The emergence of the U.S.A onto the world stage accompanies a reworking of international law by its leading jurists. The concept of an ‘American international law’ becomes popular as a distinct term at the end of the nineteenth century and in the early twentieth century.20 Root and Scott, as the leaders of the first generation of American international lawyers, aided the development of this notion of ‘American international law’ that would inform both American foreign policy and wider international law over the twentieth century.21 Scott would be the figure most concerned with doing the theoretical and historical work required for grounding an American conception of a liberal international law and his search for historical antecedents drew him to the work of sixteenth-century Vitoria. Scott read Vitoria’s jurisprudential accounting for the relations between the Spanish imperialists and native Amerindians at the very birth of European Colonialism as being the origin of international law and the illustration of ideal legal order based on a moral universalism. As aforementioned, Scott’s championing of Vitoria did much to
18 Anne Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law,’ IILJ Working Paper 2012/2, History and Theory of International Law Series, p.12.
19 Ian Tyrrell, Reforming the World: The Creation of America's Moral Empire, Reprint edition (Princeton: Princeton University Press, 2013).
20 Juan Pablo Scarfi, The Hidden History of International Law in the Americas: Empire and Legal Networks (Oxford: Oxford University Press, 2017), p.xxii.
distinguish his vision of American international law from the prevailing jurisprudence of the time; the value of Vitoria had to be re-stated as the sixteenth century theologian had become a historical figure of decreasing relevance by the turn of the twentieth century.22As Carl Schmitt states, it was ‘only after 1919 did Vitoria's name suddenly become known and famous’ in mainstream juridical debates.23 The apex of Scott’s public campaign to recover Vitoria and his legacy would come in the 1930’s, with Scott, through his influence as a grandee of American international law at this stage, championing the Spanish theologian as international law’s forgotten paterfamilias in a flurry of writings and lectures. He eventually became the driving force behind the establishment of the Vitoria-Suarez society, established in 1932 with a Spanish counterpart being instituted in 1936.24 However, Scott had been engaging with Vitoria’s work from his first reading of De Indis and De Belli Relectiones in 1906.25 Scott elevated the legacy of Vitoria over the early decades of the twentieth century with the aim of placing international law in ‘its true historical light’ just as the discipline was being established in the U.S.A.26 As well as writing on Vitoria’s legacy himself, Scott directed his energies towards proliferating resources to support the wider study of the Salamancan, facilitating new English additions of Vitoria’s work through the Carnegie Endowment for International Peace while it was under the presidency of mentor Root.27 The new issues of Vitoria’s writings, published in 1917, give an indication of the growing interest in his work in the early years of American internationalism.
Scott’s recovery of Vitoria ‘represents an incredible transmogrification of the postulates of natural law, from the Middle Ages to twentieth-century American Neo- Thomism.’28 In Vitoria’s writings were the jurisprudential antecedents for the international law that American internationalism was seeking to ignite; that is, an international law that was unitary, cohesive and ontologically complete in its
22 Fernando Gomez, ‘Francisco de Vitoria in 1934, Before and After’ MLN, 117, 2 (Mar 2002), pp. 365-405, p.365.
23 Schmitt, The Nomos of the Earth, p.117.
24 Christopher Rossi, Broken Chain of Being: James Brown Scott and the Origins of Modern International Law (Leiden: Brill, 1998), p.40.
25 Ibid, pp.7-8.
26 Edmund A. Walsh, ‘Foreword’, James Brown Scott, The Spanish Origins of International Law (Oxford: Clarendon Press, 1934).
27 See Carnige Endowment for International Peace series on International Law under series editorship of James Brown Scott, particularly Francisco De Vitoria, De Indis Et De Ivre Bells Reflectiones, ed. by Ernest Nys, Classics of International Law, 7 (Washington D.C.: Carnegie Institution of Washington 1917).
encapsulation of all humanity. American internationalism took the form of being anchored to an abstract universal equality but one that conceals an actual material and juridical inequality in which only one of the terms in the relation is posited an the ideal, whilst the other term is set the (impossible) task of mimicking the ideal. We can see the structure of legitimised violence arising as the ideal can be taken to function as a unified background space for the world to be organised as it was once thought to be organised for God; this allows the protection of that ideal, even by warfare, to be just, in the same manner as Vitoria’s ultimate justification of Spanish violence upon the colonies if they failed to reach the standards of pre-determined universal norms was legitimate. The interweaving of Vitoria and his ideas with the early twentieth century construction of American international law is perhaps best captured by a vignette recounted in the eulogy for James Brown Scott, published by the American Journal of International Law after his passing:
When the new building for the Department of Justice was completed in Washington, it was decided to adorn the ceremonial entrance leading from the court of honor with a series of mural panels depicting the great lawgivers of history... Unable to locate a likeness from which to paint the features of Victoria… the artist, hearing of Dr Scott's work, sought his advice on a portrait of his subject. Unfortunately, Dr Scott had to tell him that none could be found anywhere in the world. The artist returned to his mural and painted the figure of Victoria garbed true to life as a Dominican friar but with an excellent likeness of the head and hands of James Brown Scott. So there in the halls of justice at Washington, standing … is a good portrait of Dr Scott disguised in the habit of the Dominican theologian who expounded the law of nations one hundred years before the classic treatise of Grotius.29
The image of the body of Vitoria combined with the face of American international law’s founding intellectual figure, James Brown Scott, provides an apt visual metaphor for the way Vitoria’s sacrificial-humanitarian jus gentium was recovered and remade in the service of America’s rising moral empire. Anne Orford recognises the allegorical significance of the above vignette, stating that ‘it is fitting that the entrance of the US Department of Justice displays a likeness of Scott in the guise of Vitoria, because it is the version of Vitoria created by Scott that would provide the
29 George A Finch, ‘James Brown Scott, 1866-1943’, American Journal of International Law, 38, 2 (1944), pp.183-217, p.199.
ideological justification for the universal law of the American century.’30 The images
in question are reproduced below.
Fig 1. Mural of Francisco De Vitoria at U.S. Department of Justice Building. Reproduced from Edward Gordon “The Art Of Justice, Or Queen For A Day”, available at The Green Bag Vol.15. (2012)
Fig. 2 Image of Dr James Brown Scott alongside the depiction of Vitoria. Reproduced from Edward Gordon “The Art Of Justice, Or Queen For A Day”, available at The Green Bag Vol.15. (2012)
The images above depict Scott, dressed as the figure of Vitoria, inheriting his
panoramic perspective of the world, overseeing a globe over which a single standard of morality can be cast. The making of the world into a singular whole, ontologically complete in itself, is suggested by this image and can be read in the theoretical approach to international law that the American mode of liberal international law would undertake. It presumes that the overseer has a panorama that can only be obtained from a fixed vantage point, making it the standard for the world, the objective norm judging and measuring the development of others. This is what is being depicted in the entrance to the US DoJ building: Scott as Vitoria contemplating the world, with an omniscient perspective of life on earth, as the world becomes an orb ready-at-hand, visible, and accessible.
Vitoria’s legacy was recovered and reimagined by Scott as the model for an expanded moral universalism that would provide a jurisprudential alternative to the strict demarcation of sovereignty that separated the colonial and non-colonial worlds. However, in contrast to the ostensible humanitarian impulses acclaimed by intellectual forefathers like Scott and Root, Robert Vitalis has argued that American internationalism emerged through an intellectual focus on protecting the privileges of European peoples in the face of a rising tide of colour, specifically the anti-colonial struggles which were gathering momentum during the first half of the twentieth century. Consequently, for Vitalis, the study and practice of American internationalism was ‘shaped by and often directly concerned with advancing strategies to preserve and extend that hegemony.’31 Historian Benjamin Allen Coates
furthers this argument by providing an extensive study of the connection between the rise of international law as both a profession and academic discipline in early twentieth century America and the emergence of an American ‘legalist empire’ following the conclusion of the Spanish-American War, which was, despite humanitarian proclamations, concerned with entrenching American hegemony.32 Emphasising the influence of lawyers like Elihu Root, John Bassett Moore and particularly James Brown Scott, Coates illustrates how an American model of international law managed to accommodate and rework older notions of empire for a world order that was losing its ability to contain inter-communal violence.33 With the
31 Robert Vitalis, White World Order, Black Power Politics: The Birth of American International Relations (Ithaca, New York: Cornell University Press, 2015), p.2.
32 Benjamin Allen Coates, Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century (Oxford: Oxford University Press).
establishment of the American Society for international law (1906) and the Carnegie Endowment for International Peace (1910) the aforementioned jurists acquired institutional centres from which this reworking of the international legal order could be produced. And with Vitoria as a key intellectual antecedent for this emergent movement of international law in America, we can see how the sixteenth century theologian connects to one of the major projects for this generation of American internationalism, America’s steering of early twentieth century drug prohibition. The correlative question is can Vitoria also be read as the intellectual antecedent for a new mode of empire for the ‘American century’, one that did not rely on the acquisition of territorial supremacy or on an explicit racialised hierarchy of peoples but instead perpetuated a ‘dynamic of difference’ along new delineations?34 To explore this question it is worth reviewing the way in which the theory and practice of international law changed from the nineteenth to the twentieth century.