Kinship and the Law –Marglin

(With apologies to friendship, which I will stu­diously ignore)

            Nineteenth-century Europe served as the breeding ground of nation­alism in a way that has pro­foundly shaped our world since. It also wit­nessed the birth of inter­na­tion­alism, both as an ide­ology (socialism) and as a legal sub-field (modern inter­na­tional law). These seem to move in opposite directions—the parochialism of the nation-state against the uni­ver­sal­izing impulse of inter­na­tional law. And yet, they are inter­twined in ways we are only beginning to under­stand.^[1] At the heart of that entan­glement is a familial framework for under­standing the nation at the center of nation­alism, as well as the family of nations that made up the sub­jects of inter­na­tional law. Ques­tions about how to define these families—how to draw the bound­aries of both the national and the international—often emerged in the context of the Mediter­ranean, where Muslims and Jews posed thorny ques­tions about belonging, equality, and difference.

Nation­alism and Kinship Across the Mediterranean

            It is widely known that nation­alists imagined the nation in fra­ternal terms; those who shared an ethno-cultural nation­ality were brothers (or, more rarely, sisters), with the nation as father- or moth­erland. Perhaps less obvious is the way in which jurists—especially those with com­mit­ments to budding nation­alist movements—mobilized this familial metaphor in both domestic and inter­na­tional law. None exem­plifies the entan­glement of family and nation­ality law better than Pasquale Stanislao Mancini, one of Italy’s greatest jurists of the nine­teenth century and a founding father of the modern dis­ci­pline of inter­na­tional law.

Mancini had already made a name for himself among the ear­liest pro­po­nents of the Risorg­i­mento; shortly after the rev­o­lu­tions of 1848, he was offered the first chair in inter­na­tional law on the Italian peninsula, at the Uni­versity of Turin. His inau­gural address became one of his most famous—and most misunderstood—books. Pub­lished as Della nazion­alità come fon­da­mento del diritto delle genti in 1851, Mancini sought to accom­plish two things: explain the very concept of nation­ality, and advocate for a law of nations pred­i­cated upon the respect of the rights and duties of nation­ality. Mancini offered a forceful, uni­ver­salist account of nation­ality based on natural law: there are “two natural laws of species, two per­petual forms of human asso­ci­ation: the FAMILY and the NATION.” ^[2] Both are present from birth, and both are of para­mount impor­tance to a healthy society. Like the family, one’s nation­ality is in large part based on blood—a shared race, influ­enced by a shared climate and geog­raphy; a shared lan­guage, which “man­i­fests the unity of the moral nature of a nation”; and most of all, a shared “con­sciousness of nation­ality.”^[3] His second point was more radical—and largely failed to take root among his col­leagues working in law: that “the nation, and not the state, rep­re­sents the ele­mentary unit, the rational monad of science.”^[4] If nation­al­ities were respected; if inter­na­tional law depended not on states, but on nations; then liberty and peace could be achieved, and the mis­takes of both the Roman Empire and the Catholic Church avoided.^[5] This was Mancini’s original intention when he intro­duced the “nation­ality prin­ciple” to inter­na­tional law.^[6]

But kinship was not merely of metaphorical impor­tance to nation­alism; jurists like Mancini ensured that the rela­tionship between family and nation had legal teeth. When the new Italian nation-state was ready for a civil code, Mancini was asked to draft the rel­evant sec­tions on nation­ality law and private inter­na­tional law. The 1865 Civil Code addressed two types of nat­u­ral­ization: one for “for­eigners” (stranieri) and another for “original Italians” (oriundi italiani). For­eigners could acquire cit­i­zenship by leg­islative or royal act; they had to establish their domicile in Italy, reg­ister their nat­u­ral­ization, and swear an oath of fealty before the local author­ities. “Original Italians,” however, could simply return to Italy with the government’s position and once again be con­sidered a citizen.^[7]

The extremely sim­plified mech­anism by which oriundi italiani could “recover” their original Italian cit­i­zenship was moti­vated in large part by pol­itics.^[8] In the early years of the Risorg­i­mento, many of these oriundi italiani—also called italiani non reg­nicoli, or “immi­grants of Italian nationality”—were political exiles who had been forced to leave the peninsula on account of their pro-Risorgimento activity. Irre­dentism also played a role in the special nation­ality laws for oriundi italiani. Well into the twen­tieth century, Italian nation­alists believed that large chunks of the Mediter­ranean under foreign rule right­fully belonged to Italy; when Mancini was working on the Civil Code, nation­alists were par­tic­u­larly con­cerned about the Veneto (annexed in 1866) and Rome (where Papal rule ended in 1870). Even after the Papal States were reduced to the walls of Vatican City, nation­alists con­tinued to hope for the annex­ation of Trieste, Trento, Fiume—even Nice, sac­ri­ficed to France in 1860, but made up of Italian speakers con­sidered to be italiani non reg­nicoli. Italian politi­cians and jurists held out hope that these regions would one day fulfill their true destiny by joining Italy.^[9] Needless to say, at the foun­dation of these laws designed to welcome “original Italians” was a belief that the nation was both as essential as family, and itself a form of family.

Perhaps no group took better advantage of the Italian nation­ality laws favoring oriundi italiani than Jews—though it was largely the Jews who remained outside of Italy who did so. Scat­tered across the Mediterranean’s southern and eastern shores, and con­cen­trated in the port cities with sub­stantial European pop­u­la­tions, com­mu­nities of Jews who somehow traced their ancestry to Italy acquired Italian nation­ality in increasing numbers. This status afforded them extrater­ri­torial privileges—enabling them to escape local juris­diction, avoid paying taxes, and gen­erally benefit from the (often con­sid­erable) influence of Italian diplomats.^[10] In Tunisia, no one was more Italian than the Italian Jews, known as the Grana (Livornese) in Arabic: in the last decades of the nine­teenth century, they created the first Italian hos­pital, the first Italian schools, the first Italian com­mercial asso­ci­a­tions. After decol­o­nization, many of them made their way to Italy; Jews like the Acimans, who had lived their entire lives in Egypt, held Italian pass­ports (seem­ingly through hazy claims to a Sephardic ancestor who had at some point lived in the Italian peninsula). The Acimans did not remain in Italy after being forced to leave Egypt, but others did—a fic­tional repa­tri­ation to a nation they had heretofore only belonged to from afar.^[11]

Nonetheless, the case of Jews posed a chal­lenge to the trickle of blood that ran through Mancini’s con­ception of nation­ality. Jews were widely per­ceived as con­sti­tuting their own nationality—with a sep­arate race, an ancient lan­guage, a dis­tinct culture, and a con­sciousness of their cohesion as a nation. Yet Mancini could not coun­te­nance the idea that theirs was a fully-formed nation­ality; they had most of the ele­ments of nation­ality, granted, but they lacked a polity. Jews thus adopted the nation­ality of the place in which they lived.^[12] And yet they were indelibly dif­ferent, even to a staunch anti-clericalist like Mancini.

Nation­alism left even its staunchest pro­po­nents won­dering what to do with an ide­ology in which belonging was pred­i­cated on broth­erhood, yet in which the nation was pop­u­lated by people who were not obvi­ously related? In which major dif­fer­ences that (nearly) amounted to a sep­arate nation­ality squared uneasily with the flat­tening equality of nineteenth-century lib­er­alism? Mancini’s laws about the nat­u­ral­ization of oriundi italiani allowed Jews across the Mediter­ranean to claim ital­ianità both cul­turally and legally. But his vision of the nation never quite accounted for how the almost-nation of Jews could also belong to the Italian nation without ignoring or even erasing their Jewishness.

Defining the Family of Nations

            Legal his­to­rians tend to trace inter­na­tional law back to Roman times, or at the very least to the early modern jurists con­sidered to be the founders of the dis­ci­pline (Vitoria, Grotius, Puffendorf, etc.). More recently, Martii Kosken­niemi has sug­gested that modern inter­na­tional law emerged only in the nine­teenth century, and that its ancient and early modern con­stitute the “pre­history” of the field.^[13] Either way, the phrase “family of nations” is rel­a­tively new; it appears to have been intro­duced in the early nine­teenth century.^[14] It was often used as a synonym for “civ­i­lized” nations; today, it has been replaced by the seem­ingly more neutral “com­munity of sov­ereign States.”^[15]

            Just as with the smaller unit of the nation, the family of nations required jurists to define who was in and who was out.^[16] Jurists of inter­na­tional law pre­sumed that “civ­i­lization” was limited to Chris­tendom; it con­noted a useful way around the problems posed by the Ref­or­mation, which split the Christian world in two.^[17] (This had not always been the case; Vitoria applied inter­na­tional law to the Americas, which were most cer­tainly not con­sidered “civ­i­lized”; indeed, it was the uni­ver­salism of natural law that jus­tified the con­quest of indigenous peoples.^[18] Mancini himself had acknowl­edged the cor­re­spon­dence between the bound­aries of inter­na­tional law and the bound­aries of Chris­tendom: he defined the law of nations as “a par­ticular, cir­cum­scribed law that applies only to Christian nations, which is why it tends to be called the law of nations of Europe, or of Chris­tendom.”^[19] Yet Mancini advo­cated for including Tunisia within the general prin­ciples of inter­na­tional law.^[20] Leopoldo Galeotti, another prominent Italian lawyer (who in this instance hap­pened to be arguing against Mancini), sim­i­larly pro­posed the inclusion of Tunisia in the list of places to which inter­na­tional law applied: Galeotti jus­tified this by pointing out that Tunisia had once been part of the Roman Empire, and thus inherited the ancient world’s ius commune.^[21] Others working on the case rejected the idea that a Muslim-ruled state like Tunisia could be part of the “family of nations”—precisely because it lacked both Chris­tianity and “civ­i­lization.”^[22]

In 1856, the Treaty of Paris’s formal admission of the Ottoman Empire to the “family of nations” offi­cially put an end to the Christian purity of this com­munity. Yet everyone knew that the Ottomans were viewed as bastard children at best, without the full rights of their European coun­ter­parts. This was perhaps most elo­quently expressed in the con­tinued force of the Capit­u­la­tions, which allowed Western states to project extrater­ri­torial sov­er­eignty in Ottoman ter­ritory.^[23]On this, the members of the Institute of Inter­na­tional Law, founded in 1873, were almost unan­imous; all save one agreed that extrater­ri­to­ri­ality remained absolutely nec­essary, given the state of justice in unciv­i­lized coun­tries.^[24] The Institute ulti­mately rel­e­gated “Ori­ental” states to an eternal lim­i­nality, neither in nor out of the com­munity of nations subject to inter­na­tional law. The jurists expan­sively declared that “non-Christian nations will be granted the same rights and respon­si­bil­ities as Occi­dental nations.” But in the same breath, they dialed back any recog­nition of full sov­er­eignty “until a more com­plete assim­i­lation of the judicial insti­tu­tions of Ori­ental and Occi­dental nations is achieved.”^[25] Until that point, nationals of Western states would retain the extrater­ri­torial priv­i­leges they cur­rently enjoyed.^[26] The family metaphor may have stuck, but its force was hol­lowed out by the glaring gap between the promise of equality and the per­petual deferment of full membership.

The extrater­ri­torial question brings us back to Jews; the most com­pelling jus­ti­fi­cation for retaining extrater­ri­torial priv­i­leges in the Ottoman Empire rested on the sup­posed injus­tices com­mitted against non-Muslims. Islamic law was per­ceived as fun­da­men­tally oppressive of Jews and Chris­tians, to whom it did not allocate equal rights. Indeed, jurists ques­tioned whether Jews in a state like Tunisia could even be con­sidered members of the nation.^[27] The kinship-based metaphor of nation­alism made it impos­sible for European jurists to imagine that Jews could belong to the Tunisian nation in the same way that Muslims did. But for Tunisian statesmen like Husayn b. ‘Abdallah, this was pre­pos­terous; Jews belonged to Tunisia by virtue of their status as dhimmīs, pro­tected non-Muslim monotheists. As Husayn put it, “In Islamic law, nation­ality (al-jinsīyatu) is based on religion for Muslim sub­jects, and on the pact of dhimma for non-Muslim sub­jects (lil-ra‘āyā ghayri mus­limīni).”^[28]

Husayn artic­u­lated a vision of nation­ality grounded not in the blood-soaked soil of nation­alism, but the rich turf of the Islamic tra­dition. In so doing, he also insisted on a dif­ferent model of equality: Jews were equal before the law, even if they had a dis­tinct legal status from their fellow Muslim Tunisians.^[29] Husayn was hardly alone in making this argument: in Morocco, too, gov­ernment offi­cials insisted that as dhimmīs, Jews were equal before the law.^[30] Nor was he content to simply observe the dif­ferent models of equality that pre­vailed in Western Europe and the Middle East. Husayn insisted that “Tunisian Jews live in our country with greater liberty than any­where else.”^[31] This was pre­cisely because Jews in Tunisia were free to run their reli­gious affairs them­selves, without the inter­ference of the non-Jewish author­ities. In coun­tries like Italy and France—which he deemed “a hundred times more fanatical and intol­erant” than Tunisia^[32]—“the Talmud is rel­e­gated to the library, among old books and dusty scrolls.”^[33] For Husayn, the eman­ci­pation of Jews was not a paragon of equality; it was an act of violence.

Needless to say, Husayn’s argument about Jews’ equality in Tunisia gained little traction; the extrater­ri­torial priv­i­leges accorded to European sub­jects per­sisted until the end of WWI, and in some places far longer. Just as nation­alists insisted that all children of the nation share a sin­gular nation­ality, so did inter­na­tional jurists demand that all members of the family of nations adhere to the same vision of equality. Tunisia, the Ottoman Empire, and countless other states remained outside the bound­aries of the inter­na­tional, just as Jews remained outside the bound­aries of the nation—with dev­as­tating con­se­quences that con­tinue to echo in our world today.