“As soon as a nation presents symptoms of an incurable weakness, in its internal or external life, its stronger neighbors must take away its independence, until either its dormant strength awakens to liberation or it disappears, spiritually as well as politically, from the ranks of living nations.”—Constantin Roessler, 1844
“Poland was in Russia’s fetters, but the Poles remained free: a great example that shows you how you can brave the power and ambition of your neighbors. If you cannot prevent them from swallowing you up, at least ensure they cannot digest you.”—Jean-Jacques Rousseau, 1782
A. The Polish-Lithuanian Commonwealth in Global History
Charles Henry Alexandrowicz (1902–1975) is a towering testament to just how much of the world can exist within a single person. Present at some of the sharpest flashpoints of twentieth-century history, he was born in the Eastern Galicia region of the Austro-Hungarian Empire, today part of Ukraine, educated as a lawyer and canon lawyer in the successor state of Poland, fought Nazi invaders in 1939, escaped to the United Kingdom by way of Romania, worked with the Polish government-in-exile, handled issues of Europe reconstruction after the war, and established an academic career in India and Australia, at the Universities of Madras and Sydney respectively, as a new postwar order took shape. Alexandrowicz was thus a firsthand witness to what Eric Hobsbawm deemed the “Age of Extremes.” Footnote 1 When creatively conceptualizing international law against these tumultuous backdrops, Alexandrowicz indicted Europe’s long-standing exclusion and colonization of the Afro-Asian world as legally, intellectually, and morally unjustifiable. Defying this embedded mistreatment, he produced one of the first modern attempts at a truly global history of international law that, in its inclusion of the long-excluded agency of Asians and Africans, changed the standard by which the discipline depicts its past. A jurist of the “semi-periphery” and early forerunner of Third World Approaches to International Law (TWAIL), as well as the broader “turn to history” within the international legal field, it is rather remarkable how long his theory-life nexus went under-analyzed. Footnote 2 Scholars have only just begun to rectify this dearth. Footnote 3
While I intend to contribute to this rectification, an overview of Alexandrowicz’s general theory is in order. In his account, the Benthamite construction deemed "international law” could only be understood in relation to the richer and more inclusive “law of nations” tradition that preceded it. Footnote 4 Under this original ordering of world legality, there was no question that Asian and African sovereigns enjoyed full and equal subjectivity. Footnote 5 However, a great deviation came in the nineteenth century as the natural jurisprudence animating this law of nations gave way to a strict consent-based legal positivism—and its attendant theory that recognition by established sovereigns was a constitutive requirement of statehood. Footnote 6 As this premise was cemented by the 1815 post-Napoleonic Concert of Europe system, juridical inclusion and personality were now unilaterally dictated by the chauvinist and draconian whims of Europe’s mutually-recognized great powers. Footnote 7 However, nearly a century and a half later, postwar Afro-Asian decolonialization provided a profound opportunity to reverse this disastrous decay. In this moment, a key backdrop of Alexandrowicz’s career, the postcolonial emergence of “new states” was less a novel creation and more a reversion back to an original sovereignty that was never truly lost. Footnote 8 “International law” could finally give way to the prodigal “law of nations” that never actually disappeared.
Alexandrowicz’s account has certainly garnered much criticism; the central contention being that he was far too idealistic and thus failed to account for the law-justified violence and exclusion that defined his contexts of inquiry. Footnote 9 However, rather than joining this chorus of critique—though there are ample grounds to do so Footnote 10 —my primary purpose is to explore why Alexandrowicz depicted his global juridical vision as he did. Towards this end, I focus on how the unique polity known as the Polish-Lithuanian Commonwealth, and its extinction via a series of Russian, Prussian, and Austrian orchestrated Partitions—1772, 1793, 1795— provides new insight into his imagination and the world that produced it. As David Armitage and Jennifer Pitts have shown, through his interwar studies of Polish marital law—an interest potentially sparked by his own multiple marriages—Alexandrowicz learned how differentiated legal regimes governed marriage depending on where one happened to be in the “restored” state of Poland that emerged in 1918. Footnote 11 The reason for this juridical patchwork had everything to do with distinct conquers imposing their laws independent of local custom or consent—an imprint that survived imperial rule. Uncovering these juridical scars left Alexandrowicz well-placed to theorize the role of hierarchy and empire within an international order ostensibly premised on formal sovereign equality.
Though Polish international legal personality was not Alexandrowicz’s main object of study, it nevertheless appears sporadically throughout his scholarship. When discussing international law in ancient India, he noted a specific configuration of sovereignty that was incompressible to the powers that partitioned the Commonwealth. Footnote 12 In analyzing European treaty-based imposition in the African continent, he claimed that this “Scramble for Africa” was foreshadowed a century earlier by a “Scramble for Europe” via the partitions. Footnote 13 Elsewhere, Alexandrowicz claims that this first “scramble” was the result of transformed legal sensibilities in that “ . . . the partitions of Poland which by positivist standards were justifiable but were flagrant violations of the principle of the natural law of nations.” Footnote 14 Moreover, he was particularly interested in how one of the Partitioning powers in the form of Prussia, via the greater German Empire it ultimately spawned, legally justified its claims over African lands. Footnote 15 Additionally, on the question of how Afro-Asian independence might be characterized as a reversion to unextinguished original sovereignty, he asked whether Poland’s interwar independence might provide a precedent. Footnote 16 On this task, Alexandrowicz lamented the Polish Supreme Court’s failure to consult classical publicists on the law of nations who claimed that no conquest, however brutal, grants title absent voluntary submission. Footnote 17
When considering how Alexandrowicz’s history of the law of nations was influenced by his consciousness of the historical Polish-Lithuanian Commonwealth it is of special importance that the lands of the former Commonwealth played a pivotal role in shaping our modern intertwined consciousness of “partition” and “self-determination.” Regarding partition—defined as the nonconsensual division of an existing territory—the Commonwealth’s experience was foundational. Footnote 18 With this occurrence came serious questions on the acquisition of territory by force and, by extension, how international law would forever be a “primitive or defective form of law” so long as it validated any “right of conquest.” Footnote 19 As Victor Kattan has shown, by continually proclaiming identity following the Partitions, the Polish cause was the “missing link” of national self-determination connecting the Enlightenment-era revolutions to the competing visions of Woodrow Wilson and Vladimir Lenin in the wake of the First World War. Footnote 20 However, this view raises highly contestable questions of continuity between the Commonwealth and the later Polish nation-state. Footnote 21
While a narrative of direct continuity is certainly appealing to some, this path is complicated by the fact the Commonwealth’s legacy also gave rise to fiercely conflicting Lithuanian, Belorussian, and Ukrainian—in addition to Polish—identities. Footnote 22 Such is a testament to how “partition,” through the endless creation and recreation of oppositional identities, must be viewed as a structure that endures long after the initial event concludes. Footnote 23 In light of this complication, if the right to self-determination can be characterized as an indeterminate, contradictory, and intoxicating concept that persistently makes capacity-exceeding demands of international law, then the Polish-Lithuanian Commonwealth is a most appropriate foundation for this ideal. Footnote 24 How did this context lead Alexandrowicz to assert such a bold and far-reaching vision at a time when, in the name of universal self-determination, the practice of partition was being legally condemned on a planetary scale? Footnote 25 I aim to answer this question by detailing the material conditions that shaped the particular embodied lens of “universalism” through which Alexandrowicz connected so many facets. Footnote 26
Part B methodologically situates my account and argues that the centrality of divided sovereignty in Alexandrowicz’s theory opens the path to a broad analysis on the historical co-constitution of law and material social relations. In accounting for the origins of the Polish-Lithuanian Commonwealth through this lens, Part C explores the medieval “Northern Crusades” where Christian Poland forged an alliance with pagan Lithuania against invading crusaders—an event Alexandrowicz viewed as well within the evolution of a non-discriminatory law of nations. Part D then examines the early modern evolution of this alliance into the “Polish-Lithuanian Commonwealth,” a unique divided sovereignty-based republican polity that resisted rising absolutism and the international order being shaped to accommodate it—a resistance that resulted in the First Partition in 1772. Accounting for the wake of the First Partition, Part E examines engagement by the now weaken Commonwealth in the Enlightenment “Age of Revolutions.” While such engagements brought much attention to the Commonwealth in this era of great ideological transformation, they also intensified a geopolitical environment whereby absolutist reaction could not abide the Commonwealth’s continued existence, thus leading to its extinction through the Second and Third Partitions. Finally, Part F accounts for the Commonwealth’s legacies against the backdrop of an international order premised on the infamous “Standard of Civilization.” Alexandrowicz’s theory was a distinct product of these conditions.
B. Towards a Historical Sociology of Sovereign Divisibility
Currently, it is difficult to say anything about international legal history without clarifying where one stands in a debate between lawyers and historians on the question of methodology. Footnote 27 Simply articulating a position on these terms can easily swallow the substance of one's original intervention. In avoiding this “method war,” I focus on a facet largely neglected in this debate on international legal origins—materiality. Despite their defining emphasis on historicization, materialist international legal theorists have been comparatively reluctant to substantially engage reigning questions on historical method in international legal scholarship. Footnote 28 However, these same materialists have much to offer on the question of what counts as “context” when historicizing international law. As Martin Clark has observed, in the ongoing “method wars,” “context” is heavily associated with the “Cambridge School’s” linguistic convention-focused methods which, whether by affirmation or critique, dominate the discourse at the expense of alternative modalities of historicization. Footnote 29 Following this observation, and those of Onur Ulas Ince and Ntina Tzouvala, I embrace the view that fixation on grammar and syntax has come at the expense of inquiry into how material social relations concerning distribution, production, and exchange explain why historical figures thought as they did. Footnote 30
As a grounding for this materialist analysis, I argue that international lawyers would be well served by engaging the insights from the field of International Relations (IR) as they concern historical sociology. Footnote 31 Concerned with how long-term material dynamics of human interaction have shaped the assumed features of the international system, such perspectives have largely been ignored by international lawyers in their “turn to history.” Footnote 32 This evasion arguably stems from leading critical international lawyers prominently resisting any and all engagement with IR as corrosive to the discipline and its identity. Footnote 33 However, such critique is very much a product of a certain historical moment and questions remain as to how relevant it continues to be. Footnote 34 This is especially true given how IR has undergone a “turn to history” of its own. This greater past-oriented consciousness reveals key commonalities within two fields long-defined by their mutually proclaimed differences. As Pitts has shown, overlaps:
. . . [I]nclude aspirations to the status of a science, a dependence on stylised histories populated by founding fathers and origins myths, a reliance on sovereignty as a foundational principle, a tendency to regard empires and imperialism as historically superseded and also ‘incidental to the discipline proper,’ and a blindness to their own participation in structures and discourses of racialized hierarchy. Footnote 35
With all this in mind, critical international lawyers and historical sociology-focused IR scholars have much to learn from oneanother. For critical international lawyers, engagement with historical sociology-based accounts of IR can help overcome anxious reliance on the default sources, namely the writings of canonical publicists—Vitoria, Grotius, Vattel, etcetera—that define the field’s identity while reproducing a profoundly limited historiographic perspective. Footnote 36 For the IR scholar, engagement with critical international legal theory provides a means of deconstructing the monolithic notions of “sovereignty” and “legal authority” that reproduce foundational Realist conceptions of “anarchy,” “power,” and “survival”—even within critical historical sociologies. Footnote 37
In articulating a historical sociology of Alexandrowicz’s critique of nineteenth-century international law through this lens, one consideration proves indispensable—whether or not sovereignty is divisible. As Carl Landauer makes clear, Alexandrowicz presumed that sovereignty was in fact divisible and, for this reason, legal practices such as capitulations and protectorate status were not inherent tools of empire, but a confirmation of the subjectivity of Asian and African sovereigns. Footnote 38 Rather, the true tool of domination was the nineteenth-century belief that only indivisible sovereignty was true sovereignty. This belief could justify any action—such as the Partitions—those self-proclaimed indivisible sovereigns were powerful enough to perpetrate. Though starkly separating law from politics, Alexandrowicz’s approach enabled him to cogently present a case for postcolonial sovereignty as a matter of right unconnected to the whims of colonial powers.
However, there appears to be a glaring issue with this relationship between divided sovereignty and partition in Alexandrowicz’s thinking. Would the ability to divide sovereignty not be a justification for partition? Despite its limits, focus on linguistic convention does enable something of a reconciliation here. The literal translation of “partition” in Polish is “to dismember”—thus giving it a pejorative character entirely different from its English usage as a neutral synonym for division. Footnote 39 Yet on a deeper level, this divisible sovereignty-partition divergence can be explained by the material evolution of the Polish-Lithuanian Commonwealth as a unique polity where divided sovereignty engendered a view of liberty that led it to define itself against the absolutist Empires that ultimately extinguished it through a mode of conquest comparatively rare within modern intra-European relations until the two World Wars. Footnote 40 Details of these points, and their influence upon Alexandrowicz—especially regarding his empathy with Asians and Africans—are aided by a theory of how divided sovereignty shaped the materially uneven evolution of the international system. Footnote 41 For this, I turn to the work of the IR theorist Edward Keene and the international legal theorist Ntina Tzouvala as a means of building a historical sociology of sovereign divisibility.
Beginning with Keene, an exponent of greater historical and legal sophistication within the “English School” of IR, the question of where and when sovereignty could be divided is central to his theory of “the international.” For Keene, the move from a bounded medieval system, premised on divided sovereignty, to an expansive modern system entailed the forging of “two patterns of world,” a process that reached its apotheosis in the nineteenth century. Footnote 42 Within the first pattern, which defined the European states-system and held tolerance as its end, true sovereignty was posited as indivisibly absolute and only the state entities possessing it could claim international subjectivity. Footnote 43 However, within the “second pattern,” which defined European interaction with non-European societies and held “civilizing” intervention as its end, divided sovereignty remained the norm and individuals possessed rights as international legal subjects, especially in relation to property. Footnote 44 Importantly, the divided sovereignty-based impositions of this second pattern were not simply a broad-scale transference of medieval practices. Notably, the claims to property rights that justified, and were justified through, colonial expansion were distinctly modern in that they were stripped of their connections to feudalism and thus required new formulations of hierarchy. Footnote 45
However, Keene later stated that his theory should not rely on too stark a divide between European and non-European worlds. After all, in addition to a longstanding ignorance of colonialism, theorists of “international society” also failed to consider the contemporaneous disappearance of many European polities at the highpoint of European global dominance. Footnote 46 In Keene’s assessment, rather than absolute bifurcation, the development of the international system was a multifaceted stratification process where an entity’s position was determined through an intricate interplay of raw power, cultural belonging, and legal status. Footnote 47 Such an approach is needed if one is to explain why Japan emerged as an imperial great power, yet Bavaria lost its international legal personality within a similar timeframe. Footnote 48
While Keene highlights several important features, Tzouvala provides a means of placing them within an overarching materialist meta-context. In her assessment, the consolidation of the international order in the nineteenth century was the consolidation of capitalism as a distinct mode of social relations on a global scale. Footnote 49 Driven by alternating logics of biology, justifying immutable hierarchies, and improvement, justifying transformative intervention, the “standard of civilization” was a variable means of implementing the legal-institutional groundings of capitalist social relations— the protection of individual commercial and property rights through a coercive state apparatus—across a diverse array of conditions. Footnote 50 On this basis, the current order of international law that facilitated this process can be distinguished from other juridical regimes, not merely by its exclusionary qualities, but by the historical reality that it alone devoured the entire global system. Footnote 51 Juridical formulation of either divisible or indivisible sovereignty, including principles adapted from earlier eras, could be mobilized as tools towards this end depending on the situation.
In the European states who were relative latecomers to capitalism, nation-building in the name of absolute indivisible sovereignty enabled “top-down” capitalist restructuring. Footnote 52 Throughout much of the non-European world, capitalist disruption of existing social relations justified divisions of sovereignty, often through regimes of extraterritorially and unequal treaties, as a means of protecting the individual rights of contract and property essential to capital accumulation. Footnote 53 In the temperate colonies of formative capitalist societies, the UK and US, the intertwined denial of indigenous sovereignty and creation of property-based settler democracies could safeguard concentrated capital by redirecting, and thus diffusing, potentially revolutionary tensions through spatial expansion. Footnote 54 In locations such as the border regions of Europe, non-conformity with established categories enabled highly experimental measures. Footnote 55 As such, through Tzouvala’s theory of “capitalism as civilization,” the variable “two patterns of world order” identified by Keene can be situated within a greater historical sociology of sovereign divisibility able to account for the anomalies and liminal spaces, such as the Polish-Lithuanian Commonwealth, that defy ideal-type categorizations.
Through the combined insights of Keene on the variegated divisibility of sovereignty and Tzouvala on the materiality of “civilization,” we gain a new basis to unearth the contextual grounding of Alexandrowicz’s thought and how engaging it might expand our consciousness. Yet, where should a historicized account based on these presumptions begin? After all, in eschewing the standard Eurocentric benchmark dates, Alexandrowicz, through his studies of ancient India, set the origins of international law back to at least the fourth century BCE. Footnote 56 However, in adopting a materialist lens, because divided sovereignty was so central to Alexandrowicz’s account, it makes sense to go back to the Middle Ages where this configuration, then the norm, could be located in a manner traceable to the emergence of the modern sovereignty that defines international law today. Footnote 57 It was in this medieval timeframe that Alexandrowicz located the very formation of the Polish-Lithuanian Commonwealth in the context of a consequential controversy surrounding the application of a universal system of law to different orders of political authority.
C. Can Pagans Form a Commonwealth?
Had Alexandrowicz been less dedicated to rigorous historical work and the critique of Eurocentrism, he might have consecrated Paweł Włodkowic, Latinized as Paulus Vladimiri (1370-1435) as the lost “founding father” of international law. Footnote 58 A Catholic priest and Rector of the Kingdom of Poland’s Cracow University, Vladimiri presented a detailed case that non-Christians were indeed rights holders under the universal regime of natural law—a full century before Vitoria. Footnote 59 Presenting this case at the papal Council of Constance, 1414–1418, in Anthony Carty’s assessment, Vladimiri’s advocacy represented an important step towards open-forum adjudication—and away from closed textual-doctrinal expounding—when it came to the formulating the practice that defines international law. Footnote 60 If there is any truth to medievalist Walter Ullmann’s claim that those concerned with international legal origins should focus on adjudication relating to papal controversies, then Vladimiri’s contribution must be of the utmost interest. Footnote 61 Such focus is all the more interesting when considering the substance of Vladimir’s controversy—whether Christians allied with infidels against other Christians could ever possess just cause in a just war? Despite its monumental importance, Christian-infidel alliance questions, and their role in building the international order, is rarely confronted within present scholarship. Footnote 62 Uncovering Vladmiri’s influence on Alexandrowicz is thus a verdant trove of opportunity. The infidels in question were of the Grand Duchy of Lithuania, the last pagan polity in Europe, and their alliance with the Kingdom of Poland was against the crusading Teutonic Order.
Understanding Vladimiri’s defense requires some attention to events deemed the “Northern Crusades.” Though less famous than the Holy Land Crusades, these religion-embroiled wars in the greater Baltic littoral region occurred against the same socio-political backdrop of the better known Crusades, and were far more successful in achieving the long term goals of Christian dominance. Footnote 63 Sanctified by the Church and executed by Scandinavian and German princes alongside religious military orders—the most famous being the Teutonic Order formed in the Holy Land—these wars, waged between the twelfth and fifteenth centuries, devastated the pagan Slavic, Finno-Uralic, and Baltic-speaking societies, and cultivated enduring animosity with the Eastern Orthodox lands integral to the later Russian Empire. Footnote 64 For the modern international lawyers, especially those not from Poland or the Baltic states, making sense of these unfamiliar events is aided by recognition of two important distinctions from the Holy Land Crusades—one material and other juridical.
On a material level, though the harsh winters of the Baltic had largely precluded long-term occupation by invaders, and thus fostered the region’s great linguistic and cultural diversity, by the twelfth century, innovations in military technology and socio-political ordering enabled unprecedented incursions. Footnote 65 At this time, a consolidating feudal system led to military expansions in the frontier regions of Latin Christendom as noble progeny barred from inheritance under rules of primogeniture that favored eldest sons sought land tenures of their own—creating cultures of conquest and colonization in the process. Footnote 66 However, though an object of feudal Europe’s religious-military fixation, one region that defied this modality of geopolitical accumulation was the Middle Eastern Levant. Faced with the organized resistance of local populations, coupled with the challenge of disease and agricultural production in an unfamiliar climate, the crusader kingdoms established in this region proved unsustainable. Footnote 67 Yet despite failures of permanent settlement, conflict in the Holy Land gave European crusaders the military experience and prestige that fueled subsequent impositions in Christendom’s more immediate peripheries. Footnote 68 The pagan Baltic region, a key site of recycled crusading efforts, proved far easier to incorporate into the sphere of European feudalism where the commonality of material social relations, despite religious difference, enabled comparatively high degrees of trade and mutual respect—even amongst parties engaged in ferocious warfare. Footnote 69 So frequent were these interactions that crusaders were themselves accused of adopting pagan ways. Footnote 70
However, the comparative material ease of integrating Baltic lands into feudal Christendom was coupled with the difficulty of devising a legal justification for this process of integration. As papal authority consolidated in the twelfth century, and increasingly influenced the terms by which Christendom encountered and navigated its growing connections with non-Christian worlds, questions of just war and infidel land rights were of preeminent importance. In short, did Christians possess a natural right to conquer non-believers? For Pope Innocent -IV, 1195–1254, there was no right to wage expansionary wars against non-Christians absent their commission of a specific offence. Footnote 71 While widely accepted, Innocent’s position was not without challenge. For the jurist Hostiensis, 1200–1271, and the tradition he founded, because the divinity of Christ manifested universal sovereignty, any war for infidel land was a just effort to restore the original universality of Christ’s dominion. Footnote 72 Against this discursive backdrop, the justificatory divergence between the Holy Land and Northern Crusades was clear. While the former could claim the recovery of formerly Christian lands and protections of pilgrims/holy sites as just cause for just war, the latter had to rely on attenuated rationals of conversion and expansions in lands that were never Christian. Footnote 73 The Northern Crusades were thus a site of innovative and controversial rationales for justifying holy war. Footnote 74
In was in this context that Vladimiri lodged a theological-philosophical argument on infidel alliance that forged the institutional basis for the polity that became the Polish-Lithuanian Commonwealth. By the end of the thirteenth century, the Teutonic Order, and the various lessor orders it absorbed, had subjugated numerous pagan tribes and established powerful crusader polities in Prussia and Livonia—however, it faced a formidable foe in the form of the Lithuanians. Footnote 75 Adopting feudalism while maintaining paganism, the Grand Duchy of Lithuania built a vast empire to the East that incorporated much of the Orthodox Slavic world devastated by the Mongol invasions of the 1200s. Footnote 76 Along with the Teutonic Knights, the Lithuanian Grand Duchy faced armed opposition from the Catholic Slavic Kingdom of Poland where various decentralized estates were uniting into a powerful monarchy. Footnote 77 Originally aligned against a common pagan enemy, the Poles coordinated their efforts with the Teutonic Order until 1308 when, upon capturing the city of Danzig on behalf of Poland, the Order refused to relinquish control. Footnote 78 Following prolonged contention, the Poles eventually joined an alliance against the Order initiated by the Lithuanians whose Grand Duke Jagiełło converted to Catholicism, baptized as Władysław, and married Princess Jadwiga of Poland in 1385 thus beginning the Jagiellonian Dynasty. Footnote 79 United, the Poles and Lithuanians achieved a decisive victory over the Teutonic Order at the fabled Battle of Grunwald in 1410. Footnote 80
As the Council of Constance convened in 1414 with the primary aim of reunifying fractured papal authority and settling major theological controversies, the Kingdom of Poland’s dispute with the Teutonic Order constituted an important sub-matter. Against the Order’s crude assertions, Vladimiri presented the Polish case with the utmost lawyerly precision and decorum. Beginning with the position of Hostiensis, whom the Order itself did not even explicitly invoke, Vladimiri dissected this argument to show the superiority of Innocent’s significantly more measured position as it applied to the Northern Crusades. Footnote 81 While presuming the duty of pagans to admit Christian missionaries, Vladimiri contrasted the Order’s forcible conversion measures against the peaceful and consensual means of the Poles and, from this basis, claimed the Order was only interested in using papal authorization as a duplicitous pretext for acquiring wealth and territory. Footnote 82 While a commission to settle the Polish-Teutonic Order dispute largely endorsed Valdmiri’s argument—a milestone in dissolving the influence of Hostiensis—there was no definitive declaration of victory by the Council. Footnote 83 However, acceptance of the Polish-Lithuaian alliance Vladimiri defended was eminently tacit as Pope Martin V named King Władysław Jagiełło of Poland and Grand Duke Vytautas (Witold) of Lithuania as his vicars-general in Russia. Footnote 84
Though largely uninvoked in subsequent centuries, according to Alexandrowicz’s survey, definite traces of Vladimir’s argument on Christian-infidel coexistence could be found in a number of legal texts—including those of Vitoria and Grotius. Footnote 85 For Alexandrowicz, who blamed the lack of citation on the Council’s failure to more explicitly embrace the Polish cause, Vladimiri’s argument was of great importance in highlighting the non-discriminatory character of the classical law of nations. Footnote 86 Contra the heated question of Muslim-Christian relations, as Landauer observes, this topic of Christian-pagan alliance allowed Alexandrowicz, a student of canon law, to study the juridical character of coexistence in what he believed to be a more objective sense. Footnote 87 As a matter of cross-contextual application, Polish Christians allying with pagan Lithuanians formed perhaps a clearer parallel to European relations with Hindu and Buddhist societies in the East Indies, a central facet of Alexandrowicz’s scholarship. Footnote 88 Interestingly, Alexandrowicz takes this parallel to whole new level through his proclamation that both the Polish-Lithuanian Commonwealth and the East Indies shared a similar fate as legal universalism gave way to the positivism he so thoroughly despised. On his reading:
.. . [T]he period of the collapse of the independent Asian State system in the East Indies at the end of the eighteenth century witnessed also the collapse of Poland, to a great extent under the pressure of those intransigent dynastic forces which stood in the way of a liberal and non-discriminatory conception of the family of nations. Footnote 89
Thus, for Alexandrowicz, by empowering the worst aspects of European civilization, a new regime of legal order undid the progress of an earlier system that enabled both Christian-pagan and Euro-Asian interaction on a humane and egalitarian basis. Axiomatic here is the way in which both the Commonwealth and the East Indies were premised on an understanding of divided sovereignty that was rejected in both instances by actors who insisted that indivisible sovereignty was the only true sovereignty. To fully understand the significance of this parallel, we are well-served by uncovering the material conditions of the divided sovereignty, and its detractors, that proved so critical to Alexandrowicz’s thought. It is thus highly worthwhile to account for how the Polish-Lithuanian Commonwealth, the ultimately product of Vladimiri’s defense of Christian-pagan alliance, was a uniquely persistent manifestation of divided sovereignty besieged by those building regimes of indivisible sovereignty. This path of inquiry conjoins the history Alexandrowicz crafted with the history that crafted him. After all, the “golden age” of universal law-governed encounter and interaction between Europeans and the East Indies proclaimed by Alexandrowicz occurred in roughly the same timeframe in which the Polish-Lithuanian Commonwealth experienced its own mythologized “golden age.”
D. The Commonwealth Against Absolutism
While Vladmiri sought vindication before the papal Council of Constance, armed with the benefit of hindsight, the Council’s (non-)verdict is less compelling than the character of Vladimiri’s argument. At this point, the role of the papacy in the world beyond Christendom was profoundly changing. Rather being the immediate source of contact with the non-Christian world, the Church reinvented its relevance as an arbiter of competing claims amongst Christians over infidel lands. Footnote 90 Such was the gradual turn from a hierarchal order to one premised on the decentralized will of sovereigns. Following the Council, the aligned Poles and Lithuanians, increasing integrated within a singular state structure, were embarking on the path of a great power within this new order as the medieval gave way to the early modern. Footnote 91 Here, Vladimiri’s defense of a Christian-pagan alliance makes for a compelling case study in Keene’s point that membership in a constellation of multiple polities identifiable as an “international states-system” is the result of a multi-faceted alchemy of cultural belonging, raw power, and legal status. Footnote 92
Beginning with the Kingdom of Poland, its main contribution to this formula was its claim to inclusion within Latin Christendom. Resistant to German vassalage under the Holy Roman Empire since its conversion to Christianity in the 900s, Poland maintained a close link to the authority of the Catholic Church. Footnote 93 A great testament to this was Cracow University, Vladmiri’s institution, which emerged as a vastly influential center of knowledge production within the late medieval world. Footnote 94 By contrast, the Grand Duchy of Lithuania was an important military power, that, despite its paganism, played a pivotal role in defending Christendom against nomadic invasion from the East. Footnote 95 Alliance between these differently situated entities demanded an innovative approach to the justification of legal status. Yet, through Vladimiri’s creativity, there emerged a fitting juridical articulation that, in a time prior to the rigid distinction between “internal” versus “external” sovereignty, accounted for both the international legal personality and domestic constitutional structure of the polity latter deemed the Polish-Lithuanian Commonwealth.
What made this union so unique relative to every other European state-formation that could claim “great power” status was its reverse evolution regarding the general consolidation of undivided sovereignty elsewhere. Importantly, it was divided across not one, but two distinct axes. The first division was between the Polish and Lithuanian “nations”—then the designation of an upper social strata not extended to all classes until the nineteenth century. While merger via the 1569 Lublin Union, the act officially constituting the “Commonwealth,” unified most practical matters of governance, Poland and Lithuania were maintained as distinct administrative divisions—thus contributing to a persistent “two-nation” identity. Footnote 96 The second, and closely related division, was between the division of power amongst a decentralized nobility (the Szlachta) who convened the Sejm, a bicameral parliamentary assembly. Footnote 97 While states elsewhere in Europe became increasingly centralized through hereditary absolutist monarchies—and an accompanying rise of elaborate ranking systems amongst the nobility—the Commonwealth followed a completely different trajectory. When the Jagiellonian dynasty became extinct in 1572, rather than replacement by a competing lineage, the Sejm, in the interests of preserving its decentralized power, opted for a weak monarchy elected by a formally egalitarian nobility for a limited term. Footnote 98
The maintenance, and intensification, of such a divided regime of sovereignty led to defining institutional and ideological particularities within the Commonwealth. On one level, it preserved power within the countryside and thus lacked urban development and its associated patterns of commerce and encounter. Footnote 99 Of defining importance here was the Commonwealth’s rejection of Roman law and, by extension, its harmonization of trans-boundary interactions through a common medium of order and authority. Footnote 100 However, on another level, the juridical equality amongst the nobility—as large as ten percent of the population and unsubjected to absolutist ranking hierarchy—led to a pronounced tradition of republican political thought that defined Commonwealth identity. Footnote 101 Divided sovereignty was thus a measure of liberty. Footnote 102
The explication of the Polish-Lithuanian Commonwealth’s uniqueness raises questions of the material factors that enabled it to develop so differently from its neighbors. Importantly, the lands of Commonwealth were comparatively spared the ravages of the Black Death—an event of demographic devastation—that, in creating a vast labor shortage, demanded a profound reconfiguration of feudalism’s peasant-noble-monarchy relationship. Footnote 103 Though it stunted long-term prospects of innovation, preserving traditional agricultural practices against this backdrop of crisis enabled the Commonwealth to assume the role of Europe’s “bread basket.” Footnote 104 Moreover, as a distinct legacy of the old Lithuanian empire, the Commonwealth continued in its role as buffer to Eastern incursion against Latin Christendom. Footnote 105 Integrating the practices of Western knighthood with the steppe warfare tactics of the Orthodox Cossacks inhabiting its frontiers, the Polish-Lithuanian Commonwealth possessed the most powerful calvary in Europe. Footnote 106 Furthermore, as a matter linked to the comparative tolerance of religious diversity that defined the polity’s republican identity, there was the relatively favorable treatment of Jews within the Commonwealth, many of whom had fled intolerance elsewhere. Footnote 107 Unable to own property, but unburdened by restrictions on money-lending and with access to wide-spanning merchant networks, Jews played a profound role in linking landed Polish nobles to commercial opportunities despite the Commonwealth’s lack of urban development. Footnote 108 In light of these factors, the Polish-Lithuanian Commonwealth was able to maintain a non-conforming approach to sovereignty in a way that few others were.
While its sixteenth century can be deemed a “golden age,” this divided sovereignty-based polity faced a new reality as indivisible sovereignty-based absolution gained force in the seventeenth century. Materially, absolutist state formation in Europe was marked by a distinct West-East divide with the Elbe River being a commonly accepted demarcation line. Footnote 109 In the West, with the Kingdom of France as exemplar, a centralized absolutist monarchy, through its powers of taxation and official patronage, had deeply constrained the decentralized power of the nobility. Footnote 110 Fueling this process was a transformation of law, particularly the rise of Roman law. Footnote 111 As Western European powers simultaneously expanded abroad and centralized internally, Roman law innovations were key to ordering the “domestic” and the “international” as distinct, yet permeable, spheres of authority. Footnote 112 Even in highly divided patchworks, namely the vast fragmented array of principalities deemed the Holy Roman Empire of the German nation, Roman law proved a highly effective medium of connection and coordination. Footnote 113 Also of great importance was the way in which Roman law doctrines, often shaped obscurely in the shadow of the Canon law in the city-states of medieval Italian peninsula, could justify novel approaches to waging war. Footnote 114 Based on analogies to private individual rights of self-defense applied to free cities, this protective rationale for force eventually extended to justify permanent territorial annexation in a manner progressively un-moored from established Christian morality. Footnote 115 Any polity, including the Commonwealth, that failed to adapt to this mode of reasoning was at a grave disadvantage. Footnote 116
Compounding this challenge was the rise of a distinctly Eastern variant of absolutism in the realms surrounding the Commonwealth. Relative latecomers to state centralization, rather than the gradual rise of peasant freedom from local lords experienced in the West, the lands under the authority of Prussia, Russia, and Austria experienced a “second serfdom” as feudal control consolidated through a greater alignment of monarchs and nobles against the peasantry. Footnote 117 One reason for this development concerned a need for concentrated labor-intensive food production as lands in the West became increasingly geared towards industry as opposed to agriculture; another concerned the need for military manpower and organization. Facing immense geopolitical pressure from Western absolutist powers, in the Prussian, Russian, and Austrian empires, state centralization was, compared to the West, dedicated to enhancing military capabilities at the expense of any other state activity. Footnote 118 Largely cut-off from direct overseas colonial extraction, these Eastern powers continued to rely heavily on immediately proximate geopolitical accumulation through dynastic alliance and inheritance or, failing this, outright wars of conquest. Footnote 119
With absolutists consolidating their power, the anomalous Polish-Lithuanian Commonwealth was an anvil between many hammers. Interestingly, important catalysts for these resulting wars of devastation were remnants of the old Teutonic crusader realms of Livonia and Prussia. Beginning in the mid-sixteenth century, dominion over Livonia was an initial source of a long series of wars between the Commonwealth, the newly consolidated Russian Empire, and the Kingdom of Sweden—a scourge of Eastern lands that demonstrated the efficiency commanded by even a relatively weak absolutist power in the Western mold. Footnote 120 As for Prussia, which continued as a site of German settlement long after the crusades, the Commonwealth’s failure to eradicate it entirely allowed it forge close connections with the principalities of the Holy Roman Empire and guarantee German domination of the West Baltic coast, thus preventing the emergence of any Polish naval power. Footnote 121 On its southeastern frontier, Catholic-Orthodox confessional differences with the Cossacks, and failure to integrate them as third nation within the Commonwealth, drew them closer to Russia. Footnote 122 Following the Cossack’s great Khmelnytsky Uprising of 1648, and subsequent Russian intervention, large swarths of the Commonwealth’s eastern border lands fell under the control of the Russia’s Empire, a situation formalized via the 1667 Truce of Andrusovo. Footnote 123 As for Austria, while Commonwealth forces famously rescued a besieged Vienna from Ottoman invasion in 1683, this victory over the Turks solidified Habsburg strength in the East and thus empowered another absolutist entity at odds with the long-term existence of the Commonwealth. Footnote 124
When considering these varied wars, it is crucial to understand what, as a matter of systemic logic, the absolutist powers wanted from the Commonwealth. Given its nobility-focused republican rejection of hereditary monarchy, there was no way to acquire these lands through diplomatically-orchestrated dynastic inheritance—direct conquest was thus the only option. Footnote 125 In the face of such impositions, Commonwealth nobles doubled down on the logic of divided sovereignty as an embodiment of freedom defined in contrast to absolutist tyranny. While this oppositional framing bolstered identity, it also constrained the institutional reforms that might enable the Commonwealth to better resist its rivals. Footnote 126 Perhaps the single greatest example of this recalcitrance was the general persistence of the Liberum Veto, a mechanism granting any member of the Sejm the power to unilaterally block legislation. Footnote 127 An embodiment of divided sovereignty at its purest, the Veto effectively paralyzed most institutional efforts at a time when decisive organization was needed.
Important as they were, these internal dynamics need to be considered in relation to greater external forces. Beyond setting their sights on the lands of the Commonwealth, the Eastern absolutists were also locked into a system of competition with one another. With Russia acquiring significant territory its ongoing wars against the Ottomans, Prussia and Austria harbored deep concerns over this shifting balance of power and sought out means of enhancing their own positions while avoiding direct confrontation with Russia. Footnote 128 Moreover, beyond these localized concerns, change in this general timeframe occurred on an even larger scale through the Seven Years Wars, 1756–1763. Beginning as skirmishes between Britain and France over colonial boundaries in North America, the far-reaching imperial character of the powers involved led to a globe-spanning conflict that included intense fighting in contested regions of Europe involving all the Eastern absolutist powers. Footnote 129 With the defeat of France, continental Europe’s most significant and influential geopolitical force, there came unprecedented opportunities for Russia and Prussia, victors in this conflict, to claim a vastly enhanced degree of status within Europe’s power-ranking system. Footnote 130 This spelled disaster for the Commonwealth. Armed with a newfound assertiveness, without even formally declaring war, Russia and Prussia, along with Austria, initiated the first Partition in 1772—costing the Polish-Lithuanian Commonwealth “. . . approximately 30 per cent of its territory, and one third of its population.” Footnote 131
E. The Commonwealth’s Last Stand
Was the First Partition of the Polish-Lithuanian Commonwealth legal at the time of its commission? To even pose this question invites a considerable discourse on the nature of lawful authority in a moment of profound transition. From one perspective, the Partition epitomized a logic that arose alongside the absolutist state that, in superseding early patterns of moralism, viewed unquestionable prerogative as its own justification. Retrospectively, such a view was perhaps expressed most directly by the nineteenth-century Luxembourgian jurist and historian François Laurent that “[i]nternational law really amounts to laying down the principle of national sovereignty and deducing the consequence.” Footnote 132 The Partition, however condemnation-worthy for its brutality or imprudence, could not be similarly condemned as illegal; general acceptance of this event amongst the powers of Europe seemed to confirm this. Footnote 133 However, from another perspective, there was a growing view that political legitimacy and, by extension, sovereignty derived solely from the consent of the governed.
Articulated more than a century before the Partition in 1600s England, and in the context of it Revolution/Civil War, this development cannot be dismissed as mere normative flourish, but was deeply intertwined with the rise of capitalism as a distinct mode of social relations. Footnote 134 Materially, this discourse of popular consent was one of absolutism-opposing landowners who sought to guarantee their interests through representation in Parliament as the legislative organ of an abstracted bureaucratic state unconstrained by the feudal burdens of personalized loyalty. Footnote 135 As assertions of land rights by this nascent capitalist class destroyed traditional peasant subsistence via enclosures of common lands—forcing the peasantry to sell their labor power as wage-earners thus providing a labor basis for enhanced industrialization—the English constitutional-parliamentary state proved highly efficient at overcoming the contradictions that constrained absolutism. Footnote 136 Free to establish a central banking system independent of any ruler, the state could efficiently generate the revenue needed to support a standardized military, and thus exert great geopolitical pressure on its rivals. Footnote 137
However, as the eighteenth century dawned, the pressure of this material innovation surrounding the nexus between capitalism and popular will produced widespread ideological effects. Footnote 138 The meta-phenomenon deemed the “Enlightenment” can be placed squarely in this frame in a manner that had tremendous consequences for the characterization of war, conquest, sovereignty, and the law of nations—all of which directly concerned the partitioning of the Polish-Lithuanian Commonwealth. In contrast to the East, warfare in the West, if not its overseas colonies, was constrained through the series of treaties constituting the 1715 Peace of Utrecht and its establishment of a durable balance of power. Footnote 139 In this age, common understanding amongst warring princes on what could be legitimately gained or lost through battle limited the duration and brutality of war to a degree unwitnessed before or since. Footnote 140 Moreover, there arose new critiques of overseas colonial violence as secular discourses of universality sought to account for human commonality despite a seemingly infinite array of cultural difference. Footnote 141 Crucially, a transformed discourse of the “law of nations” arose as a driver of this critical universalistic ethos. Footnote 142 However, with these new articulations of universalism came new grounds for category division. In this time, and against this cultural backdrop, material distinctions took on a new ideological form as the previously unified space of “Europe” became divided according to an “West/East” axis, with the latter acting as a liminal space between an ideal of the “West” and the rest of the world beyond it. Footnote 143
Embodying these many contradictory and uneven realities was the most important international legal treatise to emerge in this era—Emer de Vattel’s (1714–1767) The Law of Nations, first published in 1758. Despite his efforts to streamline the systematic philosophical complexities of his influences, namely Christian Wolff (1679–1754) Vattel’s text leads to many diverging conclusions when applied to the Partition. A unique aspect of his treatise, and one often overlooked by international lawyers, was Vattel’s placement of the will of the people as the basis for domestic sovereign legitimacy. On this understanding, a given system of government was a matter of pure domestic discretion and even absolutist monarchies were presumed to be ultimately legitimized by the consent of their subjects. Footnote 144 This pluralistic framing underpinned his famous proclamations that sovereign equality and nonintervention are the core structuring features of the international order. Footnote 145 Such presumptions fit well within the view that Vattel’s purpose was to use natural law to uphold the sovereignty of Europe’s small and uniquely constituted polities—including his native Swiss Canton of Neufchâtel—from aggressive domination by absolutist empires. Footnote 146 If these presumptions and proclamations are the object of focus, it would appear that Vattel’s text was a most fitting authority for condemning the Partition. Footnote 147
However, provisions elsewhere in his text cast doubt on any such unqualified utility. For instance, Vattel explicitly names preserving the balance of power as a legitimate ground to use force—a logic the Partitioning powers were all too familiar with. Footnote 148 Moreover, Vattel was clear that conquest was indeed a basis for gaining valid title to territory. Footnote 149 Beyond simply accepting this mode of acquisition, Vattel was novel amongst classical publicists in accepting the “right of conquest” as a self-justifying outcome unconnected to any normative grounding beyond the raw fact of its occurrence. Footnote 150 Interestingly, in a move rather superfluous to his stated purpose of articulating legal standards, Vattel offers pragmatic advice to would-be conquerors. On the question of preserving existing governmental structures in conquered territories, while he admits that doing so is well within a conqueror’s rights, he warns of the long-term difficulties of maintaining such arrangements. Footnote 151 As such, he recommends that local institutions be completely obliterated in the name of stability. Footnote 152 This is certainly a perplexing statement from one dedicated to upholding the principle of popular will and preserving the sovereignty of those most at risk. Footnote 153
The contradictions embedded within reigning legal doctrine precluded any easy answer to the question of Partition. However, it was this very ambiguous universalism that enabled the Commonwealth’s cause to be framed in the post-feudal terms of liberalism despite its profoundly feudal character. While confined to the nobility, Commonwealth republicanism as an expression of “liberty before liberalism” fit well within Enlightenment efforts to proclaim the timeless universality of its ideals. Footnote 154 Though they emerged to account for very different material social relations, Commonwealth nobility republicanism and Western Enlightenment liberalism could form a common normative front against absolutism. Armed with such a wide discursive range, in its quest for allies abroad, promoters of the Commonwealth’s cause could appeal to vary different actors in a manner could shift emphasis while maintaining core ideals. Perhaps the greatest demonstration of this range was the simultaneous appeal to both the Ottoman Empire, a common enemy of Russia, and the independence movement in Britain’s North American colonies—two late-eighteenth-century embodiments of social order and political thought of the utmost divergence. Footnote 155
While it provided a mechanism for universalizing local agendas, engagement with Enlightenment discourse, and the politics it entailed, meshed these Commonwealth patriots within a compounding array of contradictions. This is especially true when considering the Enlightenment scholar most influenced by and influential to the Commonwealth’s cause— the famed Genevan philosopher Jean-Jacque Rousseau (1712–1778). Footnote 156 For Rousseau, who feared centralized structures of delegation as a diminishing of popular sovereignty, the decentralized character of the Commonwealth’s nobility was a promising foundation for achieving the elusive, yet essential, “general will” from which political legitimacy derived. However, it was this rejection of popular authority’s delegation that rendered Rousseau’s assertion at odds with then existing theories of the law of nations. Because the sovereignty of foreign polities that failed to respect the general will of their populations was hardly something to be respected, Rousseauian theory can be viewed as legitimizing intervention without limit. Footnote 157 Importantly, Rousseau’s approach to governmental legitimacy and international order differed immensely his fellow Swiss scholar Vattel, for whom authority delegation within a bounded political community was a matter beyond external judgment—a presumption underpinning his international theory. Footnote 158
Ironically, the fortunes of the Commonwealth were intimately shaped by a reception of Rousseau’s ideas in a very differently-situated geopolitical entity in the form of France, the core of Western absolutist order and the Enlightenment critique thereof. Footnote 159 As the crisis-plunged monarchy sought to manage its cascading budget deficient through the sale of overvalued state offices, it was the emergent urban middle-class—those whose ambitions of upward mobility were dashed by this fraudulent scheme of office selling—who famously initiated the French Revolution in 1789. Footnote 160 Amongst this class, material conditions were ripe for a reception of the Rousseaian critique of absolutism, and this embrace only became more embedded as rounds of intervention in both suppression and export of the Revolution demanded a new urgency of answers to questions on war, sovereignty, nationhood, and international order. Footnote 161 It was in this context that the Commonwealth nobility promulgated the 1791 Constitution—the first written constitution in Europe—which bore distinct imprints from the nobility’s engagement with the Enlightenment. Footnote 162 In response, Russia and Prussia, reactionary stalwarts against French revolutionary disruption, initiated a Second Partition of the Commonwealth just two years later. Footnote 163 With the Commonwealth hobbled beyond recovery, Russia and Prussia, now rejoined by Austria, undertook a Third and final Partition in 1795. Footnote 164 The Polish-Lithuanian Commonwealth ceased to exist on the map of Europe.
F. The Commonwealth’s Legacy, Civilizational or Universal?
A presumed core characterization of international law in the nineteenth century is that legal positivism and self-determination were fundamentally without overlap. Footnote 165 In other words, the juridical-scientific ascertainment of the personality and will of a sovereign state had nothing to do with distinct communities’ aspiration to independence as a matter of natural and historical right. According to an infamous proclamation of this divergence, “the character of the Law of Nations and of an International Person can[not] be attributed . . . to . . . races after the loss of their state (as, for instance the Jews or the Poles).” Footnote 166 For many scholars of history, law, and international politics, the genesis of this separation was the 1815 Concert of Europe system tasked with post-Napoleonic reconstruction under the self-anointed “legalized hegemony” of great powers via Britain, Russia, Prussia, Austria, and, after 1818, France. Footnote 167 Exemplifying the gap between legal recognition and normative claims of belonging, while the goal of the Concert was “restoring order” through the reversal of French revolutionary territorial disruptions, the Polish-Lithuanian Commonwealth went notoriously unrestored. Footnote 168 Rather, the three Partitioners of the Commonwealth now sought, in the interests of preventing future disruption, to suppress all popular sovereignty-based movements against their installed princes via a “Holy Alliance.” Footnote 169 It is little surprise that Alexandrowicz cursed this turn of events.
Yet from another perspective, viewing these issues of self-determination and international legal positivism as mutually incompatible fails to grasp the ways in which both of these issues were embroiled within a common “civilizational” logical. Consider the Scots-highlander politician, scholar, and former colonial judge James Mackintosh (1765–1832). Unlike many of his contemporaries who lionized the Commonwealth’s cause, Mackintosh showed open disdain for its nobility and their many mismanagements. Footnote 170 However, personal feelings did not overcome his general critique of external domination, even when done in the name of improvement. Footnote 171 According to Mackintosh: “Conquest and extensive empire are among the greatest evils . . . . To destroy the independence of a people, is to annihilate a great assemblage of intellectual and moral qualities, forming the character of a nation and distinguishing it from other communities.” Footnote 172
Despite such seeming progressivism, in Pitts’s reckoning, this same Mackintosh was the first jurist to articulate the infamous nineteenth-century “Standard of Civilisation” as such. For Pitts, while there were highly chauvinist characterizations of the law of nations since its inception, they configured this phenomenon as timeless morality as opposed to the product of historical process; later historicist accounts were deliberately lodged as critiques of these exclusionary proclamations. Footnote 173 Through Mackintosh, chauvinist hierarchy and methodological historicism were merged for the first time. Footnote 174 In contextualizing this synthesis, Mackintosh, in this distinct post-French Revolutionary moment, devised an alternative account of popular will in relation to international law. Rather something to be exported a la the Jacobins, popular will was a manifestation of uniquely bounded organic communities that formed an inherent limitation on universalist assertions of natural right, and it was international law’s purpose to uphold these boundaries. Footnote 175 Resembling his former rival Edmund Burke’s (1729–1797) famous conservative critique of the French Revolution, this reconfiguration of the popular will-international law relationship was well suited to the Britain’s post-Napoleonic European policy that, contra the Holy Alliance, stressed non-intervention in domestic affairs as a general principle. Footnote 176 Civilizational hierarchy discourse was an indispensable tool towards this end. Armed with Mackintosh’s reasoning, the British could attack Holy Alliance interventions as no better than those of the Jacobins and, consequentially, a betrayal of the virtues that led Europeans to occupy the highest racial strata of all humanity. Footnote 177 Critique of the continued suppression of the Commonwealth fit very well within this frame. Footnote 178
This common backdrop of the seemingly irreconcilable facets of legal positivism and self-determination fits well within the Tzouvalian notion of “capitalism as civilization.” Footnote 179 Far from purely benevolent, British nonintervention was very much in the interests of British capitalists seeking to expand markets in a continental European market no-longer limited by Napoleon’s bans on British imports. Footnote 180 It is not difficult to see how presumptively endless pro-dynastic intervention by the Holy Alliance could disrupt such ambitions. Against these systemic pressures, and the realization of geopolitical limits, the Holy Alliance agenda was gradually abandoned and projects to implement capitalist social relations via state-directed “revolutions from above” proliferated amongst the powers that formed it. Footnote 181 At this same time continental jurists, in manner similar to Mackintosh, posited notions of statehood and organic community that moved sovereignty away from the person of the absolute dynastic leader and into the abstracted “will” of the underlying political community. Footnote 182 Presumptively excluded from these conjoined understandings of “law,” “state” and “peoplehood,” the world beyond Europe was a blank slate for the legal imposition designed to extract the resources that fuelled this Europe-centred mode of production and distribution. Footnote 183
Central to this entire process was an indivisible-divisible sovereignty hierarchy, and the means by which this shaped new and violent expressions of collective identity. As ethnic nationalism proliferated in a post-absolutist world, gaining or preserving indivisible sovereignty became seen as the ultimate prize that redeemed past victimhood and could shield against future victimization. For partisans to these struggles, the example of the Polish-Lithuanian Commonwealth showed that simply being located in Europe did not spare a people the fate of externally imposed sovereign divisibility that characterized Europe’s colonization of the rest of the world. As one Austrian general remarked of the harshness of the Partitions: “I don’t believe that even among the Iroquois and Hottentots such ridiculous things occur.” Footnote 184 Perhaps nowhere was this compounding relationship between sovereign divisibility and civilizational logic stronger than in the Partitioned lands. Footnote 185 Here, attempts to build a divided sovereignty-based constitutional regime, reminiscent of the Commonwealth clashed against mutually-irreconcilable ethno-nationalist quests for indivisible sovereignty. Footnote 186
While such contentious rhetoric over civilization and sovereign divisibility defined the lands of the former Commonwealth, they were not confined there. Through the Partitioning powers, conflict discourses were transmitted across broad transnational vectors. Influential here was the view that it was a grave injustice for a people to be dominated by those beneath them on the civilizational hierarchy. Footnote 187 Russia was particularly susceptible to this charge. Footnote 188 Very much aware of this, opponents of Russian rule prominently invoked “barbarism” in the context of the failed 1863 Polish Revolt, an event that definitively shifted a campaign of Commonwealth restoration to one of Polish ethno-nationalism. Footnote 189 However, such charges by the Poles can be interpreted as contributing to Russia doubling-down on its own particular civilizational rhetoric. Footnote 190 Though more inclined to stress Christianity over liberalism, on a material level, their rationales operated very much in conjunction with those of the West. Footnote 191 While the later, through maritime projection, subjected the “semi-periphery” to predatory processes of state restructuring via regimes of extra-territoriality and unequal treaties, many of these same polities, including China, Persia, and the Ottoman Empire, were simultaneously besieged from land by an expanding Russian Empire. Footnote 192
A parallel manifestation of civilizational politics occurred amongst the German-speaking Partitioners—themselves engaged in a bitter struggle over the character and future of the “German nation.” Footnote 193 For Prussia, incorporating the Commonwealth’s territories was accompanied by large-scale state transformation. Footnote 194 Highly ambitious, this eventually became a campaign to build a pan-ethnic German nation-state. Footnote 195 Towards this end, Prussian leadership, when asserting territorial claims, proved highly adept at setting “rhetorical traps” that mobilized the “positivism versus self-determination” contradictions of the post-Napoleonic order for its own ends. Footnote 196 Amongst international lawyers infatuated with visions of civilizational supremacy—as well as eager capitalists enamored by its brutally quick modernization—Prussian ascendence came with great welcome. When Prussia guaranteed its primacy in the German-speaking world through military victory against Austria in 1866, the Scottish international lawyer James Lorimer, an infamous grand avatar of the “Standard of Civilisation,” viewed the situation as one where “[t]he hard-working, anxious, restless, and progressive North has once more prevailed over the indolent, easy, and retrograde South.” Footnote 197 Subject to the invasive practices of “Germanisation” accompanying this state/nation-building project, the Poles of the Prussian Partitioned lands faced rule as colonial subjects in a manner that defied many of the European/non-European binaries that shape reigning imaginations of colonialism. Footnote 198
In Alexandrowicz’s native Galicia, the region Partitioned by the Austrian Habsburgs and named for their former Spanish possession, questions of civilization and sovereign divisibility manifested very differently. Footnote 199 An innovative merger of continued absolutist monarchy and pluralist accommodation of a vast range of nationalities, the multicultural Habsburg Empire appeared to offer a road to modernity not taken. Footnote 200 Though easily conceivable as a world—or many worlds—unto itself, the Austrian (Austro-Hungarian after 1867) Empire was very much attuned to the world beyond—but through its own unique lens of perception. Footnote 201 Importantly, Habsburg constitutional structures had a tendency to construct regions as simultaneously integral to multiple national identities. Footnote 202 Yet who was to prevail when, after the Empire’s dissolution, these spaces became, or became part of, indivisible sovereignty forms claiming legitimacy on the basis of a single nationality? Footnote 203
Few regions represent this riddle better than Galicia. Amongst its Polish residents, Galicia was widely believed to possess the greatest autonomy of any location in the old Commonwealth, a message disseminated through universities heavily attend by Polish subjects of Russia and Prussia’s empires. Footnote 204 It was also the intellectual cradle of a distinctly self-consciousness Ukrainian, as opposed to “Russian,” national identity. Footnote 205 Between the confrontation of Hitler’s Germany and Stalin’s Soviet Union, this Galician composition of Ukrainian peasants, Polish landowners, and heavily Jewish cities was desolated beyond recognition. Footnote 206 Working for the Polish government-in-exile, Alexandrowicz witnessed this fate of his homeland from London while part of an endeavor premised on the precarious claim that not even the apocalypse itself could extinguish sovereignty. Footnote 207
In concluding this analysis with the materiality of Alexandrowicz’s formative context, and the burdens of memory within it, we gain new insights into his critique of nineteenth-century international law as an abomination of the most grotesque description. For Alexandrowicz, the horror brought about by this turn was the entrenchment of an unshakable hierarchy between indivisible and divisible sovereigns. The possession of indivisible sovereignty by some made the sovereignty of those excluded from this category divisible on alien terms by conquers and exploiters. No system worthy of calling itself “law” could abide such a nauseating embarrassment. Sovereignty, however it may have been divided, was always and forever unpartitionable. No attempt to masquerade barbarism as “civilization” could change this naked truth—no matter how persistently it endured. With the Polish-Lithuanian Commonwealth and its legacy embedded in his being, Alexandrowicz was uniquely suited to tap into vast streams of memory when articulating a juridical narrative for a world after empire. Footnote 208 Though hidden in a footnote, his position was that the rules of the old order must not burden the new states in Asia and Africa who could now presumably chose configurations of sovereignty free from hierarchies between its indivisible and the divisible variants. Footnote 209 Leaving aside unanticipated structural questions as to why this did not occur, from Alexandrowicz’s perspective, perhaps the historic Polish-Lithuanian Commonwealth was as good a guide as any in navigating this radically open future?
This study has only scratched the surface of possible contexts and engagements through which to interpret Alexandrowicz and his scholarship. In seeking out additional avenues, it is interesting to ask why his Galicia produced some of the twentieth century’s most innovative juridical thinkers. In addition to international law luminaries Hersch Lauterpacht—who legally formulated “crimes against humanity”—and Raphael Lemkin—who legally formulated “genocide”—Alexandrowicz’s home city of Lviv was also the birthplace of Mohamed Asad, born Leopold Weiss, a Jewish convert to Islam who crafted highly creative theories of Muslim statehood and was a founding figure of Pakistan. Footnote 210 Additionally there was the Cracow-born jurist Krystyna Marek whose 1954 treatise The Identity and Continuity of States in Public International Law remained the single most comprehensive treatment of the subject until the 1979 publication of James Crawford’s The Creation of States in International Law. Footnote 211 Similar to Alexandrowicz, this text was assertive in its claim that the mere fact of foreign intrusion does not extinguish sovereignty—no matter how long and forcefully it happens to be exerted. Footnote 212 Certainly something profound contributed this impossibly rich theorization within such a small and particular geographic space, especially when we consider how this world was destroyed during the Second World War.
With consciousness of how his formative setting was shaped over the longue durée, we gain vast new insights into Alexandrowicz’s distinct portrayal of a variety of issues—be it recognition, the prospect of a New International Economic Order, or questions of disputed sovereignty in Tibet, Kashmir, and Israel-Palestine. Footnote 213 While the uniqueness of Galicia explains many things, before it was Galicia it was part of the Polish-Lithuanian Commonwealth. The transnational interplay of juridical thought and material social relations that defined this unique polity across its medieval, early modern, and modern histories is certainly an ample source of challenge and inspiration for any scholar hoping to push the boundaries of international legal theory. Fortunately, the life and thought of C.H. Alexandrowicz provides a grounding for international lawyers to journey into this lost world and its many afterlives.
Many thanks to Tadek Markiewicz and Adam Rowe for thoughtful and perceptive readings of earlier drafts. Also many thanks to the anonymous reviewer for extremely helpful comments. Any and all errors, omissions, oversights, or mischaracterizations are mine and mine alone.
The author declares none.
No specific funding has been declared in relation to this article.