Justice among Nations. A History of International Law - Stephen C. Neff

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276 A Positive Century (1815–1914)

fi gure, the economist and phi los o pher John Stuart Mill. Th e most signifi -
cant feature shared by the two bodies of thought was that both had a funda-
mentally scientifi c and materialistic character. Liberals were also comfort-
able with the pluralistic ethos of positivism, since liberalism was based on
division of labor, specialization, and diversity.
Th e liberal vision bore a very striking resemblance to the neo- Kantian
one, in that both were emergent systems— that is, both envisaged order as
arising from below, by the spontaneous activity of the actors, and not from
above, by the imposition of some kind of central authority. Th e diff erence
lay in the kind of value system underpinning that emergent order. In the
case of the neo- Kantians, it was an intrinsic sense of rightness (embodied in
the Rechtsstaat idea) that made their system work, coupled with the key prin-
ciple of reciprocity. In the case of the liberals, the moving force was the ratio-
nal self- interest of individual actors, coupled with basic principles of respect
for contracts and private property. Th e two groups also diff ered as to the
identities of the key actors. To the neo- Kantian positivists, states were the pri-
mary (or exclusive) actors; to the liberals, private parties. But the broad frame-
works of their visions were strikingly similar.
Th ere were important diff erences, too, however. Th e most fundamental
divide between liberalism and mainstream positivism lay in liberalism’s
powerful commitment to the empowering of individuals, through such
policies as free trade, along with such liberties as freedom of the press, as-
sembly, and religion and so forth. Correspondingly, liberals favored limit-
ing the activities of states. Th e duty of governments was seen as largely
negative in character: chiefl y, to refrain from interfering with the activities of
individuals. Positive duties of governments were seen as largely facilitative—
for example, the protection of property rights. Th is was in the greatest
contrast to the mainstream positivist position— and especially the volunta-
rist variant— with its exaltation of the role of the state. In this regard, the
contrast between the liberals and the positivists could scarcely have been
greater.
One key issue on which the opposition between positivism and liberalism
was most evident was the question of an international minimum standard
for the treatment of foreigners. Liberals tended to be strong supporters of
the idea. But there was dogged opposition by the positivists. Th e most out-
spoken opponent of the idea was Calvo, who emphatically asserted the prin-

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