Neither sheep nor peacocks: T.O. Elias and post-colonial international law

Abstract

This article takes as its starting point the characterization of T. O. Elias as a representative of a ‘weak’ form of anti-colonial scholarship. Elias had sought to show that the ancient African kingdoms had participated in international legality with European states on an equal footing. The view has arisen in contemporary scholarship that this mode of argumentation is typical of the weak strain, evincing only a continued tendency to underestimate the imperial nature of international law itself. A related criticism is that many Third World scholars like Elias view international law's claim to universality and its ability to be inclusive as relatively unproblematic concepts. This article presents two interlocking claims. First, that while Elias was persuaded by the idea of a universal legal order derived from European thought, he never accepted the European view of universality. Vitoria and Grotius had paved the way for the idea of a universal legal order, but, as Elias was consistently aware, the extension of the European law of nations to Africa and Asia in the name of universality was unaccompanied by theoretical recognition in European legal thought that such universality cannot be unilaterally achieved on specific cultural terms. Second, that Elias did not view universality as an unproblematic concept. While he considered the legal order inherited from the European law of nations never to have been universal in its application, the post-colonial legal order could in principle approximate more closely to an ideal of democratic universality. We focus on Elias's attempt to substitute the doctrinal requirement of individual, sovereign consent with majoritarian lawmaking based on democratic theory, and his faith in the machinery of the United Nations as a ‘technology’ which post-colonial states would employ to put democratic majoritarianism into practice.