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1[NB: This is a very unevenly developed draft, produced for the convenience of the participants 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 the

Legacies 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

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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.

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the 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.

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regards 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.

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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 wereject 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.

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II: 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, JohnWestlake (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.

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the 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 itspedigree 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

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just 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 governmentenabled 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)

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established 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 first

occupant) 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.

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establish 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.

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towards 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 ofEuropean 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

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and 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.

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individualistically 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 leavetheir 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.

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well-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

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hand 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.

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d'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.

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insert 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 ofa 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.

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These 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 ofthe 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 allmänna

principer (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.

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connection 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 twofields 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.

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accepted 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).

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articles, 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 calledannexation 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.

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regard 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 makingit 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.

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cannibales", 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 suchdifferent 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.

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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 whoin 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).

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In 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

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devoted 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 assubjects 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.

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consistent 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, emphasisingcarefully 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 deutschen

Universitäten (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.

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law.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 twoprofessorships 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 the

sitiation, see E.D. Whittuck, 'International Law Teaching', 3 Transactions of the 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.

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However, 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. De

l'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 la paix (Paris, Sirey, 1919).

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In 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 spritof 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.

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III.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 oftenseen 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

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lawyers 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).

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and 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 thefather 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, 236-264

and 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).

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law. 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 anothernovel 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 of International Law (London, Longman's 1927). For an analysis juxtaposing theuniversalism of Scelle to that of Lauterpacht, see Carl Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff (Berlin, Duncker & Humblot, 1938).

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camouflaged 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 grantedthat "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.

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The 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 ideologicalnationalism 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 juristische

Staatsbegriff (2nd edn. Tübingen, Mohr, 1927) and Das Problem der Souveränität (2nd edn. Tübingen, Mohr, 1928).63 See for instance, Alfred Verdross, Die Einheit des Rechtlichen Weltbildesauf Grundlage der Völkerrechtsverfassung (Tübingen, Moihr, 1923).

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from 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 nationalsovereignty. 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.

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doctrine 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 lawtheorist 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.

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these 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 of

Comparative 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.

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A 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, therepresentatives 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.

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procedures 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 la

Société, 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.

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tribes 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 of

International 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.

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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 governeddomestic 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 -

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controlled 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 theinternational 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.

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however, 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 Oxfordcanvassed the outlook for international law in 1944 by setting

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aside 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 notinstitutionalists 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.

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