VOLUME V, CHAPTER 13, SECTION 2
The Treaty, How the Taking Is Stamped Lawful
The last section walked the deepest depth, the occupying of a position. This section returns to the law, the volume's home subject, and watches one thing happen at every depth of taking between nations. The taking gets stamped lawful. The instrument that stamps it is the treaty. And the treaty does something the raw taking cannot do by itself. It writes the taking into a document that says the taken agreed, so that the wound wears, ever after, the robe of law. This section follows that stamping from the treaties of one century to the charter of the present order, and holds the discipline of taking no side.
Start with what the treaty is, under the robe. Between nations there is no lawmaker, as Part Four established, so there is no true law over the taking. But the strong, having taken, want the taking to hold, to be recognized, to be defended as legitimate rather than merely done. The treaty is the instrument that serves this want. It is a document, signed by both the taker and the taken, that writes the taking into a form that calls itself lawful, an agreement, a settlement, a peace. And because the taken signed, the treaty says, ever after, that this was not a naked seizure but a thing agreed to, a lawful transfer, a settled matter. The treaty converts the taking from a fact of force into a fact of law, and that conversion is its whole power. It does not undo the taking. It dresses it, in the one robe that makes a taking hard to reverse, the robe of the taken's own signature.
But look at how the signature was obtained, and the robe grows thin. A treaty between a strong nation that has just taken and a weak nation that has just been taken from is not signed between equals freely bargaining. It is signed by a taken nation under the weight of the taking, with the taker's force still present, choosing between signing and suffering worse. The consent the treaty records is consent of a particular kind, the consent of the one with no better option, and this is exactly the consent an earlier chapter examined inside a nation, where the direction of proof and the naming of guilt were said to fall on the weak because the weak could not refuse. The treaty is the between-nations form of a bargain the weak cannot refuse, and its signature, which looks like agreement, is often the mark of the taking's completion, not of any true meeting of wills. This is the deepest thing to see about the treaty. Its lawful robe is woven from a consent that force extracted, and the more complete the taking, the more freely the signature may appear to have been given, because the taken, having no option, signs without visible struggle.
The history of treaties between strong and weak nations shows this plainly, across every civilization's experience of being on the weak end. Treaties that ceded territory, opened markets by force, fixed one nation's advantage over another, were signed as lawful documents and defended, ever after, as agreements the weaker party had entered. The taken nation, generations later, might call such a treaty unequal, might hold that a consent extracted under force was no true consent, and the taker, or the order the taker built, might hold that a treaty is a treaty and signed is signed. Both positions exist, and the volume does not here declare which nation's treaties were just and which were not. It names the structure, that the treaty is the instrument by which a taking is stamped lawful, and that the lawfulness so stamped rests on a consent whose freedom is exactly what is in question. Whether a given treaty was a fair settlement or a taking dressed as one, the reader judges, holding the measure to every side, the taker's treaties and the taken's grievances alike.
Now carry the line to the present, carefully. The present order between nations rests, in large part, on a charter and a body of agreements that set out the rules by which nations are meant to deal with one another. This present order is real, and it does real work, and it grew in part out of a wish to prevent the rawest takings of the past. That much should be said plainly, and the volume does not sneer at it. But look at the present order with the eyes this part has trained. It too is a set of documents, written in the main by the strongest nations of the moment it was made, setting out rules that reflect, in part, the positions those nations held. It is, in the language Huang Zongxi handed the volume, a law of a few households, wearing the robe of the law of all under Heaven, and it stamps the arrangement of the moment it was written with the mark of the lawful, exactly as the treaties of earlier centuries stamped theirs. This is not to condemn the present order, and not to call for its overthrow. It is to see it in the same frame as the treaties before it, as an instrument that writes a distribution of the scarce thing, and of standing, into a form that calls itself lawful, resting finally on the strength of those who wrote it, because between nations there is still no lawmaker above them all.
Here the discipline holds at its firmest, because the present is where a person is most tempted to make the volume serve his nation's side. To set the present order in the frame of the treaty is not to say it is worthless, or that any nation is entitled to break it, or that one nation's reading of it is right and another's wrong. It is to see its structure honestly, that it is made by the strong of its moment, that it stamps an arrangement lawful, and that it rests on power because nothing stands above the nations to make it rest on anything else. Whether the present order is, on balance, a good thing holding worse things back, or a robe over the advantage of a few, or both at once, the reader judges, holding the one measure to every nation's conduct under it alike. The volume hands the frame and the measure. It hands no verdict, and least of all a verdict shaped to any nation's grievance or pride.
So this section sets a thirty-ninth layer. The treaty is the instrument that stamps the taking lawful, converting a fact of force into a fact of law by recording the taken nation's signature, a consent often extracted under the weight of the taking and so of a freedom exactly in question. This ran through the treaties of earlier centuries and runs into the charter of the present order, which is likewise written by the strong of its moment, a law of a few households in the robe of the law of all under Heaven, resting finally on power because between nations no lawmaker stands above. The volume sets the present order in the same frame as the older treaties, sneers at none of it, condemns none of it, and hands the reader the frame and the one measure, held to every nation alike. The next section turns to the taken and its responses, and finds, beneath accept and resist, the deepest road, to grow strong. Let the reader carry this understanding of the treaty into the section that follows.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.