In Full Flower 311the international legal community were the Eu ro pe an states which had par-
ticipated in its making. Th is point was readily acknowledged by positivist
writers. Th e British lawyer William Edward Hall, for example, matter- of-
factly held international law to be “a product of the special system of mod-
ern Europe”— and, as such, to be what he described as a “highly artifi cial
system” that “cannot be supposed to be understood or recognised by coun-
tries diff erently civilized.”
Th e position was, ironically, much like that of the ancient Greeks, who
acknowledged certain general norms to be applicable within the commu-
nity of in de pen dent Greek states, but not to the barbarians outside. But what
was the position regarding these outsiders? In answering this question, in-
ternational lawyers adopted a classifi cation that was propounded by various
writers in the newly emerging fi eld of anthropology. In 1877, an American
anthropologist— and lawyer— named Lewis Henry Morgan published a
treatise on Ancient Society, which set out a three- tier classifi cation of human
societies, based not on race or religion, but on the level of cultural develop-
ment. Th e three categories of peoples were designated as civilized, barbar-
ian, and savage. A number of international lawyers adopted this threefold
schema, including Lorimer, Woolsey, Bonfi ls, and Nys.
By civilized states were meant, of course, the Christian Eu ro pe an coun-
tries, plus their ex- colonial off shoots such as the Western Hemi sphere re-
publics. In the barbarous category were the non- Christian states with a high
degree of central government— the Ottoman Empire, Persia, China, Japan,
and Siam. In the savage group were the myriad tribal and national groups of
Africa and the Pacifi c islands. International law as the positivists conceived
it— with their resolute insistence on the legal equality of states— was appli-
cable only within the circle of civilized states, since only those states had
participated in its construction.
On the delicate question of legal relations with the states of the other two
categories, there was a certain vagueness. Phillimore held that international
law did hold between Christian and heathen states, as well as between hea-
then states inter se, though only in “a vague manner and less perfect condi-
tion than between two Christian communities.” Bonfi ls opined that the
principal Asian states such as China and Japan did not qualify for what he
called “plenary recognition” as members of the international community,
but instead merited only what he called “partial recognition.”