The Law of the Wolf

Benton, an eminent global historian, criticizes the Eurocentrism with which historians often recount the development of the laws of war. Their narratives often follow the mid-twentieth century jurist Carl Schmitt in arguing that binding rules of conflict developed in and were limited to the civilized West. Of course, Europeans were not exactly sticklers for the Geneva Conventions. Schmitt himself had been an enthusiastic Nazi. But it has often been thought that they placed their atrocities in supposed “states of exception,” during which governments suspended accepted restraints in response to emergencies. When imperial powers committed such crimes outside Europe, they inflicted them in places where no one had ever imagined that war could be humane.

Yet violence between Europeans and their others overseas was never as lawless as this story implies: instead, it initially followed understandings of law that have been forgotten or are now hard to recognize. Benton’s story begins with the “choppy violence” with which the Spanish colonized the New World. As they advanced deeper into America, intent on plunder, Spanish forces offered truces to their victims. Dissident Spanish intellectuals argued even at the time that the notorious “Requerimineto” with which the conquistadors formally extended an offer of conditional surrender was designed to be “read to the trees” rather than properly understood. Yet truces were offered and sometimes accepted in earnest.

From the Spanish point of view, religion required and enabled them to pursue the common good by making peace with alien people who were nevertheless under the sway of the law of nature. This concept provided the moral of an episode in the life of Saint Francis, in which he struck a deal between the townsfolk of Gubbio and a hungry wolf. The townsfolk agreed to provide the wolf with food if he laid off his attacks on their livestock, thereby demonstrating that the law of nature was so powerful that it could even bridge the species gap.

Yet in New Spain, the Spanish took the part of the wolf, and their hunger was not so easily satisfied. To make truces allowed them to accuse their adversaries of breaking them and so cast them enemies as traitors and rebels who merited little quarter. They could dress up aggression as “pacification.” Benton tells us that the Puritan colonists of New England followed tactics similar to those of the Roman Catholics of New Spain. In 1637, they gloried in their massacre of hundreds of Pequod people at Mystic in Connecticut, producing engravings that fastidiously logged the piles of their corpses. From their point of view, this was a legitimate act of reprisal for violent breaches of the peace agreed between them.

Intellectuals in Europe were beginning to formulate a recognizably modern notion of “solemn war” — which left it to territorial states to formally initiate hostilities that were then waged by well-trained armies. Yet overseas the distinction between war and the sporadic violence of raids, reprisals, and massacres remained less clear-cut. Scholastic theorists certainly drew a distinction between the settler households that garrisoned the imperial frontier and polities, which alone had the right to go to war. Yet individual colonists often reserved the right to fight, especially when it allowed them to enslave the vanquished.

A “Global Regime of Plunder”

The first English governors of Jamaica pursued a formal peace with Spain after the conquest of the island in 1655. Yet they recognized that most of their colonists lived “only upon spoil and depredation” and allowed them to initiate their own attacks on the Spanish. Raids that captured enslaved Africans and put them to work on sugar plantations were important to the island’s economy. And so the colonists manufactured justifications for them: they appealed to Spanish infractions to justify the theft of people, but also discovered a preemptive “right to war” based on perceived threats to their safety. The boundary between war and piracy was still permeable.

The brazenness of this “global regime of plunder” gave way to more sophisticated rationales for violence as European empires began to collaborate in the oppression of the native inhabitants of the regions in which they vied to seize markets or to plant colonists. One way they did so was by agreeing that Europeans alone could decide when a war was underway and in what manner it could be conducted. This was a presumptuous claim, because they rarely enjoyed such sovereign freedom of action: across the eighteenth-century globe, European troops were often the pawns of warring native powers.

On the Indian subcontinent, English and French corporations squared off against one another as the mercenaries of local rulers. In British North America, British and French commanders faced each other as allies of warring First Nations. Imperial agents sucked into these conflicts often had to explain to superiors back home how they could kill or take captive the agents of other European powers without violating peace treaties with them. Their explanations often revolved around claims of self-defense or the forceful promotion of their commercial privileges, while stopping short of war.

Rival European powers also came together to blame eruptions of violence on their supposedly uncivilized allies. On the Rio de la Plata, Spanish and Portuguese armies joined forces to force Guaraní people out of the missionary towns located on lands that Spain wished to swap with Portugal. The Guaraní naturally objected that they were loyal to Spain, but their self-assertiveness just created the impression they were dangerous rebels. When the Order of Jesuits tried to lobby on behalf of their converts, they attracted the same contempt: angry royal officials drove them out of Portugal.

The Age of “Protection Emergencies”

The insistence of Europeans that only they had the requisite civilization to regulate violence in these far-flung places chimed with developments back in Europe. The publication of The Law of Nations (1758) by the Swiss jurist Emer de Vattel marked a significant shift in thinking about war and peace. While Jesuit and other scholastic thinkers had thought that all human beings might appeal to the law of nature to justify or condemn violence, Vattel proposed a different outlook. He argued that war derived from the deals struck between territorial nations, which generated a positive, or conventional, body of international law.

Vattel’s conception of this law admittedly extended beyond mere horse trading. He argued that nations waged war to enforce a balance of power between states, which ultimately benefited everyone. The huge caveat was that indigenous peoples of “unsettled habitation” — and, as it happened, religious bodies like the Jesuits — lacked the footing to decide what this common good was.

Benton’s agile account of this shift in thinking shows that it involved much more than Vattel’s theoretical flex. The more Europeans developed the ability to project and concentrate military force over great distances, the keener they were to monopolize the right to do so. The captains of Britain’s Royal Navy, who patrolled the globe uncontested in the century after the Battle of Waterloo, not only frequently engaged in violence but continuously justified and documented their actions in doing so. Benton’s extraordinary sketch of these cannon-toting intellectuals shows that they did just as much to further European ownership of war as Vattel, even if their judgments were more instinctive than theoretical.

They fired on African coastal forts to disrupt the slave trade, from which Britain had ostentatiously withdrawn in 1807. They landed raiding parties on the rocky shores of the Pacific Northwest to burn down unruly villages or to seize fugitives from British justice. When they reported on such doings to the Admiralty, they portrayed them as prudently calibrated maneuvers rather than as rash lurches into war. They struck to avenge British subjects or to defend them from danger in “protection emergencies” — another of Benton’s coolly deliberate misnomers. Not only did these so-called emergencies become routine, but in other, less official hands, “protection” chartered devastating, preemptive aggression. In 1820s Tasmania, heavily armed bands of settlers hunted and shot down the native people wherever they found them, on the flimsy premise that they posed a potential threat.

From Gunboats to Drones

The Royal Navy often had less sovereign freedom of action in protection emergencies than Benton implies. In the Pacific Northwest, the decisions to deploy armed force were usually taken not by ships’ captains but by the crown’s governors. Those governors answered to colonial secretaries in London, who often criticized their decisions on grounds not of morality but of expense: it was too costly to underwrite the security of every stray Briton scattered across the globe. Yet Benton is right that what happened at the margins of empire had an outsize impact on thinking about war at its center. Although it often suited naval captains and other men on the spot to describe actions against “enemies,” they had not been engaged in wars as the term was now generally understood. At best they had launched what theorists eventually codified as “small wars”, which were more akin to aggressive forms of policing. Imperialists argued that far from breaking the peace, these small wars secured and expanded it, by decisively and at times brutally snuffing out the unruly violence of native peoples.

Gunboat policing was meant to engineer global prosperity as well as peace. Although some mid-nineteenth-century utopians had hoped to see a day when the peaceable exchange of goods would do away with the need for fleets and armies in Europe and across the world, free trade underwent a marked militarization in the later nineteenth century. The timely application of armed force promised to muscle open closed markets to European manufacturers and guaranteed the security of European, and increasingly American, traders, investments, and property, upon which a global system of free trade depended.

Benton’s narrative ends with the hubristic proclamation of this “global regime of armed peace,” which coincided with the heyday of Europe’s overseas empires and the violent creation of America’s. Yet her conclusion sketches sinister continuities between the world of the gunboat and the age of the predator drone. The vicious conflicts through which empires were wound up in the mid–twentieth century were often dubbed “counterinsurgencies” or “asymmetric” conflicts. Yet a Victorian admiral would have recognized them as small wars all the same. As Erik Linstrum has shown for Britain, these conflicts were represented to home audiences as mere policing actions, which roughly cracked down on cruel and unprincipled threats to British people and to civilized order. The theorists of America’s forever wars likewise argued that they were engaged in the kinetic protection of liberal values against terrorists and the states who sponsored them.

Law as an Instrument of Violence

Benton reminds us that the “studied looseness” with which modern nations invoke the norms of war is not confined to the West. Vladimir Putin styled his invasion of Ukraine as a “special military operation”: an action that stopped short of and did not require a conventional declaration of war, especially because he denies that Ukraine is a legitimate territorial state. Putin also worked up a strategy from the imperial playbook by invoking a protection emergency, arguing that he had intervened swiftly to protect Russian speakers from oppression or even looming genocide.

Benton has previously evinced optimism about the potential of law to curb atrocities. In a coruscating review of Caroline Elkins’s history of the British Empire’s crimes, she argued that Elkins wrongly cast its violence as a “totalizing force.” Britain’s liberalism was in fact no sham: its rhetorical commitment to the rule of law supplied its colonial subjects with a tool with which they could protest or even stop the open display of brutality against them. Historians could document Britain’s crimes without blurring the distinctions that separated it from Nazi Germany, which deployed limitless violence against what it viewed as its racial and ideological enemies.

They Called it Peace is at once more saturnine and sweeping in its judgments: all empires, with the exception of the Nazis, act in the end without legal guardrails. Benton does certainly draw attention to “virtuoso performances of legal authority” by extra-European as well as European players, such as the luckless Guaraní. But somehow Western powers always won the prize in these contests. It was a “myth that law ever worked to contain violence”: instead, law was violence’s instrument, authorizing bursts of brutality in the beguiling name of peace.

Operation Swords of Iron, which bears all the hallmarks of a small war, is a grim illustration of the thesis. The state of Israel is waging it against an organization — and at times a whole people, held guilty of supporting that organization — rather than against what it refuses to recognize as a state. Its invasion of Gaza was a response to a protection emergency, intended to avenge the killings committed by, and to liberate the hostages taken by, Hamas — an actor beyond the pale of civilization or meaningful negotiation.

Israel, with the aid of the United States, has for months prevented this small war from escalating into a full-scale conventional conflict with its regional adversaries — although Iran’s missile strike on the country in reprisal for the killing of its officials in Syria suggests this containment policy may yet fail. It boasts that a corpus of rules and principles has guided its violent eradication of Hamas. Just as naval officers once chose when to launch their salvos and then justified them, so protocols and lawyers discipline the artificial intelligence–assisted selection of targets for drone and missile strikes by junior officers.

What Benton calls “chatter” about the containment of violence has merely structured the unconscionable infliction of death and hunger on Gazans. Her somber book does not directly address the war in Gaza but provides little hope that outsiders could ameliorate how it is being fought. If there is a moral lesson to be gleaned from the book, it is a slim and wintry one: the history of small wars should lead us to distrust claims that they are a legitimate or limited way for states to defend their peoples. Those who make a desolation must not be allowed to call it peace.