1[NB: This is a very unevenly developeddraft, produced for the convenience of theparticipants to the Conference "Whoseinternational Community? Universalism and theLegacies of Empire", Columbia University,April 29-30, 2005]
NATIONALISM, UNIVERSALISM, EMPIRE:
International Law in 1871 and 1919
Martti Koskenniemi
Whose International Community? Universalism and theLegacies of Empire;Columbia Department of History, April 2005
CONTENTS:
I INTRODUCTION
II 1871
II.1. Rejection of the Droit public de l'Europe
II.2. A liberal reconciliation of European nationalism with "civilization"
II. 3. The Unity of Public and Private International Law
II. 4. Imperialism. The civilising mission. Expansion of formal sovereignty
III A NEW BEGINNING
III.1. Rejection of the naive and unmethodological approaches of the previous
law
III.2. Against Sovereignty
III.3. Break of public and private international law
III.4. Turn to International Institutions
IV REFLECTIONS FOR TODAY
2
I: INTRODUCTION
International law was born in the aftermath of the Franco-
Prussian war of 1870-71. On 8 September 1873 eleven men met at
the Town Hall of Ghent in Belgium, adopting the Statute of the
Institut de droit international, defining the organisation -
that is to say, themselves - as the "organ of the juridical
conscience of the civilised world".1 This was the first time when
a group of professional men identified each other as
"international lawyers", united by the aim of advancing liberal
progress in Europe and extending its civilization into the
colonies.
Of course, there had existed an tradition at European
universities of teaching something called "law of nature and of
nations". Professors of politics and public law, diplomats and
practising lawyers had written about the droit public de
l'Europe, principles of universal jurisprudence and of European
diplomacy, treaties, war and special topics such as the law of
the sea. Before the Ghent meeting, however, no profession had
defined itself as the "juridical conscience of the civilised
world". Few of the 11 men came from the tradition of European
public law and even those who did, thought of it as rather a
part of the problem than of its resolution.
Modern international law emerged with the political ascendancy
of liberalism in the late 19th century. Shocked by the brutality
of the Franco-Prussian war of 1870-71, a group of lawyers,
humanitarian and political activists, decided that action should
be taken to ensure continuous liberal progress in Europe and in
1 1 Annuaire de l'Institut de droit international . See further my The GentleCivilizer of Nations. The Rise and Fall of International Law 1870-1960(Cambridge 2001), p. 39-41 and the notes therein.
3the colonies. They were largely successful. By the end of the
century, the profession had been organised. University chairs of
international law had been created all over Europe. Thick, many-
volumed textbooks and international law journals had stared to
appear in several languages. Arbitration was understood as an
effective cure for inter-European rivalries and relations with
the "Orient" were formalised by annexation and colonial
government. The Hague Peace Conferences of 1899 and 1907
inaugurated the era of international legislation as part of the
mass politics of industrial societies.
International law died its first death on 1 August 1914. When
the Secretary-General of Institut, Albéric Rolin (1843-1937),
informed the members that owing to the impious war, the meeting
scheduled for Munich the following October had to be cancelled,
one of the most well-respected German members, the
criminologists and internationalist Franz von Liszt (1851-1919)
responded by noting that far from being impious, the war was
sacred, and sent in his resignation.2 All the other Germans save
one followed his example.
Around 1919, modern international law had been born a second
time - though the date is now harder to pin down. It was born at
different locations at different moments. As the Institut
temporarily ceased its activities, the Deutsche Gesellschaft für
Völkerrecht emerged in Kiel and Berlin through the assistance of
the German foreign ministry in 1917. It was followed by several
other institutions, the proliferation reflecting the political
division of German society. In Britain, war-time discussions led
to the setting up of the Grotius Society whose Transactions
became the first British international law publication in 1915.
According to its statutes, the society was "to be restricted, as
2 For the attitudes of Liszt and other Germans, see Florian Hermann, DasStandardwerk. Franz von Liszt und das Völkerrecht (Nomos, Badan-Baden 2001),p. 101-129.
4regards membership, to British subjects; it [was] to be a purely
British society".3 British legal culture was slow to accommodate
international law that was felt, perhaps, not to qualify as real
law until lawyers at the London School of Economics and
Cambridge in the 1930s demonstrated that it could be practised
as technically as criminal law or contracts. If one looks for a
decisive moment for the re-birth of international law in France,
that is surely the establishment of the École des hautes études
internationales with the Paris law faculty that commenced giving
courses to foreign and domestic lawyers and diplomats in 1921.
International law was reborn after the First World War in a
different spirit, out of reciprocal criticisms by former
enemies, wary of the language of civilization, pinning its hopes
in formal international organisations, especially the League of
Nations. The Institut continued meeting and discussing issues of
public and private international law. The Hague Academy of
International opened its doors in 1923. But the idea of
professional jurists as the core of the law's liberal and
internationalist spirit was no longer credible.
The Second World War killed international law a second time.
This time, the corpse consisted of an institutional legalism, a
faith in the necessary development of science, technology and
the laws of an interdependent modernity towards a federal world
order. The autopsy was performed in particular by European
lawyers, often of Jewish descent, who escaped into the United
States after the collapse of the Geneva system. They inaugurated
political "Realism" as the only responsible posture towards an
inherently dangerous international world. The UN Charter and the
laws of Cold War coexistence were both permeated by this spirit.
In this paper I want to make two points.
3 H. Goudy, 'Introduction' 1 Transactions of the Grotius Society (1915), p. 1.
5
I want to suggest, first, that the commonplace criticism of
inter-war international law as "idealistic" or "legalistic"
leaves the previous generation unscathed. The men of 1919
established international law's second life on a rejection of
the heritage of that first generation. Because we today's
international lawyers have learned to be wary of what we believe
are the "mistakes" of 1919-1939, we may be blind to the extent
we may be re-living the moment of 1871. Like the inter-war
lawyers, we find it impossible to think of ourselves as the
"juridical conscience of the civilised world". But even as we
reject that language, much of today's rethinking about
international law grasps towards its underlying mission.
Second, I wish to provide an account of the principles of
coherence in the two births of international law, 1871 and 1919.
Each had a liberal mainstream that was nationalist and
universalist at the same time. But the two were reconciled
differently, giving rise, in each case, to a different
vulnerability. The men of 1871 reconciled their nationalism with
their universalism by a sentiment of civilizational progress,
associating it with liberal internationalism in Europe and
formal empire in the colonies. By contrast, the men of 1919 did
not possess a stable notion of European civilization. Unlike
their predecessors, they were anti-imperialists. As a result,
they hovered insecurely between their particular nationalism and
their abstract universalism, as mediated through the League of
Nations. International law did its first death owing to its
amateurish sentimentality and its faith in the intrinsic
goodness of European civilization. Its second death resulted
from its failure to construct any substantial faith outside the
nation-state by reference to which it could have tamed the
developments of an illeberal world.
6II: 1871
Modern international law arose out of the activities of six men.
The key figure is the Belgian avocat Gustave Rolin-Jaequemyns
(1835-1902), a liberal-radical politician and humanitarian
activist who admired the German Katheder-Sozialisten, organised
the first meeting of the Institut de droit international and
became its Secretary-General and later President. Rolin had
earlier participated in international charity meetings and had
set up an Association international pour le progès des science
sociales in Brussels in 1862. Together with two friends, John
Westlake (1828-1913), a London barrister who had written a well-
received treatise on private international law, and Tobias Asser
(1838-1913), an Amsterdam lawyer, he had also set up the first
professional journal of international law, the Revue de droit
international et de législation comparée in 1869.4
Like most liberals, Rolin had been shocked by the way the
belligerent parties in the Franco-Prussian war had breached the
1864 Geneva Convention and misused the insignia of the Red
Cross. In the course of 1872 and early 1873 he met with two
other lawyers in order to see what could be done to strengthen
international law, the Swiss humanitarian activist Gustave
Moynier (1826-1910) who had presided over the 1864 Geneva
conference and the Heidelberg Professor Johann Caspar Bluntschli
(1808-1881) who had published a first scholarly codification of
international law a few years earlier. Together the five men -
Rolin, Asser, Westlake, Moynier and Bluntschli invited a sixth
one to preside over the meeting in Ghent. This was Italy's
Foreign Minister, Pasquale Mancini (1817-1888), well-known as a
supporter of the principle of nationalities and an advocate of
4 See Albéric Rolin, Les origines de l'Institut dfe droit international 1873-1923. Souvenirs d'un témoin (Brussels, Vromant 1923) and Koskenniemi, GentleCivilizer, p. 11-19, 39-41.
7the unification of rules of private international law among
European States.
These six men were part of a new generation whose views about
the role of law in international life differed completely from
two earlier traditions of writing about the law of nations.
These were the humanist naturalism that had emerged with Grotius
and Suárez and continued in academic writing about the law of
nature and of nations through derivations from rational
principles and the normatively oriented diplomatic history often
called Le droit public de l'Europe that too, received its
pedigree from Grotius but had developed within German public law
and concentrated on describing the procedures of European
statecraft.
The men behind the Institut de droit international were neither
philosophers nor diplomats. They had no interest in abstract
derivation of principles from human nature and they thought of
the past diplomacy of European princes and of the balance of
power as something to be done away with by the increasing
modernisation of European societies. These men participated in
the political, economic and social transformations of their
countries as members of Parliament, sometimes of Government,
advocating increased franchise and public opinion as instruments
for European peace and progress. If they spoke the language of
civilisation, this was to advocate liberal reform and peace
inside Europe, and the transformation of "Oriental" nations in
the image of European modernity. Rolin's Manifesto in the first
issue of the Revue de droit international contained this
programme:
"In the matter of personal status, the abolition not only of
slavery but of servitude; in civil matters the freedom of
establishment; in penal matters, the creation of a more
8just relationship between the crime and the punishment and
the application of the punishment in the interests of the
criminal as well as that of society; the suppression of the
criminalisation of usury, and of privileged corporations,
the liberation of the value of gold and silver, and the
freedom of association…"5
Now six men could obviously not bring all that about. But each
came from a wider circle. The centre, in 1871, was Belgium. This
was in part owing to the presence, at the law schools in
Brussels and Ghent of active internationalists such as the Roman
lawyer Alphonse Rivier (1835-1898) and the legal historian
Francois Laurent (1810-1887), Rolin's friends, who soon started
teaching and publishing text-books in public and private
international law in a new tone.6 The Rolin family played a
formidable role with Gustave's brother Albéric and his son
Edouard both later serving as the Institute's Secretary-General.
In the Netherlands, Asser's good contacts with his government
enabled him to push forward the codification of private
international law rules so efficiently that he was awarded for
this effort the Nobel Peace Prize in 1911. Holland, the country
of Grotius, became a centre for much of the internationalist
activity in 1871-1914.
In Germany and Switzerland legal reform often coincided with
protestant (or perhaps better, anti-Catholic) activism -
something shared by Rolin - and it is impossible to exaggerate
the influence of Protestant public lawyers such as Bluntschli
and criminal law reformers such as Franz von Holtzendorff (1829-
1889) as they applied their new domestic law methods to
international law in the 1870's and 1880s. Holtzendorff, who
5 Gustave Rolin-Jaequemyns, 'De l'étude de la législation comparée et de droitinternational', (1869) 1 RDI p. 11.6 See Alphonse Rivier, Lehrbuch des Völkerrechts (Stuttgart, 1889); FrancoisLaurent, Droit civil international, (Brussels 1880)
9established the German Juristen-Verein together with Bluntschli,
attended the Ghent meeting and later organised the publication
of the many-volume Handbuch des Völkerrechts that collected
practically all important German public lawyers under a joint
project. The Italian school remained committed to the Mazzinian
"principle of nationalities" and included, aside from Mancini,
its most influential representative, also the slightly younger
Pasquale Fiore (1837-1914) whose writings supplemented national
self-determination by individual human rights as the core of a
new cosmopolitan law.
Westlake, unable to attend the Ghent meeting, became the main
representative of internationalism among the British lawyers.
Having lost his seat in the Parliament (owing to his breach with
Gladstone on the issue of Irish Home Rule), he landed in the
Whewell chair of international law left vacant by Sir Henry
Sumner Maine in 1888.7 Two other British lawyers should be
mentioned. James Lorimer (1818-1890) occupied the Chair of Law
of Nature and of Nations in Edinburgh and his fame rests on his
idiosyncratic natural law. Though he was active in the
Institute, and appreciated by his colleagues, his eccentric
opinions prevented him from having much of an influence.8 The
fame of the Oxford Professor T.E. Holland (1835-1926) does not
rest on his historical essays or his op-ed pieces in The Times
but on the subsequent editions of his "Elements of
Jurisprudence" that came out first in 1880 and sought to
7 In England there was virtually no university teaching in international lawat all in the first half of the century. After the reform of legal educationin mid-century, the first chairs of international law were set up in Oxfordin 1859 (the Chichele Chair with Montague Bernard [1820-1880] as its firstoccupant) and in Cambridge in 1866 (the Whewell Chair with William Harcourt[1827-1904]). See Koskenniemi, Gentle Civilizer, p. 33-34.8 Lorimer was anti-semite and thought Islam as a degenerate religion. Headvocated the conservative "de facto" principle as the key to legal title.
10establish something he called "general jurisprudence" as a
universal legal method.9
As the Franco-Prussian war ended in 1871, the only international
law chair in France was that of Droit de la nature et des gens
at the Collège de France, held by the diplomatic historian
Charles Giraud. It was unthinkable for Rolin to invite him and,
besides, he might not have come owing to the sense that the
Institut might be German-oriented owing to Bluntschli's
presence. In 1874 all was changed by the appointment of the
commercial lawyer Louis Renault (1843-1918) to the Paris chair.
Part of the generation that revolted against the formalism and
individualism of the exegetic school, Renault soon established
himself internationally as one of the most respected
practitioners in the field. His students would publish textbooks
and teach public and private international law according to the
solidarist doctrines en vogue in the Third Republic.
These men form the institutional, ideological and professional
core of international law between 1871 and 1914. Four aspects
unite them.
II.1. Rejection of the Droit public de l'Europe.
As liberal reformers, the lawyers of 1871 associated the old
doctrines of "European public law" with the post-Napoleonic
Concert and a conservative world they rejected. Where the
representatives of that tradition had written for the
instruction of princes and diplomats, the members of the
Institut wrote for practising lawyers, businessmen, politicians
and within an international, bourgeois culture. They shared a
concept of law that was both culturally sensitive and oriented
9 T.E. Holland, Elements of Jurisprudence (11th edn. Clarendon, Oxford 1910).For a recent discussion of Holland's "project", see William Twining,Globalisation & Legal Theory (London, Butterworths, 2000), p. 26-33.
11towards social and political transformation. As a young man,
Bluntschli had been Savigny's student in Berlin and had in
several writings articulated a historical-organicist view of law
in general and public law in particular. The self-description of
the Institut as the "organ of the juridical conscience of the
civilised world" came from Bluntschli's pen and expressed an
anti-formalist legal theory for which law was an intrinsic part
of the social organism for which its historicity, like its
constant development, was a key part. Bluntschli and the other
members of the Institut shared a notion of progressive history,
associating "progress" with the increasing civilisation of
European society. Hence, for example, Bluntschli's textbook took
the form of a prepared codification. It was as much de lege lata
as de lege ferenda and hardly worried over such subtle
distinctions. In fact, Bluntschli held, law - including
international law - was always, and should therefore be captured
as, law "to-come" ("werdendes Recht").10
In his early manifesto Rolin had already referred to Kant and he
and his friends had intuitively adopted the Kantian idea of
"universal history with a cosmopolitan purpose". As they neither
were nor thought of themselves as philosophers, they rarely
elaborated on the implications of this idea beyond vague
generalities about civilizational progress through stages. It
was sufficient to associate "progress" and "civilization" with
increasing influence of liberal ideas.
The new textbooks and articles after 1871 always made a point of
distinguishing between their modernity - Rolin and his friends
spoke of their ésprit d'internationalité - and the principles of
Great Power primacy and balance of power that had characterised
the diplomacy of the Concert of Europe. Bluntschli had earlier
written on political science and on various aspects of private
12and public law. He recounts his reasons for turning to
international law in the 1860's as follows:
"I was convinced that international law existed in a
relationship of reciprocal influence to the increasing
civilisation and that every large human progress meant
also progress for international law".11
Late 18th and early 19th century lawyers had written about the
history and forms of European diplomacy. The men of 1871, by
contrast, did not think that was the proper way to discuss law.
As Savigny had taught, law was culturally based in the spirit of
a people. It did not come about, nor exist in, the superficial
mores of European diplomacy. But though culturally based, the
law was articulated into existence by the lawyers themselves.
This is the context in which the declaration by Rolin and his
friends to be the "juridical conscience of the civilized world"
becomes clear. They saw it as their task to give legal
expression to the progressive nature of European civilisation.
The law would not be found in diplomatic forms but in the
conscience of those legal professionals who represented the
liberal spirit of Europe's civilized modernity.12
II. 2. A liberal reconciliation of European nationalism with
"civilization"
This perspective also determined the way the men of 1871
reconciled their nationalism with their universalism. As
liberals, they shared a concept of nationalism that was
10 Betsy Roeben, Johann Caspar Bluntschli, Francis Lieber und das moderneVölkerrecht 1861-1881 (Baden-Baden, Nomos 2003), p. 102-104.11 Bluntschli, Denkwürdiges aus meinem Leben III p. 170.12 For this sentiment, see e.g. Gustave Rolin-Jaequemyns, De la nécessitéd'organiser une institution scientifique permanente pour favoriser l'étude etle progrès du droit international, V RDI 1873 p. 463-491.
13individualistically inclined and therefore always able of being
explained from the perspective of a universal design or purpose.
Though Bluntschli was a strong defender of national self-
determination (and advocated German unification under Prussia),
he, like the others, postulated to international law an end-
state that was a "human world order" ("sein Ziel ist die
menschliche Weltordnung").13 In a small pamphlet on the
relationship between nationalism and humanity he arycoualted
quite expressly his view of the tasks of international law as
science. Though the national spirit gives rise to cultural forms
such as art and science, at their highest level, both leave
their national environment: "Die besten Werke der Wissenschaft
und der Litteratur sind auch in ihrem Gemeinwerte eher
menschlich als national".14
Even as Bluntschli agreed with Savigny that law is an emanation
of the history and spirit of a nation, he also agreed with
Savigny who saw no difficulty to link this idea with
universalism:
"Was in dem einzelnen Volk wirkt, ist nur der allgemeineMenschengeist, der sich in ihm auf individuelle Weiseoffenbart".15
All the men of 1873 accepted nationhood as a fundamental fact of
the international society. They were thus called upon to explain
how it could be reconciled with their cosmopolitanism. They did
this by distinguishing between what Rolin called l'esprit
national and le préjuge national, nationalism in its beneficial
and malignant forms and held the former quite compatible with a
13 Bluntschli, Das moderne Völkerrecht, p. 18-19, 59.14 Bluntschli, Die nationale Staatenbildung und der moderne Deutsche Staat(Berlin, Habel, 1881), p. 18.15 Bluntschli, Das moderne Völkerrecht, p. 21.
14well-ordered international realm.16 Holtzendorff, for example,
a frequent commentator in Rolin’s Revue and a member of the
inner circle of the Institut described the dialectic of
nationalism and cosmopolitanism as analogous to that between
individual autonomy and communal solidarity in domestic society.
Its national properties did not exhaust the identity of a State;
like an individual it was both independent of and related to the
outside world. As currents of air circulated through space
irrespectively of political boundaries, the spirit of humanity
animated the lawbooks of different nations.17
In such ways the lawyers of 1871 integrated their nationalism in
a larger, humanist vision of European civilization, sometimes
defining nationhood in the standard liberal way as an aggregate
of, or political compact between, individuals. Westlake, for
instance, seemed to have no theory of nationhood at all but
thought that the State’s duties and rights were "only the duties
and rights of the men who compose them".18 Bluntschli certainly
never imagined that there was any conflict between his
nationalism and individual rights: each was defined in terms of
the other.19 In the preface of his codification of international
law, Bluntschli expressly noted that there were general human
rights (allgemeine Menschenrechte) that constituted a permanent
limit to State sovereignty. For him as for his friend and
Francis Lieber (1800-1872), the defence individual liberty went
16 Rolin-Jaequemyns, 'De l'étude de la législation comparée et de droitinternational', p. 16.
17 Franz von Holtzendorff, Handbuch des Völkerrechts. Erster Band.Einleitung in das Völkerrecht (5 vols., Berlin, Habel, 1885) vol. I, p. 38-9.Similarly, cf. James Lorimer, Institutes of the Law of Nations (2 vols.Edinburgh and London, Blackwood, 1883) vol. I p. 9-11. Holtzendoff alsoargued that the importance of nationhood lay in the fields of history,culture and psychology - it was normally sufficient for lawyers to focus onStates and to dismiss speculation about principles of nationalism. Whilenationalism might have a factual influence on the law, it remained outsidenormative analysis. Holtzendorff, Handbuch I, 40-1.18 John Westlake, Chapters, p. 78.19 Bluntschli, Das moderne Völkerrecht, p. 20. "Niemals darf…über demnationalen Princip das hähere humane vergessen werden. Nur innerhalb des
15hand in hand with a (moderate) nationalism.20 There was no
sense that stress on nationhood would have required on State
sovereignty. On the contrary, the "principle of nationalities"
invoked by the Italian school after Mancini, but also by many
others, opposed the nationality of individuals against the
sovereignty of the territorial State. Here the "nation",
conceived in a liberal way, was a cosmopolitan, not a statist-
territorial principle.
It was then not for nothing that Bluntschli's codification as
well as, for example, that of the Italian, Pasquale Fiore (1837-
1914), expressly held fundamental human rights as the core and
objective of (modern) international law.21 The individualism of
the men of 1871 is often left unnoticed because they do not
normally speak the language of (Grotian) natural law or natural
rights. That was, after all, an old-fashioned rhetoric with
politically ambivalent links to the Revolution. Their
individualism was much less a theory than a set of assumptions
about the nature and direction of European modernity,
indissociably linked with their cultural cosmopolitanism and the
liberal reforms they advocated all over Europe.
II. 3. The Unity of Public and Private International Law
The lawyers of 1871 did not wish to limit themselves to
considering issues of treaty-making, warfare or diplomatic
protocol. Modernity was internationalising much wider aspects of
the lives of European populations. An ambitious reformer needed
to grasp all of what they identified as the ésprit
humanen hat das nationale Wahrheit und Berechtigung", Bluntschli, Dienationale Staatenbildung, p. 32.20 On the relationship between Bluntschli and Lieber, See especially Roeben,Johann Caspar Bluntschli, Francis Lieber, op. cit. supra.
16d'internationalité of their time. Discussions of the law
applicable between civilised States was always accompanied by
debates on the development of rules on private legal
relationships as well. This was natural inasmuch as the relevant
problem seemed to deal with the conflict of the legislative
jurisdiction of two or more States: "whose law shall govern a
private legal relationship with a linkage to several
jurisdictions"? This could be seen as a conflict of legislative
sovereignties - in other words, as a typical problem of public
international law.
The Droit public de l'Europe had concentrated on statehood,
diplomacy and war. The focus of the new generation was
completely different. Rolin practised in private law and his
position in Belgium's liberal government in 1879-1884 was as
minister of education, not of foreign affairs. Westlake's
academic fame rested on his publication in 1858 of a treatise in
private international law in which he had introduced continental
ideas about legal development to his English readership, that is
to say, on the law applicable to international legal
relationships between subjects of private law - conflicts of law
and legal harmonisation in particular. Asser never published
anything larger on public international law. Instead, he was
instrumental in persuading his government to support the idea,
originally proposed by Mancini, of the development of a code for
dealing with international private law relations - the origin of
the Hague Conference on Private International Law.
Rolin, Westlake and Asser had already invited Mancini to
participate in the propagation of liberal legislative reform
through their Revue in 1869 - ironically, it had been Mancini,
an expert in private, not public law, who persuaded them to
21 See Pasqwuale Fiore, Le droit international codifié et sa sanctionujuridique (Paris, Pedone 1890), and the discussion in my Gentle Civilizer,p. 54-57.
17insert the reference to public international law in the
Journal's title. They now also invited Mancini - by far the most
famous of them - to chair the Ghent meeting. As expected, this
gave a definite direction to the scholarship and codification
of private international law in Europe.
Mancini was a key legal influence in the Italian Risorgimento.
In his inaugural lecture at the University of Turin in 1851 he
proposed the principle of nationalities as the foundation of all
international law, public as well as private. This meant, among
other things, that the law governing the legal relationships of
a person should be based on the person's national law - a
cosmopolitan view that expected that territorial States would
honour foreigners' national backgrounds. Mancini was several
times Italy's foreign minister and minister of justice. He was
instrumental in the drafting of Italy's Civil code of 1865 that
privileged the criterion of nationality against territoriality.
In subsequent years, he advocated the unification of private
international law on this basis publishing, in 1874, in Clunet's
Journal de droit international a programme for the conclusion of
treaties that would make the key rules of private international
law "uniform and obligatory".22 The whole problem of the law, he
wrote, was about regulating the conflict between the power of
the State and the right of the individual. An individual has a
right to have his national law applied to him even on foreign
territory. On the other hand, the public law relations should
remain territorially based. A threefold distinction emerged. The
public law of the State should govern political relations. A
"necessary private law" would capture a person's national
background and a "voluntary private law" - contracts - would
give effect to the autonomy of the will.
22 Mancini, De l'utilité de rendre obligatoire, sous la forme d'un opuplusieurs traités internationales, une certain nombre de règles générales…, 5Journal de droit international (Clunet, 1874) p. 221, 285.
18These ideas were immediately accepted by the Institut which
started to propagate universalism through treaties. In his early
Introduction au droit international (1879) Renault took a firm
stand in favour of universal codification of rules on conflicts
of laws. The "personalism" of the Italian school soon spread
into the profession more generally. Two of the most important
private international lawyers on the continent - the Belgian
Laurent and the French André Weiss (1858-1928) - each followed
suit. As teaching of private international law began in France
in the 1880's Weiss immediately defined it as having to do with
reconciling the rights of individuals with the sovereignty of
the State.23
Laurent, a member of the Institut, based his individualist
principles for the choice of law in private international law on
the idea that the nationality of the individual is the most
basic, foundational aspect about that individual. It should
therefore determine his legal relations. Laurent felt, however,
that national laws were ultimately unable to regulate the
conflicts and that especially human rights are independent from
or nations and that sooner of later jurists will agree on them.
He extended this cosmopolitan view expressly outside Europe,
even, and opposed thereby the application of the law of the
territorial state, apart from cases of ordre public. Laurent
dedicated his 1880 Droit civil international to Mancini.24
As the Franco-Prussian war ended, another member of the
Institut, Edouard Clunet (1845-1922) established his Journal de
droit international - today best known as "Clunet" - that was
exclusively devoted to private international relationships.
Clunet himself - another liberal activist - emphasised the close
23 Torsten Gihl, Den internationalle privaträttens historia och allmännaprinciper (Stockholm 1951), p. 252.24 Francois Laurent, Droit civil international (8 vols. Brussels, Bruylant,1880-81). See also Jean-Louis Halpérin, Entre nationalisme juridique etcommunauté de droit (Paris, PUF 1999), p. 91-93.
19connection between public and private international
relationships and saw the subject-matter of the latter (and of
his own journal) as not merely dealing with individuals who
happened to be in a foreign state but with "the international
relations between commercial, financial and industrial groups
who had become the most important".25 The Institut and the Revue
both distributed their activities and the space of their pages
equally to both topics.
Also the great textbooks at the end of the 19th century adopted
both private and public international law. Teaching of these two
fields was united: Westlake in Cambridge, Triepel in Berlin,
Despgnet in France etc. all taught the two topics together.
Since its inception, the Institut prepared numerous reports and
suggestions on these questions. But even more important was
Asser's Hague Conference on Private International Law. The first
session of the Conference in 1893 was attended by 13 governments
and was chaired by Asser himself. All the participants were in
agreement with the idea, propagated by Mancini, Westlake and
Asser, that private international law should be understood as
binding law, and not as mere comity. There was a also a large
consensus on the individualist, even cosmopolitan approach
preferred for most question by the majority of the Institut
members - that is, deciding the legal questions on the basis of
the national law of the person instead of the law of the
territorial state where he happens to find himself or to which
the legal relationship has its closest link.26
Although the Hague Conference had a rough beginning and the
first Treaties of the Conferences of 1900 and 1904 did not
receive much support, the personality principle was largely
25 Hugh L. Bellott, 'Maître Clunet. Obituary', BYIL 1922, p. 187.26 See further Halpérin, Entre nationalisme juridique et communauté de droit,p. 102.
20accepted especially on the continent by the end of the 19th
century. In 1907, for example, the German F. Meili speculated on
the possibility that the Hague Treaties might create a veritable
international code of private and criminal law relationships,
and thus a framework of a procedurally established international
community.27 Nonetheless, even at this stage the United States
and to some extent Britain remained outside of these efforts.
Both continued to advocate the domicile criterion for applicable
law - at least to some extent owing to reason that there were so
many foreigners in both and that the application of their
national laws would have been a tremendous source of confusion.
II. 4. Imperialism. The civilising mission. Expansion of formal
sovereignty
If the men of 1871 advocated progressive reform inside Europe,
they also supported the extension of European civilisation in
what they called the "Orient". In the previous years, Western
colonisation had been principally undertaken by private traders
and trade companies, with the involvement of Western States kept
at the minimum. Following the reports of travellers and
missionaries in the 1870s and 1880s, European liberals stared to
be increasingly concerned over that practice. French writers
such as Gaston Jèze and Charles Salomon wrote important analyses
of colonial law, attacking the greed and brutality of the
colonial companies and suggesting the effective extension of
Western administration into unoccupied territories.28 The Swiss
humanitarian lawyer and member of the Institut, Joseph Hornung,
indicted European brutality in the colonies in a series of five
27 F. Meili, Die Zukunft ded internationalen Privat- und Stafrechts 1 ZVR(1907), p. 131-5.28 Charles Salomon, L'occupation des territoires sans maître (Paris, Giard,1880); Gaston Jèze, Étude théorique et pratique sur l'occupation comme moded'acquérir les territoires en droit international (Paris, Giard & Brière,1896).
21articles, by far the most elaborate treatment of colonial law
in Rolin's Journal, calling for a moral mission to protect and
educate the natives and prepare them for the coming world
federation.29 But even Renault shared the criticisms of the way
the colonialists have behaved:
"Too often the so-called civilised nations have abusedtheir power in regard to the so-called barbarian, havedeclared unjust wars against them and have violated themost elementary rules of law".30
The lawyers of 1871 insisted that the work of "civilization"
required direct rule and effective sovereignty for the European
colonizer. There was to be no more laissez-faire in the colonies
than there should be at home. From 1878 onwards, the members of
the Institut suggested the regulation of the "Congo question" in
by an international solution. They greeted with enthusiasm King
Léopold's ventures and the establishment of the "Independent
State of the Congo" in 1885. Indeed, many Institut members
participated in this process in different roles, supporting the
King's claims before the US senate, writing tracts about the way
in which the "Congo State" was administered and even
participating in its administration.31 Rolin himself observed in
1889 that colonization by chartering companies failed to
distinguish between ownership and imperium and to guarantee the
proper treatment of the populations: direct rule was infinitely
better.32 Annexation, if it came to that, should be called
annexation and insist on the duties of the administrator in
29 Joseph Hornung, 'Civilisés et barbares', 17 RDI (1885), p. 1-18, 447-470and 539-569 and 18 RDI (1886), 188-206 and 281-289.30 Louis Renault, 'Introduction à l'Étude de droit international', in L'Oeuvreinternationale de Louis Renault (1843-1918) (Paris, Les éditionsinternationales, 1932), p. 16-17.31 See my Gentle Civilizer, p. 155.166.32 Gustave Roli-Jaequemyns, L'année 1888 au point de vue de la paix et dudroit international, XXI RDI 1889 p. 192. Nonetheless, he presumes that"...si mauvaise que puisse être l'administration d'une compagnie de marchandseuropéens, elle est toujours meilleure que celle d'un sultan.", id. Cf alsoid. p. 193-6.
22regard to the protection of both the populations residing in
that territory.
The members of the Institut were particularly critical of the
dilution of the administrative duties associated with
"protectorates" in international practice and saw the 1885
Berlin African Congress as an opportunity to set up clear
criteria for the degree of administration that the European
State should extend to Africa. This left them disappointed with
the vague formulation of article 35 of the Berlin Act. The
German Professor M. Martiz prepared a draft declaration making
it clear that both occupation and protectorate ("occupation à
titre de protectorat") should lead to formal rule.33 There were
to be clear conditions for effective possession. Obligations in
regard to the protection of acquired rights and protection and
education of the natives were to be identical. The proposals
were not accepted, however. Members were finally unwilling to
limit the flexibility that was provided to European powers by
the system of Article 35.
In 1875, the Institut commenced a study on the possibility to
extend European international law "into the Orient". A
questionnaire was sent out with the purpose of finding out
whether the beliefs of Oriental and Christian States as regards
the position of foreigners were sufficiently similar to admit
the oriental "dans la communauté générale du droit
international". It turned out that the question could not be
answered in general terms. A distinction was to be made by
reference to the degree of civilization of the country
concerned. While some Orientals were "des pirates et même des
33 Rapport de M. Martiz, Annuaire de l' Institut de droit international1885-1891 (édition abrogée) p. 429.
23cannibales", others such as Turkey, Siam, China and Japan had
long and stabile relations with the West.34
Following their cultural view of law, the lawyers developed a
three-level analysis of societies as "savage", "half-civilised
(barbarian)" and "civilised". They were unanimous that the
international law of European (i.e. "civilised") nations could
not be applied to the non-Europeans as such. (Unlike sometimes
assumed, this did not mean that no law at all would have been
applicable in the Orient). If the law did have a cultural basis,
then of course different rules should be applied to such
different groups. Nevertheless, because they also shared a
progressive notion of history, they had little doubt that the
"Orient" was progressively transforming into Europe's likeness.
Behind all this activity in support of the formal colonisation
of non-European territory was a view of historical development
necessarily following the path taken in Europe. Although the
"standard of civilisation" was never clearly defined - indeed,
its usefulness rested in part on its open-endedness - it was
clear that the enjoyment of the rights and duties of statehood
was dependent on the attainment of the kind of political rule
that resembled European sovereignty.
The task of civilization thus required formal empire for many
reasons: as a way to check the activities of traders and
adventurers, as a form of protection of native populations and
as a way to organise the civilising mission. But it was also
necessary as example of the kind of "civilised" type of rule
that would slowly be taken over by the natives as they would
attain fiull-fledged statehood and be accepted in an
international community that - and here the lawyers were
agreement - would one day encompass the whole humankind.
34 Sir Travers Twiss, Rapport, Annuaire de l'IDI 1879 p. 301.
24
II 1919 A NEW BEGINNING
The Great War shook the foundations of the international law
profession. Nothing remained as it had been before. A first
meeting of the Institut was improvised in Paris in May 1919
among members who were present at the Peace Conference or could
otherwise travel there. No Germans attended. The meeting was
hosted by the Dean of the Paris Law School, one of France's
representatives at the Peace Conference, Ferdinand Larnaude who
in his opening speech made no secret of how he had seen the war:
"France has been the defender of law in this war, as it has
always been in the course of its history".35
The generation of lawyers who had invested their ésprit
d'internationalité in the Institut so as to ensure liberal
progress in Europe and the civilization of the "Orient" had
passed away. Rolin-Jaequemyns had died already in 1902, Asser
and Westlake in 1913, Renault in 1918, Oppenheim in England and
Liszt in Germany in 1919. Some had made an abrupt turn in their
careers. Antoine Pillet (1857-1926), Renault's projected
successor in France, one of the two editors of the Revue
générale de droit international public, the "theorist" among the
French international lawyers, was so outraged by the peace - by
the leniency towards Germany and the weakness of the League as a
safeguard for France's security - that he turned completely to
private law, never publishing anything in public international
law which he felt had been infected by the weakness of the Hague
and Geneva systems.36
35 Discours de M. Larnaude, 27 Annuaire de l'Institut de droit international(1919), p. 294.36 See especially Antoine Pillet, Les lecons de la guerre present au point devue de science politique et du droit des gens (Paris, Plon 1915).
25In 1871 European lawyers had written from a palpable sense of
what "civilization" meant and where it was leading to. In
Europe, it would support continued liberal progress. Outside
Europe, it would change modernise the "Orient". By 1919, this
outlook had collapsed. The failure of the Hague treaties to
regulate the conduct of the war appeared as a mere tip in the
iceberg of the law's shameful complicity in the diplomatic
system - especially the system of sovereignty - that had been
responsible for the war. Stories of European brutality and the
reluctance of parliaments to allocate funds for colonial
purposes undermined what was left of the mission civilisatrice.
Pre-war international law now began to appear alternatively as
politically naive and methodologically amateurish, alternatively
as a cynical facade over continued European Realpolitik.
Towards the end of the war, a huge amount of pamphlets,
brochures, articles and books on the future of international law
was published all over Europe and the United States. Anxious
questioning about the reasons for the failure of old law and
what to replace it with was spread throughout the profession.
Answers to those questions emerged in an intensely diversified
way and from varying national experiences.
In Belgium, the Revue de droit international re-started
publication in 1919 with an overwhelming focus on the law of the
Versailles settlement. Many essays dealt with war criminality,
especially German breaches of humanitarian law and the
extradition of the Kaiser. Many articles were intensely
nationalistic: Had Belgium received a large enough chunk of
Eupen-Malmédy? The volume of 1921 began with Minister Paul
Hymans' review of League activities (p. 5-16) and an overview by
Maurice Bourquin of the negotiations for the Permanent Court of
International Justice. The year began with two issues completely
26devoted to the League. But more than half of the regular
issues, too, was about League-related activities.
Many German lawyers had turned into supporters of the war
effort. The case of the legal polyglot Josef Kohler (1849-1919)
is typical. Kohler had set up the Zeitschrift für Völkerrecht
und Bundesstaatsrecht in 1906 as the first German Journal
devoted to international law. Its spirit had been humanitarian
and pacifist. Kohler had even defended the unorthodox position
that private individuals and companies - railway companies,
banks, international commissions - should be understood as
subjects of international law by reading treaties and diplomatic
acts as providing authentic rights for them.37 One of his co-
editors was the German émigré Lassa Oppenheim (1858-1919) who
had been naturalised in 1900 as a British citizen, replaced
Westlake as the Whewell Professor in Cambridge and had published
the most successful international law textbook of the twentieth
century.38 Oppenheim worked as the Zeitsschrift's co-editor in
Britain, writing articles and reviewing books for it. In 1914,
however, Kohler dismissed him after he had defended British
interests in German naval warfare. The Journal now took a
spectacular turn against its earlier stands. Accordingly, Kohler
also fired the German pacifist, Hans Wehberg (1885-1962) from
the Journal. He defended Germany's violation of Belgium's
neutrality at the outset of the war by reference to a notion of
Notrecht and advocated a German-led hegemonic reconstruction of
the European diplomatic system after the war.39
Wehberg and the left-liberal Walther Schücking (1875-1935), the
future German judge at the PCIJ, maintained a relatively
37 J. Kohler, Völkerrecht als Privatrechtstitel, 2 ZVR (1908), p. 209-230.38 For some of this detail, see Mathias Schmoeckel, Lassa Oppenheim (1858-1919), in Jack Beatson & Reinhad Zimmermann, Jurists Uprooted. German-Speaking Émigré Lawyers in Twentieth-Century Britain (Oxford UniversityPress, 2004), p. 583-600.39 See Koskenniemi, Gentle Civilizer, p. 213-15.
27consistent international attitude through the war - but even
they refused to regard Germany as responsible for it. They
enjoyed a moment of visibility towards the end of the war but
had little lasting influence in a profession that saw its main
task as opposing the Western effort to dominate Europe through
the League. Here, there was much to be accomplished. A study
conducted in 1919 by the German League of Nations Association
(Deutsche Liga für Völkerbund) observed the dreadful state of
knowledge of international law at law faculties and in public
administration. An extended effort at teaching international law
more widely was needed, the study concluded, emphasising
carefully that only thus could Germany oppose the domination of
the League by Entente powers.40
But although international law teaching had been given by public
law professors, its standard was very high.41 Even after 1919
German lawyers continued to make important (though often
unnoticed) contributions to the discipline. For example, Theodor
Niemeyer (1857-1939), the force behind the Deutsche Gesellschaft
für Völkerrecht, established towards the war's end, transformed
his own Journal - the Zeitschrift für internationales Recht -
into another generalist international law review in 1919.
Niemeyer's background was in private international law and he
sought to find a sociological grounding for the representation
of international organisations as international administrative
law. Before and after the war, from his position as Rector of
the University at Kiel he advocated a "positive
internationalism" that would be based on economic and scientific
progress and transgress the limits between private and public
40 Moritz Liepmann, 'Die Pflege des Völkerrechts an den deutschenUniversitäten (191), 6 Monografien der Deutschen Liga für Völkerbunbd, p. 5-15.41 As pointed out by H. Trepel, 'Ferdinand von Martizt. Ein Bild seines Lebensund seines Wirkens', 30 Zeitschrift für internationales Recht (1922), p. 30.
28law.42 He was accompanied by Walter Kaufmann from Frankfurt
whom sought to conceptualise international organisation and
private transnational activities in terms of a kind of
international administrative and integration law.43 They were,
however, overshadowed by the more visible and often quite
polemical activities of the men around the newly established
Keiser-Wilhelm Institute in Berlin such as Victor Bruns,
Heinrich Triepel and Carl Schmitt. It was the latter, of course,
who carried the day after 1933.
At the end of the war, in Britain there were only the two
professorships at Oxford (Chichele Chair from 1859) and
Cambridge (Whewell Chair from 1866). Compulsory international
law teaching was given only in the latter. In London it was
taught only at the LSE by Dr Alexander Pearce Higgins who had
taken over as lecturer as Oppenheim had moved to occupy the
Whewell chair in Cambridge in 1909.44 Though Pearce Higgins
received a personal chair in 1919, he still noted the:
"scarcely veiled contempt with which international law
is viewed by practising members of the Bar and of the
legal profession in general".45
42 See Th. Niemeyer, Vom Wesen des internationalen Rechts, 20 ZiR (19010), p.1-15 and Rechtpolitiche Grundlegung der Völkerrechtswissenschaft, 31 ZiR(1924), p. 1-39.43 W. Kaufmann, Die moderne, nicht-staatliche internationale Verbände undKongresse und das internationale Recht, 2 ZVR (1908), p. 436-440. Butcontrast this to the impressive Karl Neumeyer, InternationalesVerwaltungsrecht (Zürich, Recht und Gesellschaft, 1936) in which“international administrative law” signified the international norms to beapplied and interpreted in national administrations. See also the recentdiscussion by Milos Vec, Recht und Normierung in der industriellen Revolution(mimeo, 2004, on file with author), p. 116-151.44 Occasional lectures in the subject were given by Sir John Macdonell, QuainProfessor of Comparative Law at University College. For an overview of thesitiation, see E.D. Whittuck, 'International Law Teaching', 3 Transactions ofthe Grotius Society (1918), p. 43-59.45 A Pearce Higgins, 'The Present State of the Study of International law inEngland', 39 LQR (1919), p. 510.
29However, the situation ameliorated after 1923 with Arnold
McNair (1885-1975) and Hersch Lauterpacht (1897-1960) determined
to establish the discipline on a professional basis by showing
that it could be taught and practised as technically as any part
of domestic law. Apart from through the development of the
"Cambridge School", this was achieved by the publication of the
first collection of international case-law, the Annual Digest of
Public International Law in 1929 and by ensuring that successive
editions of Oppenheim's International Law would find their way
to the shelves of foreign office legal advisors all over the
world.46
In France, the legal establishment reacted in twofold ways to
the war. Some such as the Catholic lawyer Louis Le Fur (1870-
1943), professor of international law in Paris since 1925 when
his appointment over the leftist Georges Scelle (1878-1960) was
loudly applauded by the Action francaise,47 focused on attacking
Germany and German culture as responsible for most of the evils
of modernity.48 But the mainstream married itself tightly with
the League. The two most influential lawyers, Léon Bourgeois
(1851-1925) and Larnaude participated in President Wilson's
Crillon Committee and Bourgeois even became the first President
of the League Council, later propagating the League in various
French conferences and societies. Scelle, too, whose fame later
vastly exceeded that of his rival Le Fur, saw already in 1919
the League in view of the correctness of his "solidarist" thesis
about the necessary development of the modern world into a
federal hierarchy.49
46 See also my Hersch Lauterpacht (1897-1960), in Jack Beatson & ReinhardZimmermann, Jurists Uprooted. German-speaking Émigré Lawyers in Twentieth-century Britain (OUP 2004), p. 601-661.47 See Marc Milet, La faculté de droit de Paris face à la vie politique. Del'affaire Scelle à l'affaire Jèze 1925-1936 (Paris LGDJ 1996).48 See e.g. Louis Le Fur, Guerre juste et juste paix (Paris, Pedone 1920).49 Georges Scelle, La Pacte des Nations et sa liaison avec Le Traité de lapaix (Paris, Sirey, 1919).
30In 1920 in Paris an Ecole de droit international was set up at
the University of Paris. Its curriculum was full of lectures by
French or Francophile lawyers and the League figured prominently
on its lecture agenda. The École was set up by three of the most
active Paris internationalists at the time, Alejandro Alvarez
(1868-1960), Albert Geouffre de Lapradelle (1871-1955) and Paul
Fauchille (1858-1926), to educate diplomats from all over the
world. It would continue what Alvarez described as the
"radiation" of the French spirit around the world.50
In 1919, none of the four elements that characterised the sprit
of the international law of 1871 were present. First, there was
no longer any political need to reject the Droit public de
l'Europe. On the contrary, the criticisms of the diplomacy of
the late-19th century in fact made the old 18th system of formal
balance seem not so bad after all. Second, the pre-war effort to
align nationalism with internationalism seemed scarcely
credible: the notion of "civilization" had turned out a facade
for one's national preference. So much of the legal
establishment fell back on a more straight-forward nationalism,
focusing for example on the justice or otherwise of the
Versailles Treaty, or then an internationalism that put its
hopes in the institutional activities of the League. Third,
public and private international law broke apart institutionally
and ideologically and started to develop through their own,
autonomous channels. Fourth, formal imperialism was no longer
supported by lawyers any more than by European populations.
Political rule over non-European territory was failing and
expensive and increasingly incompatible with a novel
international climate.
The law of 1919 was based on four other points of focus.
31III.1. Rejection of the naive and unmethodological approaches
of the previous law
As the new generation sought a firm foothold, it rejected what
it saw as the methodological naiveté of the men of 1871.
Bluntschli, typically, was seen as advocating an practising an
impressionistic style in which the legal and the political were
completely mixed within each other. Already Bluntschli's German
successors such as Carl Bergbohm (1849-1927), August Bulmerincq
(1822-1890) and Paul Heilborn (1861-1932) had questioned the
scientific credentials of the "organic" school that was often
seen as speaking the language of natural law only in a slightly
modernised form. For the self-consciously positivistic methods
of later German public law Bluntschli's ideas such as
Rechtsgefühl, Rechtsidée and of Rechtbewusstsein were
unscientific mysticism or "political jurisprudence" that had to
be exorcised from legal science.
The idea of civilization that was central to the men of 1871
played on commonplace intuitions that were largely shared and in
little need of a serious academic defence. After 1919, however,
it was easy to seek the reasons for its failure in its reliance
on that weak and impressionistic notion, its political alignment
with a liberalism that had been failing all over Europe. A
serious legal study needed a more robust methodological
grounding.
Here, too, the narratives remain intensely national. In Germany,
discussion of international law's method was conducted within
the public law frame that was divided between the classical
formalism of the Gerber-Laband type and more sociologically
inclined orientations building especially on the work of Georg
Jellinek (1851-1911). The formalist school was represented by
50 Alejandro Alvarez, L'école internationale de droit international, 27 RGDIP
32lawyers such as Karl Strupp (1886-1940) or indeed Schücking and
Wehberg whose work focused on the interpretation of the League
Covenant and other acts of contemporary diplomacy, especially
from a German perspective.51 The formalist orientation peaked, of
course, in Hans Kelsen's (1881-1973) pure theory of law that
based international law's foundations on anti-statist, neo-
kantian premises. Several German-speaking lawyers such as Josef
Kunz and Alfred Verdross built on an expressly Kelsenian
methodology which, at this early stage, failed to receive much
of a hearing from outside the German-speaking realm.
The more sociologically inclined public lawyers who built on the
work of Jellinek and Max Weber included Rudolf Smend (1882-1975)
and Carl Schmitt (1888-1983). These, like the influential
naturalist Erich Kaufmann (1880-1972) were, however, men of the
political right and anything but inclined to speak in terms of a
Völkerrechtsgemeinschaft in the manner of the liberal neo-
kantian formalists who aligned with Kelsen. The only exceptions
on the sociological side were, first, the Swiss Max Huber (1874-
1960), later a member of the PCIJ and President of the
International Committee of the Red Cross, who had in 1910
published a small study on the "Sociological foundations of
International Law" which used a theory of economic and cultural
interdependence as international law's positive-scientific basis
and, second, Niemeyer and his colleagues, trying to articulate a
legal system out of the activities of functional international
organisations. Most sociologically oriented German-speaking
lawyers shared the view of Dietrich Schindler who spoke in the
Hague Academy in the 1930's, emphasising the limited use of
sociological methods in international law. The League was an
irrelevant formal compromise, Versailles had no social grounding
(1920), p. 145-152.51 Schücking-Wehberg, Die Satzung des Völkerbundes (Berlin, Vahlen, 1921);Karl Strupp, Das Werk von Locarno (Berlin, De Gruyter, 1926).
33and international affairs should be conducted more by wisdom
and statecraft than by law.52
In France, the sociological orientation took a completely
different direction. This had already began with Pillet who,
coming from Bordeaux like Durkheim, had propagated an early
"functionalist" reading of statehood in his early essays in the
Revue générale.53 In all spheres of the French legal academia,
the demise of the formalist and individualist principles of the
Code civil had liberated a strong sociological orientation.54
Léon Duguit (1859-1928), for instance, sometimes regarded as the
father of French public law, had written his Doctorat in private
international law espousing a rigorous methodological
empiricism. For him, all public law - including international
law - dealt with the relations between individuals, namely those
who govern and those who are objects of government. This became
part of the emergence of "solidarism" - the "official philosophy
of the Third Republic", represented in international law above
all by Bourgeois who had served several times as minister,
headed the French delegations to the Hague Peace Conferences in
1899 and 1907 and had participated in the drafting of the
Covenant.55
"Solidarism" was the idea of law as a fact of society as well as
a norm of sociability. We are born as debtors to society, from
the outset under an obligation to work for the social community
to which we owe our lives. This was a factual and a normative
doctrine in the way of much sociology, an Ersatz form of natural
52 Dietrich Schindler, Facteurs sociologiques et psychologiques de droiti8nternational, 46 RCADI (1933-IV), p. 255, 299-307, 318-320.53 Antoine Pillet, Le droit international puvblic, ses éléments constitutifs,son domaine, son objet, 1 RD^GDIP (1894), p, 1-32 and Recherches sur lesdroit fondamentaux des états dans l'prdre des rapports internationaux et lasoplution des conflits qu'ils font naître, 5 RGDIP 1898), p. 66-89, 236-264and 6 RGDIP (1899), p. 503-532.54 A good overview is in Jean-André Arnaud, Les juristes face à la société duXIXe siécle à nos jours (Paris, PUF 1975).
34law. It was taken much further by the most important inter-war
French lawyer, the left-liberal Georges Scelle (1878-1961). For
Scelle, the international world was always already a "society"
and as such, possessed an intrinsic hierarchical constitution.
The developments in science, economy and technology would not
create a world federation - but they would compel human beings
to realise that it is already there and thus to legislate out of
their will what in any case is necessary.56
No sociological orientation emerged in Britain. Nevertheless,
British lawyers were instrumental in the development of another
novel method, namely the view that international law was in
essence no different from domestic law and that it could
therefore be both studied and practised like the latter. The
"domestic analogy" that was, for example, the core of
Lauterpacht's teaching in the 1920's and 1930's moved the focus
away from diplomacy and statesmanship and sought to relocate the
centre of legal activity in the practical world of applying and
interpreting international rules by lawyers, and especially by
courts.57
III. 2. Against Sovereignty
What most of these novel methodological orientations shared was
a critique of nationalism and of sovereignty and of the language
of "civilization" that was now often seen as a camouflage for
the sovereign politics of the speaker's homeland. The attack on
sovereignty went through practically all international law
thinking after 1919. Much of this was, however, a barely
55 On the "solidarism" of Duguit, Bourgeois and others, see my GentleCivilizer, p. 284-316.56 See Georges Scelle, Prècis de droit des gens 2 vols. (Paris, Sirey, 1932-34)57 See e.g. Hersch Lauterpacht, Private Law Sources and Analogies ofInternational Law (London, Longman's 1927). For an analysis juxtaposing theuniversalism of Scelle to that of Lauterpacht, see Carl Schmitt, Die Wendungzum diskriminierenden Kriegsbegriff (Berlin, Duncker & Humblot, 1938).
35camouflaged attack on Germany. In his address to the Grotius
Society at Gray's Inn in April 1918, Lord Parmoor observed that
there was a School
"…that presses to its extreme limit the doctrine of
National Sovereignty and regards war as not only
without disapprobation but as the best solvent of
international difficulties."
This figment of his imagination, he then went on, "holds a
strong position in Germany" though he also graciously granted
that "it had advocates in other countries. too".58 The view of
sovereignty-centrism and positivism as especially German
doctrines was overwhelming. In both of his main inter-war works
from 1927 and 1933, Hersch Lauterpacht chose "positivism" as his
academic target, associating it with ("Hegelian") doctrine of
sovereignty that peaked not only in an outright denial of
international law but also in the doctrine of the "special"
character of international law that was merely "the most modern
for of denying international law".59 The defennders of
"positivism" and "sovereignty" in his footnotes, as in those of
his British and French colleagues were always Germans - Hegel,
Lasson, and also, quite absurdly, the conservative idealist
Erich Kaufmann60 who built a distinguished career at the legal
advisor of the German Foreign Ministry both before and after the
Second World war. The same in France, too, where Le Fur even
included Kelsen, Kant and Luther in this group of sovereignty-
mongers.61
58 Lord Parmoor, The League of Nations, 4 Transactions of the Grotius Society(1919), p. xvii.59 Hersch Lauterpacht, The Function of Law in the International Community(Oxford, Clanendon 1933) p. 405.60 Hersch Lauterpacht, Private Law Sources and Analogies of International Law(London, Longman's, 1927), p. 44-47.61 Le Fur, Guerre juste, op, cit. p. 23, 29 and Le Fur, Règles générales dudroit de la paix, 54 RCADI (1953-IV) p. 44.
36The attack on sovereignty came from three directions: as a
methodological critique, a sociological critique and a moral
indictment. The sharpest methodological critique came from
Kelsen and his followers who understood the State not as
something preceding or standing over the law but as something
constructed by the law. It was the sum total of the rights,
powers and competencies that State officials possessed. To think
otherwise was to believe in "sovereignty" as a metaphysical or
mythical quality in statehood that was inadmissible for a
scientific approach to the matter.62 For this approach
"sovereignty" was often simply an expression of an ideological
nationalism that it opposed. Whether coming from positivists or
natural lawyers, the methodological critique was accompanied by
a unitary, cosmopolitan view of law.63
The sociological attack on sovereignty emphasised then (as it
still does) the strength and thickness of the network of
interdependencies that bind any State and thus undermines the
illusion of self-sufficiency on which the idea of an absolute
State freedom - "sovereignty" - is based. This view was quite
central to the French doctrines, articulated forcefully in the
Duguit's public law theory which dismissed the very notion of
"State" as an unscientific myth. Only facts count. The State is
only a lot of people behaving, as subjects or objects of
government, endowed with larger or narrower powers. In attacking
sovereignty Georges Scelle saw "solidarity" in a universal
light. The nation was an accidental organisation principle of a
universal society that was always already united. A key person
was Alejandro Alvarez who preached the turn in 1919 to a new law
on solidarist assumptions. The Great War had epitomised what he
called a turn from an "ancien règime" to a "règime nouveau",
62 See above all, Hans Kelsen, Der soziologische und der juristischeStaatsbegriff (2nd edn. Tübingen, Mohr, 1927) and Das Problem derSouveränität (2nd edn. Tübingen, Mohr, 1928).63 See for instance, Alfred Verdross, Die Einheit des Rechtlichen Weltbildesauf Grundlage der Völkerrechtsverfassung (Tübingen, Moihr, 1923).
37from individualism and formalism to solidarity and realism, the
latter crystallised in the League of Nations. Max Huber's
sociological critique of sovereignty was more moderate and was
based on quite familiar notions about increasing interdependence
as an offshoot of modernity aligning State interests within
supranational organisation.64
The moral attack on sovereignty was often combined with the
methodological and the sociological critiques. It received its
power from an understanding that the Great War had itself been
produced by absolute or extreme ideas about national
sovereignty. Thus morally argued attacks on sovereignty became
an intrinsic part of the novel natural law. Suffice it to cite
the German naturalist Viktor Cathrein (1845-1931) who indicted
the pre-war "national egoism" and sought a way "…back to the
old natural law, back to faith in a personal God and the
principles of Natural Law".65 Ironically, the same message was
preached on the French side with unconcealed anti-German tones
by the Catholic Louis Le Fur.
III.3. Break of public and private international law
The lawyers of 1871 had understood public and private law as a
unity that reflected the modernity of a single, cosmopolitically
oriented European civilization. With the break of that latter
notion, public and private international law drifted apart. As
the hope of legal harmonisation and the development of a uniform
code of private relationships withered, also the personalistic
64 Max Huber, Die soziologischen Grundlagen des Völkerrechts (Berlin,Rothschild, 1928 [1910]). Another anti-positivist argument denied that State“will” was the basic source of international law. To answer the question “whywould ‘will’ bind”, one needed reference to something outside ‘will’ –outside the frame of strict naturalism or Kelsenian formalism, thatexplanation was received from some appeal to social necessity. See e.g.Maurice Bourquin, Règles générales du droit de la paix, Paris, Sirey, 1932),p. 75-80.
38doctrine of pre-war private lawyers was set aside by a
territorial conception and a return to the notion that whatever
the relevant principles, they were binding only as comity.
Already before the war, many voices had denounced the naturalist
principles that underlay the cosmopolitanism of men like
Mancini, Bluntschli or Westlake. For these lawyers, law was
territorially grounded; the spiritual nation was a fiction. If
this was so, then the law could only emanate from , and remain
relative to the political structures of the State. This was
articulated for example by the influential Italian public law
theorist and sociologist Santi Romano (1875-1947) in 1918,
identifying the legal order with the public institution and lay
the foundations for one type of institutionalist theory of law
(also Hauriou). Outside institutions, there was nothing but
imagination. A concrete law would emerge from and be implemented
always in a particular institutional order and tradition. The
most famous post-war Italian international lawyer, Dionisio
Anzilotti (1867-1950), a leading member of the Permanent Court
of International Justice was also widely known as a leading
theorist of the positivist camp: private international law was
not the law of a supranational order but the law of individual
countries that had to do with the ways in which the courts of
that country would resolve questions of jurisdictional
conflict.66 This approach would become predominant in most of
Western Europe by the Second World War.
Many developments pushed away from the idea of a supranational
law. One of the them was the growth of legal anti-formalism. For
instance, the views of Hermann Kantorowicz (1877-1940) and his
"free law" school in Germany focused on judicial decision-making
and the manifold nature of the sources that were applicable in
65 Viktor Cathrein, Die Grundlage des Völkerrechts (Freiburg, Hersed, 1918).66 On the turn to "positivism" and territoriality in inter-war doctrines ofprivate international law, See Halpérin 1999, p. 122- 131.
39these practices. For it, trying to draw stable conclusions from
a supranational order of legal principles could only be a
political sham. Apart from the French solidarists, it seemed
impossible for lawyers with a sociological or "realist"
orientation to link the law applicable to international
relationships to any clearly determined sociological base beyond
the State. Whether one saw the State as an organic (or historic,
national, political) community or an institution for the
exercise of public power, it was the State (and not the abstract
and intangible realm of the "international") in which law as a
sociological reality was present.
The birth of comparative law pointed in the same direction. This
was founded on the recognition of significant differences in
legal systems and the need for a scientific comparison. This was
both against earlier naturalism that supposed a uniform ethos
and a direction in all law as well as positivism whose text-
centred approaches fell short of the kinds of social science
that was becoming firmly established. One of these persons was
Ernst Rabel (1874-1955) whose aims were both academic and
practical; to make lawyers understand and operate in regard to
different legal systems.67 He wished to give a competitive edge
to German lawyers. There is, a recent commentator has noted, "a
strong strand of nationalist pride in Rabels' writings during
the 1920's".68 His privatiste approach also "tended to exclude
issues of public law" and thus reinforced the separation.69
III.4. Turn to International Institutions
67 For a recent discussion,. see David J. Gerber, Sculpting the Agenda ofComparative Law: Ernst Rabel and the Facade of Language, in Annelise Riles(ed.), Rethinking the Masters of Comparative Law (Hart 2001), p. 197-8.68 Gerber, p. 198.69 Gerber p. 206.
40A fourth conclusion was the end to the language of a European
"civilising mission". Together with the rest of European
populations, international lawyers had lost the taste of the
imperial venture. Universalism could no longer count on Europe's
unilateral efforts in the colonies. Formal imperialism was
replaced by a turn to international institutions, especially the
universal institutions of the League.70 Henceforth the
universalism of the lawyers would no longer rely on the
enlightened policies of European sovereigns. On the contrary,
those policies would now become part of the very problem that
international law was understood to deal with. Instead, the
representatives of the universal are from now on the official
intergovernmental organisations that are read throughout the
legal world by implicit or express reference to the domestic
analogy, as implementers of the pacification and unification of
the international world that domestic states had been carrying
out in European history.71
In his memoirs Max Huber points to the revolutionary sense of
President Wilson's war-time institutional proposals. During the
Hague era, he writes, proposals for compulsory mediation -
either political or legal - and sanctions against a law-breaker
could not be even thought, let alone spoken of at diplomatic
gatherings. Here was the most significance consequence of the
war - the turn to a public discussion about how to organise the
international community.72 Sir John Fischer Williams from London
pointed out that on all the crucial questions that were
problematic about the law as it stood in 1914 – the absence of a
distinction between just and unjust war, concentration on the
70 For a useful reading of the League's Mandates' system in this light, seeAntony Anghie, Imperialism, Sovereignty and the Making of International Law(Cambridge University Press, 2005), p. 115-195.71 For an elaborate argument – including a wide variety of examples - aboutthe rhetorical turn to institutions in a tradition of international law forwhich the war meant a decisive break with past, see David Kennedy, The Moveto Institutions, 8 Cardozo Law Review (1987), especially p. 849-902.
41procedures of war and the absence of institutions for “peaceful
change” - “the Covenant of the League offers a remedy, or the
promise of a remedy”.73 Some drew quite far-reaching legal
conclusions from the new state of things. Thus Jonkheer van
Eysinga from Leiden discussed the relationship between the
resolutions of the League and national constitutions. The
resolutions, he thought, would self-evidently be superior to
national constitutions.
"Cette hiérarchie entre les deux sphères de droit,celle de la collectivité des États, representés par laSociété, et celles des autonomies nationales, sempbles'imposer d'elle-même at n'avoir pas besoin d'êtremotivée".74
At the first Conference of the International law Association
after the war, in Portsmouth in 1919 - everyone spoke of the
promise of the League of Nations. (See RDI 1919 p. 421-440).
The importance of this must be rightly understood. Post-war
lawyers could no longer afford to believe in the natural
development of civilization and peace. They could not assume
that their nationalism would lay down peacefully with their
internationalism. The sense of automatic progress that the
Victorian generation had linked to modernity was lost. From now
on, the influential American jurist and natural lawyer James
Brown Scott (1866-1943) wrote, it was "heresy" to speak of the
Hague system.75 Peace and development had to be artificially
created, just like the State had created peace among warring
72 Max Huber, Koexistenz und Gemeinschaft. Völkerrechtliche Erinnerungen aussechs Jahrzehnten, Zürcher Student 3/1956, p. 10-11.73 Sir John Fischer Williams, A ‘New’ International Law, in Chapters onCurrent International Law and the League of Nations (London, Longman’s,1929), p. 70.74 Jonkheer van Eysinga, 'Le droit de la SdN et les constitutions nationales,1 (3è) RDI (1919), p. 144.
42tribes or religions in the domestic realm. There had to be
compulsory dispute settlement, majority voting and, above all, a
mechanism of sanctions against those who would not play by the
rules of the state-community.76 The Harvard Professor Manley
Hudson (1866-1960), member of the PCIJ saw the turn from the
Hague to the Geneva system as move from the "dogmas of
nationalism" to "the ideal of world order", associating the
latter less with the provisions of the Covenant or the policies
of the League than with "the viability of the institutions which
it created".77
In other words, the key difference between the way the men of
1871 had looked at the international unions and conferences and
the way the lawyers of 1919 conceptualised the League and other
international organisations lay in the domestic analogy adopted
by the latter. International institutions would be seen as
functional equivalents to the organs of the domestic state: The
Assembly a kind of parliament, the Council a kind of government.
Where the lawyers of 1871 had been quite sceptical of official
diplomacy, the lawyers of 1919 reconceived it in terms of an
autonomous institutional logic that could be detached from their
even perhaps more profound suspicion of diplomacy itself. No
doubt, theories of interdependence, ideas about democracy and
the public opinion pushed in this direction. Where pre-war
lawyers had seen two types of "international" relations, those
between European or "civilised" States and those between
European and civilised on the one hand and "Oriental" nations on
the other, the post-war generation saw just one single field of
"the international" that was at the same time "universal" and to
be administered by a machinery that could also not be anything
but "universal".
75 J.B. Scott, Introduction, in Otfried Nippold, The Development ofInternational Law after the World War (transl. by A Hershey, Clarendon.Oxford, 1923), p. viii.76 Nippold, Development, passim.77 Manley Hudson, By Pacific Means (New Haven, Yale Press, 1935), p. 20, 23.
43
It became thus natural for lawyers educated in domestic law, and
seeing all law through the lenses of what was familiar at home,
to start to think of this subtle social realm, too, as one where
law would apply in the same way as it did at home.78 Much of the
official rhetoric of the League supported this. Above all,
however, it was solidified by the habit to think of the tasks of
the League and of international law generally by reference to
the division of powers under the liberal theory of the State.
For international law to be real "law", it had to govern the
international society in the same way that domestic law governed
domestic society. This would mean that there would have to be
some type of an international "legislative" function, permanent
adjudication and some type of enforcement against law-breakers.
This is how many of the lawyers of 1919 saw the League and the
new international law that emerged from the war. Multilateral
treaty-making become the legislation of a single, universally
extensive international public realm, the Permanent Court of
International Justice would emerge in 1922 as the first
international court with a general jurisdiction. And Articles 15
and 16 of the League Covenant provided for a compulsory system
of settlement at the end of which lawful war could finally be
conceptualised as enforcement against the Covenant-breaker (e.g.
Kelsen).
Hersch Lauterpacht's "Private Law Sources and Analogies of
International Law" that came out in 1927 was merely one but a
particularly striking and influential statement of this
position. Most of international law, he argued there, was and
had always been taken from domestic law: the law of treated was
but contracts writ large, the law of territory was the law of
property. Sovereignty was like domestic law ownership -
44controlled and limited by the international legal order just
like ownership was framed within the domestic legal system. The
whole of the practice of the Permanent Court was understood in
this same way. International law could now finally be seen as
the practical law of an international society. The skills
lawyers learn in interpreting and systematising the law and in
participating in cases and assisting clients could now be
exercised in the international field as efficiently as in any of
the domestic legal fields.
Of course, most lawyers readily recognised that the
international legal system also fell short of the domestic one.
The international legal system was - to use a favourite
statement - a primitive system which must rely on self-help and
self-interpretation and whose organisational level had not been
very developed. But behind this - as indeed indicated by the
very word "primitive" - was the understanding that the system
would slowly develop in a more organised and co-operative
direction. Perhaps unconsciously, most lawyers were thinking in
terms of the Kantian "idea for a universal history with a
cosmopolitan purpose". Even such a careful observer as Sir
Fredrick Pollock (1854-1937), while emphasising that the League
of Nations was no "super-State" still inserted it in a
historical trajectory from Grotius and the drafters of the peace
plans such as Sully, Penn, Rousseau and Kant, and thus firmly
situated in the direction of global federalism.79 The
authoritative commentary by Schücking and Wehberg defined the
League as a confederation (Staatenbund) with many activities
resembling those of a State.80 Although lawyers disagreed about
the legal qualification of the League (there was agreement,
78 This is a key point in Ole Spiermann, International Legal Argument in thePermanent Court of International Justice (Cambridge University Press, 2005).79 Sir Fredrick Pollock, The League of Nations (2nd edn. London, Stevens,1922).80 Walther Schücking & Hans Wehberg, Die Satzung des Völkerbundes (2nd edn.Berlin, Vahlen, 1924), p. 103-134.
45however, that it was not a “Super-State”), in one way or
another, it was always seen in terms of a historical development
that led inexorably - perhaps like Maine's view of the
development of national societies "from status to contract" - to
federalism sometime in the future. The more the lawyers admitted
that the League was not a world federation, the more the
implication was that this is precisely what it was bound to
become.
IV: REFLECTIONS FOR TODAY
Now "1919" led to a failure. The view of international law as an
autonomous system (based on an equally autonomous notion of an
international "society") that could be studied through a
scientific method that did not hark back on the sovereignty of
the state and that was an aspect of the public law of an
international community, understood as analogous to the national
community was of course terribly vulnerable to intellectual
criticisms and to world events. Each of the three aspects of the
domestic analogy failed in the course of the 1930's.
1) Failure of legislation - the 1930 Codification conference;
2) Formal dispute-settlement - under-use of the PCIJ;
3) Enforcement - the disasters of Manchuria, Rheinland and
Abyssinia.
All of this led to the end of the inter-war international law.
This was the end of an idea of a law that had a distinct method,
that was autonomous of State policy, that was like the domestic
public law of European societies and that was launched into
federalism by the institutions of the League of Nations. One of
the sharper observers of the time, James Brierly from Oxford
canvassed the outlook for international law in 1944 by setting
46aside the domestic analogy. The international social world was
different from the domestic world. The League was not a legal
system "but simply a standing Conference system". International
law would also play a different role there from the role played
by domestic law:
"in the main a laissez faire system, having as its cheffunction to demarcate the spheres within which eachsovereign state is free to exercise its domesticjurisdiction without any legal obligation to defer tothe interests of any other state".81
My suggestion is that this criticism - like the critiques by
Carr, Morgenthau and other "realists" - against the
institutionalist faith of the inter-war lawyers was largely
correct when applied to the post-war cosmopolitans (though
beside the point when applied to most of the sociologically
oriented inter-war lawyers). But it did not undermine the
previous generation, the "men of 1871", who were not
institutionalists in the same way that many of the "men of 1919"
were. I would like to suggest that the historically and
culturally informed (and of course "Eurocentric")
cosmopolitanism of 1871-1914 has remained relatively unharmed by
the disappointments of the inter-war generation. This is why I
see the debates about the transformation of international law
after the end of the Cold War seeking to bring about something
like the sensibility of my "men of 1871". This will, however,
necessitate a novel explanation of why the "civilising"
universalism of the West, carried under the banner of a new,
interventionist international law would not be just another form
of imperial ethos, Berlin 1885 in a novel key.
81 J. L. Brierly, The Outlook on International Law (Clarendon, Oxford 1944),p. 95.