Rewriting the History of the Law of Nations: How James Brown Scott Made Francisco de Vitoria the Founder of International Law (The History and Theory of International Law)

In the interwar years, international lawyer James Brown Scott wrote a series of works on the history of his discipline. He made the case that the foundation of modern international law rested not, as most assumed, with the seventeenth-century Dutch thinker Hugo Grotius, but with sixteenth-century Spanish theologian Francisco de Vitoria. Far from being an antiquarian assertion, the Spanish origin narrative placed the inception of international law in the context of the discovery of America, rather than in the European wars of religion. The recognition of equal rights to the American natives by Vitoria was the pedigree on which Scott built a progressive international law, responsive to the rise of the United States as the leading global power and developments in international organization such as the creation of the League of Nations. This book describes the Spanish origin project in context, relying on Scott's biography, changes in the self-understanding of the international legal profession, as well as on larger social and political trends in US and global history. Keeping in mind Vitoria's persisting role as a key figure in the canon of international legal history, the book sheds light on the contingency of shared assumptions about the discipline and their unspoken implications. The legacy of the international law Scott developed for the American century is still with the profession today, in the shape of the normalization and de-politicization of rights language and of key concepts like equality and rule of law. Cover Series Rewriting the History of the Law of Nations Copyright Table of Contents List of Abbreviations Introduction. An American Project 1. The Research Question and its Relevance to Current Debates on the History of International Law 2. Earlier Scholarship on Scott 3. Scott’s Spanish Origin, Equality, and the Canon of International Legal History 4. Descriptive Writing and Language Choices 5. Structure and Outline of Chapters Prologue. The Education of James Brown Scott, 1866–​1896 1. Jimmy the Book Snatcher 2. “To Freeman Snow who first taught me to love International Law and, in doing so, to love him.” 3. “Between ourselves, I have been delivering that address ever since” PART I THE RISE AND FALL OF JAMES BROWN SCOTT AND THE TURN TO UNITED STATES HISTORY, 1898– 1921 1 Explaining Scott’s Turn to American History 1. Young Professional, 1898–​1906 A Different Kind of World Power Mainstreaming International Law 2. Root’s Legal Advisor, 1906–​1910 The American International Law Reshaping Foreign Policy: Scott at the State Department Jumpstarting a Powerhouse: Scott at the Carnegie Endowment for International Peace 3. Powerful Organizer, 1910–​1917 Scott’s Early Projects at CEIP Scott’s Turn to History and the New World Order 2 International Law as Faith. The Cuban Intervention and the Narrative of 1898 1. James Brown Scott in Havana: International Law and the Selfless Empire Science, International Law, and the Social Context: The Platt Amendment as Equality 2. The Narrative of 1898: The Religious Foundation of the Cuban Intervention Before the War: Public Opinion, Humanitarianism, and Religious Discourse International Law as Civilization and the Religious Discourse: The Platt Amendment as Selflessness 3. “The Best Friend of Cuba”: Scott’s Messianism between Hegemony and Equality Messianism and Ingratitude The Platt Amendment and the Soul of America 3 International Law as Science. Scott’s Historical Case for Adjudication and the Fight against Collective Security 1. The Armistice Books and the Science of International Adjudication James Brown Scott and the Politics of the American Constitution The Case Method and the Ideology of Legal Evolution International Law as Law 2. The United States as Universal History: Scott’s Recurring Themes in Legal Progress Public Opinion as Sanction: The Case for Adjudication against Collective Security Universal Rule of Law and American Expansionism Imperialism and Equality 3. The Losing Quest against Collective Security and the Decline of Scott’s Legalism The Emergence of Collective Security and the League to Enforce Peace Fighting Collective Security within the Administration: Scott and Lansing versus Wilson Defeating the Covenant in the Senate: Root versus Wilson PART II REWRITING INTERNATIONAL LEGAL HISTORY: VITORIA AND THE NEW WORLD, 1925–1939 4 The Spanish Origin of International Law 1. The Spanish Origin’s Background Setting the Canon: The Inception of the Classics of International Law Series Turning to Salamanca: Scott’s Evolving Thought and the Early Classics Scott and the Salamanca Scholars 2. Conceiving the Campaign: Scott’s Long Road to Salamanca The Dutch Connection: From The Hague to Salamanca The Making of Founders: From Grotius to Vitoria Diverging Formulations of Postwar International Law: Scott’s Declining Position in the US Professional Community Vitoria at Georgetown: Scott’s 1926 Course on the Founders of International Law 3. The Lessons of the Spanish Origin: Vitoria, Suárez, and the International Law of the Twentieth Century “Spain, for me the Holy Land of International Law”: Scott’s 1927 First Visit to Salamanca Putting the Argument on Paper: Scott’s First Book on the Spanish Origin Vitoria and the Modern International Law Suárez and the Philosophy of International Law “The Ripened Fruit”: The Spanish Origin Campaign Looking Forward 5 The Catholic Conception of International Law 1. Early Approaches: Scott and the Catholic Church before the Great War American Catholicism at the Turn of the Twentieth Century CEIP and the Pontifical Letter of 1911 2. The Background of the Catholic Conception Neo-​Scholasticism and US Democracy CEIP and the Reorganization of the Vatican Library Building the Alliance: The American Committee for the Vitoria Celebrations The Vatican’s Universal Sovereignty The Inception of the Vitoria-​Suárez Association between Academic Neo-​Scholasticism and Catholic Activism The Catholic Conception as a Collective Scholarly Enterprise 3. The Last Attempt: The Catholic Conception of International Law at the Vatican Establishing the Catholic Conception: The Genealogy of Tyrannicide and the Salamancan Theories of International Organization The Scott-​Walsh Memorandum The Catholic Conception and the Approaching War The Conservative Legacy of the Catholic Conception 6 Apostles of Equality: James Brown Scott and the Feminist Cause 1. The Making of the US Feminist Movement and the National Woman’s Party A Room of Their Own Feminism and the Suffrage Movement in the United States “A Party to Free their Own Sex”: The Anti-​Democratic Campaigns and the Birth of the National Woman’s Party “Jailed for Freedom”: Paul, Stevens, and the Nineteenth Amendment 2. From the National to the International, from Suffrage to Equal Rights Internationalist Feminism and Early Approaches to Scott Scott and the Principle of Independent Nationality The National Woman’s Party in the 1920s: From Suffrage to Equal Rights 3. Scott and the International Equal Rights Campaign The 1928 Pan-​American Conference and the Beginning of the Scott–​Stevens Collaboration “Unprogressive Codification of Nationality at The Hague” Victory at Montevideo: Scott and the Stevens Treaties Vitoria and the Equal Rights Treaties: The Unbearable Lightness of Scott’s Equality Concluding Remarks. The Legacy of James Brown Scott and the Responsibilities of International Legal History Bibliography Index In the interwar years, international lawyer James Brown Scott wrote a series of works on the history of his discipline. He made the case that the foundation of modern international law rested not, as most assumed, with the seventeenth-century Dutch thinker Hugo Grotius, but with sixteenth-century Spanish theologian Francisco de Vitoria. Far from being an antiquarian assertion, the Spanish origin narrative placed the inception of international law in the context of the discovery of America, rather than in the European wars of religion. The recognition of equal rights to the American natives by Vitoria was the pedigree on which Scott built a progressive international law, responsive to the rise of the United States as the leading global power and developments in international organization such as the creation of the League of Nations. 0This book describes the Spanish origin project in context, relying on Scott's biography, changes in the self-understanding of the international legal profession, as well as on larger social and political trends in US and global history. Keeping in mind Vitoria's persisting role as a key figure in the canon of international legal history, the book sheds light on the contingency of shared assumptions about the discipline and their unspoken implications. The legacy of the international law Scott developed for the American century is still with the profession today, in the shape of the normalization and de-politicization of rights language and of key concepts like equality and rule of law In the interwar years, international lawyer James Brown Scott wrote a series of works on the history of his discipline. He made the case that the foundation of modern international law rested not, as most assumed, with the seventeenth-century Dutch thinker Hugo Grotius, but with sixteenth-century Spanish theologian Francisco de Vitoria. Far from being an antiquarian assertion, the Spanish origin narrative placed the inception of international law in the context of the discovery of America, rather than in the European wars of religion. The recognition of equal rights to the American natives by Vitoria was the pedigree on which Scott built a progressive international law, responsive to the rise of the United States as the leading global power and developments in international organization such as the creation of the League of Nations. The book describes the Spanish origin project in context, relying on Scott’s biography, changes in the self-understanding of the international legal profession, as well as on larger social and political trends in US and global history. Keeping in mind Vitoria’s persisting role as a key figure in the canon of international legal history, the book sheds light on the contingency of shared assumptions about the discipline and their unspoken implications. The legacy of the international law Scott developed for the American century is still with the profession today, in the shape of the normalization and de-politicization of rights language and of key concepts like equality and rule of law.