Abstract

In this article, I hypothesize that against mainstream secularization accounts concerning the 19th-century development of modern international law, especially within the Anglo-American experience, the discipline was significantly influenced by liberal Protestantism. My argument is that a liberal Protestant cultural elite, to which the first generation of international jurists belonged, drew inspiration from the theological doctrine of divine immanence to solidify their socio-political authority against a diverse series of internal and external threats. In an attempt to demonstrate the evangelical foundations of modern international law and the importance played by Anglo-American legal scholars within the tradition, the article is organized into three sections. First, I examine traditional 19th-century narratives of international law, particularly in relation to Christianity. Second, I trace out how the doctrine of divine immanence was formulated in Liberal Protestant theology and how this influenced international legal scholarship within the period in relation to doctrines of the nation-state. Third, I examine how divine immanence shaped three anxieties shared by liberal Protestant theologians and international jurists, including former colonized people and institutions, Roman Catholic beliefs and immigrant populations, and the nascent industrial working-class and radical political ideologies. The article concludes with some brief reflections on the implications of this study and potential directions for future research in the field of religion and international legal history.

Introduction: the myth of secular liberalism in international legal history

1. This article lays out a hypothesis that, contrary to conventional narratives that explain the 19th-century history of Anglo-American (and, to a lesser extent, Western European) development of international legal doctrine through the lens of secularization (e.g. from naturalism to positivism, the Darwinist theory, from ecclesiastical to state courts), liberal Protestantism in fact played a formative influence on the discipline—what might be termed, a modern evangelical–orientation to governance. In the introduction, I briefly map out the traditional “secularization” narrative within international legal history and elaborate potential blind spots. The article then focuses upon the theme of divine immanence within theological and international legal literature from the 19th century to analyse how liberal Protestantism related to and helped frame pressing socio-political anxieties and hopes of the period, shaping modern Anglo-American thought concerning international law. In conclusion, I attempt to draw salient features from this investigation that suggest the evangelical character of modern international law, and offer some potential directions of future research concerning the intersection of international law and religion.

2. Legal historians typically situate the birth of modern international law in the decline of Christian faith.1 The story goes something to the effect that once upon a time law was grounded in metaphysical beliefs governed by the Roman Catholic Church and the Empire. Jurists followed a natural law jurisprudence, which justified a top-down political order divorced from the well-being of the actual population or any empirical knowledge. With the rise of scientific innovation and increasing contact with non-Western populations, legal historians argue that the 19th century witnessed a sea change in legal thought. Natural law was replaced by a positivist oriented methodology whereby the church and emperor gave way to an international order of formerly equal sovereign states, which now justified its authority on the personality of its population: the nation.2 Since there was no overarching legal authority but only equal states, the basis of legal reasoning is now subjective, liberal, increasingly attuned to its limits and so on. Modern international law, in other words, is born in the disillusionment of faith in God:

[W]hat had in the 18th and early 19th centuries been described as the “law of Christian nations”… had by the turn of the 20th century been slightly altered and largely redefined as the “law of civilized nations”… This shift from overtly religious (Christian) and culturally or geographically limited (European) definitions of international law, to one based more on secular and universal “civilization” is … clearly documented in the writings of the 19th century legal scholars.3

3. This narrative dominates both Anglo-American and European histories of international law. For example, in Europe, here is the preeminent international legal historian, Martti Koskenniemi:

The dissolution of the Pope's and the Emperor's authority was accompanied by a metamorphosis of the feudal community into the State. … [T]hrough the individualistic ideas of the Renaissance and the Reformation a new consciousness was sown. What had been thought of as matters of faith were now seen as superstition … subjective rationalizations of power. … [T]he Peace of Westphalia (1648) marks the transition from a Christian view of the world as an objective hierarchy of normative meaning to a historically relative consensus. … The liberal doctrine of politics … [and the] idea that social order should be based on the subjective consent of individuals … [and] scientific study … emerged between the 16th and 18th centuries as an attempt to escape the anarchical conclusions to which loss of faith in an overriding theological-moral world order otherwise seemed to lead ….4

4. This same story is conventional wisdom in the United States. Here is the international relations scholar, Richard Falk, writing on the creation of the cosmopolitan project within the international legal order, tying together the themes of secularism and a liberal political ethos:

Secularism is tied historically and ideologically to the fate of the sovereign state as the primary organizing unit of world order. … The secular character of the state was an invention of Western Europe that took hold of the Western political imagination in the 17th century. It was rooted in the desirability of grounding knowledge and the governance of society on non-religious foundations of scientific rationality. … Secularism has played a creative and profound role in achieving a relatively smooth transition from the realities of medieval Europe to modern Europe. Its most notable contribution was to promote and institutionalize an ethos of tolerance that greatly pacified the struggle within Christianity between Protestant and Catholic rulers and that opened the way for the rapid growth of science and industry. This secularist record of success was tied to the identity and primacy of the sovereign state as the dominant political actor on a global level.5

5. The prevailing account of modern international law's history can thus be seen to contain a paradoxical relationship to Christianity. On the one hand, it is generally acknowledged that various traditions of Christianity played an important backdrop to the birth of international law, and would never fully disappear from disciplinary policy and practice—for instance, in the case of colonial justifications for civilizing populations on the African continent throughout much of the 19th century. On the other hand, the core logic and practice of international law is generally posited to develop specifically out of the loss of faith in Christianity; its occasional manifestations—by and large a historical residue. The decline of Christianity is thereby linked to the rise of modern international law in a way that characterizes the discipline as real-world oriented (e.g. scientific, rational, pragmatic) and guided by a cosmopolitan ethos of liberal democratic values. Differences are mediated (e.g. between Protestant and Catholic leaders) to allow for “broad political consensus”, which in turn leads to the institutionalization of “tolerance” and the “rapid growth of science and industry”—all of which is carried out through a “relatively smooth transition”. In terms of contemporary debates over the efficacy of international law, this memory allows members of the discipline to design an almost impenetrable edifice: it is not the fault of international law per se when religious or political violence erupts, but is instead rationalized as a modern vestige of the primitive (irrational) origin of humanity. As the legal historian, Peter Danchin elaborates:

[In this sense, the] mainstream account of the origins of Western nationalism in Enlightenment terms of rights, equality and tolerance has served to obscure the historically exclusionary origins of the Western liberal state … reinforce[ing] a false distinction between Western civil nationalism and … non-Western ethnic nationalism. … The origins of Western nationalism lie not in a civic beginning in an era of liberal democracy, but rather in a series of illiberal exclusions … gradually forgotten and transposed into a more secular, objective [legal order], creating the illusion of a commitment to inclusive universal values and toleration of diverse ways of life.6

6. The problem with this account concerning the development of international law, as intimated in part by Danchin's quote above, is that it simply does not appear to hold up to closer historical scrutiny. In contrast, my hypothesis is that the liberal Protestant cultural elite within the Anglo-American tradition drew upon their religious heritage to significantly influence the development of modern international law, and this story intimates a set of socio-economic dynamics including the rise of financial-industrial capitalism, the linking of state bureaucracies with the move to professionalism within the universities and among the middle-class and the new pre-eminence of the nation, or culture as the legitimization and goal of political authority.7 In addition to focusing on Christian faith as a bedrock to modern international law, I think this story differs from the traditional narratives in three important ways, which go towards explaining why legal historians tend to overly discount Christianity in the history of international law.

7. First, legal historians tend to be lazy. International legal historians generally focus on grand political events and either the official language in legal instruments or only the most famous monographs from the period.8 The fact that references to God are removed from the texts, or that the ecclesiastical courts are replaced by state courts, and so forth, is seen as proof that Christianity stops being relevant to legal reasoning. But what they are oftentimes missing is, on the one hand, an understanding of the actual debates within Protestant theology from the period and, on the other hand, the archival records that hold the letters, newspaper articles and lesser known legal texts from the founders of international law.9 What we see looking at these materials is that liberal Protestant theology prefigured the so-called secular turn in law, and that international jurists were keenly aware of these theological ideas and often participated in these debates. In this article, I'll try to embed the legal doctrines within this broader context.

8. Second, legal historians over-emphasize the last half of the 19th century, especially looking to the scramble for Africa and, more generally, the colonial experience in international law. However, jurists began to first write on the idea of international law as an academic and professional vocabulary in the early to mid-19th century, and these writings give important clues to the hopes and anxieties that structured how international law developed later on in the century. The failure to resituate the texts within this slightly earlier period leads to general misunderstandings about the context and meaning of the debates in the later part of the 19th century. In particular, international legal concerns grew less out of the colonial scramble per se, and more from the challenge of resituating domestic (and inter-European) authority in the face of anti-capitalist challenges from the nascent working classes (and by extension, immigrant populations). Liberal Protestantism was a useful justification in this regard, not as a noble lie, but rather containing a long tradition of ideas and practices about authority to manage these populations. Here, I've tried to focus therefore on the period between 1820 and 1880.

9. Third, there is a tendency among many historians to think of international law as a distinctly European practice, while America—and to a lesser extent, Britain—are often seen as the bad guys, the countries that invested their energies in justifying breaking international law. What this misses is that British and American voices were key players in its development, influencing their European contemporaries. In fact, I think it might be better to think of Anglo-American and European international jurists sharing a common cosmopolitan endeavour, which transcended any particular national affiliation—and, if anything, was religious in its grounding. I have brought one European scholar, Johann Caspar Bluntschli, into this story, just to emphasize the extent to which Europeans were influenced by their peers.10

Divine immanence: the Protestant crusade in theology and international law

Crises of legitimacy and the turn to immanence

10. The middle half of the 19th century is largely remembered by international legal historians as a relatively peaceful period of inter-state affairs, economic advances and democratic clamouring that sporadically arose to challenge aristocratic hierarchies, ultimately seeming to culminate in more or less non-violent liberal constitutional reforms.11 The product of this narrative is a widely shared assumption that the rise of nation-states (the national self-determination of distinct cultures)—the basic unit of international law proper—did not require militant violence, but instead rode to power on its sway over the imagination of Western European populations and rulers alike and on its ability to concretely respond to the material relationships that conditioned the turn into the modern era, a quasi-Whiggish orientation towards international legal history. Corresponding to this rise of the modern international legal architecture is the idea that remaining religious belief was fundamentally thrown into a rearguard position to respond to new discoveries in science (e.g. Darwinism, geology), the professionalization (and sophistication) of academic disciplines (e.g. history, sociology, political economy), colonial encounters with radically different styles of everyday life and governance (e.g. what was called the Far East, Africa and so forth) and the increasingly materialistic demands of urban populations. These shifting allegiances are generally summed up in academic literature in international law under the mantra that the basis and goal of the international legal system moved from Christianity to Civilization. The first generation of international lawyers are likewise remembered to be largely optimistic, if not naïvely enamoured, with the possibilities of Western civilization and blindly investing in a faith towards the progressive plan of an only vague religious notion of Providence. International law today thereby sees itself born out of a childish period, where to be sophisticated nowadays requires that one give up certainty and become attuned to the frailty and danger of any monolithic political–legal–social perspective—in short, the contemporary international lawyer is conceived through an awareness of secular-oriented anxiety, which by necessity is remembered to be only felt in a nascent form within the profession before the First World War in Europe.12

11. In fact, however, Western Europe underwent monumental and reoccurring challenges to authority throughout the majority of the 19th century. Enlightened despots and aristocratic regimes, often attached to the population through quasi-feudal agrarian relations, were increasingly coerced into political negotiation with emerging sectors from finance (e.g. financial houses located within the major urban cities, such as London) and industry (e.g. mercantile, working classes), as well as novel state arrangements centred around a constitutionally grounded rule of law (e.g. characterized often as liberal democratic revolutions) and unprecedented explosions in knowledge from both the applied and natural sciences (e.g. technological innovation, geology) and humanities (e.g. statistical compilations through censuses, rising interest in socio-political differences across time, space and language).13 As small merchant shops, industries and landlord–tenant relations moved from more close-knit models to large scale production, on the one hand, owners were increasingly requiring finance from outside lenders who sought to limit the risks of their investments, and, on the other hand, workers found themselves more and more detached from the propertied classes, both in terms of geography (e.g. the rise of urban tenancies, working off-site from storefronts in factories) and risk (e.g. divested of claims upon industrial and property owners for support in times of economic hardship due to famine or unemployment). While the number and models of political governance were consolidated under the centralized bureaucracy of the state acting in conjunction with the emerging space of civil society and finance, contestation increasingly erupted over the governing principles and organizational modes and relationships of distribution and identity, forcing new alliances and justifications of authority.

12. These politico-economic shocks were also felt in at least two important ways throughout Anglo-American Protestant communities. First, in an internal register, the Protestant laity found themselves increasingly split over what it meant to be a Christian believer and how to interpret the nature and meaning of the scriptures; and throughout the 19th century, Protestant communities would oscillate between periods of ecumenical truce and unrest. In this article, I focus on the liberal branch of Protestantism and New Light theology, which encapsulated many of the new ideas emerging in the 19th century, and which would become almost a form of orthodoxy within the Protestant cultural elite of which the first generation of modern international lawyers belonged. Second, as politico-economic patterns of subsistence and social relations were felt increasingly de-stabilized, the Protestant laity reified their common religious identity against what they saw as a multitude of internal and external threats. On the one hand, they mobilized to crush the godless rise of labour movement and left-wing ideologies, as well as the restoration movement within the Roman Catholic Church, all of which were on the rise in Old Europe and transmitted via immigrants to the New World. On the other hand, the demand of the new financial-industrial capital for raw materials and new markets and the growth of colonialism, brought their countries into increased contact with foreign systems, which challenged fundamental assumptions of governance and meaning and thereby allowed Protestants to create an imagined united front on the global level.

13. In response to these imagined and real threats, the liberal Protestant cultural elite turned to develop a comprehensive system, which could encompass material and spiritual reality. As the social historian Charles Hopkins explains: “the vision of God now was the idea of an unfolding in human institutions, so that no more distinctions of sacred and profane since sanctity in all life … [there was] no sacredness about the church that ought not to be attached to the chamber of commerce.”14 In the face of immanent threats to authority, this article now turns to examine how the liberal Protestant cultural elite responded with a mammoth endeavour in the realm of theology and international law to not only secure their sense of spiritual meaning and entrench their political control on a local and global level, but to redefine the very conditions of what it meant to be human in the world—what came to be conceived under the theological concept of divine immanence.

The participation of divinity in public opinion and socio-legal institutions

14. Lutheran jurists in the 16th century, such as Melanchthon, stressed that the laity was the new Church, and that the social institutions and laws of the political order were the very “masks of God” to be discerned by the administrative bodies of the principalities. The idea of Christ incarnate in the life of humanity gained renewed currency in the late 18th and early 19th centuries in Britain and America, what came to be seen as New Light theology and formed the basis of liberal Protestant doctrine.15 “The glory, the true sublimity of God's architectural wisdom,” writes the New Light Protestant theologian, Horace Bushnell, “is that, while his work stands fast in immutable order, it bends so gracefully to the humblest things … plaint to all free action, both his and ours; receiving the common play of our liberty, and becoming a fluent medium of reciprocal action between us.”16 The necessity of the faithful carrying out the will of God on earth, of course, was itself a long-standing theological concept within Protestantism—the novelty of their argument lay instead in their conclusion that humanity not only partook in God's will, but actually possessed divinity on an individual, social and institutional level. “The highest idea which man can frame is that of the unity of divinity with humanity, and with such a marvellous adaptation to human sympathies,” explains the 19th century Presbyterian theologian Newman Smith, “made the very means of drawing us within the hallowed sphere of the glories of divinity.”17 The central message of the Gospels taught by Jesus Christ was not simply that humanity could be saved, therefore, but that humanity was already working out its salvation on earth. “The Christian conception of life and its supreme good rests on this fundamental fact which Jesus announced, that the kingdom of God is not something wholly future, or remote from our present participation in it, but it is a real power and an actual reign of God already begun on earth,” writes Newman Smyth reflecting the spirit of the age, “a kingdom of heaven into which we may now enter, and which offers through citizenship in it some immediate possession of the highest good and present part in the eternal life.” The kingdom of heaven was to be worked out on earth, a constantly evolving dialectic of personal and societal perfection—what, in theological terms, became known as post-millennialism (I will pick up on this theme of development, or perfection, later in the article).

15. Christian truth would therefore no longer only be found in the scriptures, but through careful study of civilization itself. As New Light theologian Octavius Frothingham writes: “We have been talking for a long time about natural theology, it is time to begin to talk about social theology. … Social science is the best modern teacher of theology.”18 If theology would look to sociology, social scientists would specifically see their analysis in terms of Christian discovery. “This is an age when the study of social science is in its inception. It should be the science of Christian society. Its field is the world, including all classes and conditions of men from all nationalities,” writes Professor Graham Taylor. “Its work is to investigate the conditions of social and personal life, discover the causes of suffering and the sources of inharmonious relations. When Christian sociology has done all this, it will be more possible to adjust differences, and harmonize the varying elements by applying the principles of Christianity.”19 The anthropomorphic turn within political theory and law, in other words, was not led by the revolt against God, but was part of a more general development within liberal Protestantism to re-entrench spiritual faith in the world and to make it more concrete (or natural) in everyday life, at home and abroad. Protestant theologians and intellectuals therefore came to prioritize the necessity of institutional reform in moulding social sentiments. Reflecting on the theological assumptions of the era, social historian Mark Neely explains:

[I]nstitutions were crucial precisely because of the importance of intuition in human psychology. If spiritual truths were not a matter of rational understanding … then an individual could become a Christian literally without knowing it; he could enter the church even before he understood the doctrine. Unconscious or irrational influences could impress themselves upon an individual in infancy and childhood before he was capable of rational understanding. The silent and indefinable workings of the child's environment—the institutions of family, church, and civil society—were subtle but crucial. Institutions shaped the individual before he could decide to shape himself one way or another.20

16. The collapse of the secular and sacred spaces was, therefore, not a falling away of Christian faith, but the full immunization of the divine in human affairs. This was the retrenchment of the Ecclesia that dated back to scholastic literature, the Church itself understood as an “indivisible unity covering every aspect of man's political and social being” that sought to construct the “societal whole” as an “earthly expression of a heavenly pattern”.21 As the theologian George Herron writes: “[T]he beginnings of a great political movement … [is] inspired for the purpose of translating the righteousness of Christ into the legislation of the nation, and the making of his mind the national political sense.”22 In this way, the “nation itself [became the] bearer of civilization … an agency of the subjugation of the world to Christ,” explains the religious sociologist Handy. “The mission or Christian faith was virtually being identified with national destiny, with the progress of civilization.”23 If Christianity was no longer to be spread as a dogma, therefore, Protestant theologians and intellectuals saw its future “to grow and spread both as a life and as a civilization.” In this spirit, the American missionary and amateur diplomat to the Chinese, W.A.P. Martin, justifies the translation of Bluntschli and Wheaton's books on international law as direct missionary work:

I was led to undertake it, without the suggestion of anyone, but providentially I doubt not, as a work which might bring this atheistic government to the recognition of God and his eternal justice and perhaps impart to them something of the Spirit of Christianity.24

17. The first generation of international jurists reflected their theological peers in their early legal texts. They too saw Christianity as a source of truth, which brought the human and divine together. “Christianity explains us to ourselves; and the law which it teaches us, in being divine, is not on that account the less, but the more, human law,” proclaims the Scottish jurist James Lorimer. “[I]t is Christianity alone which, in opening to humanity a new avenue to the knowledge of God's will.”25 If Christianity was the source of knowledge, it would therefore be found in the social institutions and laws of Christian society. As the Prussian-American jurist Francis Lieber would write:

[T]he Christian religion is interwoven with all the institutions which surround us and in which we have our social being. … The Christian religion has found its way into a thousand laws, and has generated a thousand others. It can be no more excluded than the common law, or our language.26

These laws were nothing less than the modern Gospel to humanity. The “forward movement of … international law … over the world, the possibility of a universal law of nations, spread[s] itself like the universal Gospel over mankind,” writes the American jurist Theodore Woolsey, and the “progress of the world, hereafter, will consist in setting aside the exclusive claims of Christ” while “retaining all that in His moral precepts … [and] something of its spirit” to give “guidance … to science and human insight” so that “the coming ages will reach the point of perfection that is attainable by man.”27

18. In this sense, following their theological peers, the first generation of international jurists saw the state institutions, and especially the role of law, to possess a distinctly Christian personality. “Society wants jural relations,” declares Lieber, drawing upon German jurisprudential theory, “it cannot exist without them. … Man cannot be, what he ought to be … except by wise laws and sound institutions. …”28 Law, in other words, transmitted the moral sentiment of humanity into materialized existence—the spirit or word of God made flesh—and, in doing so, demonstrated the reality, or authenticity, of such moral/religious principles.29 “International law … must not be in contradiction to the principles of morality, but they cannot be identical with those principles,” the British jurist John Westlake explains.30 “The very notion of a jural right as distinct from a moral one, that is, of a right which men will enforce as distinct from one which they will feel but not enforce, implies a society between the members of which it serves as a ‘modus vivendi’. …”31 The constitutional energy that came to possess the jurists of the 19th century (on the municipal and then international arena), in other words, was not merely a desire to systematize an increasingly complex body of overlapping legal relations to smooth over unrest towards the sovereignty of the state, but grounded on the Protestant aspiration to give the religious morality of Western European society political bite.32 “In fixing an inevitable relation between legislation and the spirit of the people,” writes Lorimer, “we bind the former irrevocably to the latter … [a]gainst … spiritless, unmanly and unchristian acquiescence.”33 Laws were therefore both consensual and pedagogical, at once the product and the regulator of Christian civilizations working out salvation in history. “The large system of institutions,” Lieber explains, are both the “apparatus … [and] organism of our civilization … whose object is to promote the culture of the mind … and, ultimately, … an intenser devotion to God.”34 The legal institutions of the state were nothing less than the divinely ordained vehicle of self-realization and perfection. “International law [is based] on the unity of the human race,” writes Bluntschli, “and only in the State … based upon human nature … can man attain his perfection and find true satisfaction.”35 In this way, the commingling of laws and society in a dialectical relationship to substantiate a veritable Kingdom of Heaven on earth was thereby condensed in the manifestation of the nation-state—the nation, or consciousness of the people, giving life to the state, and the state providing the corporeal body of the nation. “The State … is a moral and spiritual organism,” proclaims Bluntschli, “taking up into itself the feeling and thoughts of the nation, of uttering them in laws, and realizing them in acts … [towards] the organization for the perfection of common life.”36

19. If the social institutions formed the body of the new Church, the public opinion of the people, what came to be seen as the nation, represented its spirit, what Rousseau had called in the previous century “a divine instinct, [an] immortal and celestial voice, … [the] judge of good and bad which makes man like unto God.” For Protestant peace activists, such as William Ladd (and echoed by legal scholars, such as Rolin-Jaequemyns), public opinion, mediated through the ambassadors and learned classes of the developed nations, was nothing less than the “queen of the world”—the “gentle civilizing spirit”, which Martti Koskenniemi has written extensively about in the context of 19th century international legal formation. Just as the inner sentiment would guide the individual believer and the church laity, albeit through the mediation of an epistemic community (e.g. priests, administrative personnel), so too would the nation and social organizations provide the blueprint for civilization and state institutions across the globe in a way that allowed voluntary, free will and genteel persuasion. “On general principles … as well as from all past experience,” writes the New School Reverend Absalom Peters (1793–1863), “we are constrained to believe that the voluntary, associated action of evangelical Christians, as far as it is practicable is much better suited to the object of the world's conversion, than any form of church organization for this purpose, ever has been or can be.”37

20. The first half of the 19th century thereby witnessed an explosion of Protestant congregations organized into voluntary societies to address the most pressing social conditions through regular meetings, pamphleteering, and social activism—a liberally conceived Protestant Crusade ranging from the temperance movement and anti-slavery campaigns to the establishment of Christian workingman colleges and religious unions seeking to preserve the privileges of the dominant Protestant hierarchies, while at the same time distinguishing themselves from the prevailing critiques levelled at autocratic governments for being unresponsive to the consent of populations. “[The] multitudes will never yield, until the friends of God and man can form a public sentiment so strong as to crush the character of every man who will not give it up,” writes Charles Finney. “[No] command of God, no requirement of benevolence, no desire to save souls, no pity for bleeding humanity, will move such persons, until you can form a public sentiment so powerful as to force them to it, on penalty of loss of reputation.”38 For theologians, public opinion brought the invisible hand of the Holy Spirit into a more concrete, human realization which, in a political register, would privilege republican democracy over aristocratic statist regimes and the professionalized bureaucracies over the hierarchical structures over the Roman Catholic Church.

21. International jurists are often remembered in the 19th century as forsaking naturalist thought in favour of a strict positivist jurisprudence that privileged the state as absolute sovereign, but in fact, if we look closer at their writing, they followed theological thought to ground the state in public opinion as well. “The Law of nations, in fact, has neither lawgiver nor supreme judge, since independent states acknowledge no superior human authority. Its organ and regulator is public opinion,” explains the British jurist Travers Twiss:

Its sanction, or the obligation of all nations [is] to respect it … form[ing] at once the rampart of justice, and the Nemesis by which injustice is avenged … result[ing] from the moral order of the universe [and] … constantly tend[ing] to unite the whole family of mankind into one great harmonious society.39

The celebration of public opinion would be widely shared among his legal contemporaries. “Public opinion is the sovereignty of society,” writes Lieber, “the sense and sentiment of the community … giv[ing] life to the law”; to abandon it was to make the “written law … a mere husk”.40 This was again a voluntary, democratic ideal, which would lead slowly to a world-wide Christian brotherhood, connecting states and populations into a single divine plan. “This change from a passive to an active obedience must itself be effected by the common consent of civilised mankind, embodied in a great law-making document, which must be signed and ratified in the formal manner by those in each state who have authority to pledge its faith before the world,” explains the British jurist Thomas Lawrence:

They must realise the brotherhood of nations in a way they have never done before. They must part for ever with the doctrine that right and justice … have no place in the intercourse of states though they are essential to the well-being of the Society of Individuals. In short they must resolve to apply the principles of Christianity to their transactions with one another. … With this as the only alternative, men devoid of moral enthusiasm or spiritual vision may well resolve to give the precepts of Christ a trail in international affairs … a wing of a great army slowly forcing its way onward against strong resistance. … Enthusiasts for righteousness are the very salt of the earth. … 41

22. Christian sociability—a “brotherhood of nations” and “society of individuals”—would become central to explaining in particular the importance of international commerce, which might otherwise appear an exploitative relationship within the colonial encounter. “Populations cannot increase, nor civilization expand without exchange, commerce and an ultimately peaceful international communion. Consequently, we find this law … [that] those wants of necessity as well as taste which daily recur are manifold in each individual,” explains Lieber:

It is the all-embracing law of mutual dependence operating … between individuals and nations, near and far. … It is the great law of territorial division of labor and consequent union of men … the injunction of mutual dependence.42

Nor did sociability stifle individuality. Openly pursuing their own interests and acknowledging the other party to be doing the same, however inadvertently, fostered a spirit of authenticity and, at the same time, with their strategic efforts to negotiate the best deal possible, encouraged each party to try and stand inside the other's shoes to better deduce their motives.43 To ensure the best terms and security of their dealings, actors would thereby come to mutually seek clear procedures of communication and enforcement mechanisms, which in turn would again necessitate levels of trust that had been absent from the courtly character of the past diplomatic system, which was thought to be a leading cause for the inter-state warfare within Europe throughout the 17th and 18th centuries. Trade and commerce, therefore, functioned as a modern Gospel by erasing traditional prejudices and differences towards the promise of a universal brotherhood of humanity united under a common internationalized law in the collective pursuit of the moral and material benefits of capital. Addressing his students, Lieber would echo this sentiment:

You live in that half century which has recovered free trade, and will you ever forget … that free trade is nothing more than the Christian's peace and goodwill towards men, applied to the sphere of production and exchange, and as important in the material world as the angelic song is in the moral sphere. …44

23. The jurists' gospel, however, also occasioned ever-growing disparities of wealth and poverty within and between societies, which required elaborate explanation for both theologians and jurists. In the following section, this article analyses the theological development of analogizing Jesus Christ to the Victorian gentleman, which came increasingly to function as a tool of governance in response to the perceived threats from Catholicism, colonized populations and the nascent industrial working class. The idea of divine immanence, now mediated through the figure of Christ and the injunction on believers towards self-perfection, can again be seen to animate the professional imagination of the international jurists.

True apostles, perfection, and the anxieties of order

Apostles of perfection

24. The difficulty in rooting the voice of God in the affairs of humanity was that claims to legitimate authority might proliferate, thereby opening the door to varieties of anarchy and radicalism (most importantly, domestic working class ideologies and movements). What was felt necessary, therefore, was both a community of faithful interpreters and an agreed upon standard of applications; or, in the words of the Protestant divine, William Channing, the need to distinguish the “essential” from the “accidental”. Just as divine immanence was theorized in relation to social institutions and the polity at large, the doctrine was extended on an individual level through an emphasis on the figure of Jesus Christ, the “perfect personal union of the divine and human appear[ing] historically.”45 Yet, if God spoke through the conscience of the individual, liberal theologians cautioned that a proper understanding of His message could only be deduced and activated through a properly refined attitude becoming of a citizen of God's Kingdom—to internalize the “great aim of culture” and discipline one's character according to “the tastes of a cultivated class, a certain high standard of civilization.”46 In his 1869 Culture and Anarchy, Matthew Arnold eloquently describes the ideal of the Victorian Christian gentleman:

This is the social ideal … this large class of gentlemen in the professions, the services, literature, politics, from business also—this large class not of the nobility, but with the accomplishments and tastes of an upper class … something peculiar to England. … The kingdom of God is within you, and culture, in like manner, places human perfection in an internal condition … as distinguished from our animality … to divest the best knowledge of all that is harsh, uncouth, difficult, abstract, exclusive; to humanize it, to make it efficient outside the clique of the cultivated and the learned, yet still remaining the best knowledge and thought of the time, and a true source, therefore, of sweetness and light. … [T]he men of culture are the true apostles … mak[ing] reason and the will of God prevail … announc[ing] the revolution of the times.47

25. International jurists drew upon New Light post-millennialism to legitimize their program—the divine function of law to connect the social life of the people to the divine will of God granting the profession an unique calling as the vanguard of the true apostleship.48 “The laws of our social life … if they really possess the characteristic of law at all, are … not of our own making; they are made for us by God; and our duty is to discover them,” declares Lorimer. “As an apostle of order, [the jurist] must accept the inevitable, trace out and define the laws of its action in detail … [and apply them] to the circumstances in which we are called upon to act.”49 Like their theological contemporaries, the first generation of international jurists pegged the “apostles of order” to a liberal Protestant interpretation of Jesus Christ. “I am convinced that it was possible to conceive this character in its fullness only by the aid of Christianity,” writes Lieber, “and believe—I say it with bowing reverence—that in Him to whom we look for the model of every perfection we also find the perfect type of that character.”50 The goals of nation-states and individuals were, therefore, closely related in an unending quest of disciplining all aspects of social and private life in the image of God, to demonstrate what Westlake would call “good breeding”, which was equated with the noblest aspects of human nature.51 “The fulfilment of God's will, and the development of humanity in God's likeness … are the final objects of every legitimate human endeavour … wonderful [and] consisten[t] [with] the better part of our nature, guided by those divine influences by which it was implanted, [to keep] the face of humanity heavenward,” Lorimer declares.52 This was a formal political ideal, which mimicked the Protestant theology that understood Christ in historical and philosophical terms, to the extent that it was universal in its offer, created a formally equal community of believers, elevated the divine within the human, and yet was also routed in real historical examples. Addressing his graduating class, Lieber would elaborate the ideal of the professional gentleman within the emerging cosmopolitan world-system:

I have found a type … essentially English … a degree of perfection … the Phoenix of the human species … [possessing the] most elevated and intense sentiment of personal dignity, a more religious respect for the divine part which the Almighty has vouchsafed to men. … The character of the gentleman produces an equality of social claims, and supersedes rank, office, or title. … Nowhere appears, and indeed nowhere can appear, this fact more strikingly than in the mess-room of a British regiment, where the colonel and the ensign, who … meet on the common ground of gentlemanly equality. … The character of the gentleman passes the bounds of states and tongues, and, without enfeebling our love of country (did it so, we would repudiate it), gives a passport acknowledged through the wide domain of civilization … extend[ing] over entire hemispheres.53

26. Returning to Arnold's injunction, to be a “true apostle” for liberal Protestant theologians furthermore required a revolution from traditional religious truth through the adoption of modern intellectual techniques.54 “Simple faith might have been sufficient for the first ages of the church … [but] we live in an age of controversy,” explained the 19th century New School Presbyterian theologian Henry Smith, “surrounded by minds drenched with objections to orthodoxy, among people who, whatever else they have asked, have always asked a reason to defend our faith, to commend our faith, we need systematic theology.”55 This systemic defense of Christian theology would be constructed to synthesize religious belief with historical fact,56 philosophical insight57 and scientific discovery58 whereby truth would not only increasingly come to be more clearly perceived, but was itself in a state of ongoing evolution between the spheres of the sacred and secular—what theologians would call by the late Enlightenment period, “accommodation” or “perfectionism”, often articulated in the mantra to “be like Christ”.

27. For even more conservative theologians, such as John Henry Newman, the law of perpetual development thus lay at the heart of all Christian truth. “The mind which is habituated to the thought of God, of Christ, of the Holy Spirit, naturally turns with a devout curiosity to the contemplation of the object of its adoration, and begins to form statements concerning it, before it knows whither, or how far, it will be carried,” writes Newman, in a language reminiscent of Hegel's dialectical position:

One proposition necessarily leads to another, and a second to a third; then some limitation is required; and the combination of these opposites occasions some fresh evolutions from the original idea … and results in … the carrying out of the idea into its consequences.59

Reflecting on this new modernist spirit of rupture and continuity, Newman Smyth explains the importance of the 19th century believer adopting the professional innovations of the period:

Adaptation to science and culture is … [w]arranted by the nature of religion and the history of Judeo-Christianity … [and stands against] the dogmatic stagnation and ecclesiastical abuse of orthodoxy … an orthodoxy which has ceased to grow … a crust of dogma kept over from another century.60

28. The notion that the divine was a dynamic force that imparted an ever-perfecting influence through and upon humanity was routinized by the liberal Protestant theologians (and in turn by their legal contemporaries) against three primary agents, which were seen as both godless and lacking the capacity for participating in historical development: the religious and socio-political institutions of colonialized people, the Roman Catholic Church and political ideologies oriented towards the interests of the industrial working classes. In the remainder of this article, I turn to addressing each in turn, beginning with non-Western colonial institutions through the theological conception of divine immanence as a “perfecting”, or “developing”, agent in human governance and identity.

The anxiety of colonized populations

29. Though theologians and international jurists called for a “brotherhood of humanity”, the practical and ideational substance of “civilization” remained firmly within the confines of Protestant territories within Western Europe and the United States. “God has always acted by chosen peoples,” writes Samuel Harris. “To the English speaking people more than to any other the world is no indebted for the propagation of Christian ideas and Christian civilization.”61 The New York Methodist minister, James King, would elaborate:

Christianized Anglo Saxon blood, with its love of liberty, its thrift, its intense and persistent energy and personal independence, is the regnant force in this country and that is a most pregnant fact, because the concededly most important lesson in the history of modern civilization is, that god is using the Anglo Saxon to conquer the world for Christ by dispossessing feeble races, and assimilating and moulding others.62

Theologians came to increasingly justify the growing imperial struggles in the colonial territories, following authors such as Vattel, by arguing that Western civilization revealed the true nature (and divinity) of human identity and organization, and people unable to accommodate its principles and structures were simply not part of humanity, or at least God's ultimate plan. “If we want the nations of the earth to understand Christianity, we have got to have a Christianized nation to show them,” writes Gladden:

The real question is, after all, what Christianity is able to do for the civilization of a people. The keen'witted Orientals, to whom we are making our appeal, the Japanese, the Chinaman, the Hindus, the Turks, understand this perfectly, and we must be ready for a rigid application of this test. … We are judging them in the same way. The religions of the world are forced by the contacts and collisions of world politics into a struggle for existence, the evolutionary processes are sifting … and we shall see the survival of the fittest—that religion which best meets the deepest needs of human nature.63

30. Theologians would consistently justify colonial expansion, therefore, on the basis that non-Western populations were trapped in stagnant, if not simply brutishly violent, ideologies incapable of reform on their own terms of engagement. At the 1888 Missionary Conference in London, Dr Post echoed the feelings of his colleagues that “Islam implies absolute despotism. … It would be impossible according to the system of Mohammedanism to have anything but an absolute despotism … Islam [is] propagated by the sword.”64 Likewise, Hinduism, for Reverend F.F. Ellinwood, was “the masterpiece of human error … illustrat[ing] in the very highest degree the exhaustive effort of human philosophy to find out God, and at the same time the most successful of all Satan's devices to obscure the knowledge of God with innumerable lies.”65 Indigenous North American populations were, for Reverend A.F. Beard, not to be “oppressed”, but that “[i]t may be the Providence of God that barbarism shall be crowded out by civilisation” whereby “the history of Indian wrongs by the whites in the inevitable advances of civilization.”66 Even Jewish populations, themselves an inspiration in many ways to liberal and orthodox Protestants alike, were specifically targeted as in need of Christian absorption. “Israel is not God's ancient people but the Church,” writes Reverend John Wilkinson. “To bring them about Divine agency is required, and that is promised … upon the dead bones of the house of Israel … [and] the conversion and restoration of Israel as a nation.”67

31. This spirit of perfectibility picked up by the first generation of international jurists as a central component in justifications for the nation-state model and international commerce abroad. “What is more worship of a Creator [than] the idea that he made man, with divine endowments and procreative power, and that he made rivers and the sea and land, with its productive powers,” writes Lieber. “[W]ell knowing that in due season, man's children would invent the plough and the sail and the bridge, or to imagine that he whispered into the ear of man how he should make the plough, shape the sail or throw the bridge.”68 If “perfectibility”, or “development”, was the dynamic of Christian civilization, it was therefore the obligation of Western nation-states to transform the world in a never-ending process of moral and political self-determination. In the words of Lormer:

Unless we are to separate jurisprudence from ethics altogether, we must accept the duty, not of self preservation alone, but of cosmopolitan development, as the measure of national obligation. Colonisation, and the reclamation of barbarians and savages, if possible in point of fact, are duties morally and jurally inevitable. … It is conceivable, or course, that these forces should be controlled, not by individual States, but by a central authority, emanating from the whole body of recognized and recognizing States, and that the process of civilisation should thus become the common task of civilised mankind.69

The civilizing mission was thereby not only natural and inevitable, but the realization of God's calling to the faithful in their collective organization—in short, the preparation of societies to transform themselves into national polities was the very working out of salvation in history. Indeed, for authors such as Woolsey, the “forward movement of … international law … over the world, the possibility of a universal law of nations, spread[s] itself like the universal Gospel over mankind” and the “progress of the world, hereafter, will consist in setting aside the exclusive claims of Christ” while “retaining all that in His moral precepts … [and] something of its spirit” to give “guidance … to science and human insight” so that “the coming ages will reach the point of perfection that is attainable by man.”70

32. Since “development” was innate to humanity and the gateway to a post-millennial world order, the “City of God” on earth, those people who did not evolve were simply not destined for preservation, whether that was justified in relation to the divine plan or natural selection. Adopting a version of social Darwinism, many jurists would point to the fact that many non-Europeans were not successful for one reason or another to adopt Western European socio-political institutions as empirical evidence of their genetic inferiority. As Bluntschli explains:

Not every people is capable of creating and maintaining a State … [and] the weak must combine with others or submit to the protection of stronger powers. … Strictly speaking, only those peoples in which the manly qualities, understanding and courage, predominate are fully capable of creating and maintaining a national State. Peoples of more feminine characteristics are, in the end, always governed by other and superior forces.71

The metaphor of immaturity, or child, was usually reserved for African and Indian populations, which were depicted in a stage of stunted growth in need of cautious tutelage. “[T]he dark Ethiopian race, the ‘nations of the night’… [are] childish by nature, … meant to be educated and ruled by higher nations … their political capacity … very small,” writes Bluntschli. “With a luxuriant fancy and excitable passions it unites a poor understanding and a weak will.”72 Other political identities, such as Chinese and Hindu, were outside the fold on the basis of “stagnation” or “decay”. Speaking of the caste system in India, Bluntschli would write that:

[I]t fetters and cripples the best forces. The State becomes at last a mummy, in which the embalmer's art … tries to conceal the features of death … Life is an unchanging repetition, a wheel revolving for ever in the same way and round the same axel.73

The thief, or criminal, was ascribed most often to Islamic states, and justified in terms of warfare and commerce: on the one hand, Islam relied not on persuasion or education, but “the sword”; on the other hand, Muslims could not be trusted to keep agreements due to the insularity of their faith, and hence incapable of trade and exchange (e.g. sociability).74 Perhaps no jurist expressed the general sentiment of distrust towards Islamic states as vehemently as James Lorimer:

The sword of Mahomet and the Coran are the most stubborn enemies of civilization, liberty and truth which the world has yet known. The sword of Mahomet is still active, and the Coran is still the standard of belief and the rule of duty, civil as well as sacred, which guides it. But the Coran, you may say, admits of various interpretations. … But the moment that the faithful come in contact with unbelievers this ethical creed not only ceases to act—as all our ethical creeds, the Russian and Bulgarian no doubt included, too often do, but it is positively reversed … his rules of conduct towards an unbeliever are precisely the converse of those from which he deduced his rules of conduct towards believers.75

33. Jurists therefore came to increasingly advocate that their national governments remain vigilant to protect the racial-cultural integrity of their domestic population, even if such policies might spell the extermination of the foreign presence. Lieber warns:

[T]he negroes, and now also the mongolian race, which threatens to overrun the world eastward … has done repeatedly by a westward course. If under these circumstances the American government should at any future time prohibit the immigration of any particular race, or of all except the Aryans of our portion, nothing could be objected. … [T]he extinction or absorption of a race … is not murder.76

Indeed, for Lieber and others, the necessities of perfectibility, or social evolution, could even constitute eradication of otherwise “civilized” nation-states within Europe. As Lieber explains:

History has recorded contests in which no peace was possible before one of the conflicting parties was annihilated, and the time is drawing near when, in Europe, one or the other of the … great contending parties must be annihilated … at length the contest of annihilation cannot be any longer avoided … [but constitutes] the period of labor before the birth of a new era.77

34. In hindsight, such rationale seems to foreshadow the massacres of the 20th century world wars and the Holocaust; yet jurists at the time specifically envisioned the test of national institutions as distinctly non-racial. Distinguishing the British and Boer occupation of South Africa, John Westlake would declare the imposition of British political institutions as a non-discriminatory, liberal opportunity for the local populations to move towards self-rule:

Now it is often said that this is a war between two races. I would rather say that it is a war between two ideals, of which only one is a racial ideal. On the one side you have the English ideal of a fair field for every race and every language, accompanied by the humane treatment of the native races. That ideal, no doubt, makes for the English language and for English institutions. We see how under it the English language and institutions are taking possession of a large part of the world, as being those which most successfully compete in that fair field. … But the other ideal, the Transvaal ideal, is racial, not only in its result if it should succeed, but in its object. … The larger part of the world at present is governed by racial ideals.78

35. The necessity of self-rule and development was, of course, strikingly similar to the inward turn in Protestant theology that emphasized the believer's charge to strive for self-perfection. The analogy between the individual and collective operated in a double movement, at once entrenching the symbolic identity of the individual as a core unit of socio-political life (though, in many respects, itself the product of shifting strategies of large-scale political governance) and projecting Protestant norms (supposedly upward) upon the collective population, the nation-state now seen as a “moral actor” with a distinct personality and set of obligations.79 In doing so, jurists were able to represent the civilization mission as a calling, and though theoretically open to all nation-states (or at least all Christian European states), by the mid-to-late 19th century most often identified as the specific charge of the Anglo-American world:

God has … created a species, which was gradually to develop itself … We belong to the Anglican tribe which carries Anglican principles and liberty over the globe, because wherever it moves liberal institutions and a common law full of manly rights and instinct with the principle of an expansive life accompany it. We belong to that race whose obvious task it is, among other proud and sacred tasks, to rear and spread civil liberty over vast regions in every part of the earth, on continent and isle. We belong to that tribe which alone has the word self-government. We belong to that nation whose great lot it is to be placed with the full inheritance of freedom on the freshest soil, in the noblest site, between Europe and Asia … to try and at times to test to the utmost our institutions - institutions which are our foundations and buttresses, as the law which they embody and organize is our sole and sovereign master …80

The Anxiety of Catholicism

36. Theologians would characterize Roman Catholicism in analogous terms, juxtaposing its doctrines and adherents against a dynamic Protestantism invested with a messianic calling. The resurgence of Catholicism spurred on the back of large scale immigration and conservative entrenchment within the Roman Catholic hierarchy, conjured up fears of monks and immigrants secretly corroding the republican advances within the state.81 “Shall we accept the splendid trappings of the Papacy, its stupendous Cathedrals, its pealing organs, its scarlet robes, its genuflexions and images and incense, and host anduction,” cautions Albert Barnes. “[A]nd with them, let us not forget, its chained Bible, its night of mind, its ecclesiastical despotism, its Papal interdicts, its annals, its indulgences, its inquisitorial dungeons and its auto-da-fe?”82 While politicians and publicists would garner public favour denouncing the Catholic menace in speeches and publications, voluntary associations sprouted up throughout Britain, Prussia and the United States with the express goal to halt the politico-social influence of Catholicism and convert its members.83 A publication, the London City Mission, would encapsulate the sentiment of the era. “There are millions of our Popish countrymen living at our own doors, who are almost as thoroughly sunk in ignorance, idolatry and moral degradation as are the Hottentots and the negroes of Africa.”84 Since the “principles and tendencies” of “Popery” were “subversive to civil and religious liberty, and destructive to the spiritual welfare of men”, explains the American Protestant Association in characteristic fashion, it was imperative that Protestants band together to “give … instruction on the difference between Protestantism and Popery … [and] awaken the attention of the community to the dangers … from the assaults of Romanism.”85

37. International jurists shared their theological peers' aversion to Roman Catholicism. While Bluntschli would become a leading figure in the Protestantverein effort to purge Catholics from the new Germany, others such as Nys and Lieber would denounce “Romanism” in both their public writing and private correspondence. “A fine God that of those priests,” writes Lieber. “Whether you approach him by reading the Bible or by reading Nature you are alike led to atheism. O God of Truth, how long? How long?”86 Decrying the Emancipation Act and the restoration of the Episcopal hierarchy in England by Pope Pius IX, Twiss would mirror the general Protestant anxiety of the period, writing in 1851:

The instinct of self defense suggests a cry of alarm … [and] Roman Catholics must not be surprised. … The renewed Hierarchy is an institution opposed to the genius of the constitution of the realm … fraught with political inconvenience and even danger to the State.87

Similarly, colonialism by Protestant oriented countries was juxtaposed against states, such as Spain, most commonly associated with the Papacy. “These were the characteristics of the Spaniards,” writes Lieber:

The greed of gold, the fanatic exclusion of any religion or modification of Christian theology but the Roman apostolic religion; the belief in the superiority of the Spanish gentleman … the absence of all experience in self government, and therefore, the incapacity of transplanting political societies with the germ of self support within them.88

38. In contrast, the Anglican and Protestant missionaries and church institutions, however, were widely supported by international jurists as essential to the perfection of civilization, especially in the colonies. Having outlived “long efforts of the government to destroy it” and “theories and expositions innumerable”, for Woolsey, the Church foremost demonstrated the necessity of large-scale social organs that were “flexible and yet fixed, obedient to the necessities of the times, yet adhering to the unchanging principles of Christianity[,]” of which most importantly, was “its self reforming capacity” due to the “ever mingl[ing] … [of] the human and the divine”.89 Analogizing the Church to the English constitution, with “its great lacerations”, Woolsey could thereby reconcile the various material catastrophes and mutations of the Western Christian civilization without abandoning its dominant underlying claims: failure was proof, not reproach, of the emerging (Protestant) international order of nation-states, criticism actually attesting to the vitality of its principles and social character. Just as the Church assumed the covenant originally given to the Jewish people, and the (post) Reformation revealed the immanence of God in the invisible Church of the laity, so now the emerging international legal order again constituted the “a vast church”, ushering in a new era of the divine plan in human history. “[E]very epoch has its baptism of faith … [and] the common law of nations … [a] human cathedral … should be the sign of our faith. … Our war [is] therefore a holy war, a crusade.”90

39. Even though the common law of nations was heralded as the new church, many jurists turned specifically to their own state's established churches for inspiration, if not vesting them with renewed importance in the advancement of civilization both at home and abroad. In a polemically charged essay supporting the continued privilege of the Anglican Church, Westlake would argue that:

[W]herever the Englishman colonizes, the chief link which in the early stages maintains his connection with a more developed society is to be found in the English clergyman … the residence of a class combining leisure with literary cultivation … to a considerable extent, in these parts of the earth, that which … Coleridge was still inclined to see in him … the representative of civilization.91

In fact, a number of the jurists would specifically be drawn into Church affairs: Westlake an advocate in the notorious Gibord Case, Bluntschli and Woolsey regularly giving sermons and publishing religious studies, Phillimore and Twiss active in the ecclesiastic courts and Lawrence splitting his time between lecturing at the Royal Naval War College on international law and pushing as an Anglican clergyman for the recognition of a great Society of Nations organized around Christian principles. Indeed, if the Church was to be abandoned, it was only its Roman Catholic variety, which was increasingly seen as a vestige of the past, symbolizing the stagnation of dogma and fear of liberty.92

The anxiety of the industrial working classes

40. “The inbred politeness which springs from right-heartedness and kindly feelings is of no exclusive rank or station,” writes Samuel Smiles, in his widely popular 1859 book Self Help. “Riches and rank have no necessary connection with genuine gentlemanly qualities … honest truthful, upright, polite, temperate, courageous, self respecting, and self helping—that is, … a true gentleman.”93 In contrast to the Victorian Christian gentleman, theologians painted class warfare, coloured in racist overtones, with a moralizing hue that might allow the routinization of finance and industry in conjunction with the professional classes of the state bureaucracy to legitimize what would otherwise seem a thoroughly non-Christian and illiberal set of domestic policing measures. For liberal Protestants, therefore, the urbanization of the cities and the emerging restless consciousness of the working class required draconian measures to preserve the moral authority of the rising professional classes.94 “[T]he question … of allowable conflict between capital and labor … [is] an issue between law and anarchy,” warns The Independent:

Laborers are … criminals in intent and criminals in fact. They are rioters and public enemies, and worse than wild beasts turned loose upon society. … The safety of society demands punishment.

In language reminiscent of Kipling's advice to the colonies, The Congregationalist agreed:

Bring on then the troops—the armed police—in overwhelming numbers. Bring out the Gatling guns. Let there be no fooling with blank cartridges. But let the mob know, everywhere, that for it to stand one moment after it has been ordered by the proper authorities to disperse, will be to be shot down in its tracks.95

For theologians, in light of the theology of divine immanence, the radical ideology of industrialized labour, in threatening the socio-economic institutions of Western civilization, were a direct spiritual assault, which initiated a total warfare of good versus evil.

41. The first generation of modern Anglo-American international jurists mirrored the sentiments of their Protestant peers, writing extensively on the dangers of industrial labour and left-wing ideologies and seeking to develop a conceptual and institutional legal system in opposition. On the one hand, this was accomplished through equating property and commerce with an inner human sociability that was felt to draw populations closer together and mitigate the physical violence of war. For authors, such as Lieber, there was little difference between the pride of individual land ownership and feelings of patriotism towards one's country. Lieber observed:

Property is the realization of man's individuality in the material world. … We must single out one country, from among all countries of the globe, to call ours. The sound, “my country”, is so delicious … because we feel rescued from vague generality, stabilitated; we see our humanity reflected. … This too is the great guarantee (for me) of individual, though purified, immortality of my soul.96

42. Likewise, though warfare might be a necessary aspect of modern Christian civilization, international lawyers roundly believed that it could be mitigated in quality through commerce. Lorimer writes:

The battle of life is fought as peacefully at the examination table, in the press, at the bar, in the senate, as in the counting house. Force has its way without a blow, and arguments do not require to be loaded with threats. The weapons with which men fight within the State … is money. Silver and gold … have taken the place of powder and shot—the latter being kept in reserve only to secure the action of the former, just as bullion is kept in a bank, as a guarantee for the value of the paper money which it issues.97

Capital, therefore, could allow for battle and the outcomes of violence, while civilizing it for the most part of its most immediate disregard for human life or dignity. “The two armies by which these weapons are wielded assume the peaceful and prosaic character of lenders and borrowers, buyers and sellers … and bankruptcy … is final defeat, annihilation, and the surrender of recognition,” concludes Lorimer. “The claims of a strong head or a strong arm find means of vindication without violence in every organized community.”98 A sanitized battlefield would allow for the professional classes to maintain their Christian gentleness while still allowing for often brutal contest amongst one another and the narrowing aristocracy; but more importantly, the new choice of weaponry privileged the terms of battle in relation to working class populations and constituted a de facto retort to any radical egalitarian politics.

43. On the other hand, just as their theological peers had equated the labouring classes with “brutes”, so too would the jurists now represent the workers as quite possibly outside the domain of civilization, and therefore not privy to the rights and dignity otherwise seen afforded to citizens. Bluntschli warned:

The greater popular classes … engaged in bodily labour and in the supply of material wants … have no capacity for government. The Proletariate form the lowest grade … [and] consists mainly of the waste of other classes … who, by their isolation and their poverty, have no place in the established order of society … the rank weeds [that] threaten to choke the nobler growths of the past.99

The product of “rank weeds”, trade unions, unlike other forms of voluntary organizations, were not only “unnatural” by “interrupting the free course of demand and supply”, but counteractive to liberty, “ ‘oppressive to the employer’, intimidat[ing] and oppress[ing] masters - and on a spiritual register, ‘promot[ing] immorality’ and unlawful greed.”100 “We find covetousness much more universal and in a more hideous form with the poor, and especially, uncivilized tribes,” writes Lieber, “than with those nations which have advanced in civilization.”101 The philosophical apex of working-class covetousness was the doctrine of socialism/communism, which was thought by the jurists to corrupt both the physical and spiritual potential of humanity. On the one hand, to adopt communism would result in global anarchy and the erasure of civilized progress. “[O]ne cannot help believing that the ties which bind many nations to their countries, even when they are misgoverned, would be all gone,” laments Woolsey. “Centuries would flow away before they could have any history. They would live in comparative separation from the rest of the world.”102 On the other hand, the materialist tendencies of Marx and his followers made “Christ an impostor” and “the earth … an empty temple” whereby populations became “irreligious”, “hostile to the church” and ultimately transformed from the gentlemen of Christ to the “man of toil [that finds] nothing of value save what [he] can clutch and handle.”103 It was not the desire for wealth, in other words, that was sinful—indeed, greed was the “lawful and necessary … foundation of the state and even the existence of mankind … which the Maker prescribed to His world”—what constituted sin was now the desire by the disenfranchised to imagine their own vision of a New Jerusalem, or at least one that would exclude the niceties and demands of cosmopolitan capital under the formal equality of the law.104

Conclusion: Christianity unbound

44. Liberal Protestantism, as a conceptual and social set of practices, exerted a significant influence on the first generation of modern international jurists in 19th-century Britain and the United States. Rather than picture international law born in the decline of faith, historical study suggests that the project to develop the discipline into a distinct intellectual and professional set of expertise was substantively mediated through a Protestant sensibility, which viewed international law as a form of capitalist evangelicalism. This article has attempted to lay out a blueprint for future research into this story, and I conclude here with two brief observations about the material covered.

45. First, the liberal Protestant influence is a dense field, and this article is only a preliminary investigation, or hypothesis, into its influence—something that myself and a number of colleagues, especially at the Erik Castrén Institute of International Law and Human Rights (ECI) and the Institute for Global Law and Policy (IGLP) are preoccupied with as an interdisciplinary effort. The purpose of this article is merely to trace out the general contours of the argument in relation to “divine immanence”, and is not meant in any way to be exhaustive. Furthermore, ideas do not exist outside their specific modes of subsistence, and legal historians have still much to learn not only from social historians of religion and Protestant theologians, but perhaps more importantly, from scholars in the fields of economics, history, philosophy and political economy. At its most potent, Christianity might operate as a useful lens for better understanding the relationships between economics, law and politics in a way that escapes the typical apologetic tone adopted by many historians.

46. Second, the emphasis on liberal Protestantism within Anglo-American traditions neglects the potentially substantial role played by Catholic and more orthodox varieties of Christian faith, as well as the influence of religiosity on legal thought in Belgium, France and Germany. Likewise, research would be highly desirable on the constitutive role of law in the shaping of these other traditions within the Christian faith, and what possible interplay might be witnessed in relation to the more general project of international legal developments. Furthermore, though considerable literature is written on the pre-19th century relationship between Christianity and law, scholarship is still relatively silent about developments in its 20th century manifestations, again falling into the trap of the secularization narrative. To a certain extent, this has begun to be corrected by legal historians, but these efforts are still relatively new directions in scholarship. Christianity, in other words, may be usefully deployed to de-naturalize settled understandings about the possibilities and limits of the contemporary international legal architecture.

47. International law in the 19th century was infused with an ecumenical Protestant spirit to not only understand, but to change—or even remake—the world. It was a flawed endeavour in many respects: naïve (if not racist) consensus about non-Western populations and the virtues of “civilization”, oftentimes violent tactics towards marginalized interests (e.g. especially labour and colonized people), amateurish methodologies of inquiry posing as professional or scientific and so forth. Yet, it also was a source of inspiration to meet the economic, political and social challenges of the times from a particular set of material and spiritual concerns, and contributed to a collective spirit that was taken up among the general population—what historians have called “the Protestant crusade”—that accommodated ambivalence and doubt, without being paralyzed by the consequences of the perceived necessity of system-wide (re)creation. That the first generation of modern international lawyers were strident believers in the emerging financial-industrial capitalism and sought to connect law, religion and society to this politico-economic order should not limit our ability to rethink the nature of our faith or how law might be reborn under a new heaven that shakes off the chains of existing idols.105 The innovation of divine immanence is neither naïve nor conservative, but a source of inspiration for those that struggle against the growing inequalities of wealth and power, and the systems that sustain these disparities. It is my hope in writing this article that we, as international legal enthusiasts, might again embrace the courage of this heritage.106

1
See David Kennedy, International Law and the Nineteenth Century: History of an Illusion, 65 Nordic JIL (1996), 385.
2
See Istvan Hont, Jealousy of Trade: International Competition and the Nation State in Historical Perspective (2005); see also Michel Foucault, Society Must Be Defended: Lectures at the College de France, 1975–1976 (David Macey tr. 2003).
3
See Gerrit Gong, The Standard of “Civilization” in International Society (1984), 5, 54. Gong cites T.E. Holland for evidence of this shift, writing that “the Christian morality which had influenced the historical development of international law [for Holland] had let no trace of ‘definite religious doctrine’ hence, ‘nothing in the character of its principles which need restrict its application to Nations professing the Christian faith’… the domain of international law was a ‘question rather of Civilisation than Creed’.” Ibid., 55 (quoting T.E. Holland).
4
See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2nd edn 2005), 77–78, 94. The German legal historian and diplomat, Wilhelm Grewe recites an earlier version of this same presentation about the birth of the modern order of international order:

[The modern state] first appeared in the 16th century … only shortly before Machiavelli's time as a general term for the political body as such. … [First, the] characteristic quality of the modern State is its sovereignty … [I]ndividual states emancipated themselves from traditional community ties rooted in the Holy Roman Empire and Church and stood beside each other as subjects of equal rank and dignity … Second, [is] its rational character. … [T]he Reformation and Renaissance contributed to the development of a rational secular concept of the State … based on a rational system of law, a calculable legal system in which ritual religious and superstitious elements do not play a role … handled by rationally acting, legally educated professional officials. … Third, the individualism of the modern State's basic structure was … [a] significant quality on which its edifice was built … [whereby] individual members … were emancipated from the communitarian ties which had bound them together in earlier periods. Fourth, the specific linkage of the modern State with the economic system of capitalism was of critical importance.

See Wilhelm Grewe, The Epochs of International Law (Michael Byers tr. and rev. 2000), 167.
5
See Richard Falk, Religion and Humane Global Governance (2001), 35–36, 55.
6
See Peter Danchin, The Emergence and Structure of Religious freedom in International Law Reconsidered, Journal of Law and Religion, Vol. XXIII, Legal Studies Research Paper, No. 2007-44 (2007) (offering one of the more interesting articles on the connection between international law and Christianity in the context of the liberal political tradition).
7
The importance of considering international law (and Christianity) in relation to political economy increasingly appears to be a theme within 21st century progressive international legal scholarship (e.g. Anthony Chase, B.S. Chimni, David Kennedy, Martti Koskenniemi, Susan Marks, China Miéville and Akbar Rasulov). I am grateful to Rob Knox, Akbar Rasulov and Mai Taha for pushing its thematic importance in my own research.
8
See e.g. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (2005). Anghie's work is an inspired and sophisticated hypothesis about the historical development of contemporary international law; that he is guilty of relying on very few primary texts in the context of the 19th century merely demonstrates the more general lack of more “deep” readings into legal historical discourse in favour of conventional assumptions.
9
A notable exception is the legal historical work of Martti Koskenniemi, in particular The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (2005). For all its innovative insight and unparalleled source material, Koskenniemi's legal history is curiously silent on the role that Protestant organizations and thought played in the shaping of the discipline's birth in the 19th century; at most, he only generally acknowledges Arthur Nussbaum's point that law during the period was a “Protestant science”. The question that I wish to begin to take up in this article is: “what does that specifically mean” for understanding the conceptual foundations of international law.
10
Over the course of the 1860s, Bluntschli, Laboulaye and Lieber were in regular letter correspondence with one another, and called themselves “the scientific cloverleaf”. See e.g. David Gilman, Bluntchli Lieber and Laboulaye (pamphlet, 1884). Though the cloverleaf would ultimately break apart over disagreements between Lieber and Laboulaye over French Catholicism, for close to a decade, the three men saw themselves engaged in a “cosmopolitan” project that transcended national affiliations and embraced the cutting-edge scientific learning of the age. The decision to focus on an “Anglo-American” tradition, but not completely neglect the “European” presence, is motivated by at least two competing trends. On the one hand, the turn to international law through quasi-national traditions seems a popular point of entry. In my own country, the United States, there is the additional benefit of resuscitating the importance of the international legal tradition to counteract the typical conservative denunciations of anything that might supposedly limit the “sovereignty” of the United States. On the other hand, I am suspicious of “national” traditions being a useful nomenclature, or that there was such a clear separation between European and Anglo-American traditions. The cosmopolitan tradition gripped both sides of the Atlantic, and might be less about “culture” or “nation”, than it was a distinctly religious community united by common economic beliefs and interests.
11
This narrative staple is advanced through a variety of techniques. On the one hand, critical legal historians usually start their accounts of modern international law in the last third of the 19th century, emphasizing the “colonial scramble” for Africa, and more generally, great Western European imperialism. See e.g. Martti Koskenniemi, above n.9. Other legal historians more or less specifically highlight the supposed relative stability of mid-19th century Western Europe. See e.g. Wilhelm Grewe, above n.4. See also Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (2004). More traditional accounts of modern international law's history focus almost exclusively on the doctrinal aspects of the literature, and only engage with its political context to the extent of their usage of “positivism” or citing major “legal” events, such as the Vienna Congress and the Berlin Conference. See Arthur Nussbaum, A Concise History of the Law of Nations (1954). More generally, as Peter Danchin has pointed out, legal scholars' celebration of liberal constitutional models discounts the widespread violence required to set the groundwork for its possibility. See generally Peter Danchin, above n.6.
12
See e.g. Nathaniel Berman, Passions et ambivalences: le nationalisme, le colonialisme et le droit international (2008).
13
Countless historical volumes are available on the shifting dynamics of 19th-century socio-politics, of which I have included just a few of the texts I found most helpful. See Stig Forster, Wolfgang J. Mommsen and Ronald Robinson (eds), Bismarck, Europe and Africa: The Berlin Africa Conference 1884–1885, and the Onset of Partition (1988); see also Robert Gilmour, The Idea of the Gentleman in the Victorian Novel (1981); John Haller, Outcasts from Evolution: Scientific Attitudes of Racial Inferiority, 1859–1900 (1996); Richard Hoffstadier, Social Darwinism in American Thought (1992); J.A. Mangan and James Walvin (eds), Manliness and Morality: Middle Class Masculinity in Britain and America, 1800–1940 (1991); W.J. Reader, Professional Men: The Rise of the Professional Classes in Nineteenth Century England (1966); Norman Rich, The Age of Nationalism and Reform, 1850–1890 (1976); Dorothy Ross, The Origins of American Social Science (1991).
14
See Charles Hopkins, The Rise of the Social Gospel 1865–1915 (1940), 7.
15
For a partial list of literature on the topic, see C.D. Cashdollar, The Transformation of Theology 1830–1890 (1989); see also Hunter Dupree, Christianity and the Scientific Community in the Age of Darwin, in: David C. Lindberg and Ronald L. Numbers (eds), God and Nature: Historic Essays on the Encounter Between Christianity and Science (1986), 355; Robert Handy, A Christian America: Protestant Hopes and Historical Realities (1971); Boyd Hilton, The Age of Atonement: The Influence of Evangelicalism on Social and Economic Thought 1785–1865 (1992); William Hutchison, The Modernist Impulse In American Protestantism (1992); George Marsden, The Evangelical Mind and the New School Presbyterian Experience: A Case Study of Thought and Theology in 19th Century America (2003); Henry May, Protestant Churches and Industrial America (1967); William McLoughlin, Revivals, Awakenings, and Reform: An Essay on Religion and Social Change in America, 1607–1977 (1978); Claude Welch, Protestant Thought in the 19th Century, vol. I: 1799–1870 (1972).
16
See Thomas Thigpen, On the Origin of Theses: An Exploration of Horace Bushnell's Rejection of Darwinism, 48 Church History: Studies in Christianity and Culture (1988), 3.
17
See William Hutchison, above n.15, 94–95 (quoting Newman Smyth). Smyth's views reflected the broad consensus of “New Light” theologians beginning in the early 19th century.
18
See C.D. Cashdollar, above n.15, 296.
19
See Charles Hopkins, above n.14, 276 (quoting Taylor).
20
See Mark Neely, Romanticism, Nationalism, and the New Economics: Elisha Mulford and the Organic Theory of the State, 29(4) American Quarterly (1977), 404, 405; see generally Elisha Mulford, The Nation: The Foundation of Civil Order and Political Life in the United States (1870). For a brief discussion of Mulford's influence and thought, see Colin Brown, Elisha Mulford and His Influence: A “Fame Not Equal to His Deserts”?, 108(1) Pennsylvania Magazine of History and Biography (1984), 25.
21
See Jens Bartleson, A Genealogy of Sovereignty (1995), 93.
22
See Charles Hopkins, above n.14, 10 (quoting George Herron).
23
See Robert Handy, above n.15, 21.
24
See Ralph Covell, W.A.P. Martin: Pioneer of Progress in China (1978), 146 (quoting W.A.P. Martin).
25
See James Lorimer, Institutes of the Law of Nations: A Treatise of the Jural relations of Separate Political Communities, vol. I (1883), 114. For a more general discussion of the interplay between Lorimer's religious and legal thought, see John E. Noyes, Christianity and Theories of International Law in Nineteenth-Century Britain, in: Mark Janis and Carolyn Evans (eds), Religion and International Law (1999), 235 (discussing Lorimer's thought in relation to a number of influences, such as Christianity, Hegel and natural law). Born in 1818, James Lorimer studied abroad in Berlin, Bonn and Geneva, where he came under the influence of the German political scientist, F. Dahlmann, which he would later combine with his interest in Scottish Common Sense philosophy and the mystic teachings of Saint Yves. While often remembered by legal historians as “eclectic” and over-emphasizing the metaphysical coordinates of law in a distinctly natural law register, he was in fact prominent among national and international circles—codifying Scottish law, writing extensively on dis-establishment of the Ottoman empire, contributing to early modern international legal theory as a founding member of the Institute of International Law and advancing a theoretical yet pragmatically grounded perspective. See A. H. Campbell, James Lorimer: A Natural Lawyer Of the Nineteenth Century, 39 Transactions of the Grotius Society (1953), 211; see also Martti Koskenniemi, Nationalism, Universalism, Empire: Internationally Law in 1871 and 1919 (http://www.helsinki.fi/eci/Publications/Koskenniemi/Columbia%200405.pdf (last visited 22 July 2012)); Peter Macalister Smith, Bio Bibliographical Key to the Membership of the Institut de Droit International, 1873–2001, 5 Journal of the History of International Law (2003), 77.
26
See Francis Lieber, The Necessity of Religious Instruction in Colleges, in: Daniel C. Gilman (ed.), The Miscellaneous Writings of Francis Lieber, vol. II (1881), 529 [hereafter Miscellaneous Writings]; see also Daniel Gilman (ed.), The Miscellaneous Writings of Francis Lieber, vol. I (1881). For a brief, but interesting, discussion of the religious thought of Lieber and his colleagues in relation to law and political philosophy, see e.g. Steven Alan Samson, Francis Lieber on the Sources of Civil Liberty, 9(2) Humanitas (1996), 40. Lieber was born in 1800 to a Prussian middle class family. By his early 20s, he had participated in the Turner movement (a favourite of Jahn); formed a secret society as a teenager dedicated to assassinating Napoleon; suffered a bullet wound in the neck at the Battle of Namur; fought in the Greek revolution; was denied university education in Prussia and was placed under house arrest (where he wrote poetry); emigrated to London where he lived and studied with the famous Roman historian, Niehbur; served a peripheral role in setting up the University of London and, upon arriving in the United States, quickly became the editor to the second US encyclopaedia; established the second gymnasium in the country and befriended figures such as President John Adams, Chancellor Kent and Justice Story. Over the remaining decades of his life, he would author perhaps the first modern textbook on political science, throw himself into prison reform and sociological study of crime and society, advice King Frederick William the Fourth and President Lincoln, draft the first codes of warfare, serve as a professor first in South Carolina and then at Columbia University, umpire the Mexican Claims Commission and participate as one of the founding members of the Institute of International Law. There are rich sources of biographical material available on Francis Lieber that I have drawn upon, which, though largely ignored by legal historians, have been significantly mined by political and social scientists. See Frank Freidel, Francis Lieber: Nineteenth-Century Liberal (1947); see also Lewis Harley, Francis Lieber: His Life and Political Philosophy (1899); Thomas Perry, Life and Letters of Francis Lieber (1882); Elihu Root, Francis Lieber, Presidential Address at the 7th Annual Meeting of the American Society of International Law (April 24, 1913), in: Addresses on International Subjects (1916), 89; M. Russell Thayer, The Life, Character, and Writings of Francis Lieber: A Discourse Delivered Before the Historical Society of Pennsylvania (1873). The Huntington Library also has an extensive collection of his letters and writings (48 boxes in total) compiled by Frank Freidel [hereafter Lieber Archives].
27
See Theodore Woolsey, Introduction to the Study of International Law (1875), xiii. Woolsey was born in 1801 to a prominent Northeastern family: his mother was the sister of Yale President Theodore Dwight and the granddaughter of the religious leader of the First Great Awakening in America, Jonathan Edwards. A devout Christian, Woolsey suffered from bouts of depression throughout his life for feelings of moral inadequacy and sinfulness, though eventually abandoning a “literalist” interpretation of scripture after studying theology at Princeton. A student of Arabic and Greek, Woolsey would eventually be elected President of Yale College, where he taught history, international law and political economy. He published widely on these topics between the 1850s and 1880s, as well as publishing a volume of sermons; took on a leadership position in the American Commission for the Authorized version of the New Testament; served as Regent of the Smithsonian Institute; and involved himself in numerous intellectual and social organizations while working until his death to reform academic programs at Yale. See Frederic Smith (ed.), A Tribute to Theodore Dwight Woolsey (1891); see also Timothy Dwight, Theodore Dwight Woolsey, 51 The New Englander and Yale Review (Aug. 1889), 143.
28
Ibid. The indispensability of law, or its characterization as “naturally” emanating from human psychology is replete in the work of Lieber, and is regularly implied through the work of his colleagues in relation to the threat of “anarchy”, which was most often equated with barbarism (e.g. most often with populations and institutions within the colonized world) and socialism/communism (e.g. predominantly within Western Europe, and ascribed to the labouring masses, radical political ideologies, and the Roman Catholic Church). The idea that any scholar in the first half of the 19th century spoke within a distinctly German tradition must, of course, also be qualified to the extent that it was at that time the conglomeration of diverse economic, legal, political and religious arrangements.
29
See Johann Caspar Bluntschli, Theory of the State (1875), 69–79. Bluntschli was born in 1808 to an upper-middle class family in Zurich, though he would study in Berlin and Bonn, and work the second half of his professional life in Prussia (and subsequently, Germany). He was mentored by Savigny and Niebuhr, and spent his life as a legal theorist (professor of law in Heidelberg, Munich, and Zurich, and a founding member of the Institute of International Law), political advisor to Bismarck, and social reformer (leading the Protestantverein). He systematized the Swiss canons and codified the codes of Freemasonry, and wrote extensively on the political theory of the state and international law. Bluntschli regarded his greatest intellectual accomplishment to be the translation of the teachings of the Protestant mystic Friedrich Rohmer into politico-legal theory. See Johann Caspar Bluntschli, Denkwürdiges aus meinem Leben (1884); see also Franz von Holtzendorff, Bluntschli und seine Verdienste um die Staatswissenschaften (1882); Johann Caspar Bluntschli (entry), Wikipedia (http://en.wikipedia.org/wiki/Johann_Kaspar_Bluntschli (last visited 20 July 2012)). I am grateful to Evita Rackow for translating and discussing key selections from the German texts.
30
Westlake is perhaps the best known British international lawyer from the 19th and early 20th centuries. Born and buried in Cornwall, he lived the majority of his life in the Riverhouse in Chelsea, where he and his wife, Alice, maintained an active social, legal and political life advancing the liberal reforms of their time. He was a founding member of the Working Men's College, lent his support to the temperance movement, served one term in Parliament, taught international law at Cambridge, was a leading figure in the establishment of the National Association for the Promotion of Social Sciences, and helped bring forth the arbitration in the USA–Venezuela dispute. An active spokesperson on the rights of women and proportional representation, he opposed the First Home Rule Bill and was cautious about the pace of reforms for the working classes. His scholarship, indebted to Savigny and German philosophy, demonstrated a wide breadth of interests, ranging from attempts to codify a British approach to private international law to the role of Britain in the colonies to the nature of sovereignty and sources of public international law. Advocating freedom of conscience in terms of religious expression, he affiliated himself with the Broad Church movement, provided legal advice on the Gibord Case, argued adamantly on behalf of the Anglican Church in the colonies, was a personal friend of the Christian social reformer Maurice and was a staunch defender of Bishop Colenso in relation to his critiques of the Pentateuch and advocacy on behalf of the Zulu people of South Africa. He was a founding member of the Institute of International Law, and personal friend of Rolin, Asser and Bluntschli. See John Williams (ed.), Memories of John Westlake (1914).
31
See John Westlake, International Law: An Introductory Lecture (1888), 14–15; see also John Westlake, The Collected Papers of John Westlake in Public International Law (L. Oppenheim ed., 1914), 87–124. The text here offers a striking example of just how sophisticated 19th-century jurisprudence appears from a 21st-century vantage point—at least to the extent that its insights and framing bear close resemblance to modern theoretical legal scholarship. Their writing did more than formulate, or express, a cosmopolitan sensibility that animated the spirit of international law beyond national prejudice (e.g. a “gentle civilizing spirit”). First, international law was not simply what states did (e.g. positivism/apology); nor was it merely a moral set of guidelines (naturalism/utopia), but instead a practice of politics that constantly fluctuated around “the inviolability of each”, and could only be ultimately assessed through a mix of close sociological investigation (e.g. law is not in the clouds, but what the people who make up a “nation” or “state” do) and philosophical/theoretical analysis. The Collected Papers of John Westlake in Public International Law, 115, 397 (appealing in part to Sir Henry Maine's sociological notion of “law”). Indeed, using theological “truths”, in a short essay, Lieber self-consciously develops an argument that any “truth” naturally contains its polarity; however, rather than allow such perpetual structured indeterminacy to dictate the eternal deferral, he challenges the reader to make decisions in the face of radical uncertainty. See Francis Lieber, Anti-Current Truths, in: Lieber Archives, above n.26, 214 (letter from Lieber to Samuel Tyler, 1843). Nor should this be rationalized as merely abstract, or quasi-theological speculation divorced from law, as evidenced in the famous Lieber Code (General Order No. 100), governing the American Civil War and greatly influencing subsequent codification efforts concerning warfare, where Lieber holds that a soldier must accept the difficult proposition of deciding on penalty of death when to follow an order that may be a war crime (a catch-22 of sorts as disobeying a command is subject to death penalty in wartime, as is committing a war crime). See generally Francis Lieber, General Orders No. 100 (1863) (http://www.au.af.mil/au/awc/awcgate/law/liebercode.htm (last visited 20 July 2012)). Second, the principle of legitimacy, and similar notions concerning claims of “rights” and “duties”, were clearly understood to function with distinct political stakes, that were not legitimate in themselves—in other words, the simple appeal to the rule of law to claim legitimacy for a certain set of decisions was not itself convincing. See John Westlake, The Collected Papers of John Westlake in Public International Law, 87–93, 123–124. Third, while accepting a “moral nature of man”, this moral nature was by no means conceived to be grounded on anything easily graspable; at the end of the day, policy makers and lawyers relied on their “own conscience” to make determinations about how to interpret and apply laws, and this implicitly meant a wide degree of variance, or what nowadays we might call post-foundational angst or subjectivity. Ibid., 79–80. It is no wonder that Dr Hersch Lauterpacht would argue passionately for the re-imagined importance of Westlake in the post-war era to combat despair. The 20th century World Wars, in short, did not initiate the anxieties of subjectivity, but merely repackaged them—or, perhaps in a more conservative gesture, simply gave 19th century conceptual efforts in law now an institutional expression. See Hersch Lauterpacht, Westlake and Present Day International Law, 15 Economica (1925), 307. But see Nathaniel Berman, A Perilous Ambivalence: Nationalist Desire, Legal Autonomy, and the Limits of the Interwar Framework, 33 Harvard International Law Journal (1992), 353.
32
The point I seek to begin to develop here is that the drive to codification was more than some general aspiration to a Weberian rationality, but carried with it a host of assumptions about the nature of “the Word/law”, its relationship to “the people” and “institutions”, which were steeped in Christian thought. To the extent that the codification of law represented a sense of organization certainty, it was less that such laws would necessarily bring coherency to an anarchistic state of affairs, but rather codification promised on the one hand, the possibility of a common, or ecumenical, language to struggle for God in this world, and on the other hand, followed the Protestant idea of the law as a concrete expression of divinity in man. If Christ was the Word (e.g. the Law, the Messianic Promise) made flesh (e.g. humanly realizable), 19th-century codification efforts sought to give textual authority to the return of God in modern civilization/man (e.g. to renew the revelation of the Word in a prophetic gesture)—to reinstate the “flesh” as Word.
33
See James Lorimer, above n.25, 8–9.
34
See Francis Lieber, The History and Uses of Athenaeums, in: Miscellaneous Writings, above n.26, 299.
35
See Johann Caspar Bluntschli, above n.29, 34.
36
Ibid., 5, 31.
37
See George Marsden, above n.15, 72.
38
See Robert Handy, above n.15, 57 (quoting Finney).
39
See Travers Twiss, The Law of Nations Considered as Independent Political Communities: On the Rights and Duties of Nations in Time of War (1863), 59–60. Sir Travers Twiss was born in 1809 the son of Reverend Robert Twiss. Graduating from Oxford, his professional life was diverse, serving in positions as an academic (Drummond Professor of Political Economy and Regius Professor of Civil Law at Oxford), church official (Commissary General of London, Diocese of Canterbury, Vicar General to the Archbishop and Chancellor of the Diocese of London) and legal practitioner (maintained substantial practice in the ecclesiastic courts, QC and bencher of Lincoln Inn and advisor to King Leopold in relation to the Congo). In the wake of a scandal concerning his wife's sexuality, Twiss resigned his positions at Oxford and dedicated his time to writing on international law and politics. See Sir Travers Twiss Dead, Obituary, The New York Times (16 January 1897); see also Review of the Travers Twiss Case, Its Singular Termination, The New York Times (29 March 1872); Michael Lobban, Travers Twiss (paper on file with author).
40
See Francis Lieber, Manual of Political Ethics, vol. I (1838), 30–31. The dialectic between the people and the law, at least in a broad sense, is visible in the “German” tradition dating back at least to Luther, and more commonly to Savigny, though it is also visible in the history of UK and North American common law. This article, however, is arguing that new dynamics were at play in conceiving the “life of the law”.
41
See Thomas J. Lawrence, The Society of Nations: Its Past, Present, and Possible Future (1919), 155–156. While perhaps most famous for his monograph on the principles of international law and work surrounding the neutralization of the Suez Canal, Thomas Lawrence served as the rector of Upton Lovel and the Honorary Canon of Salisbury Cathedral, Preberdal Stall of Wilsford and Wooford (awarded by the Bishop of Salisbury), wrote sermons and sought to incorporate Anglican belief into international legal theory. Awarded the Whewell Scholarship at Cambridge for his studies in moral sciences and law and history, he took up academic positions at Cambridge, Bristol University, the University of Chicago and the Royal Navy War College, as well as serving as a founding member of the Institute of International Law. See Pearce Higgins, The Late Dr. T. J. Lawrence, 1 The British Yearbook of International Law (1920), 231; see also James Brown Scott, In Memoriam: Thomas Joseph Lawrence 1849–1920, 14 American Journal of International Law (1920), 223.
42
See Francis Lieber, above n.26, 215–217, 529; see also Francis Lieber, above n.40, 73–75, 112 (praising free trade and the lessons of political economy).
43
See generally Alan Hirschman, The Passions and the Interests: Political Arguments for Capitalism Before Its Triumph (1977) (providing an intellectual genealogy of commercial liberalism); see also Istvan Hont, above n.2. While both books are fascinating studies, Hirschman's work does not engage with questions about the political context in which these ideas emerged, while Hont largely focuses on “national market economies”. For an interesting history of the development of 17th-century economic thought, see Andrew Finkelstein, Harmony and the Balance—An Intellectual History of 17th Century English Economic Thought (2000).
44
See Francis Lieber, above n.26, 292; see also Thomas J. Lawrence, The Evolution of Peace, in Lawrence, Essay on Some Disputed Questions in Modern International Law (2nd edn 1885), 234–240 (discussing the trinity of hope for the future in international law as “Christianity-democracy-commerce”). For a brief, but interesting discussion of the religious thought of Lieber and his colleagues in relation to law and political philosophy, see e.g. Samson, above n.26. For discussion on the Victorian sensibility of modern international lawyers in the 19th century, touching upon their religious beliefs, see Casper Sylvest, The Foundations of Victorian International Law, in: Duncan Bell (ed.), Victorian Visions of Global Order: Empire and International Relations in Nineteenth Century Political Thought (2007).
45
See Norman Vance, The Sinews of the Spirit: The Ideal of Christian Manliness in Victorian Literature and Religious Thought (2010), 9; See also Hutcheson, above n.15, 146–154 (discussing Channing); J.B. Schneewind, The Invention of Autonomy (1999); Charles Taylor, Sources of the Self: The Making of Modern Identity (1992).
46
See Matthew Arnold, Culture and Anarchy (1869), 15.
47
Ibid., 36.
48
See generally Mark Janis, The American Tradition of International Law: Great Expectations 1789–1914 (2004); see also Mark Janis, American and the Law of Nations 1776–1939 (2010); W. Wayne House, The Christian and American Law: Christianity's Impact on America's Founding Documents and Future Directions (1998).
49
See James Lorimer, Studies National and International: Being Occasional Lectures Delivered in the University of Edinburgh, 1864–1889 (1890), 153–155.
50
See Francis Lieber, above n.26, 243.
51
See John Westlake, The Collected Papers of John Westlake in Public International Law, above n.31, 6.
52
See James Lorimer, above n.49, 6–7.
53
See Francis Lieber, above n.26, 232–239.
54
“Not until the 19th century was the attempt made consciously (one might say self-consciously) to do what often before had been done quite naively, to re-express the gospel in terms of the then-modern thought,” explains the religious social historian William Hutchison. “Then for the first time the modernist became aware that he was a modernist.” See William Hutchison, above n.15, 5 (quoting William Lawrence Wood).
55
See generally W.J. Reader, above n.13.
56
For even more orthodox voices, such as the Princeton theologian Charles Hodge:

[t]he biblical men … were infallible only as teachers, and when acting as the spokesmen of God. Their inspiration no more made them astronomers than it made them agriculturalists. Isaiah was infallible in his predictions, although he shared with his countrymen the views then prevalent as to the mechanism of the universe.

“Any true doctrine of inspiration must conform to all well ascertained facts of history … interpreted like any other book, by the same rules of evidence and the same canons of criticism,” explained the British theologian Benjamin Jowett, echoing critical historians such as Barthold Niebuhr. “[T]he Bible will still remain unlike other books, its beauty will be freshly seen … it will create a new interest and make for itself a new kind of authority. … It will be a spirit and not a letter.” See Claude Welch, above n.15, 169 (quoting Jowett, and providing a discussion of the publication of Essays and Reviews).
57
Philosophy, as Henry Smith would come to argue, “complements faith by allowing men to reach a more rational understanding of the universe and of their own situation.” See George Marsden, above n.15, 163–175 (quoting Smith); see also C.D. Cashdollar, above n.15, 285.
58
“Evolution is a doctrine,” writes John Stuart Blackie, “to which no Christian theologian can have the slightest objection; unless, indeed, there be some divines who, taking the first chapter of Genesis in its literal signification—which only a prosaic person of the lowest order would do—imagine that God created the world by six verbal fiats, like the strokes of a harlequin … and then retired from the scene.” Quoted in C.D. Cashdollar, The Transformation of Theology, above n.15.
“It remains certain,” writes Farrar in his 1886 publication, History of Interpretation, “that true science and true religion are twin sisters, each studying her own sacred book of God … let them study in mutual love and honour side by side and pronounce respecting those things which alone she knows.” See Hunter Dupree, above n.15, 344.
At the same time, atheism was never considered viable.
59
Ibid., 53–54. Expressing the Protestant consensus, Herbert Spencer would likewise collapse the moral and natural spheres into a single framework pegged to the supremacy of development, or “adaptation”. Whether demonstrated through “the ultimate development of the ideal man”, the security and refinement of “civilization” or the “unfolding of a flower”, Spencer echoes the reigning Protestant consensus, that “progress … is not an accident, but a necessity” and to deny the “adaptation of constitution to conditions” is not simply unnatural, but the root of evil itself. See Richard Hoffstadier, above n.13, 41 (discussing Spencer). For a discussion of Spencer's influence on Victorian political thought, see Duncan Bell and Caspar Sylvest, International Society in Victorian Political Thought: T.H. Green, Herbert Spencer, and Henry Sidgwick, 3 Modern Intellectual History (2006), 207.
60
Ibid., 94–95.
61
See Henry May, above n.15, 20 (quoting Samuel Harris).
62
General Christian Conference, Evangelical Alliance for the United States of America. General Christian Conference. 1st, Washington, D.C. (1887).
63
See William McLoughlin, above n.15, 178 (quoting Gladden).
64
See James Johnston (ed.), Report of the Centenary Conference on the Protestant Mission of the World, vol. I (1888), 27 (quoting Dr. Post).
65
Ibid., 50 (quoting Reverend F.F. Ellingwood).
66
Ibid., 349 (quoting Reverend A.F. Beard).
67
Ibid., 372 (quoting Reverend John Wilkinson).
68
See Francis Lieber, On the Origin of Language, in: Lieber Archives, above n.26.
69
See James Lorimer, above n.25, 114, 27–28 (1883).
70
See Theodore Woolsey, above n.27, xiii; see also Theodore Woolsey, Religion of the Past and of the Future (1871), 373.
71
See Johann Caspar Bluntschli, above n.29, 17.
72
Ibid., 77–79. There was, however, no set description for any group of people. If some jurists pointed to the caste system within India as stultifying or childish, others characterized it to embody a violent and unruly temperament:

The fundamental principle … is to place those states in such a degree of dependence on the British power … that may enable us to preserve the tranquillity of India by exercising a general control over those states, calculated to prevent the operation of that restless spirit of ambition and violence which is the characteristic of every Asiatic government … which has rendered the peninsula of India the scene of perpetual warfare, turbulence and disorder.

See John Westlake, The Collected Papers of John Westlake in Public International Law, above n.31, 205–206.
73
See Johann Caspar Bluntschli, above n.29, 110–111.
74
The general standard for determining the level of civilization was the extent to which a European entrepreneur would be able to carry out the accustomed life back home:

Turkey and Persia, China, Japan, Siam, and some other countries have civilizations differing from the European, and so far as they are not Mahometan from those of one another. The Europeans or Americans in them form classes apart, and would not feel safe under the local administration of justice, which, even were they assured of its integrity, could not have the machinery necessary for giving adequate protection to the unfamiliar interests arising out of a foreign civilization. … The latter could not furnish that support if each of the countries in question did not possess an old and stable order of its own, with organised force at the back of it, and complex enough of the leading minds of the country to be able to appreciate the necessities of an order different from theirs. Such countries therefore must be recognised as being civilized, though with other civilizations than ours. … The common civilization then, explained as it has here been explained, contains the principle that the institutions, whether of government or of justice, which the inhabitants of a state find suitable to themselves, must normally be accepted as sufficient for the protection of foreigners among them.

See John Westlake, The Collected Papers of John Westlake in Public International Law, above n.31, 101–103.
75
See James Lorimer, above n.49, 138–143.
76
See Francis Lieber, above n.26, at 83.
77
See Francis Lieber, On History and Political Economy, As Necessary Branches of Superior Education in Free States, in: Lieber Archives, above n.26, 190.
78
See John Westlake, The Transvaal War, A Lecture (November 1899), 4–5 (on file with author).
79
See Thomas J. Lawrence, The Rebuilding of International Society, in: Thomas J. Lawrence, above n.41, 156.
80
See Francis Lieber, above n.26, 187; see also Lewis Harley, above n.26, 101–105 (quoting Lieber).
81
Hostility towards the spectre of Roman Catholicism, or “Popery”, was replete in 19th-century Protestant thought, and more generally in the socio-political life of Western European and American populations throughout much of the century. Catholics, as an “internal” and “external” enemy, came to embody a useful figure to unify a coherent Protestant identity, and in turn mobilize that community in support of any number of political projects: from immigration reform (e.g. blocking poor Irish and German immigrants from entering the United States) and economy laissez-faire initiatives (e.g. the debate over the Corn Laws in Britain) to national unification efforts (e.g. Germany) and assertions of absolute sovereignty by great powers (e.g. arguing Western European nation-states had no duty to any overarching adjudicating figure or system beyond their voluntary consent). International lawyers from the mid-to-late 19th century participated in this discourse, see below n.92. There is a vast literature of social histories that analyse the anti-Catholic mood, and for a few of the more helpful texts see Ray Allen Billington, The Protestant Crusade, 1800–1860 (1938); see also Susan M. Griffin, Anti-Catholicism and 19th-Century Fiction (2004); Robert Klaus, William McNeill and Peter Stansky (eds), The Pope, the Protestants, and the Irish: Papal Aggression and Anti-Catholicism in Mid-Nineteenth Century England (1987); Denis Paz, Popular Anti-Catholicism in Mid-Victorian England (1992); Michael Ragussis, The Birth of a Nation in Victorian Culture: The Spanish Inquisition, the Converted Daughter, and the Secret Race, 20(3) Critical Inquiry (1994), 477.
82
See Ray Allen Billington, above n.81, 69 (quoting Barnes).
83
See generally Henry May, above n.15.
84
Ibid.(quoting the magazine, London City Mission).
85
See Ray Allen Billington, above n.81, 9.
86
See M. Russell Thayer, above n.26, 43 (quoting Lieber). Recounting his experience abroad in a Catholic Church, Lieber expresses the general mood:

I went to church. The dirty priests, the strange, profane gestures, the frequent kissing of the pictures, the continual crossing and kneeling of the whole assembly, the nasal twang of the priests, and the equally disagreeable responses of the congregation made a very painful impression.

See Thomas Perry, above n.26, 39 (quoting Lieber).
87
See Travers Twiss, above n.39, 11–12.
88
See Francis Lieber, above n.26, 30. It is interesting to note from the quoted passage that the goal of “self-governance” is not free expression per se, but the conditions to transmit political societies grounded on “self-support” (e.g. “self-help”). See also Travers Twiss, Two Introductory Lectures on the Science of International Law (1856), 5–7.
89
See Theodore Woolsey, above n.70, 350–357.
90
See Joseph Mazzini, Of the Duties of Man, vol. 4 (1860), 125–127.
91
See John Westlake, The Church in the Colonies, in: Essays on Church Policy (W.L. Clay ed. 1868), 233–236.
92
A significant number of 19th-century jurists wrote warnings against Roman Catholicism. See Nys, The Papacy Considered in Relation to International Law (1879) (providing a bibliography of 19th-century legal and historical works addressing Roman Catholicism critically, including authors such as Bluntschli, Calvo, Phillimore, Ranke and Twiss). Authors such as Lieber and Bluntschli would regularly equate the Roman Catholic Church and trade unions in equally disparaging terms:

[If] the institution is intrinsically bad, or contains vicious principles, it lends additional and fearful power to the evil element within it, and gives a proportionate scope to its calamitous influence. … The gigantic institution of the Society of Jesus, and some of the modern trade unions, are impressive and amazing examples. … Thousands who have committed acts of crying cruelty as members of the Holy Office would not have been capable of committing them individually.

See Francis Lieber, On Civil Liberties and Self Government (3rd edn 1883), 266–269.
93
See Robin Gilmour, above n.13, 100 (quoting Smiles).
94
See generally Henry May, above n.15; see also Hugh McLeod, Secularization in Western Europe, 1848–1914 (2000).
95
See Henry May, above n.15, 92–93.
96
See Thomas Perry, above n.26, 121–122 (quoting 27 August 1837 letter from Lieber to Charles Sumner).
97
See James Lorimer, above n.25, 255.
98
Ibid., 254–255.
99
See Johann Caspar Bluntschli, above n.29, 179–181.
100
See Francis Lieber, Manual of Political Ethics: Designed Chiefly for the Use of Colleges and Students at Law, vol. II (2nd ed. 1890), 347–348.
101
Ibid., 91–93.
102
See Theodore Woolsey, Communism and Socialism (1879), 237.
103
Theodore Woolsey, Communism and Socialism in their history and theory, a sketch (1880), 345–346.
104
Theodore Woolsey, above n.102, 345–346.
105
See generally Louis Althusser, For Marx (Ben Brewster tr. 1969).
106
See generally Alain Badiou, St. Paul: The Foundation of Universalism (Ray Brassier tr. 2003).

Author notes

*
Dr., Assistant Professor, Mississippi College School of Law; Honorary Research Fellow, Durham Law School. I am deeply grateful in writing this article for the generosity of Peter Fitzpatrick, Mark Janis, David Kennedy, Martti Koskenniemi and Sundhya Pahuja, as well as the institutional support of Durham Law School, the Erik Castrén Institute of International Law and Human Rights (ECI, University of Helsinki), the Fulbright program, the Institute of Global Law and Policy (IGLP, Harvard Law School), the Institute for the study of Political Economy and Law (IPEL, International University College of Turin), the Lauterpacht Centre for International Law (LCIL, University of Cambridge) and Mississippi College School of Law. In addition, conversations with a number of colleagues provided important insights, including Bill Bowring, Matthew Craven, Richard Haskell, Florian Hoffman, Paavo Kotiaho, Victor Kattan, Rob Knox, Ian Leigh, Boris Mamlyuk, Ugo Mattei, Scott Newton, Reut Paz, Ignacio de la Rasilla del Moral, Akbar Rasulov, Luigi Russi, Peter Szigeti, Mai Taha, Gunther Teubner and colleagues at Mississippi College School of Law and Durham Law School. All the standard caveats to errors and omissions apply.