Ng on Benton, “The Legal Logic of Conquest”

On Friday, September 22nd, Professor Lauren Benton spoke as the first guest of the Seminar on Corporations and International Law. The seminar discussed her recent paper “The Legal Logic of Conquest: Political Pluralism, Truces, and Early Modern Colonial Violence” as well as her co-authored book, A Rage for Order: The British Empire and the Origins of International Law.

One of the early discussions in the seminar revolved around a chapter of Professor Benton’s A Rage for Order, entitled “The Promise of Protection.” Going into the discussion, I had been particularly fascinated by this chapter. A general premise discussed in the book is that an offer of protection carried with it tremendous ambiguity – often raising the question – does accepting the protection signal (1) alliance or (2) submission, or even (3) something in between? In many earlier empires, the idea of “protection” was often a subordinate policy that came with significant costs in the way of tribute/capitulation and led to a significant sacrifice in the way of autonomy.

During the discussion, Professor Benton mentioned that she saw two distinct ways of defining “Protection.” Firstly, protection defined in the intra-imperial register context – the protection of British law effectively being granted to new subjects. Secondly, protection defined as a “rationale for annexation” (here, functioning almost as an element of ordering) – meaning, protection in the sense that the empires would have a responsibility to protect these foreign subjects from the supposed “tyrannical rule” of their king. For instance, in A Rage for Order, she delves brings the example of the concept of personae miserabilae, where the Catholic Church was understood to have special jurisdiction given their obligation to “protect” vulnerable categories of people. Professor Benton mentioned that in her mind, protection in the context of conquest functioned as an element of ordering. This led into a hypothetical that Professor Benton posed: Are there other ways to think about these ordering elements that figure prominently in interpolity relations? Her answer: to look at a particular practice first and what the people involved say about what they are doing, and then after gaining a better understanding of that, go back to a more theoretical analysis of what the practice underlies – which will perhaps open up a new understanding.

Another discussion during the seminar revolved around the connection between international law and interpolity law. Professor Benton says that the usefulness of interpolity law helps to remind us of two things: first, that international law formed in a self-conscious way as a profession/field that ends up labeling itself as international law at the end of the 19th century (a specific meaning in that late 19th century context that doesn’t travel well back in time). Secondly, Professor Benton made a point that there are so many actors in the early world – whether it be city states, empires, towns, etc. – so that the term interpolity is much more applicable given that context.

The engaging discussion with Professor Benton combined with the preparation we had done beforehand (in reading The Legal Logic of Conquest and A Rage of Order) has undoubtedly laid a strong framework for us to continue to analyze the history of international law and corporations moving forward.

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