had hypothesized.

When Bentham returned to the project of codifying international law in the late 1820s, his vision of the international realm had in important respects moved closer to Vattel's (if perhaps unwittingly, given his disdain for Vattel's theory as ‘old-womanish and tautological').^{^[496]} In the notes on international law that he sent to the barrister and former colonial judge Jabez Henry, in the hope that Henry would develop them into a treatise or code, Bentham accepted a number of the essential features of Vattel's picture of the international realm: states must recognize each other as equals; each pledges to respect the regime, religion, and customs of all the others; and each is oriented not only toward keeping peace with the others, but also toward ‘mutual good will' and ‘mutual good offices'. But Bentham now limited the community of states under international law to ‘all civilized nations[,] which at present is as much as to say, all nations professing the Christian Religion'.^{^[497]} This was a radical departure from both Vattel's and his own earlier presumptive universalism. Bentham was now also far more modest in his aspirations for the code than he had been.

Above all, he gave up the hope of taming imperial ambitions. In describing the ‘Utility of a body of International law', he first noted the ‘Good which it is not capable of effecting - preventing a Sovereign who has purposes for conquest from endeavouring to carry them into effect'.^{^[498]} Rather, the code's main function would be to reduce uncertainty about states' respective rights and duties, so that inflated ideas of ‘rights violated' might be kept from ‘stir[ring] up angry passions and anti-social affections'. Along with this greater modesty went a complete abdication of Bentham's original prescription for international peace, the emancipation of all colonies. Instead, the principle of universal equality now required (just as Chitty did) that states not interfere in one another's colonies, or as Bentham put it:

Fundamental principles to be agreed upon by all the States: (i) universal equality. No State to pretend to any authority over any other State (a) on sea, (b) on land in the territory of a barbarous nation not being a member of the Congress. (2) All States to be upon a par in Congress, whatsoever the form of government.^{^[499]}

Bentham, then, made a complete about-face on international law and empire. He gave up on the key prescription for global peace that he had made as a young man, he accepted the restriction of the international legal community to Christian Europe, and he accepted that the system's major powers would be vast global empires with utter legal impunity - at least with respect to international law - in their conduct in their colonies. For help in turning this sketch into a code of international law, he turned to a man whose reputation was built on his work as a colonial official. Bentham's motivations can be obscure, and it is hard to account for what may have happened within his own mind from the 1780s to the 1820s to bring about this change. (It may have been partly to do with the shift of the center of gravity of imperial domains from the settler colonies of the Americas - which had mostly established their independence by the late 1820s - to India and other non-white populations.

But it is worth stressing that in the earlier period Bentham insisted on the emancipation of all colonies, India specifically included, and not just colonies whose loudest voices were white settlers.)

Whatever his own reasons, there is no question that the change in Bentham's thinking tracks a more general development in European thinking in this period, one that we also see in the shift from Vattel's original text to the Chitty edition of the 1830s. We begin with a universalist account of an international community that is not limited to Europe, that is made up of states understood as moral communities protected by political autonomy to work out their collective life. We end with a vision of an international community of equal states limited for the time being to Europe; states understood in a dual way as legal equals vis-à-vis each other but also as global empires controlling vast territories and populations as they see fit. International law speaks, in this model, only to the interactions between European states; it is not equipped to analyze those states as empires, to hold them to legal account, or to recognize the global order as one that is structured hierarchically.

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Source: Brett Annabel, Donaldson Megan. History, Politics, Law: Thinking through the International Cambridge University Press,2021. — 450 p.. 2021

7.2 BENTHAM: AN IMPERIAL GLOBAL STRUCTURE

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