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The Gentle Civilizer of Nations

The Rise and Fall of International

Law 1870–1960
Modern international law was born from the impulse to “civilize”
late nineteenth-century attitudes towards race and society, argues

Martti Koskenniemi in this highly readable study of the rise and fall
of classical international law. In a work of wide-ranging intellectual
scope, Koskenniemi traces the emergence of a liberal sensibility
relating to international matters in the late nineteenth century, and
its subsequent decline after the Second World War. He combines
legal analysis, historical and political critique and semi-biographical
studies of key figures (including Hans Kelsen, Hersch Lauterpacht,
Carl Schmitt, and Hans Morgenthau); he also considers the role of
crucial institutions (such as the Institut de droit international and the
League of Nations). His discussion of legal and political realism at
American law schools ends in a critique of post-1960
“instrumentalism.” Along with the book’s other chapters, this
provides a unique reflection on the possibility of critical international
law today.
  is Professor of International

Law at the University of Helsinki and member of the Global Law
School Faculty at New York University. He was a member of the
Finnish Ministry for Foreign Affairs from 1978 to 1995, serving,
among other assignments, as head of the International Law Division.
He has also served as Finland’s representative at a number of
international bodies and meetings, including numerous sessions of
the UN
General Assembly; he was legal adviser to the Finnish delegation at

the UN Security Council in 1989–1990. His main publications are
From Apology to Utopia. The Structure of International Legal
Argument (1989), International Law Aspects of the European Union
(edited, 1997) and State Succession: Codification Tested Against the
Facts (co-edited, with Pierre Michel Eisemann, 1999).
Available titles in the series
 
The Rise and Fall of International Law 1870–1960
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Self-Determination of Peoples
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State Immunity
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The International Law Commission

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Corporations in and under International Law
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The Gentle Civilizer
of Nations:
The Rise and Fall of International
Law 1870–1960
M A RT T I KO S K E N N I E M I
    

    
The Pitt Building, Trumpington Street, Cambridge, United Kingdom
  
The Edinburgh Building, Cambridge CB2 2RU, UK
40 West 20th Street, New York, NY 10011-4211, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de

Alarcón 13, 28014 Madrid, Spain
Dock House, The Waterfront, Cape Town 8001, South Africa

http://www.cambridge.org
© Martti Koskenniemi 2004
First published in printed format 2001
ISBN 0-511-03532-2 eBook (Adobe Reader)
ISBN 0-521-62311-1 hardback
I cannot resist the thought that if we were able to . . . refrain from

constant attempts at moral appraisal – if, in other words, instead of
making ourselves slaves of the concepts of international law and
morality, we would confine these concepts to the unobtrusive,
almost feminine, function of the gentle civilizer of national self-
interest in which they find their true value – if we were able to do
these things . . . then, I think, posterity might look back upon our
efforts with fewer and less troubled questions.
George Kennan, American Diplomacy (Expanded edn., University of

Chicago Press, 1984) pp. 53–54.
To the memory of Vieno Koskenniemi (1897–1989), the gentlest of

civilizers
Contents
Preface
page xi
List of abbreviations
xiv
Introduction
1
1
“The legal conscience of the civilized world”
11
A manifesto
12
An old-fashioned tradition
19
A transitional critic: Kaltenborn von Stachau
24
An amateur science
28
A time of danger
35
A meeting in Ghent, 1873
39
A romanticprofession: Bluntschli
42
A social conception of law
47
Method: enlightened inwardness
51
Towards a culture of human rights: Fiore
54
Advancing the liberal project
57
Limits of liberalism
67
Cultural consciousness
70
Culture as character
76
The elusive sensibility
88
2
Sovereignty: a gift of civilization: international lawyers and
imperialism 1870–1914
98
Ambivalent attitudes
99
Informal empire 1815–1870: hic sunt leones
110
The lawyers 1815–1870
112
The demise of informal empire in Africa
116
The Berlin Conference 1884–1885
121
vii
Contents
The myth of civilization: a logic of exclusion–inclusion 127
Looking for a standard
132
Between universality and relativism: colonial treaties 136
The myth of sovereignty: a beneficent empire
143
The limits of sovereignty: civilization betrayed
149
Occupation is nothing – Fashoda
152
Sovereignty as terror – the Congo
155
From sovereignty to internationalization
166
3
International law as philosophy: Germany
1871–1933
179
1871: law as the science of the legal form
182
From form to substance: the doctrine of the rational will 188
Between the dangerous and the illusory State
194
Rechtsstaat – domesticand international: Georg Jellinek 198
Rationalism and politics: a difficulty
206
Drawing lines in the profession
209
Publiclaw and the Hague Treaties
210
A pacifist profession? Kohler, Schücking, and the First World War
213
The internationalists: between sociology and formalism 222

1914
228
Getting organized
231
Beyond Versailles: the end of German internationalism 236
Ways of escape – I: Hans Kelsen and liberalism as science 238
Ways of escape – II: Erich Kaufmann and the conservative reaction
249
Break: the end of philosophy
261
4
International law as sociology: French “solidarism”
1871–1950
266
Internationalism as nationalism: the idea of France 270
From civilists to functionalists 1874–1918: Renault to Pillet 274
Solidarity at the Hague: Léon Bourgeois
284
The theory of solidarism
288
The war of 1914–1918 and solidarism
291
Scientificsolidarism: Durkheim and Duguit
297
International solidarity . . . almost: Alvarez and Politis 302
Meanwhile in Paris . . .
309
L’affaire Scelle
316
Solidarity with tradition: Louis Le Fur
317
viii
Contents
The solidarity of fact: Georges Scelle
327
Which solidarity? Whose tradition? The Spanish Civil War 338
The European Union
342
The twilight of the idea of France: between politics and pragmatism
348
5
Lauterpacht: the Victorian tradition in
international law
353
Tradition in modernity
353
A complete system
361
Between Zionism and assimilation
369
A political commitment
376
Nuremberg and human rights
388
The birth of pragmatism
399
A Grotian tradition?
406
Coda
411
6
Out of Europe: Carl Schmitt, Hans Morgenthau,
and the turn to “international relations”
413
A 1950 retrospective
415
Vision of a new order
418
The ambivalences of a Katechon (restrainer) 422
A discipline transforms itself: Schmitt on Scelle and Lauterpacht
424
Against liberal neutralizations and depoliticizations 426
“Whoever invokes humanity wants to cheat”
432
Schmitt and Morgenthau: the primacy of the political 436
Another retrospective
437
International law and politics: an asymmetrical relationship 440
The formation of a German thinker: between law and desire 445

The guardian of international law: sanctions
455
Schmitt and Morgenthau: the pedigree of anti-formalism 459
From international law to international relations
465
The heritage of realism in American international law 474
Empire’s law
480
A culture of formalism?
494
Epilogue
510
Bibliography
518
Index
558
ix
Preface
The essays in this book are inspired by many sources and reflect
various conversations I have had with international lawyers in the
course of the past four years or so. The initiator of the idea of the
book was Professor Sir Elihu Lauterpacht, who kindly invited me to
give the Sir Hersch Lauterpacht Memorial Lectures at the University
of Cambridge in 1998, and in that connection pointed out that this
privilege also involved a commitment to prepare the lectures for
publication. Eli’s hospitality in Cambridge in 1997 and the discussions
I had with him also underlie my interpretation of his father’s work in
chapter 5. As always, I am indebted to Professor David Kennedy
from the Harvard Law School for innumerable conversations and
collaborative projects, Dighton weeks and weekends, shorter and
longer periods together and in wider company in the Boston area,
Helsinki and other places, at various stages of writing of these
essays. But the only person to have read the whole of this work, and
whose comments and criticisms are reflected on every page, as in
everything about its author, is Tiina Astola. This book would not exist
without them.
Many other friends and colleagues have been involved. The
comments and work of Dr. Outi Korhonen are reflected in the
description of the culture of late nineteenth-century internationalists.
The account of international lawyers and imperialism (chapter 2)
draws on the important work of Professors Antony Anghie and
Nathaniel Berman, and from discussions I have had with them over
the years. That section owes much to the invitation I received from
Dr. Surya Subedi to give the Josephine Onoh Memorial Lecture at the
University of Hull in February 1999. I also want to thank the
participants in the international legal history project under Professor
Michael Stolleis at the Max Planck xi
Preface
Institute for Legal History in Frankfurt for the debate on persons and
problems relating to my German story (chapter 3), among them
particularly Dr. Betsy Roeben, whose work on Bluntschli I have
plundered in chapter 1 and Dr. Ingo Hueck whose writings on the
institutional aspects of the German interwar scene underlies sections
of chapter 3. I am grateful for a number of French friends and
colleagues, too, among them in particular Professors Pierre Michel
Eisemann and Charles Leben, who directed me to primary and
secondary materials without which I could not have made sense of
the French story in chapter 4. I also thank Doyen Vedel for
correspondence on Louis Le Fur, Dr. Oliver Diggelmann for a
discussion and a copy of his unpublished dissertation on Max Huber
and Georges Scelle as well as Professor Geneviève Burdeau and Mr.
Pierre Bodeau for providing relevant materials or references. Chapter
6 on Carl Schmitt and Hans Morgenthau and the
“fall” of international law collects several strands of conversation

over the years. Some of it draws on papers and discussions at a
conference organized by Dr. Michael Byers in Oxford in 1998, and a
continuous debate I have had with Professor Anne-Marie Slaughter
about the meaning and direction of her “dual agenda.” David
Kennedy’s work underlies much of the description of the American
scene. People with whom I have discussed various aspects of the
following essays but whose influence cannot be clearly allocated to
particular sections include Philip Allott, David Bederman, Thomas M.
Franck, Gunther Frankenberg, Benedict Kingsbury, Karen Knop, Jan
Klabbers, Mattias Kumm, Susan Marks, Reut Paz, Jarna Petman, and
Joseph Weiler. The librarians at the Library of Parliament (Helsinki)
were again as helpful as ever.
Colleagues at the Erik Castrén Institute of International Law and

Human Rights (Helsinki) bore without complaint the additional
burden of my absent-mindedness about current matters that needed
attention.
At home, Aino and Lauri took their father’s excessive book-

wormishness with a fine sense of irony. So did my mother, Anna-
Maija Koskenniemi.
I thank them all.
I could not have written this book without one year’s leave of
absence from the University of Helsinki, made possible by a grant
received from the Finnish Academy (Suomen Akatemia).
Parts of this book draw on materials that I have published earlier.
Chapter 5 on Lauterpacht is essentially the same essay that was

published in (1997) 8 European Journal of International Law (pp.
215–263).
Chapter 2 contains passages included in ‘International Lawyers and

Imperialism’ in Josephine Onoh Memorial Lecture 1999 (University of
Hull, xii
Preface
2000). Chapter 5 is a development of my ‘Carl Schmitt, Hans

Morgenthau and the Image of Law in International Relations’, in
Michael Byers (ed.), The Role of Law in International Politics (Oxford
University Press, 1999) pp. 17–34.
The cases where I have used existing translations of French or

German materials can be seen from the notes and the bibliography.
The rest of the translations are my own.
Martti Koskenniemi,
Helsinki, January 17, 2001
xiii
Abbreviations
AFDI
Annuaire français de droit international
AJIL
American Journal of International Law
Annuaire IDI
Annuaire de l’Institut de droit international
ARWP
Archiv für Rechts und Wirtschaftsphilosophie
ASIL
American Society of International Law
BYIL
British Year Book of International Law

EJIL
European Journal of International Law
ICJ
International Court of Justice
IDI
Institut de droit international
ILA
International Law Association
PCIJ
Permanent Court of International Justice
RdC
Recueil des cours de l’Académie de droit international RDI (Paris)
Revue de droit international
RDI
Revue de droit international et de législation comparée Reports
Reports of Judgments, Advisory Opinions and Orders
of the International Court of Justice
RGDIP
Revue générale de droit international public
ZaöRV
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht xiv
Introduction
I
This book grew out of the Sir Hersch Lauterpacht Memorial Lectures
that I gave at the University of Cambridge in the fall of 1998. It is,
admittedly, quite a bit longer than those original lectures were, but it
is still informed by the same interest. This was to expand upon an
article I had written a year earlier on Hersch Lauterpacht himself for
the European Journal of International Law and in which I had
attempted to cover the same ground I had done in a book ten years
earlier, but from an altogether different perspective. In that book I
had described international law as a structure of argumentative
moves and positions, seeking to provide a complete – even
“totalising” – explanation for how international law in its various
practical and theoretical modes could simultaneously possess a high
degree of formal coherence as well as be substantively
indeterminate.1 The result was a formal–structural analysis of the
“conditions of possibility” of international law as an argumentative
practice – of the transformational rules that underlay international
law as a discourse – that relied much on binary oppositions between
arguments and positions and relationships between them. But as
perceptive critics pointed out, whatever merits that analysis had, its
image of the law remained rather static. Even if it laid the
groundwork for describing the production of arguments in a
professionally competent international law practice, it fell short of
explaining why individual lawyers had come to endorse particular
positions or arguments in distinct periods or places. Even if it
claimed that all legal practice was a 1 Martti Koskenniemi, From
Apology to Utopia: The Structure of International Legal Argument
(Helsinki, Lakimiesliiton kustannus, 1989).

“politics of law,” it did not tell what the “politics” of international
lawyers had been. Like any structural explanation, it did not situate
the lawyers whose work it described within social and political
contexts, to give a sense that they were advancing or opposing
particular political projects from their position at universities, foreign
ministries, or other contexts of professional activity.
The Lauterpacht essay – the only one of the chapters below that has
been previously published as such – chose another approach. It tried
to put in a historical frame the development of the ideas and
arguments of one of the twentieth century’s most influential
international lawyers.
The 1998 lectures were an extension of that essay, an exploration of

why Lauterpacht came to hold the positions he did and what
happened to the heritage he left. This book can (but need not
necessarily) be read as a continuation of that effort. It constitutes an
experiment in departing from the constraints of the structural
method in order to infuse the study of international law with a sense
of historical motion and political, even personal, struggle. To the
extent that what emerges is a description of a particular sensibility,
or set of attitudes and preconceptions about matters international, it
might also be described as a series of essays in the history of ideas.
But in such case, no assumption about history as a monolithic or
linear progress narrative is involved, nor any particular theory about
causal determination of ideas or by ideas of something else. If
instead of “ideas,” the essays choose to speak of “sensibility,” this is
because the fluidity of the latter enables connoting closure and
openness at the same time, as does the more familiar but slightly
overbur-dened notion of “culture.” The international law that “rises”
and “falls”
in this book is, then, not a set of ideas – for many such ideas are
astonishingly alive today – nor of practices, but a sensibility that
connotes both ideas and practices but also involves broader aspects
of the political faith, image of self and society, as well as the
structural constraints within which international law professionals live
and work.
Like my earlier work, this book examines the rather surprising hold
that a small number of intellectual assumptions and emotional
dispositions have had on international law during its professional
period. This time, I have attempted to bring these assumptions and
dispositions together in the form of a series of narratives that traces
the emergence of a sensibility about matters international in the late
nineteenth century as an inextricable part of the liberal and
cosmopolitan movements of the day, and that dissolved together
with them some time during the second decade after the Second
World War. Like the liberal reformism which 2
Introduction
created it, modern international law was defeated as much by its

spectacular successes as its equally striking failures. Many of the
political objectives of the first modern international lawyers – the
men who set up the Institut de droit international in 1873 – were
sooner or later realized in their domestic societies: general suffrage,
social welfare legislation, rule of law. Support for international
institutions and advancing the international rule of law became
defining attributes to a new multilateral diplomacy, however much
“idealist” and “realist” accounts might have disagreed about their
centrality to the conduct of foreign policy.
But many large objectives proved to be unrealizable – global

federalism, peace, universal human rights – while some turned out
to have consequences that were the exact opposite of the lawyers’
expectations: the projection of Western sovereignty in the colonies is
the most conspicuous example. What was distinctive about the
internationalist sensibility was not only its reformist political bent but
its conviction that international reform could be derived from deep
insights about society, history, human nature or developmental laws
of an international and institutional modernity. While the first
generation of internationalists imagined that those insights were
embedded in their shared Victorian conscience, later generations
sometimes departed from this assumption in one or another
direction, only to return to it in a secondary, or default mode some
time in the immediate post-war era. The attempt to imagine
international law either as a philosophy or a science of the
development of societies that was pursued with energy in Germany
and France during the first half of the twentieth century failed to
produce or even support viable policies and collapsed with the
interwar world in 1939. The profession never really recovered from
the war. It was, instead, both depoliticized and marginalized, as
graphically illustrated by its absence from the arenas of today’s
globalization struggles, or turned into a technical instrument for the
advancement of the agendas of powerful interests or actors in the
world scene. As a sensibility, it was compelled to fight nostalgia, or
cynicism, or both.
II
This book is informed by two intuitions I have had about the history
of international law in the period from 1870 to 1960. One was the
sense that earlier accounts of the profession’s pedigree failed to give
an adequate sense of the radical character of the break that took
place in the field between the first half of the nineteenth century and
the emergence 3
of a new professional self-awareness and enthusiasm between 1869

and 1885. A central thesis of chapters 1 and 2 is that modern
international law did not “begin” at Westphalia or Vienna, and that
the writings by Grotius, Vattel, G. F. von Martens or even Wheaton
were animated by a professional sensibility that seems distinctly
different from what began as part of the European liberal
retrenchment at the meetings of the Institut de droit international
and the pages of the Revue de droit international et de législation
comparée from 1869 onwards. My second intuition was that
whatever began at that time came to an effective (if not formal) end
sometime around 1960. About that time it became clear that the
late-Victorian reformist sensibility written into international law could
no longer enlist political enthusiasm or find a theoretically plausible
articulation. Chapters 5 and 6 (the essays on Lauterpacht and
Morgenthau) contain the argument about precisely in what that
“end” consisted – the emergence of a depoliticized legal pragmatism
on the one hand, and in the colonization of the profession by
imperial policy agendas on the other.
In addition to telling the story of the “rise” and “fall” of international

law I wanted also to highlight the profession’s academic and political
enthusiasms and divisions during the approximately ninety years of
its prime, and to do this by focusing on the links between what are
too often portrayed as arid intellectual quarrels with the burning
social and political questions of the day. Much was at issue in those
debates for the participants, and we recognize that in the passionate
tone their arguments often took. I did not, of course, want to
resuscitate old debates out of antiquarianism, but to examine an
additional intuition I had that the profession in its best days could
not have been as “idealistic” or “formalistic” as standard histories
have suggested. In fact, as chapters 3 and 4
on Germany and France hope to make clear, the received image not
only fails to articulate the variety of approaches and positions that
lawyers took in their writings and practices, but is sometimes
completely mistaken. One of my desires is that the ensuing account
will finally do away with the image of late nineteenth-and early
twentieth-century lawyers as “positivists” who were enthusiastic
about “sovereignty.” If any generalization can be made in this
regard, it is rather that these men were centrists who tried to
balance their moderate nationalism with their liberal
internationalism. In Europe, they saw themselves as arguing against
the egoistic policies of States and in favor of integration, free trade,
and the international regulation of many aspects of domestic society,
including human rights. Their credo was less sovereignty than a
critique of sovereignty.
Introduction
The most important exception to this was their support of official

imperialism, as discussed in chapter 2 below. Until 1914, they did
advocate the extension of Western sovereignty beyond Europe as
the only organized way to bring civilization to their “Orient.” After the
First World War, however, they started increasingly looking for
internationalized solutions to colonial problems.
Finally, the recounting of the story about the “rise” and “fall” of
international law seemed to me necessary not only because of what
it might tell us of the profession as it was then but what it could say
of it as it is now. I hope that these essays provide a historical
contrast to the state of the discipline today by highlighting the ways
in which international lawyers in the past forty years have failed to
use the imaginative opportunities that were available to them, and
open horizons beyond academic and political instrumentalization, in
favor of worn-out
internationalist causes that form the mainstay of today’s

commitment to international law.2 This is not to say that I should
like to propose a return to the themes of academic or political
controversy in which the protagonists of this book were once
engaged. Return to “gentle civilizing” as a professional self-definition
is certainly no longer plausible. But this is not to say that
international lawyers could not learn from their fathers and
grandfathers in the profession. Understanding the way they argued
in particular situations, often in great crises and sometimes heavily
involved as participants or even victims, provides a sense of the
possibilities that could exist today. The limits of our imagination are
a product of a history that might have gone another way. There is
nothing permanently fixed in those limits. They are produced by a
particular configuration of commitments and projects by individual,
well-situated lawyers.
So although this book covers quite a bit of the same ground as the
one I published ten years ago, the move from structure to history
makes this a completely different work. Or almost does. For the play
of apology and utopia is of course effective in the writings of the
lawyers I discuss below and continues to account for the fact that
they became highly regarded representatives of the profession. But I
have consciously tried to downplay that aspect of their work, and to
focus instead on the political and in some cases biographical context
in which they worked and on the professional and political projects
that they tried to advance through their 2 Cf. also Martti
Koskenniemi, “Between Commitment and Cynicism; Outline of a
Theory of International Law as Practice,” in Collection of Essays by
Legal Advisors of States, Legal Advisors of International
Organizations and Practitioners in the Field of International Law
(New York, United Nations, 1999), pp. 495–523.
practice, on the struggles for power and position in which they were
engaged, and on their defeats and victories.
III
The move from structure to history in the analysis of international
law is thus the first ambition of this book. But to refer to “history”
probably begs more questions than it answers. Lawyers – especially
those with an interdisciplinary interest – should bear in mind that the
grass is not necessarily any greener in the adjoining fields.
Historiography, like sociology or philosophy, is at least as much
riddled with methodological controversy, and uncertainty about
premises, as law is. What kind of history, then, do the following
chapters offer to the reader? Two alternatives had to be discounted
at the outset. One was the grand history that would paint a canvas
of “epochs” following each other under some metahistorical law
about the workings of “culture” or “power” on the destinies of
peoples or civilizations, patterns of creation, flourishing, and decline.
There already were such histories and little could be added to them
that would be new or interesting.3 Perhaps more importantly, they
implied philosophical, methodological, and political assumptions that
seemed hard to sustain. Already the identification of the relevant
“epochs,” not to say anything about the ways in which they reduced
a complex world into hierarchical blocs, following each other in a
more or less monotonous parade headed by laws of
interdependence, Great Power policies, or perhaps “progress,”
seemed burdened with contestable assumptions about what was
central and what peripheral, what valuable and what harmful in the
past, and failed to address the question 3 The standard English-
language introduction remains Arthur Nussbaum, A Concise History
of the Law of Nations (Revised edn., New York, Macmillan, 1954).
Like that work, most of the writing in the field has been undertaken
by Germans. See particularly Wilhelm Grewe, Epochen des
Völkerrechtsgeschichte (Baden-Baden, Nomos, 1984) recently
published as The Epochs of International Law (trans. and rev. by
Michael Byers, Berlin and New York, de Gruyter, 2000). Ernst
Reibstein, Völkerrecht. Eine Geschichte seiner Ideen in Lehre und
Praxis (2 vols., Freiburg and Munich, Alber, 1958 and 1963), is a
collection of citations, chronologically arranged to support the
author’s sometimes idiosyncratic theses. Shorter recent introductory
overviews are Karl-Heinz Ziegler, Völkerrechtsgeschichte. Ein
Studienbuch (Munich, Beck, 1994) and Antonio Truyol y Serra,
Histoire du droit international public (Paris, Economica, 1995). Still
impressive is Robert Redslob, Histoire des grands principes du droit
des gens depuis l’antiquité jusqu’à la veille de la grande guerre
(Paris, Rousseau, 1923). An extensive (though not exhaustive)
bibliography is Peter Macalister-Smith and Joachim Schwietzke,
“Literature and Documentary Sources relating to the History of
Public International Law: An Annotated Bibliographical Survey”
(1999), 1 Journal of the History of International Law, pp. 136–212.
Introduction
of narrative perspective. Moreover, having to pay attention to

enormously difficult questions about the miracle of historical
progression, or the nature of the “law” employed in such narratives,
would have undermined my wish to focus on something much less
ambitious and more immediately relevant – namely, how the
profession ended up being what it is today. Such histories are
reductionist in the sense that they, like the structuralism of my
earlier book, flatten the work of individual lawyers into superficial
decorations on the surface of the silent flow of periods into one
another, the emergence and transformation of great ideas or legal
principles.
I wanted to bring international law down from the epochal and

conceptual abstractions. I wanted to examine the way it has
developed as a career choice for internationally minded lawyers in
the course of a relatively brief period, the experiences of which
would still resonate in the lives of today’s international lawyers. It
may be too much to say that international law is only what
international lawyers do or think. But at least it is that, and
examining it from the perspective of its past practitioners might
enhance the self-understanding of today’s international lawyers in a
manner that would not necessarily leave things as they are.
Quite apart from such a practical concern, I also wanted to look

beyond the commonplace view that there are single, homogeneous
periods when
“international law” has been either this or that. Like any social
phenomenon, international law is a complex set of practices and
ideas, as well as interpretations of those practices and ideas, and the
way we engage in them or interpret them cannot be dissociated
from the larger professional, academic or political projects we have.
I wanted to articulate some of those projects, and thus to describe
the lawyers as actors in particular social dramas. International law is
also a terrain of fear and ambition, fantasy and desire, conflict and
utopia, and a host of other aspects of the phenomenological lives of
its practitioners. I also wanted to take a step in the direction of
describing it in terms of their occasionally brilliant insights and
(perhaps more frequently) astonishing blind-ness, the paradoxes of
their thought, their intellectual and emotional courage, betrayals and
self-betrayals.
For the fact is that although international lawyers were of course

interested in the same phenomena in particular periods, they treated
those phenomena from a variety of standpoints that reflected
national backgrounds, political preferences, and personal
idiosyncrasies.
Although all interwar lawyers were writing about the League of

Nations, it would be completely wrong to assume that they wrote
from 7

a similar perspective – indeed, that there would have been an
orthodox position about the League in the profession in the first
place. Although the alternative positions were perhaps not so many
– one could be either broadly “enthusiastic” about or “disappointed”
with the League, or take a principled or a strategic attitude towards
it – merely to describe those positions seemed still too “flat.” One
needed to describe those positions in the context in which they were
taken. For example, one could be “for”
the League because one was a pacifist, because that suited the
foreign policy of one’s patria, or in order to forestall attempts
towards a more intrusive federalism in Europe, or any mixture of
such reasons. In order to attain a credible description that accounted
for unity as well as variety one needed to understand each position
by reference to some sort of a contextual background from which it
arose.
The opposite alternative would have been to abstract the larger

context altogether and to write biographies of individual lawyers.
This, too, is an old tradition of writing history in the profession,
though it had fallen out of fashion in recent decades.4 The “realist”
spirit was incompatible with the assumption that individual lives
could have a significant effect on the grand course of international
politics. However, the discredit into which “grand history” has more
recently fallen as well as the changing political circumstances may
be giving biographical history a new relevance. The recapitulation of
the Western Canon in the field, as begun in the pages of the
European Journal of International Law, follows naturally from the
political changes since 1989. It may now (again) seem possible to
describe the history of the field in terms of the progress of Western
humanitarian liberalism from Vitoria to Gentili, Grotius to Vattel,
Oppenheim to Lauterpacht.5 But whatever the value of such a
biographical orientation, as method it seems no more credible than
epochal history. It, too, reduces the field – this time to a projection
of a few great minds – and fails to account for the external
pressures to which the doctrines of those men sought to provide
responses. Much of recent historiography emphasizes history as
narratives. This seemed a much more useful perspective and a
challenging one as well.
4 Cf. Albert Geouffre de Lapradelle, Maîtres et doctrines du droit des

gens (2nd edn., Paris, Editions internationales, 1950); Les fondateurs
du droit international (Intr. Antoine Pillet, Paris, Giard, 1904). Truyol
y Serra, Histoire, also belongs largely to this group.
5 Cf. the Symposia in the European Journal of International Law on

Georges Scelle (1990), 1 European Journal of International Law (
EJIL), pp. 193–249; Dionisio Anzilotti (1992), 3
EJIL, pp. 92–169; Alfred Verdross (1995), 6 EJIL, pp. 32–115;

Hersch Lauterpacht (1997), 8 EJIL, pp. 215–320; Hans Kelsen
(1998), 9 EJIL, pp. 287–400.
Introduction
No doubt, interest in the historical aspects of the profession is

increasing, even dramatically, as evidenced for instance in the
launching of the Journal of the History of International Law/Revue
d’histoire du droit international in 1999. The best new writing in the
field emerges from a theoretical awareness of the difficulties in
continuing doctrinal work as in the past without taking stock of the
narratives with which the field has justified them and re-telling those
stories so as to make methodological or political points. As
elsewhere in the social sciences, Michel Foucault’s work has been
very influential in proposing a study of international law’s past that
would focus on discontinuities rather than continuities, the
relationship between narratives and power as well as delineations of
disciplinary autonomy so as to effect subtle maneuvers of exclusion
and inclusion.
One of the most remarkable feats in the discipline’s self-construction
has been its overwhelming Eurocentrism: so it is no wonder that
much of that new work has concentrated in describing international
law as part of the colonialist project.6 Chapter 2 makes a small
contribution to those studies. But there are other exclusions and
inclusions as well, some of which have to do with disciplinary
struggles within the legal profession (international law’s relations to
private international law, or constitutional law, or publiclaw
generally), some between law and other areas of study, such as
sociology or philosophy, some between professional activities (law –
politics – diplomacy), others with the production or reproduction of
more general cultural hierarchies. If all the protagonists in this book
are white men, for instance, that reflects my concern to re-tell the
narrative of the mainstream as a story about its cosmopolitan
sensibilities and political projects: indeed to articulate precisely in
what the limits of its horizon consisted. This should not, however, be
read so as to exclude the possibility – indeed, the likelihood – that in
the margins, for instance as objects of the administrative regimes
developed by or with the assistance of international lawyers, there
have been women and non-Europeans whose stories would
desperately require telling so as to provide a more complete image
of the profession’s political heritage.
Thus the following essays are neither epochal nor biographical in the
various forms in which such histories are usually written. They form
a kind of experimentation in the writing about the disciplinary past in
6 Here I think especially of the new work by Antony Anghie, David
Bederman, Nathaniel Berman, Anthony Carty, David Kennedy, Karen
Knop, Outi Korhonen, Carl Landauer, and Annelise Riles.
which the constraints of any rigorous “method” have been set aside
in an effort to create intuitively plausible and politically engaged
narratives about the emergence and gradual transformation of a
profession that plays with the reader’s empathy. The essays do not
seek a neutral description of the past “as it actually was” – that sort
of knowledge is not open to us – but a description that hopes to
make our present situation clearer to us and to sharpen our own
ability to act in the professional contexts that are open to us as we
engage in our practices and projects.
In this sense, it is also a political act. I hope that it does not treat its
protagonists unjustly. But if it seems that it does, then I have
Goethe’s ironic response to fall back on, namely, that it is the one
who acts that is always unjust, and the one that merely observes,
that is just.
10
“The legal conscience of the
civilized world”
Man in his conscience is no longer bound by the ends of particularity.

This is the higher standpoint, the standpoint of the modern world.
We have now arrived at the stage of consciousness, which involves a
recoil upon itself. Earlier ages were more sensuous, and had before
them something external and given, whether it was religion or law.
But conscience is aware of itself as thought, and knows that my
thought is for me the only thing that is binding.
G. W. F. Hegel, Philosophy of Right, § 136. Addition.
An observer of international politics in the 1860s with liberal

sympathies could not fail to be disturbed about the apparent
coincidence of two facts. The preceding half-century had constituted
one of the longest periods of peace in European history, punctured
only by occasional and limited military conflict in the margins. The
long calm had created conditions for an unprecedented economic
growth whose fruit may have been unevenly distributed but seemed
tangible enough as proof that European civilization had been
launched on an irreversible march towards economic and spiritual
progress.
On the other hand, peace had been created and enforced through a
pact among five Great Powers, three of which (Austria, Prussia, and
Russia) were governed by absolutist monarchs whose main motive
for cooperation seemed to be their shared wish to curb any proposal
for representative government or increased franchise. If there was
indeed economic progress, its geographic scope was limited to the
West while much the largest part of Europe was untouched by the
benefits of industrialization or free trade. Progress, while undeniable,
had grown out of a peace that seemed both precarious – as had
been shown by the Crimean 11
War – and a positive obstacle to the spread of liberal ideas.1 Men

who extolled the spirit of liberalism in the mid-Victorian age were
compelled to conclude that the prevailing economic and political
conditions by no means guaranteed further progress and were
positively responsible for the presence of that other redoubtable
nemesis, revolution.
A manifesto
Under such conditions, many felt that action needed to be taken in
order to ensure the spread of liberal ideas. This was one of the
purposes of the Association internationale pour le progrès des
sciences sociales that was set up in Brussels in September 1862
following the example of a British association that had been
established five years earlier with the same name.2
Among the participants to the Brussels Conference were three young

lawyers, Gustave Rolin-Jaequemyns (1835–1902), an avocat from
Ghent, Tobias Asser (1838–1913), 24-year-old lawyer from
Amsterdam who had just been appointed Professor of Contemporary
Law at what today is the University of Amsterdam, as well as John
Westlake (1828–1913), barrister of Lincoln’s Inn, author of a well-
received 1858 treatise on private international law and Secretary to
the British association.3 The three men met at and outside the
formal sessions of the conference and became friends. The following
year Rolin invited Asser and Westlake to stay with him in Ghent
during the Association’s second conference, of which he was the
principal organizer.
The Association internationale advocated liberal ideas, religious

tolerance, freedom of opinion and free trade, as well as the
development of contacts between peoples.4 It sought to provide a
secular and scientific 1 Cf. e.g. Charles Vergé, “Le droit des gens
avant et depuis 1789,” in G. F. de Martens, Précis de droit des gens
moderne de l’Europe, précedé d’une Introduction et complété par
l’exposition des doctrines des publicistes contemporains et suivi
d’une Bibliographie raisonnée du droit des gens par M. Ch. Vergé (2
vols., 2nd French edn., Paris, Guillaumin, 1864), pp. xlv–xlvi.
2 The National Association for the Promotion of Social Science

(NAPSS) had been set up in Britain in 1857 to deal with social reform
and improvement of legislation. It was divided into five
“departments” (legal reform, penal policy, education, public health,
and social economy), functioning as a kind of unofficial Parliament
that was regularly addressed by leading liberal politicians and
intellectuals such as Gladstone or John Stuart Mill. Stefan Collini,
Public Moralists. Political Thought and Intellectual Life in Britain
1850–1930 (Oxford, Clarendon, 1991), pp. 210–211.
3 A Treatise on Private International Law, or the Conflict of Laws,

with Principal Reference to its Practice in the English and Other
Cognate Systems of Jurisprudence (London, Maxwell, 1858). Another
participant at the meeting was Rolin’s friend the Swiss Alphonse
Rivier, later Professor at the University of Brussels and Secretary-
General to the Institut de droit international.
4 Cf. Ernest Nys, “Notice sur Rolin-Jaequemyns” (1910), Annuaire de

l’Académie royale des sciences, des lettres et des beaux-arts de
Belgique, pp. 57–58; T. M. C. Asser, “Le droit 12
basis for liberal politics, no longer associated with early

Enlightenment rationalism or deductive utilitarianism.5 Some French
members, however, wished to use the Association for radical or
revolutionary purposes and after four conferences it broke up
leaving in the minds of the three men their fruitful cooperation in the
section on comparative law, and their friendship.
In the course of a business visit to Amsterdam in July 1867, Rolin

again met with Asser and, during a walk in the forest of Haarlem,
the idea to set up a scientific legal journal on an international basis
arose.6
Such a journal could propagate liberal views and experiences with

legislative reform all over Europe. Later that same summer Rolin
visited London, carrying the proposal to Westlake, who agreed that
the idea was excellent but declined to assume a principal role in the
project. Rolin and Asser then prepared a first plan for a publication
that would treat questions of private international law and
comparative law on an international and reformist basis. In a
prospectus, they observed two important features of the age: The
national spirit was waking up and being strengthened all over
Europe; simultaneously, it was being tempered by l’esprit
d’internationalité, a new spirit that taught nations and races to follow
certain common principles not only in their mutual relations but also
in their domestic legislation. Without renouncing their autonomy,
States had come to co-operate and to recognize “the superior unity
of the great human society.”7 Thanks to this new spirit, exact
sciences, industry, and economics had recently made great progress.
Now it was law’s turn.
international privé et droit uniforme” (1880), XII Revue de droit

international et de législation comparée ( RDI ), pp. 7–9. On the
strength of an appeal signed, among others, by Rolin, Asser, and
Westlake, the association was re-established in 1889 under the
name Société d’études politiques et sociales. Cf. Gustave Rolin-
Jaequemyns, “Fondation, à Bruxelles, d’une société politique et
sociale” (1889), XXI RDI, pp. 501–505.
5 The Association sought to back its reform proposals with

sociological studies of European and “primitive” societies, responding
thus to the need for a historical and functionally oriented method
that had seized liberal imagination in the second third of the century.
Cf. generally J. W. Burrow, Evolution and Society. A Study of
Victorian Social Theory (Cambridge University Press, 1966).
6 T. M. C. Asser, “Fondation de la revue” (1902), 2/IV RDI, p.111. Cf.

also Ernest Nys,
“La science de droit des gens,” in Memories of John Westlake

(London, Smith & Elder, 1914), pp. 48–52.
7 “L’unité supérieure de la grande société humaine,” “Prospectus”

(avant-projet, 1867) (1902), 2/IV RDI, pp. 116–117. The concept of
“internationalité” went further than
“internationalism,” that connoted the interdependence-driven

process of increasing cooperation and development of common
interests between States. The former notion also connoted the
humanization of national policies and the development of a liberal
spirit. Cf. Betsy Roeben, “Johann Caspar Bluntschli, Francis Lieber
und das moderne Völkerrecht,” PhD thesis, University of Frankfurt,
on file with author (2000), pp. 153–156.
13
Legislators and jurists needed to learn about the laws and legislative
projects of different countries so as to better appreciate the effects
of proposed domestic reforms and to reduce conflicts that might be
caused by differing laws. Today, the prospectus declared, nobody
who wanted to ameliorate social conditions could afford to neglect
the study of comparative law.8
Westlake agreed to the scope and spirit of the prospectus although

he wondered whether the national spirit always worked in the
direction of peace and objected to the appeal to vague notions such
as the “conscience of the age.” The text was therefore amended so
as to replace the esprit d’internationalité by a less controversial
reference to how nations (“ces grandes individualités collectives”)
had recently ceased regarding each other as enemies and started to
co-operate for the furtherance of common aims.9 Rolin and Asser
then communicated the prospectus to Pasquale Mancini (1817–
1888) of Turin, Professor of Public, Foreign, and International Law10
and member of Sardinia’s Parliament from the constituency of the
Democratic Left, already a famous advocate of the nationalities
principle, whose prestige and experience they wished to enlist.
Mancini gave enthusiastic support to the project, proposing that the
journal should also treat questions of international law proper.11 The
text was revised accordingly and the first issue of the Revue de droit
international et de législation comparée – the first international law
journal – was published at the end of 1868.
In the manifesto that headed the first issue, Rolin inaugurated the
Revue as a professional forum for liberal legislative reform in Europe.
Comparative study of legislation was instrumental in this, he noted,

with specific reference to Bentham and Montesquieu, and then listed
his agenda:
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 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.12
18 Roeben, “Bluntschli,” pp. 117–118.
9 Asser, “Fondation de la revue,” p. 112.
10 A Chair instituted for him in 1850. Cf. Rodolfo di Nova, “Pasquale

Stanislao Mancini,” in Institut de droit international, Livre de
centenaire: évolution et perspectives du droit international (Basle,
Karger, 1973), p. 5.
11 Asser, “Fondation de la revue,” p. 113.
12 Gustave Rolin-Jaequemyns, “De l’étude de la législation comparée

et de droit international” (1869), I RDI, p. 11.
14

And so on. It was a veritable shopping-list of liberal reform that was
to be promoted by the new journal. But the manifesto also dealt
with questions of international law proper. Rolin pointed to the
increasing influence of humanitarian ideas in the limitation of
warfare and in the conduct of hostilities. The 1864 Geneva
Convention had established provisions for the treatment of wounded
and sick soldiers and, while Rolin was writing, a conference was
sitting in Brussels, aiming to agree on additional principles for the
humanization of warfare. The journal could discuss such projects so
as to spread awareness about them. For, Rolin wrote, although it
had become common to treat unilateral acts by and treaties between
States as the sources of international law, their force was not due to
their form – after all, “on les viole aussi souvent qu’on les
invoque.”13 Their force arose from public opinion. Even in breaching
their compacts, States made excuses in a way that showed that they
sought justification before such opinion.
Diplomacy was not trustworthy. In 1815, the Great Powers had

arrogated to themselves the role of guarantors of peace. But had
they abided by their proclaimed principles? Had they defended the
weak against the strong? The questions were purely rhetorical. The
Holy Alliance and the Congress, Rolin wrote, “had turned Kantian
ideas in favor of absolutism and dressed them in the garb of
mysticism.” The reaction had been inevitable: revolutionary ideas
spread everywhere and Europe was divided into two hostile camps:
“the alliance of peoples challenged that of the Princes.”14 In this
situation, public opinion took on a mediating role:
In international law this opinion is really and rightly the queen and
legislator of the world. It is the voice of reason itself . . . And it is
finally also the progressive expression of that natural law which
Grotius had defined so well and so profoundly.15
But public opinion was not whatever uncultivated whim pleased the
masses. On the contrary:
We mean a public opinion that is serious and calm, that is based on
the application of certain principles of universal justice, with constant
elements, an 13 Rolin-Jaequemyns, “De l’étude de la législation
comparée et de droit international,”
p. 235.
14 Rolin-Jaequemyns, “De l’étude de la législation comparée et de

droit international,”
p. 256.

pp. 225–226.
15
opinion that is gradually confirmed and generalized into the

judgment of history.16
Formal State acts may be just or unjust, right or wrong. They could
therefore not be the fundamental source of the law of nations.
Whether they should be obeyed depends on whether they were
accepted by the civilized conscience of peoples:
Thus the documents usually referred to as the sources of

international law receive their binding force from a common source,
human conscience, manifested in the collective opinion of
enlightened men. But this conscience is not stationary; it is
eminently progressive.17
But public opinion was ephemeral and without a formal channel of

expression. There was no international legislation. Therefore, a
particular burden for the development of international law fell upon
science:
“In external law it is science, or rather the conscience of humanity

that is the source, the tribunal and the sanction of positive law.”18
In this way, Rolin’s imagination amalgamated the two great
nineteenth-century ideas, science and conscience. The man of legal
science became the representative – the organ – of humanity’s
conscience. Public opinion crystallized in a legal scholarship that
proceeded by way of introspection.
At the time of writing his manifesto, Rolin was a member of the

Belgian liberal party’s moderate – “doctrinaire” – wing and an activist
of social causes.19 Two years earlier he had set up the Gentsche
Volksbank on the basis of German cooperative ideals that he
admired. He had no background in international law. He was no
naturalist or philosopher.
On the contrary, he was a man of action, a parliamentarian and

future minister in Frère-Orban’s liberal government in 1878–1884
and a legal adviser to the King of Siam in 1892–1901. The reflexions
in the first issue of the Revue were not drawn from philosophical
contemplation but expressed Rolin’s confidence in the ability of his
liberal sensibility to capture reason and progress in their authenticity.
After the manifesto, Rolin seldom ventured into legal or political 16

Rolin-Jaequemyns, “De l’étude de la législation comparée et de droit
international,”
p. 225. For the role of public opinion, cf. also Francis Lieber, On Civil
Liberty and Self-Government (Philadelphia, Lippincott, 1859), pp.
405–416.

p. 228.
p. 225.
19 For biographical details, cf. the obituaries in (1902), 2/IV RDI, pp.
88–122 and Nys,
“Notice sur Rolin-Jaequemyns,” pp. 53–87.
16
theory. In his prolific writings in the Revue he often reported on the

activities of professional organizations and inaugurated a new genre
of legal writing – the chronique de droit international – that allowed
him to review and comment upon the international events of the
day. This created a practical means for him to apply the view of the
jurist as the organ of liberal public opinion that often felt strongly
about international matters such as the Balkan War of 1887–1888,
the Russian advances in the Caucasus, or the Turkish treatment of
Christians, on which he focused his detailed commentary.
In fact, none of the men behind the Revue came from the tradition
of Grotius, or the school of “European Public Law” that had
dominated international legal writing from Vattel well into the mid-
nineteenth century. None was a lawyer–philosopher in the vein of
Suarez or a diplomat like Wheaton. Like Rolin, Asser was and
continued as a practic-ing lawyer in addition to holding a university
chair. In later years, he was instrumental in setting up the Hague
Conference on Private International Law and undertook a number of
activities in the field of unification of private law. He failed to get
elected to the Dutch Parliament but did secure the Nobel Peace Prize
in 1911. Westlake had practiced as a barrister since 1854 and, aside
from being a “thoroughly trained and competent equity lawyer”20
was also a “convinced and unflinching liberal.”21 After a brief period
in the House of Commons he was elected Whewell Professor of
International Law in Cambridge in 1887 but continued taking part in
various foreign policy activities including the British Government’s
Balkan Committee and the manifesto in favor of Finland.
Establishing professional journals was one means whereby the mid-

Victorian generation institutionalized the various scientific disciplines
–
including economics and social sciences.22 Rolin’s objective, too,

was to organize reformist lawyers interested in contacts with other
countries and in international affairs around a tangible focal point
that his journal was to provide. Up until then, international law had
been an affair of professors and philosophers, diplomats with an
inclination to reflect on the history and procedure of their craft. Now
it was to be discussed in the pages of the Revue like any legal
problem from the status of women 20 A. V. Dicey, “His Book and His
Character,” in Memories of Westlake, p. 24.
21 Lord Courtney of Penwith, “Public Affairs,” in Memories of

Westlake, p. 61.
22 Cf. Peter Gay, The Cultivation of Hatred. The Bourgeois

Experience: From Victoria to Freud (5
vols., New York, Norton, 1993–2000), III, pp. 484–485; Collini,

Public Moralists, p.
213.
17
to the reform of labor legislation, with focus on recent events and

reforms and contributions from all over Europe.
The Revue reflected the agenda of its founders in a variety of
ways.23
The initial volumes focused on the reform of penal law – particularly

the abolition of capital punishment – as well as on new social
legislation, including laws on child labour, education, and public
assistance. Private international law figured prominently in the form
of articles on nationality, extradition, and enforcement of sentences.
These were standard reformist themes. During its first twenty years,
the Revue reported extensively on proposals for increasing
arbitration and on the meetings of peace movements, on the Institut
de droit international and on the Committee for reform and
codification of international law (in 1895
renamed the International Law Association). Gradually, however,

public international law came to occupy increasing space, mainly at
the expense of comparative law and commentary on domestic legal
reform, marking the deepening specialization of these fields and the
gradual replacement of Rolin’s culturally oriented esprit
d’internationalité by a more professional focus on intergovernmental
cooperation and conflict.
The Revue was born out of a sensibility that looked for social
progress, emphasized responsibility, and sought a via media
between individualism and collectivism, abstract speculation and
political action. It was democratic but fearful of the masses,
reformist but bourgeois. In psychoana-lytic language it might be
characterized in terms of the repression of extremism and a
sublimation of aggression into a more or less successful toleration of
variety, of different shades of grey.24 Its spirit was both nationalist
and internationalist – though opposed to “extreme” variants of both.
It was politically “progressive” inasmuch as it rejected monarchic
absolutism and “conservative” to the extent that it saw revolution 23
Aside from Rolin’s programmatic articles on private and public
international law, and the first of his series of chroniques, the first
issue contained an article on the abolition of corporal punishment in
France in 1867 together with a comparative review of corporal
punishment in various European States. Franz von Holtzendorff
(1829–1889) from Berlin reviewed recent publications on the prison
system, arguing against absurdly long sentences and in favor of
prison leave. Pradier-Fodéré (1827–1904), consultant to South
American governments, criticized the Western misuse of
capitulations in Turkey and argued in favor of their abolition. The
French essayist, poet, and historian Edouard Laboulaye (1811–
1883), Professor of Comparative Legislation at the Collège de France
and later a member of the French National Assembly, wrote a short
piece on the lack of historical perspective in Montesquieu’s Esprit des
lois while the Argentinian lawyer–diplomat Carlos Calvo (1824–
1906), reiterated the Calvo doctrine – that governments should not
be held responsible for damage caused by acts of domestic
insurgents.
24 Gay, The Cultivation of Hatred, p. 526.
18
in every shade of socialist agitation. Unlike the peace movement, it

was not averse to governmental activities – after all, liberals were
increasingly involved in European governments – and hoped to
channel its reforms through diplomacy. Its active base was narrow,
however. The number of contributors remained low even after the
journal became an organ of the Institut de droit international in
1875 and decreased by the establishment of the Revue générale de
droit international public in Paris in 1894, after which time it started
to become identified as a distinctly “Belgian” publication (an
assessment hardly counteracted by the fact that as Rolin left his
editorship it was continued by his brother Albéric and his son
Edouard).
In his manifesto, Rolin made no reference to earlier continental
writing on international law – although he did dwell briefly on
humanitarian ideas and federalist proposals by Rousseau, Kant, and
others. He completely passed over the treatises that had come out
earlier in the century, particularly in Germany, written by experts in
public law, with an interest in international affairs often triggered by
consultant work to a sovereign. The founders of the Revue sought a
complete break from that tradition: its focus had been too narrow,
its ambition too limited. Indeed, it must have seemed more part of
the problem than an instrument for its resolution.
Perhaps the most famous representative of that tradition had been

Georg Friedrich von Martens (1756–1822), Professor at the
University of Göttingen until 1808 and counsellor to the Courts of
Westphalia and Hanover.25 A close observer of diplomatic events
and publisher, since 1790, of the extensive Recueil de traités, von
Martens had prepared in 1821 a completely revised third edition (in
French) of his 1796 introduction to European international law.26
The concept of law employed in that book had been that of the fully
rational social compact.27 Like individuals in the natural state,
European States had contracted positive rules so as to complement
and mitigate natural law and to guarantee its realization – to
determine uncertain points, to modify its rigors, sometimes to set
aside the reciprocity of rights that it initially provided.28 But 25 For
biographical detail, cf. Arthur Nussbaum, A Concise History of
International Law (2nd rev. edn., New York, Macmillan, 1954), pp.
179–185.
26 I have here used the 1864 edn. prepared by Vergé of the Précis
du droit des gens moderne de l’Europe.
27 Martens, Précis, I, pp. 37 § 2, 40–41 § 4.
28 Martens, Précis, I, p. 46 § 6.
19
no general code had emerged to link Europe into a federation. It

was up to legal science to abstract general rules from the relations
between European States in order better to serve as the handmaid
of cultivated European diplomacy.29
What von Martens understood by this was reflected in how he

guided his reader by the hand through the political relations of
European States after the Congress of Vienna, proceeding by an
almost endless series of definitions and classifications – distinctions
between fully sovereign and half-sovereign States, maritime and
continental powers, powers in different geographic locations and of
different rank, States classified by reference to constitutional type
(democracy – aristocracy – monarchy), again divided and subdivided
into several variants.30 The discussion of the law’s substance –
treaties, commerce, war – was constituted of typologies of
procedural relationship.31 The natural starting-point was always the
existence of States, treated by analogy as individuals, self-sufficient,
independent, and free.32 Political society emerged from the formal
reason that created constraint out of pure self-regard. That is why
every State was entitled to take action – even military action – if a
disruption of the balance of power might threaten its
independence.33
Such purely rational law was completely static. There was no

progress or improvement – apart from the narrow sense of universal
reason being sometimes less, sometimes better observed. Its history
was Enlightenment history: jus gentium had been known to Greek
and Roman antiquity but fallen with Rome. Now it was time for
reason to reassert itself against the superstitions of the intervening
ages. After the Napoleonicintermission, the law would now return to
its rational basis, agreed at Westphalia and Utrecht, fortified by the
lessons of the Enlightenment.34 This was also a completely
procedural law, dealing with how treaties were made, how territory
was acquired, how war was waged. It contained no conception of
society or culture beyond diplomatic form and protocol. It was not a
conservative, even less a legitimist law that von Martens described.
It could even be seen as an extrapolation of the principles of the
liberal Rechtsstaat.
But it was a narrow and a distant law that looked like the complex
rules of some exotic variation of the game of chess. As such it was
completely alien to the espritd’internationalité that animated the
circle of Rolin and his friends.
29 Martens, Précis, I, p. 56 § 8.
30 Martens, Précis, I, pp. 91–117 § 18–29.
31 Cf. e.g. Martens, Précis, II, pp. 201–273 § 263–289.
32 Cf. e.g the analogy between possession of territory and

ownership, in Martens, Précis, I, p. 151 § 44.
33 Martens, Précis, I, pp. 322–336 § 120–124.
34 Martens, Précis, I, p. 60 § 10, p. 83–88 § 17.
20
It was no different with the teachings of Johann Ludwig Klüber

(1762–1837), perhaps the most important representative of the
Vormärz period in German public law in 1815–1848. Klüber had
published his Droit des gens moderne de l’Europe in 1819 as
Professor of Public Law at the University of Heidelberg and
counsellor to the Grand Duke of Baden.35
His good contacts with the Prussian Chancellor Hardenberg – a

“liberal bureaucrat out of the eighteenth-century school of
enlightened despotism”36 – had provided him entry into the Vienna
negotiations in 1814–1815 of which he published a nine-volume
overview.37 In his work on the public law of the German
Confederation he had advocated a
“dogmatic–historical” method38 with a stress on exact

documentation and literary referencing – tasks which he combined
with a talent for precise albeit somewhat dry synthesis.
Klüber had written selfconsciously for the education of diplomats and

men of public affairs, becoming – wrote Jellinek later – the most
appreciated academic teacher in the courts of Europe at the time.
No doubt his audience was pleased to learn that the sovereignty of
their States, understood “in a strictly legal sense,” was to be seen as
independence from the will of all other States39 while the substance
of the law that bound them was to be seen in terms of their
“absolute” rights – the rights to self-preservation, independence, and
equality and the “relative”
rights they contracted with each other.40
Von Martens and Klüber each interpreted the diplomacy of the

restoration as if it had to do with the realization of contractarian
principles between a determined number of independent and legally
equal European States-as-persons. From ideas that came from
Enlightenment rationalism (and closely resemble those of Vattel)
they constructed
“Europe” as a political organization of independent States, seeking

each 35 Johann Ludwig Klüber, Europäisches Völkerrecht (2nd edn.,
by Carl Morstadt, Schotthausen, Hurter, 1851). The text essentially
follows the 1st edn. For biography and comment, cf. A. de La
Pradelle, Maîtres et doctrines du droit des gens (2nd edn., Paris,
Editions internationales, 1950), pp. 183–193.
36 Leonard Krieger, The German Idea of Freedom. History of a

Political Tradition (Boston, Beacon, 1957), p. 156.
37 In a period of reaction and secrecy, this was understood as part
of liberal resistance.
Michael Stolleis, Geschichte des öffentlichen Recht in Deutschland (3

vols., Munich, Beck, 1992–1998), 2: 1800–1914, pp. 71–72, 83–85.
38 Cf. also Klüber, Europäisches Völkerrecht, pp. 10–11 § 9.
39 Klüber, Europäisches Völkerrecht, pp. 23 § 21, 54 § 45.
40 The three absolute rights are quite analogous to the rights of

citizens under the American Declaration of Independence, namely
the rights of life, liberty and the pursuit of happiness.
21
its own perfection41 – with the assumption that natural development

would lead to the greatest happiness of all.42 Although Klüber
recognized the existence of a European moral community (
Europäische Völkersitte), based on historical and religious affinities,
he insisted on a sharp distinction between it and the legal relations
between individual States.43 Law was to be strictly distinguished
from politics, morals, and courtesy, Roman and Canon law and
theology as well as from “dialectical” or “metaphysical”
speculations.44 Diplomacy was to pay no attention to internal
constitutions or forms of government; no intervention on an
ideological basis was allowed.45 This did not mean that lawyers
could not have recourse to analogy or natural law. (Was not the
argument from “absolute rights” a naturalist point par excellence?)
But they did little else than refer back to the State’s initial
independence.46 In this way, the society of European States with
which von Martens and Klüber worked grew out from a rationalistic
political theory. It “flattened” the history of European societies into
universal reason’s struggle to realize itself and did not bother with
the cultural, political, or economic developments that were
transforming these societies out of all recognition.
For the liberals of the 1860s, such treatises legitimized a politically

suspect settlement and the monarchic absolutism they fought
against. It was impossible to use von Martens or Klüber to argue
about the needs of economic or humanitarian progress, national self-
determination, or the primacy of an international public opinion.47
Their European society was a society of Kings and diplomats, their
history a history of 41 “Die Staat ist eine Gesellschaft; – eine freie
Gesellschaft.” It is composed of individuals and families that have
joined together for this very purpose, Klüber, Europäisches
Völkerrecht, p. 47 § 37.
42 Hence, for instance, the principle of equilibrium, unless agreed in

the form of a treaty, has no legal meaning and acts purportedly
seeking to maintain or redress the balance are conducive only to
endless power struggle and encouraging suspicion and conflict. By
contrast, each State is entitled to struggle against illegal pursuit of
hegemony, Klüber, Europäisches Völkerrecht, pp. 51–52 § 42.
43 Klüber, Europäisches Völkerrecht, pp. 43–45 § 34–35.
44 Klüber, Europäisches Völkerrecht, pp. 10 § 9, 60–61 § 51.
45 Klüber, Europäisches Völkerrecht, pp. 24–25 § 22.
46 Klüber, Europäisches Völkerrecht, Introduction, p. xi and pp. 4–7

§ 3–5. Rational law’s principal sphere of application is – as in
Montesquieu – relations between Europe and the outside world.
About these, however, Klüber has very little to say.
47 Indeed, Martens had reprinted in successive editions his 1796

critique of the revolutionary Projet de 21 articles sur le droit des
gens that had been proposed to the French National Assembly. A
declaration of general principles on the rights and duties of nations,
on peace and self-determination, he held, was not only unrealistic
but useless as there would be no agreement on their application –
and only agreement between States would count, cf. Martens,
Précis, I, pp. 9–21.
22
dynasties and wars and their politics the conservative principle of the
balance of power. They provided no foothold for activism outside
governmental diplomacy, indeed any activism seemed a priori
suspect inasmuch as it tended to disturb the balance of power that
both associated (sometimes seemed to think identical) with the
maintenance of the States.48
But the two books also seemed untenable from a scientific

perspective.
As an explanation of society, rationalism was on the way out. In

Germany, Fichte and Hegel had focused on society in terms of the
spirit that occupied it, in the case of the latter, a spirit that was,
though universally inclined, embedded in the nation’s specific history
and culture.
Savigny’s historical school of law made much the same argument –
coming to the paradoxical conclusion that identified the German

legal Bewusstsein with the maxims of Roman law. In France, Comte
had taught that in a study of society rationalist imagination should
be replaced by observation. Society, like nature, was not only to be
examined by expert savants but also developed in accordance with
the causal–instrumental insights they had produced. In Britain,
Benthamite abstractions were being overridden by the writings of
John Stuart Mill – whose On Liberty was published in 1859 – that
were not only compatible with but drew express inspiration from
Comtean sociology. However rationalistic a basis utilitarianism had as
theory, its practice encouraged legislators to fieldwork rather than
armchair imagination. As James Reddie (1773–1852) observed in
1842, through a tortuous prose perhaps inevitable in a transitional
work, it was time:
[t]o give up the idea of transferring the rules applicable to men

viewed abstractly, apart from any condition, in which they have ever
been found to exist, to nations or communities, formed by union of
men in civil society; and to investigate the principles of the human
constitution, as ascertained by observation, experience, and the
records of history.49
By the 1860s, the international law taught by von Martens and

Klüber had become old-fashioned. It had compressed European
reality into an a priori system of political ideas with little attention to
the special nature and history of the relations between European
sovereigns and even less to the political consciousness of European
societies. It possessed no 48 Martens, Précis, I, pp. 323–336 § 121–
124. Klüber did not think the balance a legal principle. Disturbing it
was not a legal ground for war – although it was, he said, self-
evident that all States were entitled to oppose any illegitimate
attempt at supremacy, Klüber, Europäisches Völkerrecht, pp. 50–52 §
42.
49 James Reddie, Inquiries in International Law (Edinburgh,

Blackwood, 1842), p. 114.
23
method to extract the principles that guided the development of

international relations beyond naturalist deduction or listing of treaty
rules.
In other words, it was devoid of political direction.

Many of such criticisms had been voiced by Carl Baron Kaltenborn
von Stachau (1817–1866), Privatdozent from Halle and later
Professor of German Public Law in Königsberg and member of the
Kur-Hessian Foreign Ministry in Kassel.50 In his Kritik des
Völkerrechts of 1847, Kaltenborn had noted the Grabesstille in the
field between 1820 and 1840
and had aimed to introduce a scientific study of international law

that would collect the facts of international life into a system of
principles (“ein organisches System von Grundsätzen”).51 He
wanted to connect the reality of the Vienna settlement – in particular
the central role of sovereignty – with a standpoint outside
sovereignty by the systematic ordering of the law’s leading
principles.
Kaltenborn’s scientific ambition expressed itself in his stress on

international law as a historical subject (as well as a distinctly
Protestant discipline).52 He attacked the abstract rationalism of
earlier writers as well as their frequent failure to discern any
principle beyond the positive facts of diplomacy.53 He shared the
mid-century view that science was constituted of “the rational
organisation of ideas”54 and the peculiarly German understanding
that this meant that legal science was to group its facts into a
system of concepts.55 Previous scholarship had worked with
arbitrarily chosen concepts, confusing Roman law and natural law
with international law, positive law with philosophical law.56 By
abstracting principles from the normative relationships between
individuals von 50 Stolleis regards him a “conservative” – assessed
by reference to his Einleitung in das con-stitutionelle
Verfassungsrecht (1863) that sided with Bismarck. His critique, and
especially the objective/subjective distinction at the heart of it, came
from the legal philosophy of the monarchist–conservative professor
Friedrich Julius Stahl. Cf. Erich Kaufmann, Das Wesen des
Völkerrechts und die Clausula rebus sic stantibus (Tübingen, Mohr,
1911), pp.
185–186.
51 Carl Kaltenborn von Stachau, Kritik des Völkerrechts (Leipzig,

Mayer, 1847), pp. 92, 111.
52 Kaltenborn, Kritik, pp. 24–25. Only Protestantism could make

room for freedom, and for a modern concept of sovereignty as
representative of such freedom.
53 Natural law theory being an arbitrary product of the author’s

mind, Kaltenborn, Kritik, pp. 28, 52.
54 Roger Cotterell, The Politics of Jurisprudence: A Critical

Introduction to Legal Philosophy (London, Butterworth, 1989), p. 47.
55 Cf. Kaltenborn, Kritik, pp. 243–246.
56 Cf. especially Kaltenborn, Kritik, pp. 103–127.
24
Martens and Klüber had failed to arrive at any autonomous

understanding of international relations.57 This was to be corrected
by a historically based and system oriented legal study.
Kaltenborn wished to transcend the old opposition between positive

and philosophical law.58 He generously granted that this might not
have been possible in the political atmosphere of earlier times. The
conditions for an “objective” science of international law had
emerged only after the re-establishment of the European system in
the first decades of the nineteenth century.59 Only now it had
become possible to see how human consciousness was reflected in
legal sources, custom, and treaties, and received its highest
expression in legal science.60
Kaltenborn gave science a much more active role than it had had for
von Martens or Klüber.61 Legal sources were interpreted and new
sources were constantly created through the work of legal science.
From innumerable customary and treaty rules science created more
basic, interrelated principles whose positivity would be proved by
their future application.62
Like von Martens and Klüber, Kaltenborn accepted that Europe was
naturally divided into sovereign States.63 Unlike them, however, he
saw these States also joined in a historical and cultural community to
which his new science would give reality. It would describe legal
subjects (States) in their relation to certain objects (territory,
commerce) and the legal forms (treaties, diplomacy) whereby these
were linked together. Such a rela-tional systematic was derived from
sovereignty (the older doctrine of absolute rights) but gave reality to
the principle of international legal community (the old doctrine’s
relative rights) as well.64 This enabled Kaltenborn to respond to the
“deniers” who had doubted whether international law was law in the
absence of legislation, adjudication, and enforcement through an
argument that was to become the profession’s 57 Kaltenborn, Kritik,
pp. 112–113, 175–185.
58 Kaltenborn, Kritik, p. 97.
59 Kaltenborn, Kritik, pp. 91, 130–132, 170–171. Kaltenborn did

appreciate the recent work by Heffter and Oppenheim and saw his
own writing as an attempt to bring to fruition the construction
attempted by Ch. E. Gagern in his Kritik des Völkerrechts. Mit
practischer Anwendung auf unsere Zeit (Leipzig, Brockhaus, 1840).
60 Kaltenborn, Kritik, pp. 231–234.
61 Kaltenborn distinguished between the historical, dogmatic,

philosophical, and legal policy tasks of legal science. Kaltenborn,
Kritik, pp. 240–255.
62 In relation to custom, for instance: “Die Rechtswissenschaft hat
die Aufgabe, die Rechtgewohnheit aufzufassen und aus ihrer
Unbestimmtheit und Unmittelbarkeit zur Klarheit und Bestimmtheit
eines Theoretischen Rechtssatzes zu erheben,”
Kaltenborn, Kritik, p. 235.
25
standard way of reconciling sovereignty and community.65 In reality,

he claimed, States themselves were legislators and judges and war
international law’s ultimate enforcement. This procedural fact
reflected the special character of the States-society. Failure to
understand it was the source not only of the deniers’ skepticism but
also of the gap between the science of the previous period and
international reality. Though international law was occasionally
breached, it was more often spontaneously complied with,
sometimes through pressure of public opinion, sometimes through
coalitions and alliances.66 It was true that sometimes such alliances
also violated the law. Nothing guaranteed that war would always be
won by the originally aggrieved party. But then, law was a subsidiary
element in history and war one of its primary movers, a means of
renewal when the existing order no longer corresponded to
“reality.”67
Kaltenborn hoped to articulate the reality of a European political

system that sought legitimation from national sovereignty but
acknowledged the existence of a larger cultural community. The
depiction of that community in the language of general principles
would now become one of the tasks of legal science. But like a true
realist, Kaltenborn was conservative. He accepted that law’s role in
international relations was limited. The notable political facts of the
day were the demise of pretensions to universal monarchy as well as
the “chimer-ical” constructions of those who wished to introduce the
democratic principle into European societies – “May God still spare
us from that for a long time!”68 He was satisfied with the way
governmental policies increasingly reflected national consciousness
and depicted constitutional monarchy in an organic relationship with
it.69
Though Kaltenborn’s views of the role of international lawyers went

much further than those of von Martens or Klüber, they provided no
agenda for legal reform. They failed to explain, let alone to assist in,
the social and cultural progress that the liberals of the 1860s saw
around themselves. Whatever their scientific merits, rationalism and
humanitarianism had at least been a comfortable part of the outlook
of the European educated elites. Kaltenborn’s pedantic insistence on
system, 65 “Zur Revision der Lehre von internationalen
Rechtsmitteln,” (1861), 17 Zeitschrift für Staatswissenschaft, pp. 69–
124.
66 Kaltenborn, “Zur Revision,” pp. 89–94.
67 Kaltenborn, “Zur Revision,” pp. 122–123.
68 “Davor möge uns freilich Gott noch recht lange bewahren!,”

Kaltenborn, Kritik, p.
13.
26

the paradoxical absence of a theory of legislative change from his
writing and his “heroic” submission to war as vehicle of world history
could not resonate with an esprit d’internationalité that introduced
liberal–humanist principles into the law proper and not merely into
its philosophical background. For all its stress on scientific objectivity
and facts, Kaltenborn’s writing was remarkably distant from life.70
By contrast, the new reformist spirit from which Rolin’s Revue

emerged was strikingly present in Charles Vergé’s (1810–1890) more
than fifty-page introductory essay to the second French edition of
von Martens’
Précis of 1864.71 The essay enthusiastically described the

developments that had in the past half-century brought European
peoples closer to each other. Economic relations had come to be
based on division of labor, making States increasingly
interdependent. Liberation of trade had been carried out through
new agreements, abolishing customs and other duties, and providing
for freedom of navigation in international waterways. New
technology – railways, telegraph, postal connections –
disseminated new ideas with unprecedented efficiency. International

associations were set up and conferences held in order to speed up
international cooperation in a variety of professional fields.
Humanitarian and charitable societies were active everywhere. Even
the new financial system brought States closer through rapid
movements of capital over boundaries – “L’argent n’avait jamais eu
de patrie.”72
For Vergé, the natural development of humanity was from

independence to solidarity, patriotism to community.73 The
developments were
“signs of a new period, symbols of a universal law.”74 True enough,

there were obstacles on the way, such as the principles of legitimacy
and fait accompli, both valuing the past over the future. Citing
Constant against de Maistre, Vergé opined that the divine right of
Kings had become an empty form over arbitrary privileges.75 The
Vienna system 70 This applies also to the systematization a decade
later by Professor August Bulmerincq, who sought an even fuller
purification of positive law from “extraneous”
philosophical or political elements. Cf his Die Systematik des

Völkerrechts von Hugo Grotius bis auf die Gegenwart (Dorpat,
Karow, 1858).
71 Vergé, “Le droit des gens avant et depuis 1789,” pp. i–lv.
72 Vergé, “Le droit des gens avant et depuis 1789,” p. xxxi.
73 This was in line with the Victorian anxiety to overcome

selfishness and egoism – seen as primitive desires – and to develop
a more sophisticated altruistic outlook on society.
Cf. Collini, Public Moralists, pp. 60–90.
74 Vergé, “Le droit des gens avant et depuis 1789,” p. xxxvii.
75 Vergé, “Le droit des gens avant et depuis 1789,” pp. xxii–xxiii.
27
of 1815–1830 might have been able to preserve a relative peace –

but it had been “a work of diplomacy and authority, not a work of
justice and franchise.”76 But there was no reason to run behind
chimeras of eternal peace. The transformations of the age would
remove those obstacles –
particularly through that most potent of forces, public opinion, “this

queen of the world that expresses only what is the most elevated
duty and interest of everyone.”77 That change was already on the
way could be seen in the difference between the Vienna settlement
and the Peace of Paris of 1856, the former having taken place in
secrecy, the latter in an unprecedented light of publicity. Where
Vienna had been a great power diktat, Paris had declared
progressive rules and accepted Turkey in the European system.
Finally, Vergé cited the Whig potentate Lord Brougham’s prophecy

on how progress and the interdependence of European States were
to produce a peaceful international system:
The formation of the European system which is expressed by Lord

Brougham with his most elevated liberalism, the solidarity between
different States that provides for the protection of the weak and the
hindrance of the strong, is produced by international law and
fortified by public opinion. By this means all the improvements and
reforms, whether in the internal affairs of States or in their
international relations, have been predetermined.78
An amateur science
At the time when Vergé wrote his introduction to von Martens’ old
treatise, and Rolin began his Revue, there was very little
consciousness of international law as a discipline of its own, separate
from philosophy, diplomacy, or public and civil law.79 In France, the
writings of the phil-
osophes continued to dominate the way in which the subject was

conceived well into and beyond the Napoleonic era.80 Works such as
that by Gérard de Rayneval (1736–1812) on Institutions du droit de
la nature et des gens (1803) derived international law from a
discussion of the origin of human society in the natural state and
restated the principles of 76 Vergé, “Le droit des gens avant et
depuis 1789,” p. xlvi.
77 Vergé, “Le droit des gens avant et depuis 1789,” p. lii.
78 Vergé, “Le droit des gens avant et depuis 1789,” p. liv.
79 For reviews of the study of international law teaching in Europe in

the 1870s, c f.
(1878), 2 Annuaire de l’Institut de droit international ( Annuaire IDI

), p. 344; (1879–1880), 3–4
Annuaire IDI, pp. 324–347.
80 Cf. e.g. Paul Challine, Le droit international public dans la

jurisprudence française de 1789 à 1848 (Paris, Loviton, 1934), pp.
10–14.
28

natural independence, equality, and the balance of power under a
utilitarian rhetoricadopted from Montesquieu81 and Vattel.82 The
obligation to keep treaties was derived from “the honor and dignity
of the sovereign, the health and real interest of the State.”83
Rayneval and others were, perhaps, balancing their fear of the
ancien régime with their dread of the return of Jacobin terror.
Neither restoration nor the revolutionary turmoils of 1830 and 1848
provided a foothold for juristic points about a stable European legal

system. On the other hand, the Napoleonic disaster in Russia had
made the argument sound compelling that the time of conquest was
over and that economic liberalism was making war an
anachronism.84 Saint-Simonian optimism assumed that the
development of industry and positive science would completely
transform the public space of European societies. Auguste Comte
(1798–1857) described societies as functional
“systems” developing in accordance with their intrinsic laws: from

theological to positive, military to industrial. The diplomacy of States
was an outdated growth of earlier, pre-positive eras – and so were
the diplomatic laws that regulated it. The future was for industrial
chiefs, the pro-letariat and the unification of Europe under the
spiritual leadership of public opinion enlightened by positive
science.85 Saint-Simon dismissed lawyers altogether as a “bastard
class”86 while Comte still allowed them (together with the
“littérateurs”) subsidiary functions in the coming industrial utopia.87
81 “The law of nations is naturally founded on this principle, that

different nations ought in time of peace to do one another all the
good they can, and in the time of war as little injury as possible,
without prejudicing their real interests.” The Spirit of the Laws
(trans. Thomas Nugent, New York, Hafner, 1949), p. 5.
82 Gérard de Rayneval, Institutions du droit de la nature et des gens

(Paris, Leblanc, 1803), p.
129 et seq; 203–206, 333.
83 “L’honneur du souverain, sa dignité, le salut, l’intérêt véritable de

l’Etat,” Rayneval, Institutions, pp. 145, 147.
84 Benjamin Constant, The Spirit of Conquest and Usurpation and

their Relation to European Civilization, in Biancamaria Fontane (ed.),
Benjamin Constant. Political Writings (Cambridge University Press,
1988), pp. 51–83.
85 Cf. Auguste Comte, La sociologie, résumé par Emile Rigolage

(Paris, Alcan, 1897), esp.
pp. 373–407. Comte advocated a complete reorganization of society

under the spiritual leadership of “chefs d’industrie.” In contrast to
“government” and “coordination,” he had very little to say about the
role of law. He was a federalist, advocating European unification and
the civilization of non-European peoples under a Comité positif
occidental, led by the five European great powers, Comte, La
Sociologie, pp.
405–407. Cf. also Marcel Merle, Pacifisme et internationalisme (Paris,

Colin, 1966), pp.
217–234.
86 Geoffrey Hawthorn, Enlightenment and Despair. A History of

Social Theory (2nd edn., Cambridge University Press, 1987), p. 76.
87 Comte, La sociologie, pp. 403–404.
29
Hence, until late in the second half of the century, international law
received no general academic treatment in France that would have
been separate from a discussion of natural law.88 In the 1868
edition of his great treatise on the rights and duties of neutrals in
maritime war Hautefeuille (1805–1875) had still this to say about the
basis and proper method of his science:
International law finds its basis in divine and primitive law; it is

completely derived from this source. With the help of only this law, I
firmly believe that it is not only possible but even easy to regulate all
relations that exist or might exist between all the peoples of the
universe.89
Only a few specialized treatments of maritime law, arbitration or

diplomatic and consular law appeared in France before the 1870s.
French diplomats and courts were satisfied by general treatises
written by foreigners – particularly those by von Martens and Klüber
and the American diplomat Henry Wheaton (1785–1848) – either
directly in French or translated for the French audience.90
Nor had international law enjoyed a separate existence in the

facultés de droit. Indeed, international law fitted uneasily into the
juristic atmosphere of the French mid-century, dominated by the
exegetic school that recognized no positive source beyond the Code
Civil. In the Collège de 88 Rayneval’s 1803 book (with a 2nd edn. in
1832) on international and natural law remained the only French
general treatment of the topic. Cf. Paul Fauchille, “Louis Renault
(1843–1918)” (1918), XXV Revue générale de droit international
public ( RGDIP ), pp. 20–21. Cf. also Marc Barreau, Précis du droit
de la nature et des gens (Paris, Ladvocat, 1831); L. B. Cotelle,
Abrégé d’un cours élémentaire du droit de nature et des gens (Paris,
Gobelet, 1820); François André Isambert, Tableau historique des
progrès du droit public et du droit des gens, jusqu’au XIX siècle
(Paris, Paulin, 1833).
89 L. B. Hautefeuille, Des droits et devoirs des nations neutres en

temps de guerre maritime (3rd edn., Paris, Guillaumin, 1868), p. x.
Hautefeuille practiced what he preached. Holding that human beings
had access to divine and natural law in the form of innate ideas, and
that historical facts should have no influence whatsoever on legal
study, he inferred freedom of the seas, for instance, from the natural
law of property that excluded inappropriable objects of sufficient
abundance for everyone to use, pp. ix–xi, xvii, 71–87.
90 This is the reason given in Henry Bonfils, Manuel de droit

international public (2nd edn.
by Paul Fauchille, Paris, Rousseau, 1898), p. 61, for the absence of

an overview of the field in France until the publication of Pradier-
Fodéré’s 8-volume Traité de Droit international public européen et
americain (Paris, Pedone-Lauriel, 1885–1906) – although, in fact
Louis Renault had already published his L’introduction à l’étude de
droit international (Paris, Larose, 1879, also published in L’Oeuvre
internationale de Louis Renault, Paris, Editions internationales, 1932,
pp. 1–68) and Funck-Brentano and Sorel had written their policy
oriented Précis de droit des gens (Paris, Plon, 1877). On these cf.
Chapter 4 below.
A short overview of French works is in A. Truyol y Serra, Histoire du

droit international public (Paris, Economica, 1995), pp. 119–120. A
much better review appears in Challine, Le droit international public,
pp. 14–23.
30
France in 1880, for example, the relevant position was Chair of Droit
de la nature et des gens.91 After the Chair of International Law in
Strasbourg was abolished in 1867 the only international law
professorship remained in Paris. This had been established in 1829
but the courses given by its holders – Royer-Collard (1830–1864)
and Charles Giraud (1864–1874)
– had been more about diplomatic history than positive law. Only in
1889 was international law introduced at French universities as a
compulsory subject with an examination.92 The situation was not
very different in other continental States. When in Holland a law of
1876
prescribed the teaching of international law in State universities

there was still no chair for public international law in the country.
And in 1884
the University of Brussels decided to allocate the teaching of

international law to a Professor of Roman Law, Rolin’s close friend
and collaborator, Alphonse Rivier (1835–1898).93
In France as in Germany the old theory of the ius publicum

universale continued to form the mainstay of public law teaching
well into the nineteenth century. This is easy to understand. It did
not need to rely on a weak and politically suspect domestic
sovereignty and its rationalism was available both to counter de
facto political fragmentation (as in Germany) in terms of the unity of
a legal system and to criticize reactionary governments (as in
France) by reference to principles of liberal, perhaps even
democratic, constitutionalism. But although rationalism, through its
roots in Roman law, did make a distinction between private and
public law, it did not found a technical discipline that would have
focused on the external affairs of the government in contrast to its
internal activities – this had been precisely the gist of Kaltenborn’s
critique. In France as in Germany, the Droit public de l’Europe was
simply one part of public law, von Martens’ äusseres Staatenrecht,
external public law.94
German publiclawyers writing during the period of Napoleon’s

Rheinbund (1806–1815) and the early years of the Confederation
normally carried over their Aufklärungsideale from the eighteenth to
the nineteenth century.95 We have seen how this was done by von
Martens and Klüber.
Many of their followers sought to balance popular sovereignty with
the monarchic principle by “organic” language that fused the
elements of the 91 Cf. (1878–1879), 3–4 Annuaire IDI, II, p. 329.
92 Fauchille, “Louis Renault,” pp. 31–32.
93 By that time, Rivier had already established a name as

internationalist by frequent contributions in Rolin’s Revue and
through activities within the Institut de droit international. Cf.
“Nécrologie” (1898), XXX RDI, pp. 382–393 and Ernest Nys,
“Alphonse Rivier, sa vie et ses oeuvres” (1899), XXXI RDI, pp. 415–
431.
94 Martens, Précis, p. 45.
95 Stolleis, Geschichte II, pp. 62–75.
31
publicrealm together in more or less conservative or liberal positions.
The predominant concern to construct a distinctly German realm of

publiclaw buttressed by arguments about the workings of the
Volksgeist led some to deny the very possibility of an international
law proper – seen as a survival from earlier rationalist moorings.
Neither Hegel nor Savigny were simple “deniers,” however, but held
international law to be a qualitatively different type whose existence
and reality depended on the degree of cultural integration of
European nations.96
However, the liberal disappointment of 1848 turned the attention of

German constitutional lawyers to international reform. After all, it
was through international action – the Russian intervention in
Hungary –
that reaction had combated progress. Thus, a leading liberal
Professor of State and Administrative Law from Tübingen (later
Heidelberg), Robert von Mohl (1799–1875), suggested in the 1850s
– by express reference to Kaltenborn – a reconceptualization of
international law on a scientific basis, that is to say, on a theory of
the international community ( die Lehre von der internationalen
Gemeinschaft).97 Previous theory had started from the axiomatic
existence of sovereign States and had sought to der-ogate from
independence as little as possible. By contrast, a scientific theory
would understand all forms of social organization as instruments for
human purposes ( Lebenszwecke) and would grant the need for
different kinds and levels of such organization. International law,
too, should seek to contribute to the ability of the international
community to fulfill effectively those human purposes that were best
suited for international realization.98 This required, however,
accepting that alongside a community of States there were also a
community of individuals and communities of societies that
interacted with each other in a myriad ways.
In accordance with a liberal view of representation – that grounds

his theory of the Rechtsstaat 99 – von Mohl saw States in their
international relations as representatives of individuals, societies,
and of the international community whose interests and aims they
were called upon to realize.100
Not all German public lawyers shared von Mohl’s theory of the
representative State or, even if they did, drew as far-reaching
conclusions from it. For Adolf Lasson (1837–1917), for instance, the
Hegelian legal 96 Cf. G. W. F. Hegel, Philosophy of Right, trans. by S.
W. Doyle (London, Prometheus, 1996 [1896]), pp. 340–341.
97 Robert von Mohl, Staatsrecht, Völkerrecht, und Politik, I:

Staatsrecht und Völkerrecht (3 vols., Tübingen, Laupp, 1860), p.
580.
98 von Mohl, Staatsrecht, p. 585.

99 von Mohl, Staatsrecht, pp. 8 et seq.
100 von Mohl, Staatsrecht, pp. 599–636.
32
philosopher from Berlin, arguing perhaps significantly in the year

1871, international law was possible only as an expression of the
sometimes parallel interests of States, a means of coordinating their
action for a more effective attainment of the objects they desired.
The world was irreducibly divided into separate nations between
which reigned a constant bellum omnium, or at least a threat
thereof. An international community – or indeed a law above States
– was a conceptual, historical and psychological absurdity.101
If in France international law existed as a somewhat exotic branch of

natural law and in Germany as an outgrowth of public law and
diplomacy, in England there was virtually no university teaching in
the subject at all in the first half of the century. In 1842 James
Reddie pointed out that aside from translations of Grotius,
Bynkershoek, and Vattel, a systematic treatment of the topic
“appeared to be still a desideratum in the legal or juridical literature
of Great Britain.”102 Even general legal education had until then
been carried out through apprenticeship so that a Parliamentary
Select Committee had been compelled to conclude in 1846 that
“[n]o Legal Education worthy of the name, of a public nature, is at
this moment to be had in either England or Ireland.”103
After the reform of legal education in the mid-century, the first chairs
of international law proper were set up quite rapidly in Oxford in
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]).104 The position held by the
eccentric Scotsman James Lorimer (1818–1890) in Edinburgh after
1862 continued to be a chair in the Law of Nature and of Nations, a
combination well reflected in Lorimer’s teaching.105 Sir Travers
Twiss (1809–1897) who was much used as Foreign Office consultant,
taught at King’s College London in 1852–1855, but moved from
there to hold the Regius chair of civil law in Oxford until 1870. In
addition, private grants enabled the teaching of international law at
other universities as well.
101 Adolf Lasson, Princip und Zukunft des Völkerrechts (Berlin,

Hertz, 1871).
102 Reddie, Inquiries in International Law, pp. 1–2.
103 Quoted in Collini, Public Moralists, p. 266. For the (largely

unsuccessful) initiation of the study of “Law and Modern History” in
Oxford 1850–1865 and the consequent setting up of an independent
law school, cf. F. H. Lawson, The Oxford Law School 1850–1965
(Oxford, Clarendon, 1968), pp. 1–33.
104 The syllabus for international law at Oxford in 1877–1884

contained two American textbooks (Wheaton and Woolsey), one
German (Heffter) and one French (Ortolan) textbook but no English
works, Lawson, Oxford, pp. 39–41.
105 The Chair had been established as early as 1707.
33
In Britain, a self-confident legal positivism sought the basis of law

from well-entrenched secular sovereignty. The 1832 lectures of John
Austin (1788–1859) famously disqualified international law as law
through an argument that conceived legal rules in terms of the
commands of a sovereign enjoying habitual obedience. Well-suited
for a domestic system whose legitimacy was taken as self-evident, it
found no room for a law beyond sovereignty. If Benthamite
utilitarians agreed that the principles of the greatest pleasure of the
greatest number were as applicable in the international as in the
domestic field (“common and equal utility of nations”), and
conceded to public opinion the role of an informal enforcement
agency,106 there was little in such construction that would have
provided a tangible foothold for an independent profession.
More than their continental colleagues, British lawyers such as

Lorimer or Sir Robert Phillimore (1810–1890) argued on the basis of
God’s will and natural reason107 – which is perhaps why Prime
Minister Salisbury could report to the Parliament in 1887 that
“international law has not any existence in the sense in which the
term ‘law’ is usually understood.
It depends generally upon the prejudices of writers of textbooks. It

can be enforced by no tribunal, and therefore to apply to it the
phrase ‘law’
is to some extent misleading.”108
Such an attitude may not have been only a reflection of disinterested

speculation. As the only industrial economy and naval power since
1815, Britain could confidently believe that the benefits that law
claimed to offer could better ensue from the continued expansion of
British economy and territory. An Empire is never an advocate of an
international law that can seem only an obstacle to its ambitions.
The persistent British refusal to underwrite a legal system of
collective intervention in the legitimist cause may have been justified
by a genuine aversion against absolutism – but the absence of
common rules or agreed procedures also automatically played into
its hands.109
106 Cf. Jeremy Bentham, Principles of International Law, in The

Works. Published under the superintendence of John Bowring (9
vols., Edinburgh, 1843), II, pp. 537–560.
107 Cf. Wilhelm Grewe, Epochen des Völkerrechts (Baden-Baden,

Nomos, 1983), pp.
597–601.
108 Quoted in T. E. Walker, The Science of International Law

(London, Clay, 1893), p. 1.
109 “Never in the entire history of the world has a single power
exercised a world hegemony like that of the British in the middle of
the nineteenth century . . . Never since then has any single power
succeeded in re-establishing a comparable hegemony . . .
for no power has since been able to claim the the exclusive status of
‘workshop of the world,’” Eric Hobsbawm, The Age of Revolution
(London, Abacus, 1997 [1962]), p.
365.
34
It is not difficult to see why a professional international law would

not have come into existence during the first half of the century. The
ascendant liberalism of 1815–1848 was radically activist and
internationally organized within peace societies and federalist and
pacifist movements.110 These movements found their strongest
base within the Anglo-American world and a natural ally in the
groups of exiles from the revolutionary movements of 1830 and
1848.111 They did not need lawyers to argue what was seen as a
political, even a radical task of transformation. The distrust of
governments by liberal radicals, and, a fortiori, socialists, was
incompatible with an attempt to conceptualize the post-Napoleonic
system in terms of legal rules: an international law of the
governments rallied around a Holy Alliance was simply anathema.
Peace would follow from the uniting of nations (and their working
classes) brought about by the natural development of free trade and
increasing popular enlightenment – or, as some assumed, of
impending revolution.112
Writing in lonely exile in Brussels in 1861 the French socialist and

political thinker Pierre Joseph Proudhon (1809–1865) agonized over
the difficulty of fitting the French military campaign in Northern Italy
into the commonplace theory about the growth of civilization and
the needs of an interdependent economy doing away with war. No
prevailing system of concepts could realistically grasp war. This was
particularly the case with lawyers’ concepts: “This so-called science
of the law of nations of theirs, what should be said about it? The
whole body of law they have conceived and articulated is a
scaffolding of fictions which they themselves fail to think
credible.”113
A time of danger
The Crimean War could still be interpreted by contemporaries as not
really a threat to the European peace system – for it had to do with
the perennial “Eastern Question” and the ambitions of that only
marginally European country, Russia. But faith in the intrinsic
peacefulness of European societies facing unprecedented economic
growth and the 110 Cf. F. H. Hinsley, Power and the Pursuit of
Peace. Theory and Practice in the History of Relations between
States (Cambridge University Press, 1963), pp. 92–113.
111 Hobsbawm, The Age of Revolution, pp. 160–162.
112 Hinsley, Power and the Pursuit of Peace, pp. 111–113.
113 P-.J. Proudhon, La guerre et la paix. Recherches sur la

constitution du droit des gens (Oeuvres complètes, nouvelle édition,
Paris, Rivière, 1927), p. 9.
35
spread of liberal and democratic ideas was crushed by the Franco-

Prussian war of 1870–1871 which Maine described a few years later
as
“one of the greatest of modern wars, which probably never had a

rival in the violence and the passion which it excited.”114 The war
and the establishment of the German Empire inaugurated a new era
in foreign policy. There was a change of feeling, a turn “from an
international moral order to a Realpolitik.”115 Militarism was on the
rise.116 The creation of Germany and Italy seemed to confirm that
war was sometimes not only inevitable but necessary. Germany’s
Weltpolitik created successive war scares in Britain which did nothing
to curb the increasing levels of armaments. Moreover, French desire
for revanche after Sedan went through all factions of society.
Contemporaries, too, saw the period as one of grave danger. In a

book that came out in 1873, the Christian-socialist economist Emile
de Laveleye (1822–1892), one of the founding members of the
Institut de droit international, the subject of the following section,
concluded that popular sentiment was not necessarily oriented
towards peace. On the contrary: “Today, unfortunately, Europe’s
horizon is more threatening than ever; not only some black spots
appear but dark, blood-colored clouds cover it.”117
Mid-Victorian faith in the ability of science and industrialism to bring

about peace and harmony was eroding. Taking up a professorship in
Göttingen in 1872, Rudolf Jhering (1818–1892) published his famous
pamphlet on Struggle for Law ( Der Kampf ums Recht), in which he
argued that, as individuals were called upon to struggle over their
rights, and in this struggle to vindicate the authority of the legal
order, nations were not entitled to let injustice pass without
opposition; a nation that would do so would compromise its own
honor and dignity and undermine international legality. Contrary to
Savigny and the historicists Jhering claimed – probably only dimly
aware of the Darwinian tone of his argument – that struggle and not
slow development and harmony was the core of law. Through
struggle the nation creates self-awareness and 114 Henry Sumner
Maine, International Law. The Whewell Lectures (London, Murray,
1887), pp. 128–129.
115 Owen Chadwick, The Secularization of the European Mind in the

19th Century (Cambridge University Press 1995 [1975]), pp. 134,
132–137.
116 Cf. Brian Bond, War and Society in Europe 1870–1970 (London,
Fontana, 1983), pp.
26–28.
117 Emile de Laveleye, Des causes actuelles de guerre en Europe et
de l’arbitrage (Brussels and Paris, Muquerdt and Guillaumin, 1873),
p. 11.
36
becomes attached to its rights and the law.118 This was part of a
new literature that turned away from materialism and rationalism
and sought to invoke struggle and the depths of feeling. It now
seemed that the
“positivist system of morality failed to satisfy at some ultimate point

of truth about the human predicament.”119
Such sentiments were expressed in Adolf Lasson’s 1871 book on the

principles and future of international law which attacked the popular
Kantian mistake about international development being necessarily
towards a more peaceful, cosmopolitan world. The world was
naturally divided into several nations between which reigned an
irreducible antagonism:
with peoples of lower and higher culture – everywhere, and to the

highest degree with peoples of the most noble pedigree, between
people and people, between State and State, all over we find the
deepest oppositions and as a consequence an interminable
struggle.120
States were always full of fear of each other, and hungry for more
wealth, honor, Herrschaft. No rational explanation could change this
aspect of their nature – to fantasize to the contrary would leave only
bitter disappointment.121 States had no purposes outside
themselves: indeed could not have because their very definition lay
in the aim of advancing the nations that inhabited them. They could
not accept a law above themselves without self-mutilation. There
was no analogy with individuals in the natural state:122
this dream of a legal order over and between States is a confused
and mindless dream that is born of weakness and false
sentimentality and has received the appearance of realisability and
reasonableness only through the misuse of words and unclear
ideas.123
But if the Catholics were wrong, so were the Machiavellians. States

did develop a kind of Ersatz-law so as to facilitate the fulfillment of
their desires (to exchange goods, for example).124 The higher the
cultural level 118 Rudolf Jhering, Der Kampf ums Recht (Berlin,
Philo, 1925), pp. 58–62. Cf. also Frantz Wieacker, A History of Private
Law in Europe. With Particular Reference to Germany, trans.
Tony Weir (Oxford, Clarendon, 1995), p. 357.
119 Chadwick, Secularization, p. 248.
120 Lasson, Princip und Zukunft, p. 6.
121 Lasson, Princip und Zukunft, pp. 31–32. Cf. also pp. 7–9.
124 The rules of international law are rules of prudence rather than
law while obedience to them is dictated only by clever egoism,
Lasson, Princip und Zukunft, pp. 42–55.
37
of States, the more their desires diversified, and the more

coordination was needed. States were even compelled to honesty by
this law: all coordination was premised upon some firmness of
commitment. However, in matters of vital interest, nothing may
constrain the State, and obligations rested valid only so long as they
were useful.125
Lasson wrote as a German patriot in the immediate aftermath of the

establishment of the German Reich. It would have been odd had he
not assumed that war sometimes was a necessity and that if treaties
and real conditions conflicted, all the worse for treaties.126 But
though international lawyers have regarded Lasson’s arguments as
nothing less than scandalous, in fact his preference was for peace
and he argued that if States understood their self-interest correctly,
so was theirs.127 His nine-point program for an international law
that would aim at further understanding between States and prevent
unnecessary war captured much of the liberal sensibility.128 That he
was a realist who stressed the degree to which States were
motivated by self-interest and used law –
or their interpretations of it – to further their objectives hardly

differentiated him from how contemporaries viewed the matter.
What made Lasson seem the paradigmatic“denier” was perhaps the
bluntness with which he concluded that the primary mover of
interState relations was power, that democratic institutions or a well-
developed cultural life did nothing to prove the political wisdom of a
people (here he had France in mind) and that if war was necessary,
then a well-informed popular opinion strengthened the belligerent
spirit rather than mitigated it.
If Lasson’s argument that modernity and culture did not

automatically engender peacefulness was right, then the time of
political laissez-faire was over. Nationalist ambition and ideas that
Spencerian acolytes had popularized in France under the neologism
of “survivaldefitisme”
needed to be positively counteracted in order to support the

internationalist spirit.

126 “Den neuen Zuständen sollen neue Verträge entsprechen,”
Lasson, Princip und Zukunft, p. 69.
127 Lasson shared the Clausewitzian view of war as an instrument

of politics. It was a
“method of negotiation” whereby States hoped to attain an

agreement in the peace treaty, Lasson, Princip und Zukunft, pp. 66–
75.
128 These points included basing law on the “real nature” of

international relations, codifying it in the form of laws, providing for
a maximal openness of international negotiations, increasing the use
of permanent congresses and arbitration and so on, Lasson, Princip
und Zukunft, pp. 84–116.
38
The failure of both sides in the Franco-Prussian war to honor the

1864
Geneva Convention, including widespread misuse of Red Cross insig-

nia, deeply disturbed the humanitarian activists. In his memoirs
Gustave Moynier (1826–1910), Professor of Law at the University of
Geneva who had presided over the 1864 Conference, writes that
having followed the conduct of the 1870 war, he
had often been painfully struck by the uncertainty surrounding legal

regulation governing the conduct of hostilities . . . This state of
affairs seemed to me to have done much to intensify already
inflamed passions and to give the fighting a savagery unworthy of
civilized nations.129
Action needed to be taken. Not being able to proceed alone, Moynier
felt that “only one man had the qualities required” for initiating a
collective effort. This man was Rolin-Jaequemyns whom Moynier had
met at an international charity conference in London in 1862 and
who had since then received a reputation as someone who was able
to achieve things. Consequently Moynier wrote to Rolin suggesting
that action be taken in order to set up a congress composed of the
principal international jurists, “une espèce de concile juridique-
oecuménique, sans pape et sans infallibilité.”130 Through a common
friend, Alphonse Rivier from Brussels, Moynier then arranged a
meeting with Rolin in Ghent in November 1872 where he learned
that a number of lawyers from Europe and elsewhere had already
made a similar proposal. Among them had been Francis Lieber
(1800–1872) from the United States, the drafter of the famous
“Lieber Code” for the use of the Union army in the American Civil
War,131 a liberal adventurer and a political essayist 129 Quoted in
André Durand, “The Role of Gustave Moynier in the Founding of the
Institute of International Law (1873)” (1994), 34 ICRC Review, p.
544.
130 Alphonse Rivier, “Notice historique sur l’Institut de droit

international. Sa fondation et sa première session. Gand 1873”
(1877), 1 Annuaire IDI, p. 12; Durand, “The Role of Gustave
Moynier,” pp. 543–563.
131 Instruction for the Government of Armies of the United States in

the Field (also known as General Orders No. 100), approved by
President Lincoln in 1863. For the text and background of the Lieber
code, cf. Richard Shelly Hartigan, Lieber’s Code and the Law of War
(Chicago, Precedent, 1983). After a tumultuous career as a liberal
adventurer in Europe, Lieber had settled in the United States in 1827
and in 1857 become Professor of History and Political Economy at
Columbia University in New York.
He was a moderate liberal in whom the adjective “moderate”

became increasingly appropriate with the advancement of age. He
hated monarchy and absolutism – but he also detested the way the
Communards of Paris in 1871 had adopted his motto
“No right without its duties, no duty without its rights” as theirs. For
biographical 39
who a few years earlier had given the “Anglican Race”: “the obvious
task
. . . among other proud and sacred tasks, to rear and spread civil
liberty over vast regions in every part of the earth, on continent and
isle.”132
On the basis of such suggestions Rolin contacted several other

eminent lawyers, including Johann Caspar Bluntschli (1808–1881)
from Heidelberg, Baron Franz von Holtzendorff (1829–1889) from
Berlin, Carlos Calvo (1824–1906), the Argentine lawyer and diplomat
living in Paris, the French lawyers and politicians Edmond Drouyn de
Lhuys (1805–1881), and F. Esquirou de Parieu (1815–1893) as well
as the Russian D. I. Katchenowski (1827–1872).133 From his initial
soundings, Rolin drew the conclusion that instead of a conference
there was support for a permanent institution or an academy of
international law.
The successful conclusion of the Alabama affair by the rendering of

the first significant arbitration award in Geneva on September 14,
1872
provided publicity and political support for such efforts. As Rolin was
corresponding with his acquaintances in Europe, the American
pacifists Elihu Burritt (1810–1879) and James B. Miles (1823–1875)
took up the proposal for a conference to draw up a code of
international law that their compatriot, the legal reformist David
Dudley Field (1805–1894) had already made in 1866 at the British
Association for the Promotion of Social Sciences. Miles – who could
speak no foreign language – was despatched to Europe in January
1873 and having met with peace activists and lawyers in Britain,
France, Italy, Austria, and Germany conferred with Rolin in Ghent in
early March 1873. Despite initial enthusiasm for the American
proposals, Rolin and the Europeans soon decided that they went
much further than the scientific restatement they had had in mind.
The Americans were seeking to establish an open organization
whose composition, aims, and working methods were directed
towards political influence, especially the revival of the peace
conferences, and deviated from those of the limited scientific
organization that had been contemplated in Europe.134 They were
part of an Footnote 131 ( cont. )
detail, apart from the above book by Hartigan, cf. Frank Freidel,
Francis Lieber.
Nineteenth-Century Liberal (Baton Rouge, Louisiana State University

Press, 1940), and Roeben, “Bluntschli,” pp. 17–44.
132 Lieber, On Civil Liberty and Self-Government (Philadelphia,

Lippincott, 1859), p. 21.
133 Albéric de Rolin, Les origines de l’Institut de droit international,

1873–1923. Souvenirs d’un témoin (Bruxelles, Vromant, 1923), p.
11. Cf. also August Schou, Histoire de l’internationalisme (3 vols.,
Publications de l’Institut Nobel Norwégien, Oslo, Aschenhoug, 1963),
3, p. 311. Cf. also Rolin-Jaequemyns, “De la nécessité,” p. 481.
134 Cf. Rolin-Jaequemyns, “De la nécessité,” pp. 475–477, 482;

Irwin Abrams, “The Emergence of the International Law Societies”
(1957), 19 Review of Politics, pp.
361–380; Fritz Münch, “L’Institut de droit international: Ses debuts

comme organe 40

eminently political effort and improper for a scientific body as well as
impractical, as there seemed to be no realistic prospect that
governments would approve of a code drafted without their
involvement.135
Rolin counted that there were about twenty–thirty men in Europe

who had been actively engaged in the development of international
law and about twenty with significant contributions in the field of
politics and diplomacy.136 In March 1873, he sent a confidential
note to a limited number of these men, proposing the establishment
of a permanent institute or academy for the organization of
collective scientific activity in international law. He pointed out that
in most fields of intellectual cultivation, there was a tendency to
organize internationally – a tendency made so much easier by the
development of new means of communication – after all, this was
the year of the publication of Jules Verne’s Around the World in 80
Days. It was, he wrote, “une idée essentiellement moderne.”137
The first Meeting of the Institut de droit international was held in

Ghent on September 8–11, 1873 under the presidency of Italy’s
Mancini. Out of the thirty-three invitees, eleven arrived in Ghent and
the rest soon joined as permanent or associate members. Among
other decisions, the Ghent meeting adopted a Statute for the
institute Article 1 of which laid down as the purpose of the institute:
“De favoriser le progrès du droit international, en s’efforçant de
devenir l’organe de la conscience juridique du monde civilisé.” The
“legal conscience [or perhaps consciousness, there is an important
ambivalence in the original French language]
of the civilized world” – language that to our ears seems old-

fashioned and difficult to take in full seriousness. To be an organ of
the conscience
– or consciousness – of the civilized world; what might that feel like?

138
collectif de la doctrine,” in Estudios de derecho internacional.
Homenaje a.g. Antonio de Luna (Madrid, C.S.I.C., 1968), p. 386.
135 The American proposal led to the convening of the Conference

on Reform and Codification of International Law in Brussels on
October 13, 1873 – only five weeks after the Conference that set up
the Institut de droit international. Present in Brussels were thirty
lawyers, philanthropists, diplomats, and representatives of peace
societies as well as three representatives of the newly established
Institut. The conference failed to establish the planned code of
international law and the sweeping proposals in support of
arbitration were gradually set aside as attention was directed at
technical questions of private international law and maritime law. To
this extent, the peace activists had failed. Cf. Abrams, “The
Emergence of the International Law Societies,” pp. 376–379; Schou,
Histoire de l’internationalisme, pp. 321–325.
136 Nys, “Notice sur Rolin-Jaequemyns,” p. 63.
137 (1877), 1 Annuaire IDI, p. 13.
138 In the course of the discussion in Ghent it had been argued that
the provision was quite ambitious. Nonetheless, it was maintained
because: “on a pensé qu’il était essentiel d’affirmer, pour ainsi dire
en tête des statuts, le lien intime qui doit exister entre le science
véritable du droit international et les inspirations de la conscience
public du monde civilisé” (1873), V RDI, p. 683.
41
A romantic profession: Bluntschli
The language came from the pen of the Swiss lawyer, Johann Caspar
Bluntschli, then Professor of Political Science at the University of
Heidelberg, an accomplished publicist in civil and public law, a
moderate-liberal politician and a Protestant activist. Already in
November 1872
Bluntschli had been in contact with Rolin about this suggestion.

Having received Rolin’s note, Bluntschli seized the opportunity and in
his response of March 22 (the Emperor’s birthday, as Bluntschli
points out in his memoirs) annexed drafts for the Statutes of an
Akademie des Völkerrechts as well as an International Society for
International Law. The following May, Rolin and Westlake met with
Bluntschli in Heidelberg to discuss the drafts. Article 1 of the Statute
for the Institute as it was prepared then read: “The Institut de droit
international shall act as the scientificorgan of the common legal
consciousness [ dem gemeinsamen Rechtsbewusstsein] of the
civilized world.”139
This had not been the first time Bluntschli had had recourse to the
idea of a Rechtsbewusstsein der civilisierten Welt. In 1867 he had
had published his Das moderne Völkerrecht der civilisierten Staaten
als Rechtsbuch dargestellt. This book – like the idea of the Institute
– was also credited to Lieber and followed Lieber’s example in taking
the form of a prepared codification.140 Bluntschli explained that he
had chosen this form as he had not wished to report merely the
contents of existing treaties or customs
– this would have been unnecessary (as many books already did
this) but also counter-productive as it would have frozen the law’s
development: I was rather seduced by the contemporary idea to
formulate international law in terms that were clear and correct and
to articulate the legal norms that were held necessary or useful by
the consciousness of the civilized world. In this way I hope to
contribute as much as possible to the development of international
law.141
For Bluntschli, the essence of the legal craft was neither the
reporting of treaties, negotiated by diplomats with an eye for
immediate benefit, nor 139 “Das internationale institut für
Völkerrecht (Institut de droit international) soll dem gemeinsamen
Rechtsbewusstsein der civilisierten Welt zum wissenschaftlichen
Organe dienen.” J. C. Bluntschli, Denkwürdiges aus meinem Leben,
auf veranlassung der Familie durchgesehen und veröffentlicht von
Dr. Rudolf Seyerlen (3 vols., Nördlingen, Beck, 1884), III, p. 331.
140 In fact, Lieber had opposed governmental codification and

preferred a scientific restatement, independent of official scrutiny. Cf.
Ernest Nys, “François Lieber,”
(1902), 2/V RDI, p. 687. For the correspondence, cf. Roeben,

“Bluntschli,” passim.
141 Bluntschli, Denkwürdiges, III, p. 171.
42
the elucidation of customs, always developed for local situations and

for particular needs. Law was, in accordance with the catch-word of
the times, dynamic, and it was the task of legal science to capture
and describe it in its dynamism. Old scholarship had portrayed a
static image of law, one that neglected its constant becoming, its
being a part of the living, evolving order of humanity.142 Moynier
would not have disagreed. Reflecting upon his own initiative to Rolin
he tells that what had been in his mind was:
to bring together those most experienced in international law so that

they would proclaim, with a single voice if possible, the rules of
moderation which the legal conscience of the time found
indispensable.143
Through Bluntschli, the proposal for a scientific institute to act as an
“organ” of legal conscience-consciousness of the civilized world can

be traced to the teachings of the German historical school of law,
associated particularly with Friedrich Carl von Savigny (1779–1861).
As is well known, the historical school emerged as a reaction against
the abstract rationalism of Enlightenment thought and appeared in
the critique against the legislating of comprehensive codes – such as
Napoleon’s Code Civil – that were felt by Savigny to neglect the
organic development of law by popular conviction and to freeze it
into inflexible and abstract maxims.144 By contrast, Savigny stressed
the völkisch char -
acter of law: “Positive law lives in the common consciousness of the

people.”145 The word “positive” here had nothing to do with
recognition by each and every member of the Volk, nor with majority
decision. It denoted a real, supra-individual historical process. For
Savigny, law emerged and was connected to the Volksgeist like
language, not as abstract rules but as living institutions.146
That all (positive) law was Volksrecht did not contradict the
possibility of a general human law: “What lives in a single people is
only the general human nature that expresses itself in an individual
way.”147 For example, Savigny constructed private international law
in a way diametrically 142 Johann Caspar Bluntschli, Das moderne
Völkerrecht der civilisierten Staaten als Rechtsbuch dargestellt (2nd
edn., Nördlingen, Beck, 1872), p. vi.
143 Durand, “The Role of Gustave Moynier,” p. 544.
144 Cf. Friedrich Carl von Savigny, Vom Beruf unserer Zeit für
Gesetzgebung und Rechtswissenschaft (Reprint of the 3rd edn.
[1840], Freiburg, Mohr, 1892).
145 “In dem gemeinsamen Bewusstsein des Volkes lebt das positive
Recht . . .,” Friedrich Carl von Savigny, System des heutigen
römischen Rechts (8 vols., Berlin, Veit, 1840), I, p. 14.
146 Savigny, System des heutigen römischen Rechts, I, pp. 14–16.
147 Savigny, System des heutigen römischen Rechts, I, p. 21.

43
opposed to the old rationalist theory of statutes, emphasizing that

types of legal relationship were rooted in particular historical
contexts and that it was this organic link and not the nationality of
some aspect thereof that should determine applicable law. Private
international law was a supranational expression of legal
relationships, not a part of the national law of this or that State.148
This was precisely the ethos of Westlake and Mancini, too, who had
both attacked the standard view that the use of anything else than
the lex fori was always merely a matter of comitas gentium.149
But if law was an expression of community spirit and there was no

universal community, what then became of international law? In
Savigny’s mind, advanced nations such as the Romans and later the
“Christian–European world” had developed legal rules to govern their

behavior not only inter se but sometimes towards other nations as
well –
although there were neither tribunals nor a legal profession to

administer them.150 But this was not all. The organictheory was
directed more towards a renewal of legal scholarship than
inaugurating a radically populist legal ontology. The “Volk” was in
Savigny’s conservative mind a cultural concept, an intellectual
tradition and not an actual people. A community was neither a raw
nation nor a bundle of free-floating individuals but an institution and
a history. Inherited traditions made people what they were. Savigny
was a cosmopolitan humanist who felt alien towards emerging
German nationalism, and led the “Romanist”
wing of the historical school against those who sought to replace the
study of classical Roman law by enquiries into the Germanistic ius
commune.151
The argument highlighted the position of the academic jurist. It was
the jurist’s task to bring, through a combination of historical and
“philosophical” study, the völkisch law into consciousness.
In the specific consciousness of this estate law is only a continuation

and special development of the popular law [ Volksrecht]. It now
comes to lead a double life: as the consciousness of the people
whose more detailed development and use in individual situations is
the special calling of the juridical estate.152
148 Savigny, System des heutigen römischen Rechts, VIII.
149 Cf. Stanislao Mancini, “De l’utilité de rendre obligatoire, sous la

forme d’un ou de plusieurs traités internationales, un certain nombre
de règles générales du droit international privé pour assumer la
décision uniforme des conflits entre les différentes législations civiles
et criminelles” (1874), 5 Journal de droit international privé, p. 229.
151 Cf. Wieacker, A History of Private Law, pp. 303–316.
152 Savigny, System des heutigen römischen Rechts, I, p. 45.
44
The jurists stand in a reflexive relationship to the Volk; taking the

law as they find it in a nation’s history and customs and exposing it
in the codes they prepare for the nation.153 For Savigny, Wieacker
notes: the jurist is the exclusive representative of law in the people.
Although law had originally evolved in the people as a whole,
possibly through the medium of priests and judges, a class of
learned jurists then arose, and it is they who now have the sole
control on the development of the law.154
The view of the jurist as a representative of popular sentiment was
taken further by Pandectist jurisprudence for which it was the
principal task of legal science to articulate the consciousness of the
people into a logically organized conceptual system. Now the jurist
became – in the words of the leading Pandectist, Georg Friedrich
Puchta (1798–1846), as in Article 1 of the Statute of the Institute –
an “organ” of the people that possesses a monopoly on the theory
and practice of the law.155 In practice, this supported the writing of
scholarly tracts in the form of codes; the concepts of the law derived
not from some momentary (and arbitrary) legislative will but from
the jurists’ historical and conceptual studies. In the same way,
international law could have reality as the juridical articulation of
common European institutions.
Bluntschli had studied under Savigny in Berlin in 1827–1828 and

admired him greatly. By the 1860s, however, the battle between
historicism and rationalism in Germany was largely over and, with
many others, Bluntschli now stressed the need to transcend their
opposition or to find balance between the two.156 Nevertheless, he
felt that public law was still studied by predominantly rationalist
techniques.157 It was necessary to reform it by relating it to the
development of the people and the State within the larger context of
world history: It now is necessary to examine the State not as a
dead machine that functions under the laws of mechanic movement
but as a living entity, an organism inhabited by a spirit. This must,
however, take place by situating the State’s development in world
history and in light of ideas that determine the development of world
history.158
Bluntschli spoke the language of Savigny’s supranational historicism.
This language was familiar to Westlake, too, whose 1858 treatise on

154 Wieacker, A History of Private Law, p. 311. Cf. also Carl Joachim
Friedrich, The Philosophy of Law in Historical Perspective (2nd edn.,
Chicago University Press, 1963), p. 140.
155 Cf. Wieacker, A History of Private Law, p. 316.
156 Roeben, “Bluntschli,” pp. 106–109.
157 Bluntschli, Denkwürdiges, III, pp. 196–201.
45
private international law had been systematically written to

familiarize English jurists with continental scholarship, and Savigny in
particular.159
There was, in this respect at least, no fundamental divide between

the continental and the British jurists behind the Institute. Both held
that law was rooted in the actual histories of peoples and nations.
But its essence was universal; national laws were but aspects or
stages of the universal development of human society.
Such ideas were expressly related to international law by the leading

British legal historian Sir Henry Sumner Maine (1822–1888) who also
occupied the Whewell Chair in Cambridge for a brief period before
his death. Maine regarded international law as essentially a product
of Roman law – often under the pseudonym of Natural Law, as
interpreted and expanded by the great writers, Grotius and de Vattel
in particular.
These were Maine’s “race of law-making jurists”:
the process by which International Law obtained authority in a great

part of Europe was a late stage of the process by which Roman Law
had also obtained authority over very much the same part of the
world . . . this process had little or no analogy to what is now
understood by legislation, but consisted in the reception of a body of
doctrine in a mass by specially constituted or trained minds.160
In Germany, Bluntschli’s “organic” view was soon to be

overshadowed by the Gerber–Laband school of voluntarist
positivism.161 But by importing this older view to international law
Bluntschli was able to avoid the consequence that was inevitable in
later public law that the question of international law’s binding force
would become the central dilemma in the way that Austin had
argued in Britain in the 1830s. If law did not emerge from the will of
the (formal) sovereign but was part of the society’s (organic)
development, the problem of how it could bind the sovereign would
simply not arise.
All this was commonplace to Bluntschli as he turned to international

law in the 1860s at an advanced age and as an already recognized
authority in politics and law.162 He had published works on Swiss
(especially Zürich’s) and German civil and public law as well as tracts
in theology, 159 A. V. Dicey, “His Book and His Character,” in
Memoirs of John Westlake, pp. 26–27.
160 Maine, International Law, p. 26.
161 Cf. e.g. Peter von Oertzen, Die soziale Funktion des
staatrechtlichen Positivismus (Frankfurt, Suhrkamp, 1974), pp. 60–
71, 118–123, 154 et seq. Cf. also pp. 184–185 below.
162 His first publication in the field was Das moderne Kriegsrecht
der civilisierten Staaten (Nördlingen, Beck, 1866), a section of the
1867 work brought out in advance due to the Austro-Prussian war.
46

psychology and politics. Most significantly, he had followed the
historicist school and adopted the Pandectist technique, drafing a
Code for Private Law for Zürich in 1853–1856 that had been used
later in the preparation of the Swiss Civil Code and is still held to be
“outstanding.”163 He followed this technique in his 1867 code of
modern international law of civilized States. He explains: “I was
convinced that international law existed in a relationship of
reciprocal influence with the growing civilization and that every large
human progress meant also progress for international law.”164
Bluntschli interpreted his international code-writing in the same light
as his earlier assignment to write a civil code for Zürich: it was not
for Parliaments or sovereigns to enact written laws but for the
publicists to write down the living law of the people’s Bewusstsein.
This was also to be the vocation of the Institut de droit international.
The “conscience juridique du monde civilisé” in Article 1 of the
Institute’s 1873 Statute refers to a historico-philosophical concept of
law and highlights legal scholarship’s role in expressing it. The
double meaning of conscience is exploited to merge a romantic
sensibility with Enlightenment rationalism.165 On the one hand, as
“conscience,” it looks beyond the vicissitudes of diplomacy towards
the moral sentiments of European societies, a normative–
psychological dictum about the deepest feelings about right and
wrong in (civilized) contemporaries. On the other hand, as
“consciousness,” it separates the true from the false, knowledge
from superstition, employing a multilayered image of the human
psyche at the top of which “consciousness” merges individual
(subjective) understanding with that which is (objectively) true for
everybody.
To articulate and to represent this conscience became the task of the

international law profession. The second paragraph of Article 1 of
the Institute’s Statute links this general purpose to the functions of
the Institute: “De formuler les principes généraux de la science, ainsi
que les 163 Wieacker, A History of Private Law, p. 388. Marcel Senn
observes that Bluntschli was
“einer der bedeutendesten Staatsrechtstheoretiker deutscher

Sprache des 19.
Jahrhunderts,” “Rassistische und antisemitische Elemente im

Rechtsdenken von Johann Caspar Bluntschli” (1993), 110 Z. der
Savigny-Stiftung für Rechtsgeschichte, p. 376.
165 For the combination of rationalist and romantic elements in the

historical school, cf.
Wieacker, A History of Private Law, pp. 286–299.
47
règles qui en dérivent, et d’en répendre la connaissance.” Again, our

modern sensibility may find this way of speaking of international law
as
“science” a rather contrived way to characterize an essentially

technical profession. But for Rolin, Westlake, and Bluntschli, the
“scientification”
of law seemed important precisely to enable the articulation of the

organic relationship between the popular conscience and the law.
The image of nineteenth-century international law today is focused

on a deviation, and thus fails to grasp the project of the men of
1873.
The deviation consists of what is usually called the Austinian chal-

lenge166 – though similar ideas had surfaced in German Staatslehre
and French jurisprudence as well. This challenge has to do with the
command theory of law, espoused by John Austin in the Province of
Jurisprudence Determined (1832) but receiving wider appreciation
only after the posthumous publication of his Lectures on
Jurisprudence in 1863.167 By reference to a priori definition Austin
disqualified international law as
“law” in the absence of a common sovereign whose commands

would be habitually obeyed by members of the international society.
But the men of 1873 did not share a command theory of law. They
represented a historical and organic jurisprudence that linked law to
popular consciousness as represented by the legal profession.
Richard Wildman’s 1849 treatise, for instance, made no mention of
Austin, derived international law from custom and excluded
sovereign compacts from general law altogether: they created
obligations, not law, and were of doubtful significance as evidence of
a general consent of nations.168 But even after Austin’s fame had
grown, his reasoning was opposed by English historical
jurisprudence. Maitland saw little value in it and Maine held it “very
interesting and quite innocuous.”169 For Maine – as for the men of
1873 – international law did not emerge from legislation by
sovereigns. Its essence did not lie in the presence of effective
sanctions but in the “law-abiding sentiment” that lay behind it, that
166 Cf. also Martti Koskenniemi, From Apology to Utopia. The
Structure of International Legal Argument (Helsinki, Lakimiesliiton
kustannus, 1989), pp. 101–102.
167 For instance, the most recent edition of Oppenheim mentions

Austin and “his followers” as the only reference to nineteenth-
century jurisprudence in connection with a discussion of
international law’s legal force. Robert Jennings and Arthur Watts,
Oppenheim’s International Law (1 vol, parts 1–4, 9th edn., Harlow,
Longman, 1992), p.
9. In his illuminating study of nineteenth-century international law,

Anghie, too, sees Austin’s theory as central to nineteenth-century
international law. Cf. Antony Anghie, “Finding the Peripheries:
Sovereignty and Colonialism in Nineteenth-Century International
Law” (1999), 40 Harvard International Law Journal, pp. 13 et seq.
168 Richard Wildman, Institutes of International Law (2 vols.,

London, Browning, 1849), I: International Rights in Time of Peace,
pp. 1–14.
169 Maine, International Law, p. 49. Cf. also Collini, Public Moralists,
p. 303.
48
is to say, in the civilized conscience-consciousness of which the body

of liberal jurists was a collective representative.170
True enough, Rolin, Bluntschli, and Westlake each recognized that

international law was a special kind of law with special problems
relating to the absence of a common sovereign, legislative or
executive power.171 If law was not a creation of sovereign will, but
an organic growth of popular conscience, then this was merely an
incidental problem which, however important in diplomatic practice,
had no conceptual repercussions whatsoever on treating
international law as proper
“law.”172 Westlake was express about this. Not a sovereign but a

society was the precondition of law: “When we assert that there is
such a thing as international law, we assert that there is a society of
states: when we recognize that there is a society of states, we
recognize that there is international law.”173 This society was the
Europe that – as Westlake’s 1894
book canvassed it – was born with classical Greece and Rome, was
consolidated at Westphalia, and now extended to native territories,
colonial government, and war. It consisted of European and
American States plus a few Christian nations elsewhere, such as “the
Hawaiian Islands, Liberia and the Orange Free State.”174 This was
not just some privileged political conglomerate but, in the words of
Francis Lieber “one family of advanced nations”175 whose “habits,
occupations and ideas . . .
[f]amily life and social life”176 – were the basis of international law:
The society of states, having European civilization, or the
international society, is the most comprehensive form of society
among men . . . The consent of the international society to the rules
prevailing in it is the consent of the men who are the ultimate
members of that society.
Bluntschli’s law was neither fixed on sovereign will nor drawn from
Roman law or moral theory but emerged spontaneously through the
lives of (European) peoples. Because spontaneous, this was a fragile
law 170 Maine, International Law, p. 51. Maine even held “that the
Law of Nations is essentially a moral and, to some extent, a religious
system,” p. 47.
171 Cf. Bluntschli, Das moderne Völkerrecht, pp. 2–12.
172 Wheaton had already tackled the issue. Law of nations did not
have “laws” – for laws emanate from a political superior. If laws are
a necessary element of law, then international law is law only in a
metaphorical sense. But this had no effect on the tangible reality of
sovereigns everywhere aligning their behavior with certain rules of
conduct to which they had expressly or tacitly agreed. Cf. Henry
Wheaton, Histoire de progrès du droit des gens en Europe depuis la
paix de Westphalie jusqu’à nos jours (2 vols., 3rd edn., Leipzig,
Brockhaus, 1853), II, p. 370.
173 John Westlake, Chapters in the Principles of International Law

(Cambridge University Press, 1894), p. 3.
174 Westlake, Chapters, p. 81.
175 Lieber, On Civil Liberty, p. vii.
49
that did sometimes – as in war – break down. In such cases, it

became the jurist’s task to articulate it anew: in its coming into
being, its past as well as its future. If, says Bluntschli, scholars such
as Wheaton and Phillimore, Kent and Wildman, Heffter and
Oppenheim agreed on a proposition of law, then it was part of the
law even if there existed no treaty or clear practice on the
matter.177 Bluntschli, Rolin, and Westlake each worried that
international law’s special nature had not been properly understood.
But none of them held that for it to qualify as law it had to parade in
the form of sovereign commands: “It is not up to the arbitrary will of
the State to follow or reject international law.”178
The organic position was a liberal position, not too far removed from
Rousseau’s views about national self-determination and radically
opposed to the conservative-monarchist tradition of early
nineteenth-century public law.179 As we have seen, already von
Mohl, Bluntschli’s predecessor in Heidelberg, had in 1860
constructed public law on the basis of a theory of representative
government, advocating a three-level analysis of international law as
relations between States, communities (or civil societies,
Gesellschaften), and individuals. This had led him to focus on
extradition law which emphasized the juxtaposition of statehood and
individual rights and allowed a terrain for a liberal politics in favor of
non-extradition for political offences.180 Bluntschli simply followed
up by arguing that sovereignty was always limited by the obligation
to guarantee the human rights of citizens and non-citizens alike.181
However weak and undeveloped the international guarantees for

such rights were, he wrote, it had become a fact of cosmopolitan
modernity that the German Everyman could now travel as secure in
Paris, New York, and Calcutta as he lived in Berlin. In the civilized
world, a Kantian Weltbürgerrecht had become a partial reality.182
The definition of legal sub-jecthood in organic terms also allowed a
flexible means of conceiving international law as having a sphere of
application wider than that of European States.183 Although
nomadic tribes, for instance, did not qualify as formal States, if they
were able to formulate a common public 177 Bluntschli, Das
moderne Völkerrecht, p. 65.
178 “Es hängt nicht von der Willkür eines Staates ab, das
Völkerrecht zu achten oder zu verwerfen,” Bluntschli, Das moderne
Völkerrecht, p. 58. On Rolin’s anti-voluntarism, cf.
Nys, “Notice sur Rolin-Jaequemyns,” p. 67.
179 Cf. von Oertzen, Die soziale Funktion, pp. 114–117.
180 Von Mohl, Staatsrecht, pp. 637–764.
181 Bluntschli, Das moderne Völkerrecht, p. 20.
182 Bluntschli, Das moderne Völkerrecht, pp. 26–27.
183 “Das Völkerrecht ist nicht auf die europäische Völkerfamilie

beschränkt. Das Gebiet seiner Herrschaft ist die Ganze
Erdoberfläche, so weit auf ihr sich Menschen berühren.” Bluntschli,
Das moderne Völkerrecht, p. 60.
50
will, they should nevertheless be treated analogously and conclude

treaties with binding force towards European parties.184
In summary, the founding conception of late nineteenth-century

international law was not sovereignty but a collective (European)
con-
science – understood always as ambivalently either consciousness or

conscience, that is, in alternatively rationalistic or ethical ways. This
view emerged less as a reaction to Austin than an independent
stream of historical jurisprudence, linked with liberal–humanitarian
ideals and theories of the natural evolution of European societies.
Even in the absence of a common sovereign, Europe was a political
society and international law an inextricable part of its
organization.185 This was the metaphoric sense of Westphalia that:
“group[ed] for the first time together the States of Central Europe
after the fashion of a family, the members of which were
acknowledged to be independent, and, although of unequal power,
were recognized as possessing an equality of Right.”186 In the last
years of the century, international lawyers routinely responded to the
Austinian criticism by noting that law does not only come down by
sovereign enactment but equally from the spontaneous functioning
of society. Customary law had always emerged in that way; and
much of European law was customary in the sense of having
spontaneously come to regulate inter-European relations. If law was
the effect of a common consciousness, and the existence of a
common European consciousness seemed an undeniable fact, then
international law’s reality was firmly grounded in a social and cultural
fact.
The men of 1873 thought that to find out the law it did not suffice to
record what States had done or said. It was necessary to delve
deeper into the spirit and history of the community. But how does
the scholar do this? Where does one find international law, asks
Rolin, and responds: Not in express enactments which do not exist,
nor in precedents that may themselves be just or unjust, but in the
testimony of his conscience, illuminated and fortified by what the
wisest of men have decided in analogous cases. Thus the principles
posed by publicists in external law find their juridical and legislative
authority in their presumed conformity with human conscience.187
185 I am indebted for this argument to Antony Anghie.
186 Travers Twiss, The Law of Nations Considered as Independent

Communities (2nd edn., 2
vols., Oxford, Clarendon, 1884), I, p. xvii.

p. 226.
51
The law could be found only by looking inwards, into one’s own
normative intuitions whose authority lay in their being those of a
person educated in the canon of Western civilization. This was an
anti-formalist view: “International law increases in substance and
binding force in relation to the degree that the common conscience
of humanity increases in clarity and energy.”188 Bluntschli’s 1867
code, for instance, contained no separate treatment of formal legal
sources at all. Treaties appear only in paragraph 402 while the law in
the preceding 401 paragraphs emanated from a formless
Anerkennung or a consensus, extracted and justifiable partly
through history – that is to say custom – and partly through
philosophy – that is, the dictates of reason and ethics, including
“Grundsätzen des natürlichen Menschenrechts.” They were not

reducible to formal expressions of State will.189
Though Westlake did present a theory of legal sources, it looked

behind formal acts of State diplomacy. His sources were custom,
reason and Roman law190 – a nice recapitulation of late historical
jurisprudence: law was a function of history and reason – while
Roman law could be presumed to reflect both. Treaties created no
law but only obligations between the parties. They were equivalent
to private law contracts. Nor was custom mere habit but “that line of
conduct which the society has consented to regard as
obligatory.”191 What one needed to show when showing custom
was “that the general consensus of opinion within the limits of
European civilisation is in favor of the rule.” And there was the liberal
assumption: “The consent of the international society . . . is the
consent of the men who are the ultimate members of that
society.”192 In practice, such consent could be found in the writings
of jurists “especially when the writer’s reputation proves that he
represents many persons besides himself.”193 The idea of the
representativity of the writer may seem odd – but only if one fails to
take seriously the theory of the writer as an “organ” of a juridical
conscience.
By the 1890s a new generation of textbooks expressed the ethos of

the men of 1873 in a more or less systematic form, bringing to light
its strengths and weaknesses. Central to these books was the
conception of international law as part of European history and
conscience. Alphonse Rivier, for instance, who took over as
Secretary-General of the Institute 188 Bluntschli, Das moderne
Völkerrecht, p. 59.
190 John Westlake, International Law (2 vols., 2nd edn., Cambridge

University Press, 1910), I, p. 14.
191 Westlake, International Law, I, p. 14.
52
while Rolin was in government during 1878–1885, started his 1889

textbook with the dictum that international law was developed
among States that shared a “gemeinsames Rechtsbewusstsein.” The
extent of that consciousness marked the sphere of international
law’s validity; it extended to the family of nations that shared the
Christian faith, together with the Ottoman Empire that had been
expressly admitted to the family in 1856. The family was not closed
but open: through express recognition other nations could and
would be admitted to it.194 It was this family’s legal consciousness
that was international law’s “source of sources”: the validity of
treaties and custom was constantly checked by what common
consciousness held to confirm with “necessitas und ratio.”195
Such a flexible concept of law allowed lawyers to read their

humanitarian sentiments as parts of the law proper while still
complying with the dictates of an emerging evolutionary sociology.
The combination of the two constituted a restatement of their
political project: the law that was derived from European liberal
consciousness–conscience was an agnostic law, freed, as Bluntschli
wrote, from religious imprisonment and oriented towards expansion:
“its objective is a human world order.”196
In this cosmopolitan order no essential distinction existed between

matters internal and international; a humanitarian order that focused
on communities and individuals alike.
In their legal theory, the men of 1873 turned inwards to look for a
law that they believed existed in their moral conscience, cultivated
by a humanitarian sensibility whose outward expression was their
alignment with the political liberalism of the day. The theory of the
text-writer as an organ of popular conscience–consciousness
legitimized the projection of that morality as an expression of what
was best in the cultural heritage of nineteenth-century Europe. The
microcosm of individual sensibilities and the macrocosm of public
law were experienced as aspects of one and the same reality.
Emphasis was less on the construction of rational systems – this was
an old-fashioned idea – than on the development and cultivation of
appropriate personal attitudes – on becoming “civilized,” in a word.
It is not by chance that most of the 194 Whether and to what extent
its precepts already applied outside its formal sphere of validity was
a problem that could be solved neither in a fully egoistic way nor
through some “pseudo-philanthropic Utopia.” Alphonse Rivier,
Lehrbuch des Völkerrechts (Stuttgart, Enke, 1889), pp. 3–5.
195 Rivier, Lehrbuch, pp. 9–11.
196 “sein Ziel ist die menschliche Weltordnung,” Bluntschli, Das

moderne Völkerrecht, pp.
18–19, 59.
53
founders of the Institut were active Protestants whose activism also

constituted a demonstration – to oneself at least as much as to
others – that the internal qualities needed for salvation were indeed
present.
One book that captured such a vision admirably was that by

Pasquale Fiore (1837–1914), Le droit international codifié et sa
sanction juridique, a translation of the Italian original that came out
in 1890. Fiore had been Professor of Philosophy in Cremona and
later of International Law in Pisa and Naples. The book – which Fiore
dedicated to his colleagues at the Institut – was written in the form
of a codification that moved freely between a scientific restatement
and a proposal de lege ferenda. The fluidity with which it
transgressed those categories illustrates the force of the author’s
humanitarian–liberal intuitions as well as his conviction that they
expressed a collective European conscience that arose from the
highest form of civilization ever known.
The ultimate source of international law, Fiore wrote, was the

juridical conscience of European peoples (“convictions juridiques
popu-laires”). Though the interests of political elites and peoples
often conflicted, public opinion increasingly compelled governments
to take account of the latter.197 In due course, general suffrage and
capitalism would do the work of internationalism:
It is above all desirable that the industrial bourgoisie, agriculturalists

and the other social classes whose activity and international division
of labor are the sources of prosperity have a greater influence in the
administration of the republic. These classes will then compel the
nation’s representatives to put the interests of humanity above the
sectional and momentary interests that result from the narrow
policies of governments.198
Again, Fiore’s public opinion was not an irrational popular passion. It

was enlightened by reason and “follow[ed] the movement of
incessant progress and history.”199 Its ambivalent connection to his
theory of 197 Pasquale Fiore, Le droit international codifié et sa
sanction juridique (Paris, Pedone, 1890), p. 9.
198 “Il est avant tout désirable que la bourgeoisie industrielle, les
agriculteurs et les autres classes sociales dont la commerce et la
division internationale du travail font la prospérité, aient une action
et une influence plus considérables dans l’administration de la
République. Ces classes forceront alors les représentants de la
nation à mettre les intérêts de l’humanité au-dessus de ces intérêts
factices et trompeurs, résultats de la politique étroite des
gouvernements,” Fiore, Le droit international codifié, p. 10.
199 Fiore, Le droit international codifié, p. 7.
54
historical development reconciled the liberal ethos with the need to

look at something more tangible than mere “opinion” – namely the
hard facts of history. This enabled Fiore to contrast the law of 1815
with his own time: dynastic legitimacy had been overcome by the
idea that all peoples are autonomous and individuals enjoy human
rights. Today, he wrote,
“certain juridical notions” had crystallized in the conscience of

civilized peoples.200 Three of them were particularly sigificant.
First, individual freedom and human rights had become the

fundamental objects of protection by international law. Individuals
were entitled to choose their nationality and citizenship freely,
having duties to States only in exchange for benefits received.201
Six of such rights (“autrement dit les Droits de l’homme”) bound
even the national legislator:202 personal freedom and inviolability,
the right of civil liberty and nationality, the rights of emigration,
commerce, property, and the freedom of conscience.203 All
individuals enjoyed such rights (with certain restriction as to married
women)204 irrespective of race, nationality, or degree of
civilization.205 They were “under the collective juridical guarantee
by all civilized States” so that their violation allowed collective
intervention.206
Second, law was not an effect of sovereign decision, but a

spontaneous outgrowth of society. Fiore’s methodological a priori
was the historical emergence of his own society, the tangible base
for “civilized consciousness.” Through commerce and increasing
contacts with other nations it was expanding so that it was no longer
possible to speak of
“European international law.” The human society was one: “The

unity of the human species conduces to the recognition that the
empire of legal rules that are applicable to all forms of human
activity in the Magna civitas, must be universal.”207 But how to give
expression to the undeniable and constant experience of cultural
difference while preserving the idea of one single law? This was
possible by adopting a theory of stages 200 Fiore, Le droit
international codifié, p. 16.
201 Fiore, Le droit international codifié, p. 92 (a State as “libre
agglomération d’individus réunis en communauté en vertu d’un
consentement exprès ou tacite”).
202 Fiore, Le droit international codifié, p. 15. Fiore’s subjects of

international law are States, individuals, and churches, pp. 87–90.
203 Fiore, Le droit international codifié, pp. 164–177.
204 Although the imposition of a nationality violated human rights,

Fiore accepted that
“social necessities and the need to maintain the unity of the family”
required that the wife acquire the husband’s nationality, Fiore, Le
droit international codifié, p. 167.
205 In particular, civilized nations have the obligation to eradicate

(black) slavery and all forms of activity contributing to it, Fiore, Le
droit international codifié, p. 165.
55
of civilization which in Fiore – as in most other international lawyers

–
was only implicit, playing upon the prejudices of the European

bourgeoisie. Only fully civilized States could be members of the
Magna civitas, the juridical community. For “[t]his community is
already a product of civilization. To the extent that it expands to
savage countries, it gives rise to needs and interests that unite the
civilized nations with barbaric or other peoples less advanced in the
path of progress.”208 Full membership in the legal community
required the possession of “un certain niveau de culture.” This level
was first attained in Europe but through commerce and other
contacts it was slowly spreading.209 Fiore made the commonplace
distinction between the somewhat civilized cultures of Asia (such as
Turkey and the “great Oriental empires”) and the less civilized
(“peut-être barbares”) of Asia and Africa that did not possess a
stable political organization that would make the development of a
juridical culture possible.210
Third, Fiore emphasized the policy oriented tasks of international

jurisprudence. The combination of the rationalist and historical
arguments enabled him to interpret his own political intuitions as
expressive of popular convictions as well as the determined
consequences of historical progress. By focusing more closely on the
juridical convictions of different ages and peoples, legal science
would “foresee and prepare the progressive amelioration of the
laws.”211 From a study of actually existing societies legal science
could proceed to formulate concrete proposals
“without ever losing sight of the requirements of real life as it

manifests itself in the different epochs of humanity’s history. It must
not be occupied by humanity’s hypothetical development but its real
and tangible development.”212 This meant, for instance, a rejection
of the claims of the papacy and the recognition of the right of
peoples to freely govern themselves.213 Fiore’s historiography would
not simply record past facts.
It would be an “experimental philosophy” through which historical

facts would be linked to causes and consequences that enabled
drafting utilitarian rules “in order to attain the best and avoid the
worst,” to decide 208 Fiore, Le droit international codifié, pp. 74, 82.
New States may enter the community only by recognition by existing
ones, pp. 93–94.
209 Fiore, Le droit international codifié, pp. 75, 81–82.

210 Where nomadic communities may be treated by reference to
international law (if they have a political organization and a
representative chief), barbarians have a claim only to “humanity”
and the protection of human rights, Fiore, Le droit international
codifié, pp. 92–93.
213 Fiore, Le droit international codifié, pp. 50–51.
56
which facts or which behavior, which treaty or declaration could be

elevated “à la hauteur de droit.”214
In Fiore’s 1890s treatise, many aspects of the professional ethic of a

new international law were brought together: it responded to the
needs of European economic and imperial expansion while remaining
sensitive to the problems that accompanied it. It embraced a
commercial spirit and had no doubt about the peaceful and
enlightened quality of (European) public opinion. As legal theory, it
was neither naturalist nor positivist but sought a pragmatic
reconciliation of history with reason: development was “progress,”
associated with the spread of liberal political institutions, protection
of individual rights, freedom of trade, interdependence and the
civilizing mission.
The weakness of a book such as Fiore’s was that it failed to confront

the disturbing evidence from Europe and elsewhere that social or
economic development was not always necessarily felt as
“progress”; that European peoples were not always peaceful,
enlightened, or in agreement with the cosmopolitan sentiments of
elite lawyers; that non-European peoples had often little reason for
gratefulness over the fruit of “civilization”; and that even if there had
been agreement on the direction of reform of European societies
(which there was not) this might not automatically strengthen the
international system. Its most utopian aspect was its implicit
federalism, the view of (European) States becoming increasingly
bound to act through conferences, treaties and dispute-settlement
procedures.215
The legal theory and the esprit d’internationalité 216 of the men of
1873 put the jurist in the position of the Roman praetor in whom the
functions of restatement and reform were inextricably intertwined.
For Asser, for instance, the tasks of the jurisconsulte in the
codification of private international law followed “from the necessity
to subordinate interest to justice – in preparation of general rules for
the acceptance of governments to be used in their external
relations.”217 The jurists should not remain in the scholar’s chamber
but were to contribute to social 214 Fiore, Le droit international
codifié, pp. 48, 49–50, 51.
215 Cf. Fiore, Le droit international codifié, pp. 84–85, 275–283. Cf.
also J. C. Bluntschli, Gesammelte kleine Schriften (2 vols.,
Nördlingen, Beck, 1879), II, pp. 279–312.
216 T. M. C. Asser, “Droit international privé et droit uniforme”

(1880), XII RDI, p. 5.
217 Asser, “Droit international privé,” p. 6.
57
progress. As we have seen, Rolin had in his manifesto directly

associated the project of comparative and international law with
progressive legal reform.218 And Bluntschli, who had been a leading
member of Zürich’s liberal party until 1848, continued to regard his
political activities in Munich and Heidelberg as no less important than
his scientific work.
From his chair in public law and politics he became a vigorous

advocate of German unification under Prussia – through war if
necessary – which he interpreted as a struggle between liberal
modernity against the autocratic Medievalism of the Habsburgs.219
Yet the atmosphere of the 1870s demonstrated that one could not
count on automatic victory.
Economic stagnation and the increasingly visible social problems

associated with laissez-faire capitalism were hardening nationalist
and class antagonisms as well as racism all over Europe.
The great economic slump had started in Europe in the very year the
Institut was established. Apart from Britain, all European countries
returned to protective tariffs. The negative effects of industrialization
had become visible: pauperization of large populations was a reality
around many industrial centers – yet agriculture was the hardest hit
by the depression. As Bluntschli noted, in parts of civilized Europe
the condition of workers and peasants was worse than that of the
slaves of antiquity.220 While the tone of the economic debate
changed from optimism to pessimism, socialists could interpret the
turn to monopoly capitalism as the system’s last gasp before final
collapse.221
International lawyers reacted to this situation with ambivalence. On

the one hand, they continued to advocate free trade and to argue
against protectionism. They were active supporters of the “open
door” policy and proposed regimes of freedom of navigation and free
trade in the colonies.222 They were enthusiastic about new forms of
postal, telegraphic, and monetary cooperation and other aspects of
what they saw as an increasingly transnational economy. By
temperament and position, they 218 Rolin-Jaequemyns, “De l’étude
de la législation comparée et de droit international,”
pp. 1–17.
219 Cf. especially Bluntschli’s position on the Austro-Prussian war in

Denkwürdiges, III, pp.
137–168.
220 “Eigenthum,” in Gesammelte kleine Schriften, I, p. 221.
221 Although some historians have doubted the reality of the

depression of 1873–1895, there was no doubt that contemporaries
saw it as “an unprecedented disturbance and depression of trade.”
Eric Hobsbawm, The Age of Empire 1875–1914 (London, Abacus,
1989), pp. 34–55.
222 Cf. Emile de Laveleye, “La neutralité du Congo” (1883), XV RDI,

p. 254; Travers Twiss, “La libre navigation du Congo (1883),” XV
RDI, pp. 437, 547.
58
were supporters of private property.223 Lieber declared that “[o]ne

of the staunchest principles of civil liberty is the firmest protection of
individual property” and Bluntschli saw the right of inheritance as an
essential part of “Aryan” law without which civilization would slide
into barbarism.224 On the other hand, even as liberals, they also
advocated increasing and even massive governmental involvement
through legislation in correcting the social problems brought about
by industrialization
– however much they justified such measures by the need to secure

private property and to avoid the repetition of 1848.225 The State’s
increasing role in social reform and the seemingly inevitable advance
towards centralization all over Europe were unmistakable signs that
the days of Victorian voluntarism were gone forever.226
Westlake, too, a late follower of the Benthamites, a great believer in

progress and reason, engaged in considerable activity outside the
purely legal realm. Like many other radical–liberals he thought
education as central for social progress. In 1854, at the age of
twenty-six, he became one of the founders of the Working Men’s
College “where Christian socialists mingled with the later
utilitarians.”227 This was an eccentric move by a young barrister. As
A. V. Dicey puts it, it was a company to be joined at the risk of being
deemed by older colleagues as “pretty much what we now call a
crank.”228 Westlake was a supporter of the rights of minorities and
especially of the enfranchisement of women, and an activist in the
temperance cause. Aside from acting as Secretary to the British
Association for the Promotion of Social Science, Westlake was
President of its Jurisprudence (legal reform) Department and even a
liberal–radical Member of Parliament in 1885–1887.229
223 This was visible, for instance, in Bluntschli’s extensive

arguments to keep private property away from the right of capture
and destruction in maritime war. Cf. Johann Caspar Bluntschli,
Beuterecht im Krieg (Nördlingen, Beck, 1870). Cf. also the discussion
in Roeben, “Bluntschli,” pp. 201–219.
224 Lieber, On Civil Liberty, p. 103; Bluntschli, “Arische Völker und

arische Rechte,” in Gesammelte kleine Schriften, I, pp. 77–78.
225 Cf. Bluntschli, “Eigenthum,” in Gesammelte kleine Schriften, I,

pp. 218–224. Bluntschli discussed at great length the proper limits of
State intervention in “Zur Revision der staatlichen Grundbegriffe,” in
Gesammelte kleine Schriften, I, pp. 305–317.
226 David Newsome, The Victorian World Picture (London, Fontana,

1979), p. 231. Cf also Chadwick, Secularization, p. 46.
227 For an account cf. C. P. Lucas, “The Working Men’s College,” in

Memories of Westlake, pp. 130–137.
228 Dicey, “His Book and Character,” in Memories of Westlake, p. 37.

At the College, Westlake taught mathematics.
229 J. Fischer Williams, “Introduction,” in Memories of Westlake, pp.

10–11, 13.
59
Westlake supported proportional representation and the Reform Bill

of 1867. He advocated liberty of opinion within the Church,
defending his old tutor Colenso, the Bishop of Natal, against the
much-publicized efforts to deprive him of his diocese by the Bishop
of Capetown owing to a religious disagreement. Despite his many
welfare activities, however, he seems to have had “profound
distrust” of the extension of the activities of the State and the
municipality – a position attributed less to a belief in the benefits of
the invisible hand than in the individual’s sense of right and
wrong.230 However, though Westlake made it clear that “our
sympathy should be on the side of liberty,” he stressed that the
increasing complexity of modern economy and the resulting
interdependence between individuals necessitated “more regulation”
in the domestic as well as in the international realm.231
One of the eleven founding members of the Institut was the Belgian
economist and Christian socialist Emile de Laveleye, who not only
participated actively in drafting its Statute but was the main author
of the Declaration that was intended to serve as the Institute’s
profession de foi.232
De Laveleye was vice-president of the Institut in 1882–1883 and a

frequent collaborator in Rolin’s Revue.233 Most of his works have to
do with political economy, however, and many of them went into
several editions and were widely translated.
De Laveleye argued that political democracy did not suffice to

maintain social peace. Growing social and economic inequality
threatened to destroy the European order as it had once destroyed
Greece and Rome.
A principal reason for this, he maintained, was unrestricted

protection of private property, based on an erroneous rationalism.
Historically, forms of collective property had been the rule and
private property the exception. As Maine had noted, the original
contract was pure fiction. Property regimes were an effect of power.
It was now time to recognize the social role of property as a
condition of political freedom and economic justice.
This could be done, he suggested, by conceiving a part of the land

of every municipality as public domain to be divided equitably
between families in the way that was customary in certain Swiss
Cantons.234
230 Fischer Williams, “Introduction,” p. 11.
232 Cf. (1877), 1 Annuaire IDI, pp. 21–27.
233 For a short biography, cf. the obituary by Alphonse Rivier in

Institut de droit international, Livre de centenaire 1873–1973:
Evolution et perspectives du droit international (Basle, Karger, 1973),
pp. 74–79.
234 Emile de Laveleye, De la propriété et de ses formes primitives

(Paris, Baillière, 1874).
Bluntschli did not think of property as an effect of legislation but

conceived its pro-60
As economist, de Laveleye was opposed to the naturalist

individualism of Adam Smith and the physiocrats, agreeing with the
German Katheder-socialisten that national economies were also
based on a collective consciousness by reference to which individuals
were sometimes ready to sacrifice their private good for that of the
fatherland, humanity, or truth.235 For him, the State was a
representative of the national consciousness, “l’organe suprême du
droit, l’instrument de justice.” It was therefore for the State, and its
law, to create the conditions for a just economic system. At the
international level, de Laveleye advocated the drafting of a code of
international law to be enforced by a general system of international
arbitration.236 This would be the first step towards the increasing
integration, through economy, of Europe into a federation of free
nations.
Irrespective of their wide-ranging political engagements, however,

the members of the Institut simultaneously highlighted the scientific
neutrality of their common venture. This was already visible in
Rolin’s attempt to maintain a careful distance from the American
initiative that had led to the establishment of the Association for the
Reform and Codification of International Law in Brussels only a few
weeks after the Institut had been set up.237 Rolin and Mancini both
advocated a kind of centrism, staying aloof from “the virtuous
utopists that wanted the immediate abolition of war” as well as from
those “timid spirits” that regarded the present state of affairs as
beyond correction. By not taking a position on diplomatic conflicts –
or at least conflicts between European powers –
they hoped the Institute would receive enough prestige to be able to

tection as one of the State’s principal tasks. However, he recognized
the dangers in massive inequalities of ownership and agreed that an
acceptable way to alleviate them was to provide allotments of
common property to poor families: “Sie ver-danken dann ihre
Kartoffeln und Gemüse vornehmlich der eigenen Arbeit und Sorge,
und dieses Gefühl wirkt in moralischer Beziehung ebenso belebend
und erfri-chend, wie die Arbeit in freien Luft in leiblicher Hinsicht.”
“Eigenthum,” in Gesammelte kleine Schriften, I, p. 231.
235 Emile de Laveleye, Le socialisme contemporain (Paris, Baillière,

1881), p. 5.
236 de Laveleye, Des causes actuelles, pp. 161 et seq.

237 Many Institut members did participate in the activities of the
Association, drawing it closer to governments and channeling its
activities to more modest proposals for arbitration, rules of warfare,
and the codification of private international law. This disappointed
the philanthropists who had originally conceived the Association as a
forum for far-reaching legislative change and who now gradually
shifted their emphasis away from international law to other forms of
cultural or economic cosmopolitanism and work for peace societies.
Cf. Hinsley, Power and the Pursuit of Peace, pp. 126, 133, 267.
61
influence the domestic policies of European governments and to

contribute to international concord.238
To make sure that the Institut would not appear to take sides in
political controversy, its early work concentrated on a pet theme of
Mancini’s and Asser’s, the drafting of international conventions on
private international law – particularly conflict of laws in civil,
commercial, and criminal matters. It also dealt with the procedures
of international arbitration and sought to codify the Washington
Rules that had been written into the Alabama compromis. When the
Institut did take a more activist line
– appealing against the use of irregulars and in favor of

disseminating humanitarian law in the 1877–1878 Balkan war239 –
it did so in thinly veiled criticism of Turkey. When in 1887 Rolin
suggested that the Institute might propose to European
governments the conclusion of a convention on the limitation of
armaments and military budgets, the majority strongly opposed such
a venture into an eminently political domain and no action was taken
on it.240 Nor was there any action to further the schemes for
European government that had been proposed in their academic
writings by Bluntschli and the Edinburgh scholar James Lorimer.
“Politics” was for the Institut an affair that concerned European
diplomacy, too sensitive or controversial to embark upon. By
contrast, if a matter related to colonial affairs – for instance,
freedom of navigation in the Congo or the conditions of effective
occupation in Africa under the 1885 Act of Berlin – no such
procedural obstacle was conceived.
Around this time European nationalism separated from

enlightenment rationalism and turned to the right. It became part of
the revolt against positivism that characterized the cultural
atmosphere of the century’s last two decades.241 At the same time,
Napoleon III succeeded in co-opting it for a patriotic cause and in
1861 and 1870–1871 Italy and Germany were united under it. The
use of nationalist rhetoricas part of the foreign policy of European
powers did nothing to soothe the emotions 238 Rolin-Jaequemyns,
“De la nécessité,” pp. 478–480, 483, 486–487. The same is also the
gist of James Lorimer’s speech at the University of Edinburgh on
November 4, 1873, as reported in (1874), V RDI, pp. 168–172.
239 Cf. (1878/2), Annuaire IDI, pp. 132–137 and (1879–1880/1), 2

Annuaire IDI, pp.
13–17. A proposal by Hall to criticize Russian behavior in the war

was expressly rejected (1879–1880), 3 Annuaire IDI, pp. 38–49.
240 (1887–1888), 9 Annuaire IDI, pp. 344–356.
241 For the transformation of nationalism from a liberal to a

conservative force at this time, cf. E. J. Hobsbawm, Nations and
Nationalism since 1870: Programme, Myth, Reality (Cambridge
University Press, 1990), pp. 101–130.
62

of the masses. Liberal cosmopolitanism was increasingly limited to
the outlook of bourgeois and aristocratic classes.
International lawyers never formally adopted the language of

Mancini’s “principle of nationalities.” However, nationalism was such
an important part of the political reality that a legal doctrine in
search for a firm cultural basis could hardly ignore it. All the men of
1873
accepted nationhood as a fundamental fact of the international

society and 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 well-ordered
international realm.242 Baron Franz von Holtzendorff (1829–1889)
from Berlin, 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, so the spirit of humanity
animated the lawbooks of different nations.243
In such and other metaphors international lawyers integrated their

nationalism in a larger, humanist vision of European civilization,
sometimes defining nationhood as Fiore had done, in a cosmopolitan
way, as an aggregate of, or political compact between,
individuals.244 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.”245 But
even continental lawyers who generally did share an organic
conception of the nation refrained from drawing the kinds of legal
conclusions from it that Lasson had done in 242 Rolin-Jaequemyns,
“De l’étude de la législation comparée et de droit international,”
p. 16.
243 Franz von Holtzendorff, Handbuch des Völkerrechts. Erster

Band. Einleitung in das Völkerrecht (4 vols., Berlin, Habel [vol.I] and
Hamburg, Richer, 1885), I, pp. 38–39. Similarly, cf. James Lorimer,
Institutes of the Law of Nations (2 vols., Edinburgh and London,
Blackwood, 1883), I, pp. 9–11. Holtzendorff also argued that the
importance of nationhood lay in the fields of history, culture, and
psychology – it was normally sufficient for lawyers to focus on States
and to dismiss speculation about principles of nationalism. While
nationalism might have a factual influence on the law, it remained
outside normative analysis. Holtzendorff, Handbuch, I, pp. 40–41.
244 See e.g. Twiss, The Law of Nations, I, pp. 1, 7–9.
63
1871. Bluntschli certainly never imagined that there was any conflict
between his nationalism and individual rights: each was defined in
terms of the other.246 The two also came together in his theory of
national self-determination: a law denying this, Bluntschli wrote,
would simply be an Unrecht. 247 For him as for Lieber, the defense
of individual liberty went hand in hand with a (moderate)
nationalism.248
Yet, all international lawyers espoused the cause of their State and
felt that its particular nationalism was of the beneficial variant. From
his seat in the first chamber of the Baden Parliament Bluntschli
became an active supporter of Bismarck’s “energetic” unification
policy.249 He even defended the integration of Schleswig-Holstein
into the German Confederation in 1863 on the basis of the national
idea – and not following the principle of dynastic succession as
provided in the London Treaty of 1852. He had no reservation about
the legitimacy of war to defend German honor if its just claims were
opposed: “We have to invest all, and thus we can accomplish all . . .
A nation of Germany’s greatness that defends its right and honor will
also emerge victorious from a difficult war.”250 Here nationalism
prevailed over individual rights; at least in Schleswig-Holstein it
sufficed that unification was “necessary,” even if the population
opposed it.251 Bluntschli also saw unification (at least under
Prussia) as a safeguard against French imperialism. But he was
critical both of German pride ( Hochmut) and French vanity (
Eitelheit) and ready to admit that French “femininity”
counterbalanced German
“manliness” to humanity’s benefit: “a female property is naturally

quite charming and less offensive than . . . manly vice.”252
Commenting upon the ongoing Boer War in 1896, Westlake was

careful not to appear to take a “propagandist” pro-British position.
The war, he felt, was a war between two ideals, the racial ideal – the
Transvaal ideal – and the English ideal of “a fair field for every race
and every language, accompanied by a humane treatment of the
native races.” But it did happen that “the English language and
institutions
[were] taking possession of a large part of the world, as being those

247 Bluntschli, “Die Entwickelung des Rechtes und die Recht der
Entwickelung,” in Gesammelte kleine Schriften, I, pp. 44–55.
248 Cf. Roeben, “Bluntschli,” p. 184.
249 Bluntschli, “Die nationale Statenbildung und die moderne

Deutsche Stat,” in Gesammelte kleine Schriften, I, pp. 99–113.
251 “A part should not obstruct the whole,” Bluntschli, Das moderne
Völkerrecht, pp.
174–175 (with reference to Schleswig-Holstein).
252 “[ J ]ene weibliche Eigenschaft ist doch liebenswürdig und

weniger verletzend als . . .
männliche Fehler.” Bluntschli, Das moderne Völkerrecht, pp. viii–ix.
64
which most successfully compete in that fair field; but although that
may be the result it is not the object of the English ideal.”253
Westlake’s admiration of the “English ideal,” indissociable from his
admiration of liberalism, turned in this way into a nationalism that
provided no understanding for President Kruger’s position in the war.
Had the English Uitlanders been given a right to vote, Transvaal
would have ceased being independent. From Westlake’s perspective,
however, such independence had no real weight. He had no trouble
canvassing the eventual British annexation of Transvaal and the
Orange Free State.254
The nationalism of the founders of the Institute must be seen in the

context of their Protestant politics. The contrary to nationalism was
universal monarchy – something they associated with Papist (or
possibly French) ambition and against everything they thought
valuable. Hence they preached freedom of thought and religion as
central parts of their politics.255 If the Pope had refused to reconcile
himself with liberalism in the infamous encyclical Syllabus of Errors
(1864) – which Bluntschli called a “manifesto of war by ecclesiastic
Absolutism over the modern world and its culture” – this only
strengthened their conviction that the Westphalian peace was a
continuously valuable core of Europe’s political and legal system.256
As minister of interior in Belgium in 1878–1884, Rolin struggled
against Catholics (Jesuits in particular) during the
“school wars” – the establishment of non-confessional primary and

secondary schools – and achieved the rupture of diplomatic relations
with the Vatican.257 Bluntschli and von Holtzendorff had both been
involved in the establishment of the Protestanten-Verein in Germany
in 1863 and sided squarely with Bismarck in the Kulturkampf. For
them, Protestantism, liberalism and nationalism formed an
inextricable whole.258 This did not necessarily mean that
international law was inapplicable beyond the Protestant or even the
Christian realm: in contrast to all other religions, 253 John Westlake,
“The Transvaal War” (1899), in The Collected Papers of John
Westlake on Public International Law (L.Oppenheim ed., Cambridge
University Press, 1914), p.
422.
254 Westlake, “The Transvaal War,” pp. 457–459.
255 Cf. Bluntschli, “Geschichte des Rechtes der religiösen

Bekenntnisfreihet,” in Gesammelte kleine Schriften, I, pp. 100–133.
Cf. also Roeben, “Bluntschli,” pp. 184–189.
256 Cf. Bluntschli, “Das römische Papstthum und das Völkerrecht,” in

Gesammelte kleine Schriften, II, p. 243. Bluntschli denied that the
relations between States and the Pope could come under
international law – although certain analogies – conclusion of
concordats and the right of legation – did exist, pp. 248–255.
Lorimer agreed. For him, “Roman Catholicism is moribund,”
Institutes, I, p. 117.
257 Cf. Georges-Henri Dumont, Léopold II (Paris, Fayard, 1990), pp.

198–201.
258 Cf. also generally James J. Sheehan, German Liberalism in the
19th Century (Chicago University Press, 1978), pp. 123–180.
65
Lorimer wrote, Christianity preached universality and full reciprocity

between human communities. But it did mean that communities
governed by “intolerant religious creeds” (practically the whole non-
Christian world) could not enter the community as full-fledged
members.259
The need to balance between universalism and nationalism required

delicate assessments about what kinds of reform to propose. There
could be no doubt about Mancini’s nationalist credentials. His
nationalism was based on a cosmopolitan liberalism that looked and,
increasingly after 1861, worked towards European unification. In
1867 Mancini had Italy propose a European convention on conflicts
of laws. As this did not succeed (owing to Franco-German hostility)
he reformulated his proposal in 1874 in a famous speech at the
Institut in which he reiterated the old distinction between the
rational law that was applicable everywhere and cultural law whose
immediate unification – for instance, in the form of a uniform
European civil code – was not desirable. The differences between
European peoples were still too important. By contrast, a code on
the conflict of laws would be a suitable compromise. It would not
encroach on national laws – on the contrary, it would make certain
that national laws were to be applied as a matter of duty, not merely
of comity, irrespectively of which jurisdiction it was that decided the
case.
By defining the relevant national link such a code would give effect
to the national character of the dispute wherever it was to be
decided.260
A few years later, Asser succeeded in mobilizing the Netherlands in a
massive effort for the development of rules of private international
law and the unification of law.261 His approach was entirely
pragmatic. He readily admitted that legal unification was not always
beneficial but sometimes required compromises on the part of
national legislatures that might violate the national sentiment.262
Care was to be taken so as not to direct international reform against
the autonomy of States or the powers of legislative organs.
Unification was to commence in the field of conflicts of laws where
reform seemed most urgent and least threatening to national
authorities.263
Such a reconciliation of nationalism with a (European) political order

259 Lorimer, Institutes, I, pp. 109–125.
260 Mancini, “De l’utilité,” pp. 221–239.
261 He shared the Prize in 1911 with the Austrian pacifist August
Fried. On the setting up of the Hague Conference on Private
International Law in 1894 cf. the report by Asser in (1894–1895), 13
262 T. M. C. Asser, “Droit international privé et droit uniforme,”

(1880), XII RDI, p. 12.
263 Asser, “Droit international privé,” pp. 14, 17.
66
was programmatically argued in Francis Lieber’s short essay of 1868

on nationalism and internationalism. The two ideas were not only
compatible but interlinked: “The multiplicity of civilized nations, their
distinct independence (without which there would be enslaving
Universal Monarchy), and their increasing resemblance and
agreement are some of the general safeguards of our
civilization.”264 There was, on the one hand, “the manly idea of self-
government applied to a number of independent nations” and, on
the other hand, “the all-pervading law of interdependence.”
Nationalism and internationalism were brought together by the
concept of a community of independent, yet increasingly
interdependent civilized nations: “The civilized nations have come to
constitute a community, and are daily forming more and more a
com-monwealth of nations, under the restraint and protection of the
law of nations.”265 Towards the external world, Europe was a
historical, political, and cultural unity. Internally, its unity consisted in
organization into separate, secular States. Projects for European
unification drafted by Institut members sought to respect this
duality: to give expression to what was common to European States
without encroaching on their political independence.266
In addition to seeking to defend their liberal worldview against
increasing economic problems and nationalist agitation the men of
1873 waged a defensive war against the socialists and communists
on the left. When the German Emperor convened an international
conference in Berlin in 1890 on the protection of workers, Rolin
attacked the initiative as a form of international socialism that
encroached on the freedom of labor. The good that would result
from State intervention in matters of this nature were far
outweighed by the disadvantages of increased bureaucracy.
This was not to deny the need for better worker protection or social
welfare schemes, he wrote, but to insist that how these should be
carried out was best left to national legislators.267 Alphonse Rivier,
Rolin’s friend from Brussels, wrote that the great dangers of the time
were racial hatred 264 Francis Lieber, Fragments of Political Science
on Nationalism and Internationalism (New York, Scribner, 1868), pp.
20–21.
265 Lieber, Fragments of Political Science, p. 22.
266 Cf also Bluntschli’s proposal for a European Community in

Gesammelte kleine Schriften, II, p. 279. Likewise, von Holtzendorff,
Handbuch, I, pp. 38–41.
267 Gustave Rolin-Jaequemyns, “La conférence de Berlin sur la

législation du travail, et le socialisme dans le droit international”
(1889), XXII RDI, pp. 14–27.
67
and “certain continental aberrations of Parliamentarism . . . as well

as the exaggeration of general franchise that had in certain States
supported the raw and unthinking popular opinions through the
misuse of freedom by an unthinking and often unpatrioticand spec
ulating
press.”268 Lorimer held “communism and nihilism” to be simply

prohibited by international law.269 In that matter, the language of
the men of 1873 sometimes took a tone of excitement that appears
symptomatic of the repressive impulses their otherwise balanced
centrism must have entailed. One controversial item concerned the
treatment of foreign political exiles.270 In 1859, Lieber – himself a
refugee from Europe – was able to congratulate the British House of
Commons for rejecting a bill that would have made it an offence to
foment conspiracy against foreign princes in England and for freeing
of Orsini, suspected of a plot against the life of Napoleon III –
decisions that were “hailed with joy by every man on the European
continent, who wishes well to liberty.”271 Indeed, not only Orsini but
Mazzini, Kossuth, Garibaldi, and Herzen together with numerous
other refugees of 1848 had all at one point been able to
demonstrate publicly in London while enjoying asylum in England
much to the dismay of their governments.272
Twenty years later, Fedor (Friedrich) Martens (1845–1909), the

famous Baltic–Russian professor and diplomat, argued at the
Institut, in a somewhat circular way, that times had changed. While
the number of
“real” political refugees had diminished, the number of political

“criminals” had increased – members of the Commune, nihilists or
socialists who through the use of murder and arson desired anarchy
and celebrated the “instincts bestiaux de l’homme.”273 Now
Bluntschli, too, demanded extradition for political crimes, denouncing
“communist and nihilist conspiracies” which, he maintained, “have
an international character and threaten all authorities in all
countries.”274 In 1879 the Institute voted (19–7) to adopt a
provision that enabled States to exercise extraterritorial criminal
jurisdiction for acts committed anywhere and by anyone, if such acts
constituted attacks “on the social existence 268 Rivier, Lehrbuch des
Völkerrechts, p. 28.
269 James Lorimer, “La doctrine de reconnaissance. Le fondement

de droit international” (1884), XVI RDI, p. 351.
270 For a general treatment of the right of asylum in mid-century

Europe cf. Robert von Mohl, Staatsrecht, Völkerrecht und Politik, pp.
637–764. Cf also “Rapport de M. Charles Brocher sur l’extradition”
(1879–1880), 3–4 Annuaire IDI, pp. 213–220.
271 Lieber, On Civil Liberty, p. 59.
272 Cf. the colorful account in E. H. Carr, The Romantic Exiles

(London, Serif, 1998
[1933]), pp. 122–123.
273 (1879–1880), 3–4 Annuaire IDI, pp. 268–269.
274 Cited in Nys, Le droit international, II, p. 303. Cf. (1881–82), 5

Annuaire IDI, pp. 102, 103.
68
of the State” or endangered its security.275 The following year, the

Institute adopted a series of articles that did provide for non-
extradition for political crimes – but limited this strictly to activities
that would not compass normal crimes as well.276
In a lengthy article on anarchism in the 1890s Rolin’s brother, the

President of the University of Ghent and Vice-President of the
Institut, AlbéricRolin (1843–1937, later Baron Rolin) denounc ed
universal
suffrage as it led the uneducated to socialism, collectivism, and
anarchism. There was only a theoretical difference between
socialism and anarchism: the one led automatically to the other: “If
modern society carries socialism within itself, it has contracted a
sickness, it is a cancer that has to be removed, if possible, from
which it must heal itself, for the malady is serious.”277 AlbéricRolin
agreed with Lorimer, Bluntschli, and Martens: anarchism and
communism were crimes against all States, to be combated by all
available means.278 In this respect, many legislations – particularly
those of France and Belgium – still contained gaps. But his point was
more general. The threat came not only from anarchist acts but from
the very spread of socialism: “Socialist, collectivist and anarchist
theories address themselves to man’s basest instincts, they flatter
and seduce his vilest appetite: they have assured clients among the
outcast and especially among criminals.”279
Within the Institute, such views were not too extreme280 – even
Lieber associated socialism with despotism, “those fatal negations of
freedom,”
demonstrating how easily the men of 1873 could fall back on

repression in order to defend their aristocratic liberalism. At Albéric
Rolin’s initiative, the Institute tightened the conditions for non-
extradition for political crimes in 1892, exempting acts that could be
described as being
“dirigés contre les bases de toute organisation sociale.”281 The

Institute’s esprit d’internationalité was tolerant but paternalisticand
repressive. Not 275 (1879–1880), 3–4 Annuaire IDI, pp. 276–281.
Westlake voted against this provision, arguing that such acts could
better be dealt with by diplomacy than criminal law.
Westlake, Chapters, pp. 127–128.
276 Déclaration internationale relative au droit d’expulsion des

étrangers (8–9 septembre 1880), Arts. 13–14 (1881–1882), 5
277 Albéric Rolin, “La repression des attentats anarchistes” (1894),

XXVI RDI, p. 126.
278 At its session of Geneva in 1892 the Institut did modify the
resolution of 1882 to the effect of exempting from non-extradition
crimes that were “directed against the basis of all social
organization, and not only against a determined State or a particular
form of government” (Art. 4). Règles internationales sur l’admission
et l’expulsion des étrangers, 9 September 1892 (1892–1894) 12
Annuaire IDI, p. 183.
279 Rolin, “La repression,” p. 128.
280 Cf. also the remarks by Martens and Saripolos (1879–1880), 3–4
Annuaire IDI, pp.
265–276.
281 (1892–1894), 12 Annuaire IDI, pp. 182–183.
69
without reason, Rolin-Jaequemyns sometimes defined it as “un esprit

à la fois libéral et sagement conservateur.”282 And Westlake
confessed that although as a young man in 1867 he had been in
favor of proportional representation and abolishing the House of
Lords, he had later seen the virtues of control on the whims of
public opinion.
If international lawyers espoused an ambivalent centrism in their
attitudes towards European nationalism, and manly determination to
repress the spread of socialist ideas, they were anything but averse
to giving legal recognition to cultural difference between Europe and
the rest of the world. Darwin’s Origin of Species was published in
1859 and within thirty years, social Darwinism had become the
principal competitor of liberalism among educated classes in
Britain.283 Herbert Spencer’s popular works suggested that social
evolution took place through a move from homogeneity to
heterogeneity, increasing differentiation and specialization, and thus
worked against egalitarian ideas.284
With disappointments in the colonies, and the horror stories that

explorers and frustrated missionaries brought back from Africa,
humanitarianism often transformed into racism.285
With express reference to these new doctrines, James Lorimer, the

Institut member who did the most to attempt a theoretical
articulation of a new international law, forecast in 1884 that no other
modern science would have as much effect on international law as
ethnology, or the science of races, as he called it. Speculating about
the connection of racial background and political organization he
canvassed two possibilities for the future of British rule in India.
Either British domination would continue – or else something would
happen “that had never happened before,” namely the birth of a
proper Oriental political organization. Because political organization
was a European concept, only 282 Gustave Rolin-Jaequemyns, “Le
droit international et la phase actuelle de la question de l’Orient”
(1876), VIII RDI, p. 380. Bluntschli, too, characterized his own
political ideas with the epithet “liberal–conservatism.”
283 G. N. Sanderson, “The European Partition of Africa: Coincidence

or Conjecture?,”
in E. F. Penrose (ed.), European Imperialism and the Partition of
Africa (London, Cass, 1975), p. 43. On Darwin’s (or rather
Darwinism’s) influence in various European countries at the time, cf.
Chadwick, Secularization, pp. 241, 175–188; Gay, The Cultivation of
Hatred, pp. 45–68.
284 Cf. Hawthorn, Enlightenment and Despair, pp. 90–100.
285 Cf. Hobsbawm, Age of Empire, pp. 31–32.
70
European States merited full recognition as States while “barbaric”

and
“savage” communities merited only a partial or “human”

recognition.286
On the other hand, in 1885, de Laveleye did accuse Spencer of

being
“anxious to see the law of the survival of the fittest and of natural
selec-tion adopted in human society.”287 Even as international
lawyers had no doubt about the superiority of European civilization
over “Orientals,”
they did stress that the civilizing mission needed to be carried out in
an orderly fashion, by providing good examples, and not through an
unregulated scramble.
This was a novel doctrine. Early nineteenth-century lawyers such as

von Martens and Klüber had professed that a universal law could be
derived from a universal human nature. Though they had
understood international law as a European heritage they had seen
that heritage in a universal light. Rational law was first realized in
Europe but its validity was not limited to Europe.288 It is important
not to overstate the extent of their universalism, however. For James
Reddie, writing in mid-century, it was clear that “a body of practical
international law has grown up, and been formed, in the course of
the last three centuries, among the Christian nations; namely what
the German jurists call the practical science of the Droit des Gens
Moderne de l’Europe.”289 After all, it was precisely that “practical
law” that filled the textbooks of von Martens and Klüber. But the
European culture they wrote about, or pretended any knowledge of,
was diplomatic culture: the culture of sovereign protocol, great
congresses, alliances, and war. If that was a European heritage, it
was narrow and technical, unconnected to the spiritual awakening of
European nations. Even as they wrote of the history of international
law as part of the development of civilization, they meant
“civilization” in the Kantian sense as a state of cultivation of the
human faculties, manifested in diplomacy’s complicated forms, and
not in the sense of the idiosyncratic Kultur of any particular
nation.290
The liberal jurists of 1873 could not fail to see the limitedness of
such concept of culture. Its mastery was hardly an adequate basis
for imagining oneself as the “organ” of a popular conscience–
consciousness. The old German textbooks gave much too much
weight to formal treaties 286 Lorimer, “La doctrine de
reconnaissance,” p. 335.
287 Quoted in Gay, The Cultivation of Hatred, p. 45.
288 Cf. chapter 2 below.
289 Reddie, Inquiries in International Law, p. 146.
290 For the distinction, cf. e.g. Raymond Geuss, Morality, Culture,
and History. Essays on German Philosophy (Cambridge University
Press, 1999), pp. 33–44 and Terry Eagleton, The Idea of Culture
(Oxford, Blackwell, 2000), pp. 10–14.
71
which, after all, and despite elaborate explanations to the contrary,

failed to bind anyone but parties. The real law was to be founded on
something more inclusive. Reddie had imbibed the message of the
historical school and argued that positive law “has chiefly arisen or
grown up gradually, from customs and usages, adapted from time to
time in the course of ages.” It was not sufficient for legal study to
search and organize formal acts of diplomacy. One must, rather
“search therein, for the notions, which serve as guides, to unfold
these rules as derived from the fundamental principle of right or
wrong.”291 Reddie mixed diplomatic form and national substance,
rational and positive law, custom and justice in a fashion that was
only a step away from Rolin’s arguments about the jurist as public
opinion’s enlightened mouthpiece. As soon as skepticism about a
general, abstract right stepped in, Reddie’s methodological dictum
could be rewritten so as to imply that what must be fundamental is
the jurist’s moral sensibility.
From mid-century onwards, a sociological consciousness was

increasingly propagated by bodies such as the British Association for
the Advancement of Social Sciences at which Rolin and his friends
had met.
Legislative reforms had to be based on the actual conditions of

societies.
Hence the early stress on comparative law and conflict of laws in the
Revue and the Institut.292 This created a practical problem,
however. It could hardly be expected that international lawyers
undertake ethnographic or sociological studies as a condition for
being able to say anything general about international law. Though
Bluntschli, for instance, argued that nations had different character
and that successful reform must be compatible with such
character,293 his 1867 code-book contained no character studies of
European nations. For the purposes of international law, he and his
colleagues assumed that whatever differences there existed between
European nations, they were sufficiently similar for there to be an
international law among them, and sufficiently different from non-
European peoples so as to preclude the extension of such law to the
latter.
The explanation of international law as an effect of European

culture, instead of habits of diplomacy, was elaborated in the great
textbooks of the last two decades of the century. Franz von
Holtzendorff’s 291 Reddie, Inquiries in International Law, p. 153.
292 Bluntschli engaged in lengthy discussions of Jewish and

Mohammedan law, Chinese and Buddhist law, etc., cf. “Der
Rechtsbegriff,” in Gesammelte kleine Schriften, I, pp. 7–20.
293 Bluntschli, “Der Stat ist der Mann,” in Gesammelte kleine

Schriften I, pp. 269–271.
72
many-volume Handbuch des Völkerrechts (1885–1889), for instance,

discussed the “ethnographic basis of international law” and
concluded that international law governed the relations between
States “whose external relations could be regulated by a uniform set
of norms on the basis of a shared legal consciousness of
peoples.”294 National law developed in relation to the cultural
process of the nation. In the same way, international law was based
on the cultural process of Europe, a process of “civilization” – in
contrast to which the cultural process of other nations could be
understood as half-civilized or savage.295 Because international law
was a fruit of European civilization it could not be automatically
applied outside its realm.296
In their textbook, much-used after 1898, Henri Bonfils (1835–1897)
and Paul Fauchille (1858–1926) explained that international law
emerged through increasing contacts between nations with a
common civilization: “The foundation of international law resides
thus in the undeniable and necessary fact of the existence of a
durable and legally recognized community among States that have
attained or exceeded a certain level of civilization.”297 There was a
natural international law (“principles of justice and humanity”) that
applied to all peoples irrespective of cultural difference – and it had
not always been honored by Europeans. But the bulk of the law
concerned only European States:
“They form a community of nations that is united by religion,

customs, morality, humanity, science as well as as the advantages of
commercial relations, together with the habit of forming alliances
and concluding treaties with each other.”298 To participate in
international law required a certain resemblance of habits, customs,
and procedures. Citing John Stuart Mill against Pufendorff and
Montesquieu, Bonfils and Fauchille observed that to apply European
international law in regard to barbarian nations was to
misunderstand the reciprocity underlying it. If some parts of the law
had sometimes been applied to States such as Turkey or the great
Asiatic empires, this had taken place only on an “exceptional and
limited fashion” and for a particular purpose. Their full application
294 Holtzendorff, Handbuch, I, p. 11.
295 This classification comes from Lorimer, Institutes, I, pp. 101 and
passim.
296 Holtzendorff observes that the concepts of “culture” and

“civilization” are not unambiguous and that their definition is not the
task of lawyers but of historians and ethnographers. For the jurist, it
suffices to observe the peaceful interaction between European States
and the recognition by those States of certain binding rules as “ent-
scheidendes Merkmal der politischen Cultur in Völkerrechtlichen
Sinne,” Handbuch, I, p. 13.
297 Bonfils–Fauchille, Manuel, p. 5
298 Bonfils–Fauchille, Manuel, pp. 17–18.
73
was impossible in the absence of “this community of historical

tradition, this mutual understanding that even in Europe needed
thousands of years.”299
A cultural approach was closely linked with an evolutionary one. In

the 1860s and 1870s colonization produced new data on primitive
societies that needed to be integrated into the Victorian worldview.
The eighteenth-century notion of the Noble Savage, an uncorrupted
specimen of the universal man, could no longer be sustained.300
First, it was at odds with much of the colonizers’ experience, indeed
failed to account for the European fascination with Oriental “vice.”
Second, to the extent that it did seem correct, it posed embarrassing
questions about the virtues of European civilization both in regard to
the manner the civilizing process was being conducted and with
respect to the astonishing tolerance by civilization of pockets of
massive injustice within itself.
Faced with this dilemma, humanitarian liberals needed reassurance.
Such reassurance was, as the British philosopher Henry Sidgwick

noted in 1902, received from a theory of progress in which the
otherness of the non-Europeans could be seen as backwardness, a
lagging behind in the great chain of evolution:301
The attraction of evolutionary social theories was that they offered a

way of reformulating the essential unity of mankind, while avoiding
current objections to the older theories of a human nature
everywhere the same, but because the differences represented
different stages in the same process. And by agreement to call the
process progress one could convert the social theory into a moral
and political one.302
If international lawyers were truly for progress, then they could not
avoid also being preachers of the conversion of non-Europeans into
“civilized” behavior. Although international law had been created by

Christian nations, Bluntschli wrote at the end of the 1860s, it aimed
at true universality.303 Or, in Lieber’s words, it was modernity’s great
task to teach nations to coexist through one international law, one
religion, and one education ( Bildung) – but nevertheless persist as
nations.304
299 Bonfils–Fauchille, Manuel, p. 19.
300 Cf. Bluntschli, “Der Stat ist der Mann,” in Gesammelte kleine
Schriften, I, pp. 278–283.
301 Cf. Henry Sidgwick, Philosophy. Its Scope and Relations. An

Introductory Course of Lectures (London, Macmillan, reprinted by
Thoemmes, 1998 [1902]), pp. 174–211.
302 Burrow, Evolution and Society, pp. 98–99.
304 Lieber in a letter to Professor Karl Joseph Anton Mittermeier

(1787–1867) on August 26, 1867, emphasis in original, quoted in
Roeben, “Bluntschli,” p. 183.
74
The evolutionary framework suggested that non-European

communities were not only different but inferior in the sense of
being more primitive. None of the lawyers, however, developed a
detailed theory about that difference or how the evolutionary
process would work in the future. Most were content with
generalizations such as Lorimer’s threefold classification
(civilized/barbarian/savage) and simply assumed European
modernity as the natural end-point of development everywhere.
Westlake professed the possession of government as the test of
civilization. But this merely pushed the difficulty one step further:
what was government? Clearly, for him, as well as for all those
lawyers who admitted Japan into the international society only after
the end of the Tokugawa period, the notion of “government” meant
“government of the European type.”
One lawyer to sketch a theory of legal development was the leading

British legal historian, Sir Henry Sumner Maine. There is no evidence
that Maine’s Ancient Law that came out only two years after the
Origin of the Species, was influenced by Darwin or Spencer.305 Its
evolutionary outlook can perhaps better be accredited to the
historical school and its enthusiastic reception to a Zeitgeist that
looked for assurance about evolution being on the side of the West.
For this purpose, Maine’s distinction between “dynamic” and
“stationary” societies fitted nicely. But neither did Maine go much
beyond the dictum of “from status to contract” and chronicling a
general move from judgments to custom and written law. The
historicism of his 1887 Whewell lectures on international law
consisted more of a literary style than well-argued propositions.
Maine’s intuitions about what aspects of his own society were
valuable were assumed rather than argued as the highest forms of
civilization.306
But Maine’s influence in the field remained negligible. He did not

become a member of the Institut where his idiosyncratic views – his
defense of the Dreikeiserbund as a peacekeeping compact, for
instance –
would hardly have been appreciated.307 It was left for his successor
in Oxford (after Pollock), Sir Paul Vinogradoff, much later to produce
an express theory of international law’s evolution through stages.308
As will be argued in more detail in chapter 2, when European
expansion 305 In fact, the materials for Maine’s magnum opus had
already been compiled and lectured on by him in the early 1850s. Cf.
Burrow, Evolution and Society, pp. 142–143.
306 Cf. also Collini, Public Moralists, p. 273.
307 Maine, International Law, p. 226.
308 Paul Vinogradoff, Historical Types of International Law, I (1923),

Bibliotheca Visseriana, pp. 3–70.
75
reached its peak in the 1880s and 1890s, international lawyers made
only a superficial use of the theory of the degrees of civilization in
their attempt to grasp the legal aspects of the expansion.
The standard opposition of “civilization” to “barbarism” by Rolin and
his friends invoked a set of shared intuitions about what was
valuable and what was base in social life. If “barbarian” societies
were uncivilized, this meant they indulged in vice, lacked restraint
and moderation, that they were “fanatical,” untrustworthy, and
uneducated. Even at best, barbarians were, in the favourite
metaphor, like children who allowed their passions to rule their
behavior.309 If, as in Westlake, a more formal criterion such as
“absence of government” was invoked, it was done to draw attention
to the chaotic state of native life in which a “king or chief ” might
sign away anything simply because of being “such a drunkard as to
be subject to delirium tremens.”310 Westlake seems to have “found
the key to social problems in the development of individual
character.”311 He was a friend of Thomas Hughes, a later Principal
of the Working Men’s College of which Westlake was one of the
founders and the hugely popular theorist of Victorian character in
The Manliness of Christ.312 In his inaugural lecture at Cambridge
Westlake emphasized activism, charity and the sense of personal
responsibility, as central ideas around which international law was
constructed, over the narrow and technical definitions of the subject
as rules or principles formulated as mere abstractions.313 Moreover:
“No law national or international, will be durable unless it is fairly
well adapted to the character and circumstances of the men who are
to observe it.”314 Such and analogous statements focused on
personal virtue and especially on proper character as corner-stones
of a civilized morality, equally applicable in human lives as in the
lives of nations. But they were projections of what the men of 1873
valued in each other as persons and colleagues, not derivations from

a well-developed sociology of civilization or an articulated moral
theory.
This was also Rolin’s message in his programmatic article of 1869. If
309 Cf. e.g. Joseph Hornung, “Civilisés et barbares” (1886), XVIII
RDI, pp. 188–189.
311 Fischer Williams, “Introduction,” pp. 10–11.
312 Memories of Westlake, p. 62.
313 John Westlake, “Introductory Lecture on International Law,” in

Collected Papers, pp.
411–412.
76
the law lay in the conscience of enlightened jurists, was it not

precisely the quality of that conscience–consciousness – virtuous or
base – that would be central to law? Did not “method” then equal
the exploration of aspects of virtuous character? When Savigny
defined the jurist as the mouthpiece of popular consciousness he
thereby transferred that jurist as the measure of the legal system:
the examination of the law was always also an examination of the
lawyer’s soul; in his own personal virtue he recognized the justice
embedded in law. If the morality of late nineteenth-century liberals
was a morality of personal virtue, this was less euphoria than a
logical consequence of a view of cultural determination that focused
on individuals: “what is bred in the bone, comes out in the flesh.”
The rhetoric of honor and virtue was everywhere. Francis Lieber’s

writings – and he was certainly one of the more politically conscious
activists behind the Institute – were permeated by the idea of
“manliness,” associated with self-government, self-reliance, and self-
institution
– ideas according to which “government . . . should do nothing but

what it necessarily must do.”315 There was an idea of nobility
involved here, of knowing one’s place and being proud of it, as
Lieber put it, “readiness of resigning the use of power which we may
possess, quite as often as using it.”316 Some of the values of
Victorian character have been canvassed in terms of “self-restraint,
perseverance, strenuous effort, courage in the face of adversity.”317
Such adjectives are closely linked with duty, or the fulfillment of
duty, or perhaps aggression disciplined and sublimated.318 A noble
character did not exhibit weakness of will and “sentimentalism” –
these were precisely what disqualified the peace activists as serious
partners in Rolin’s eyes. Instead, Bluntschli praised the sense of
honor and the will to overcome difficulties in an effort to constantly
improve the human condition which he associated with the “Aryan
races.” This was what made the secular State as a distinctly
“European–Aryan” political form seem so much superior to the
“dumpfe Religiosität, welche ein alter Erbteil Asiens ist.”319 Lorimer

compared Oriental communities without internal freedom to
immature or irrational individuals deprived of legal capacity and
described the relationship between superior and inferior races in
terms of a trust the former had over communities suffering from a
“weakness of spirit” that 315 Lieber, On Civil Liberty, p. 253.
316 Lieber, On Civil Liberty, p. 256.
317 Collini, Public Moralists, p. 100.
318 Gay, The Cultivation of Hatred, p. 502.
319 Bluntschli, “Arische Völker,” p. 89.
77
rendered them incapable of full membership in the civilized

community.320
The idea of moral character as the nucleus of civilized conscience–

consciousness was developed in two directions. On the one hand,
moral character defined the international jurists themselves and
bound them into a transhistorical fraternity of aristocratic heroes. On
the other hand it was projected on collectivities and gave the
measure whereby their civilization could be measured so as to
determine, for example, whether they qualified for entry into the
family of nations. In its former role, moral character was emphasized
in the discussions of the writings of earlier jurists. Here is how Sir
Travers Twiss discussed Vitoria’s and Las Casas’ defense of the
Indians:
It is difficult for us, in the present age, to measure the degree of

courage and noble principle which impelled these excellent monks to
vindicate the right of the oppressed against the authority of the
Church, the ambitions of the Crown, the avarice and pride of their
countrymen, and the prejudices of their own Order.321
There is nothing hyperbolic in this writing. It could have come from

the pen of any late nineteenth-century international lawyer. In
vindicating their profession, they repeatedly drew examples from
past lawyers –
Vitoria, Suarez and Las Casas were the favorites, perhaps as they
opposed Empires that had since collapsed – whose merit had been
their resolution against adversity. Grotius, too, was often portrayed
in this light and Bluntschli praised Pufendorff’s courage in his
separation of international law from Christian religion.322 In a way,
international legal history became a story of individual lawyers acting
like so many chivalrous knights, defending the oppressed against the
oppressors, peace against war, carrying the torch of civilization (from
Greece and Rome) through dark ages to the present. It was not
kings or diplomats but writers and scientists who finally woke up
“das schlummerende Rechtsbewusstsein der civilisierten Welt.”323
Twiss projected this ideal directly to the jurists of his day. The
international lawyer was “by his vocation placed senti-nel upon the
outworks of this system”:
and no nobler end can be proposed to his ambition or sense of duty

than to keep vigilant watch, ready to defend the weaker against the
aggressions of the 320 Lorimer, “La doctrine de la reconnaissance,”
p. 351.
321 Travers Twiss, Two Introductory Lectures on the Science of

International Law (London, Longman, 1856), p. 8.
78
more powerful, and to control the spirit of war and conquest, when
it attempts to overthrow the established doctrines of public law324
So much was placed on the international lawyer’s shoulders that it is

no wonder that discussion turned to the requirements of character
that such a person must have. Rolin did not fail to use the
opportunity to speculate on this: the international jurist needed to
demonstrate a progressive spirit, “progress” being measured as
development from vice to virtue, like a collective Bildungsroman. In
the liberal age, Princes could no longer be instructed to be lions or
foxes as Machiavelli would have had them; no more could a regent
get away with what Alexander VI was reputed to have said, namely
that his sole occupation was to fool people.
For “the public judgment that falls upon public acts has become
more severe, more enlightened, more honest.”325 When Rolin
argued that the conscience of enlightened men was the real
legislator, adjudicator, and sanction of international law, he meant a
conscience of restraint – “the calm search for truth and justice” –
that could be more powerful than diplomacy and even war, if only it
maintained control and moderation:
“that it renounces the shadows of passion for the light of reflective

study.”326
The focus on character opened a way to avoid the problems involved

in the available alternatives: a more or less religiously inclined
naturalism or a legal formalism highly developed in the French and
German domestic legal contexts. The former avenue was closed by
the Protestantism of the majority of Institut members, their aversion
against the secular pursuits of the Catholic church. Freedom of
thought and religion was an article of faith for them. But to establish
legal study on secular
“values” – to which of course they made constant reference – must

have seemed no less difficult. Nietzsche was not alone in the 1890s
to feel that human beings did not discover values but created them
instead: his moral genealogy assumed a thorough-going relativism in
his contemporaries that was only thinly hidden behind a facade of
righteousness that he interpreted as part of a culture of
ressentiment.327 Those values could not be articulated as axioms of
a legal system without being immediately revealed as
inconsequential generalizations or, if concrete, indissociable 324
Twiss, Two Introductory Lectures, p. 60.
325 Rolin, “De l’étude de la législation comparée,” p. 231.
326 Rolin, “De l’étude de la législation comparée,” pp. 231–237, 243.
327 Cf. Friedrich Nietzsche, On the Genealogy of Morals: A Polemic,

trans. with introd. and notes by Douglas Smith (Oxford University
Press, 1996 [1887]), pp. 22–25, 29–30, 54–57.
79
from the political program of this or that liberal faction. Recourse to

a legal formalism of the French or the German type, again, although
not completely alien to the membership of the Institut, was
expressly repudiated by Rolin, Bluntschli, and Westlake as overly
oriented to the past, and in any case problematic in an international
context where no formal legislation existed. Their dilemma was later
discussed by Max Weber, reflecting on the conditions of politics in
modern society: between nihilism and an ethics of ultimate ends,
there lay an ethics of responsibility, the pragmatic via media that
might provide a means of struggling against capitalism and
bureaucracy on the one hand, and socialism on the other.328 This
was to reach for the person over the institution, and to focus on the
politician’s (or administrator’s, lawyer’s) conscience–consciousness
(“responsibility”) as the ultimate criterion of the political good.
The role of personal virtue and responsibility did not stop at

describing the character traits of men who were to be the juridical
conscience–consciousness of the civilized world. States were vested
with human qualities first perhaps by way of metaphor. But
metaphor soon transformed into a description of reality, however, as
interState relations received some of those intrinsically humane
epithets of “culture”
and “civilization.” Nations became real, not metaphoric entities, with

a spirit, mind, and will of their own. As Bluntschli put it in 1869: The
nation was above all a community of spirit and character (“Geistes-
und Charactergemeinschaft ”).329 Human qualities such as
femininity and manliness became thus quite central for Bluntschli’s
discussion of Franco-Prussian relations. The same applied to the
relations between the State and the Church: the former was the
commanding, active figure, the latter a soft, tempering spirit. In his
essay “Der Stat ist der Mann” (“The State is the Man”), Bluntschli
argued that humanity was divided into men and women; there was
no abstract human person. This applied to States as well. Aristotle
had already associated the public realm with men
– the woman’s natural timidity made her unsuitable for politics. The
State must therefore obviously be a man: “Men form and lead the
State.
It is the image of their spirit.”330
328 Cf. Max Weber, “Politics as Vocation” (1919), in From Max

Weber: Essays in Sociology, trans., ed., and with an introd. H. H.
Gerth and C. Wright Mills (London, Routledge, 1967), pp. 77–128.
329 Bluntschli, “Die Einwirkung der nationalität auf die religion und
kirchlichen Dinge,”
in Gesammelte kleine Schriften, II, p. 133.
330 Bluntschli, “ Der Staat ist der Mann,” in Gesammelte kleine

Schriften I, p. 284.
80
In Bluntschli’s organic theory States were neither formal–rational

structures nor aggregates of individuals or communities. They were
“unitary wholes, persons, that is to say, legal bodies in possession of

a will, just like individuals.”331 A State lived as a person,
experiencing youth, adulthood, old age, and death. In its different
ages, the State’s character changed – as did its laws.332 This was
standard nationalism.
The principle of self-determination was an analogy of personal
freedom. The Napoleonic Empire had seemed such a burden
precisely as it had suppressed the individual spirituality of the
nations it overrode.
Yet, precisely in the struggle against external oppression nations –

like the best of men – cultivated their character: even the lowest
Frenchman had the warmest feelings towards La Patrie and acted
“wie ein Mann” if such feelings were violated.333 The recognition of
such character in nations as well as in individuals was precisely what
made the law think of them as persons in the first place.334
For Rolin, the duty to keep the treaties was a matter of honesty and
of forthrightness; there was nothing more to it. External sanction,
for instance, was not a criterion of whether one was obligated or
not.335 The perspective of the Holmesian “bad man” is completely
absent from this image. Inasmuch as it sufficed to say ibi jus, ubi
societas to prove the existence of international law, the law’s basis
was set on a morality of sociableness. The system could work if
States were – or could be persuaded to become – reasonable and
moderate individuals whose main concern would be with the
protection of their freedoms (often seen as “fundamental rights”)
and the pursuit of material and spiritual progress through
cooperation.
The personalization of interState relationships did not limit itself to

organic conceptions of public law or other tracts of continental
theory.
William E. Hall (1835–1894), an avowed positivist and a pragmatist,

the author of perhaps the most influential English-language textbook
of the period, pictured the relations between States as if they were
members of 331 Bluntschli, Das moderne Völkerrecht, p. 2.
332 “Die Entwickelung des Rechts und das Recht der Entwickelung,”
in Gesammelte kleine Schriften, I, pp. 53–55.
333 “Arische Völker,” pp. 74–75. A world State was impossible for
just this reason: “Denn die Völker und Nationen haben ihre
eigenthumliches Dasein. Ihr individuelle Character hat auch sein
Recht und seine Bedeutung. Sie sind zwar nur Gestaltungen
innerhalb des sie alle umfassenden Wesens der Menschheit, aber in
dieser ihrer Existenz unvertilgbar und nothwendig,” “Der Stat ist der
Mann,” p. 281.
334 Bluntschli, “Person und Persönlichkeit,” in Gesammelte kleine

Schriften, I, pp. 91–93.
335 Rolin, “De l’étude de la législation comparée,” pp. 231–233.
81
a Victorian social club. Admission to the club was conditional on the

possession of a sufficient degree of European culture so that its
internal rules “can . . . be supposed to be understood or recognized
by countries differently civilised.”336 Having pointed out that States
were independent persons possessing inalienable rights, in particular
the right of property, he laid down the basic rules of the society
between them as follows: “It is also considered that their moral
nature imposes upon them the duties of good faith, of concession of
redress for wrongs, of regard for the personal dignity of their
fellows, and to a certain extent sociability.”337 States were above all
right-holders whose rights were limited by those of others as well as
a moral code akin to that between honorable gentlemen in
bourgeois society: “A state is enabled to determine the kind and
amount of intercourse it will maintain with other countries, so long
as it respects its social duties.”338 It is this dialectic between the
right of independence, of liberty as a “moral person” and the duties
towards the other members of the states–society that constitutes
such striking analogy to the way liberal society conceived itself. Even
as Hall was the paradigmatic late nineteenth-century legal positivist,
the basic rules of his law did not emanate from treaty or custom but
from “fundamental rights” and a “duty of sociability” that are taken
as the self-evident foundations of civilized behavior. The first
sentence of the treatise defined international law as rules that
civilized States hold binding “with a force comparable in nature and
degree to that binding the conscientious person to obey the laws of
his country.” As club members, States had
“feelings of honour and personal dignity” that sometimes call for

external recognition.339 Those aspects of Hall’s own society that
seem valuable to him were always transposed to his texts: “A large
part of international usage gives effect to principles which represent
facts of state existence, essential under the conditions of modern
civilized state life.”340 As with other jurists of the period,
international law was part of
“modern civilised state life”; it was not legislated into existence by a

sovereign but derived from membership in a de facto society – “a
society and the moral principles to which that society feels itself
obliged to give legal 336 W. E. Hall, A Treatise on International Law
(4th edn., Oxford, Clarendon, 1895), p. 42.
One mark of the possession of the capacity for membership was the
possession of a municipal law “consonant with modern European
ideas,” p. 55.
337 Hall, A Treatise, p. 45.
339 Hall, A Treatise, pp. 61–62. Bonfils–Fauchille conceived this a

matter of law, Manuel, p. 138.
82
effect.”341 As members of this society, this social club, States had

the duty of sociability, including the duty to preserve good faith – to
hold compacts – with the risk that their membership will be
canceled, they become “outlaws.”342
The projection of States as members of a social club plays on a

domestic analogy that transposes the morality of conscience that the
men of 1873 experienced as the foundation of their professional
competence onto the level of States. States become individual right-
holders in an exclusive society, entry to which is governed by a
flexible standard of civilization. The rules of the society pre-exist
membership in it and are found not in any agreement or rule-book
but in the implicit cultural conventions of the day whereby the
members of the club recognize their respective moral worth, honor
and dignity.
For the liberal jurists, war – the “war phenomenon” – was an

enigma, as it has remained for liberals and humanitarians ever since.
On the one hand, most of them were opposed to war, regarding it as
a manifestation of the primitive and destructive instincts that it was
the point of law to eradicate from civilized life. They shared the
critique, commonplace since Cobden in Britain and Constant in
France, that there were no good political or economic arguments in
favor of war, that war was an irrational departure from Victorian
normality.343 On the other hand, they were equally averse against
the utopians who failed to see that war was occasionally needed to
change an obsolete situation344 or as enforcement against the law-
breaker.345 None of
them joined
Clausewitz or von Moltke to argue that war usefully supported such

valuable character traits as courage, unselfishness, honor, sacrific e –
though at least Bluntschli admitted that it sometimes did have that
consequence. For better and for worse, it was a part of an imperfect
human society.346
War was to be controlled, exorcized from the social normality of 341

Hall, A Treatise, p. 6.
343 Cf. De Laveleye, Des causes actuelles.
344 Cf. Bluntschli, Das moderne Völkerrecht, pp. 10–11 (dissociating

himself from von Moltke’s glorification of war but holding it still
sometimes a necessary instrument for the breaking of the
“abgestorbenen Formen des veralteten Rechts”).
345 The general view was that war was a last resort for a State for
the vindication of its rights. Cf. e.g. Bonfils–Fauchille, Manuel, pp.
522–523. But note also Fiore, Le droit international codifié,
advocating collective war against the law-breaker, pp. 60–63.
346 “La guerre est donc un mal; mais, un mal inhérent à l’humanité
et indéracinable.”
Bonfils–Fauchille, Manuel, p. 517.
83
nations, made an “état exceptionnel, transitoire, passager.”347 But

its abolition could take place only through the growth of human
nature itself. The ambivalence of these attitudes was summarized by
a Japanese diplomat in about 1898–1899, observing that: “We show
ourselves at least your equals in scientific butchery, and at once we
are admitted to your council tables as civilized men.”348 The trauma
of the Franco-Prussian war was that it demonstrated that
humanitarian laws did not become applicable merely by the good will
of the belligerents, even when they were undoubtedly civilized
European nations. Clearly, technical improvements were needed, but
even they did not do away with the difficulty that there was no one
to sanction belligerent behavior.
What were international lawyers to think of this?
In December 1880, the Chief of the German General Staff, Count

von Moltke (1800–1891) – the hero of the Franco-Prussian war –
wrote a letter to Bluntschli. Moltke thanked Bluntschli for having sent
him the Manuel des Droits de la guerre (“Oxford Manual”) that had
been adopted by the Institut early that same year and expressed
agreement with its humanitarian sentiments. But he raised a number
of problems with its legalistic attitude to warfare arguing, among
other things, that decent conduct in war would not be attained by
legal rules – moreover rules that did not have an effective sanction.
The best humanitarianism, he wrote, was to carry the war efficiently
to a conclusion.
In his response, Bluntschli did not deny the weaknesses of

humanitarian law. Like von Moltke he testified to an increasing
humanity in recent warfare, brought about by general conscription
that had also brought gentlemen to the battlefield, and not merely
rogues. But he argued that this was also a result of the development
of the legal conscience of European Kulturvölker. War created an
abnormal situation in which the dictates of conscience were
sometimes lost. This is why it was imperative that the jurists took it
upon themselves to articulate (“in klarem Ausdrucke vorzulegen”)
these dictates in the form of legal rules. As such they could be
effectively integrated in the consciences of the belligerent
masses.349 The soldier and the jurist congratulated each other on
what in 1880 seemed undoubted progress in comparison to 1648.
The soldier
– who of course was a nobleman – and the jurist – who felt himself
no 347 “La guerre est un état de fait, contraire à l’état normal de la
communauté internationale qui est la paix,” Bonfils–Fauchille,
Manuel, p. 521.
348 Quoted in Geoffrey Best, Humanity in Warfare (London,

Weidenfeld & Nicolson, 1980), p. 141.
349 For the correspondence, cf. Bluntschli, Denkwürdiges, III, pp.

470–476.
84
less – could at least agree on how wonderfully civilized their period

was and look confidently to the future, whatever their differences.
In their correspondence, von Moltke and Bluntschli agreed that

humanitarian behavior in war was a matter of civilization. Bluntschli’s
defense of humanitarian law rested on the way it would educate the
fighting men’s sensibilities so as to bring about those traits of
character that were associated with civilized behavior. Unlike von
Moltke, he did not assume that the significance of humanitarian
rules was dependent on enforcement. Such rules were rather a form
of Bildung, of educating European men to develop their sentiments
towards peacefulness and moderation. Coming to know the rules
would thus already work towards humanitarian objectives. Such
ideas permeated all writing about war.
Westlake, for instance, talks about war as if it were a duel between

honorable gentlemen – a “prosecution of a public quarrel”350 – and
thus associates it with his society’s popular psychological imagery.
Law cannot determine the outcome of struggle but must (like the
seconder in a duel) “stand aside while they fight the quarrel out.”
War is a natural procedure of the human species mitigated not by
law but by “the better qualities of our mixed humanity.” The idea of
Bildung emerges. The laws of war are needed in order to spell out
“acts which would degrade the doer” and acts that would “exceed
the object and be inhuman.”351
Personal honesty is the guiding thread: “benevolent neutrality,” for

instance, or the sudden commencement of war without adequate
notice, would break the rule of “frank sincerity,” based on the need
of “good order that states should know how they stand with regard
to one another.”352 For Maine as well, the laws of war (that is to
say, the British Manual of 1887 on which his lectures were based)
were less law in a technical sense than in a moral, psychological
sense. They spelled out what a “humane commander” (such as the
Duke of Wellington!) would or would not do – basically to try to
avoid causing more harm than dictated by military necessity.353
That spying was punishable by death 350 Westlake, International
Law, II, p. 81.
351 Westlake, International Law, II, pp. 56, 57, 58.
352 Westlake, International Law, II, pp. 191, 192. Likewise, Fiore, Le
droit international codifié (“Sera considérée comme déloyale et
contraire au droit moderne la conduite de l’Etat qui commencerait les
hostilités sans déclaration de guerre préalable”), p. 306.
A majority of writers held the view, however, that no declaration of

war was necessary. They did not dispute the need for loyalty,
however, but pointed out that “no forms give security against
disloyal conduct,” Hall, A Treatise, p. 399.
353 Maine, International Law, pp. 126, 127, 138, 149.
85
reflected for both Westlake and Maine the way in which it violated
the honorable conventions of the duel.354
The rules of such dueling, it goes almost without saying, apply only
in combat between the civilized. In colonial wars Westlake did not
find it difficult to imagine that a colonizer might need to take
“punitive expeditions” in cases of “inroads or other outrages
committed by savages of half civilised tribes.” In such cases “the
whole population must suffer for want of a government sufficiently
marked off from it.” Constraints in colonial war were, again, internal
to the belligerents’ virtue: “no humane officer will burn a village if he
has any means of striking a sufficient blow that will be felt only by
the fighting men.”355
Civilized war was imagined in strictly utilitarian terms. It was not

allowed for reasons of abstract justice or religion, only for the
vindication of rights, conceived broadly as what was deemed
necessary for self-protection. A lawful war was waged neither out of
passion nor as ritual.
Its object was always the seizure of territory or the attainment of

some other rational objective. The means of war were to be fitted to
its ends –
hence the interminable discussions about what actually was allowed

by
“military necessity.” Because passion and ritual were excluded,

shaming the adversary, or symbolicdestruction of life or property,
were prohibited as uncivilized savagery.356 Excluded were acts that
the lawyers perceived as having the character of “cruauté, déloyalté,
perfidie ou barbarie.”357 The main thing was to eradicate passion;
war was to be seen as Rousseau had written, not as a relationship
between men but between States – no personal animosity was
therefore to be felt. The fighting men were to be killing machines:
kind, considerate, and effective.
Even in war, the social life of the members of the family of nations
was supposed to continue. No one was to be cast outside: the
complex norms regarding maritime neutrality (of the right of visit
and seizure, blockade, lists of contraband goods), for instance, were
disputed in detail between the British and the French – though
Harcourt’s criticism of Hautefeuille ironically shows just to what
extent national passions were involved.358 And when Bluntschli
advocated the almost complete leaving of private relations, including
commercial relations between the citizens 354 Maine, International
Law, pp. 148, 149. Cf. also Art. 88 on spies and 101 on deception in
war of the Lieber Code, Hartigan, Lieber’s Code, pp. 61, 63.
355 Westlake, International Law, II, p. 59. Cf. also p. 87 on the

bombardment of non-civilized towns and villages.
356 Cf. e.g. Art. 14–16 of the Lieber Code, Hartigan, Lieber’s Code,
p. 48.
358 Cf. e.g. “The Territoriality of a Merchant Vessel,” in Letters by

Historicus on Some Questions of International Law (London,
Macmillan, 1863), pp. 199–212.
86
of the belligerents, beyond the compass of war, this was quite logical
from the perspective of the effort to draw a rational limit between
the public and private realms – however much it went against earlier
teaching on the matter.359 But the very concept of such rules, and
their having a sensible objective, was never seriously questioned.
Indeed, the laws of war have perhaps never before nor since the
period between 1870 and 1914 been studied with as much
enthusiasm. Optimism in reason and the perfectibility of human
nature laid the groundwork for the view that men could be educated
to wage war in a civilized way. The “later Enlightenment consensus”
(an implicit agreement about the general rules: sparing civilians,
minimizing unnecessary harm, directing one’s acts at formal
enemies) mapped the mental terrain of civilized warfare.360
Where did this consensus come from? Until the Hague Conferences,
there were no general treaties on the laws of war.361 Grotius had
drawn from stories of chivalry, courage, and pity shown by fighting
men through history that reflected ideas of honor that were partly
constitutive of what he thought of as European civilization. That
such acts were cited in demonstration of natural law conceptualized
them within a framework of explanation with which cultured Europe
was familiar. The code proposed by Lieber and adopted by Lincoln in
1863 to govern the conduct of the armies of the Union was largely a
compilation of humanitarian principles taken from publicists from
Grotius onwards; it was animated by the need to define clearly the
distinction between public and private property; and it followed the
idea that war was a rational, public pursuit of limited objectives.
“Humanity” and “honor” were its guiding principles.362 The Martens
clause that became part of the 1899
conventions plays on the continuing intuition that restraint in warfare

is an intrinsic part of European conscience. Under the clause,
namely, so long as positive law had not been adopted on some
issue: populations and belligerents remain under the protection and
empire of the principles of international law, as they result from the
usages established between civilized nations, from the laws of
humanity, and the requirements of public conscience.363
359 Bluntschli, Das moderne Völkerrecht, pp. 296–297 and Roeben,

“Bluntschli,” p. 195.
360 Best, Humanity in Warfare, pp. 31–74.
361 The Brussels Declaration Concerning the Laws and Customs of

War of 1874 that complemented the 1864 Geneva Convention was a
partly abortive document. In particular, nothing came of the attempt
to set up an international enforcement of the earlier instrument.
362 Cf. Roeben, “Bluntschli,” pp. 192, 228.
363 James Brown Scott, The Reports to the Hague Conferences of

1899 and 1907 (Oxford, Clarendon, 1917), pp. 547–548.
87
As late Victorian lawyers elaborated on such requirements, it became

evident that they had to do with the control of the passions that war
was seen to launch. Even before 1899, the general view was that in
the course of hostilities, “the measure of permissible violence is
furnished by the reasonable necessities of war.”364 The significance
of “reasonable necessity” was less to provide a criterion for
measuring the permissibility of an act than to direct the combatants
– in practice, superior officers – to examine their conscience even in
the midst of fighting and to suppress their desire to engage in
“irrational” violence – just as the lawyers of the late Victorian era
were to accept the conventions of normality (and the accompanying
ressentiment) as the price to pay for a life of security.
Already to speak in terms of “necessity” was to refer to rationally

defensible objectives and to oppose the Clausewitzian view that war
tends to generate its own aims – revenge, dishonoring the enemy –
under which a wholly different scale of passions becomes functional.
Qualities of personal character, cultivated by tradition and learning

constituted the framework through which the men of 1873 identified
the legal conscience of which they felt they were the organ. Matthew
Arnold, a perceptive commentator on Victorian society had some
years earlier described this in terms of an aristocratic sensibility, a
striving for inner perfection of “sweetness and light” (or beauty and
knowledge). Culture, he had written, in a way reminiscent of Rolin’s
definition of law, was to be found “in an inward condition of the
mind and spirit, not in an outward set of circumstances.”365 All this
was a matter of feeling, and of intuition, that was impossible to
articulate in terms of rules or criteria.
This is why the men of 1873 did not possess a “theory of European
civilization” even as they stressed the need to find a historical and
cultural basis for law. Ubi societas ibi jus may have been a necessary
argument for a profession looking beyond naturalism and formalism,
but it did not ground a sociological program for the lawyers – as it
did for Marx, Durkheim, or Weber. But of course, none of these men
felt able to bank their reformism on the individual moralities of a
class of lawyers.
The stories of the Revue and of the Institut are undoubtedly
narratives of (relative) failure. From its early association with broad
liberal–reformist 364 Hall, A Treatise, p. 411.
365 Matthew Arnold, “Culture and Anarchy,” in Culture and Anarchy

and Other Writings, Stefan Collini ed. (Cambridge University Press,
1993[1859]), p. 62.
88
themes, the Revue transformed gradually into a rather standard

public international law periodical without a conscious political or
professional program. The activities of the Institute continued to
focus on technical topics but very little came to be seen by way of
governmental implementation of its proliferating resolutions. In a
melancholy passage in the Secretary-General’s 1888 report Rolin-
Jaequemyns admitted that the proposals of the Institute had not
been transformed into national laws or treaty texts and perhaps
never would be. He could cite only one official reference to the
works of the Institute – a passage from a settlement of a dispute
between Mexico and the United States where the latter had referred
to an 1878 resolution on criminal jurisdiction. Despite his ex officio
assurance that the Institute was not vox clamans in deserto, it was
precisely that impression his text conveyed.366 As the Institute in
the 1890s twice instructed Rolin’s successor to seek the
implementation of its decisions with governments, the Secretary-
General was in both cases compelled to admit that no
implementation was forthcoming.367
One set of reasons for such relative failure must be sought from the
general atmosphere of the period towards the turn of the century
which witnessed the general decline of European liberalism. The
1890s were a time of intellectual revolution in which the scientific
and political certainties of mid-century and of the 1880s – that
“stuffy decade” – were gradually brushed aside.368 Writing a
farewell address to his colleagues at the Institute on board a ship
that took him and his family to the Far East in September 1892,
Rolin expressed the wish that the Institute would not succumb to a
time of “the most extreme opinions” and his conviction that
moderation would prevail, “persuadé que la verité, comme la vertu,
se trouve au milieu.”369 Yet, such optimistic centrism was
increasingly viewed as shallow theory and unworkable practice. It
had failed to engage accumulating evidence that passion and desire
–
“extreme opinions” – could not be eradicated from civilized society –
366 “Rapport du Secrétaire-Général,” (1888–1889), 10 Annuaire IDI,

pp. 48–49. At the next session, held only after a three-year interval
in 1891, he suggested that the Institute adopted perhaps too many
resolutions and that one should have no illusions about their direct
effect with governments. Nonetheless, he hoped that their moral
authority would have an indirect influence through public opinion.
“Rapport du Secrétaire-Général” (1889–1891), 11 Annuaire IDI, pp.
45–46.
367 These were the proposals for the setting up of an International

Union on the Publication of Treaties and for a conference on penal
sanctions to ensure the implementation of the Geneva (Red Cross)
Convention of 1864. Cf. “Rapport du Secrétaire-Général” (1896), 15
Annuaire IDI , pp. 174–181.
368 See in particular, H. Stuart Hughes, Consciousness and Society.

The Reorientation of European Social Thought 1890–1930 (New
York, Knopf, 1958), pp. 33–66.
369 (1892–1894), 12 Annuaire IDI, p. 68.

89
that, on the contrary, they also constituted a necessary aspect of

and sometimes a much-admired motivation for economic and
political action.
Rolin himself felt the transformation very close to home. Having

struggled six years from a position in Belgium’s liberal government
against Catholic ultramontanes on the right and liberal radicals on
the left, Rolin finally lost his parliamentary seat in the elections of
1886 that brought Catholics back to power. He returned as Editor-in-
Chief of the Revue and Secretary-General of the Institute, but having
spent most of his appreciable fortune for political and humanitarian
causes, as well as helping out a relative in financial distress, he was
compelled to exercise his reformism at the service of the King of
Siam in 1892 for the last ten years of his professional life. As he
returned to Ghent in 1902 he had been already broken by the
disease that was to lead him to the grave a few months therafter.
Westlake was elected to Parliament as a liberal radical in 1885. He

was known for his strong opinions and in 1886 broke with Gladstone
in joining the liberal Unionists against Home Rule for Ireland. He lost
his seat the following year and failed to get reelected in 1892.370 As
a politician, he was not a success. His speeches tended to turn into
lectures and were apt to weary the audience.371 Having lost his
parliamentary seat he began a career as Professor of International
Law. This offered him a platform not only for academic writing – he
continued contributing commentaries on current events and recent
disputes to Rolin’s Revue and to British journals – but also for
political action. He took a leading role in the international jurists’
campaign in support of Finland against the Russification measures of
1899–1907, presided over the British Government’s Balkan
Committee in 1905–1913, and remained an active member of the
Political Economy Club up to 1913.372
Bluntschli’s fate was different.373 He had begun a successful career
as a liberal–conservative politician in his native Zürich in the 1830s
with the Radicals as his main opponents, only narrowly losing a
competition for the position of Mayor at a time when this would also
have meant 370 Courtney of Penwith, “Public Affairs,” in Memories of
Westlake, pp. 64–67.
371 Memories of Westlake, p. 99.
372 Cf. the obituaries of Westlake by Edouard Rolin (1913), XLV RDI,
pp. 265–270; T. E. Holland (1913), 26 Annuaire IDI, pp. 698–700;
Albéric Rolin (1913), 26 Annuaire IDI, pp. 701–712. Cf. also Fischer
Williams, “Introduction,” pp. 10–11, 13 as well as the essays on
Westlake’s life in Memories of Westlake generally.
373 For biographies, cf. Roeben, “Bluntschli,” pp. 45–67.
90
leadership of the Swiss federation. Radical victory in the civil war

compelled him to leave for Munich in 1847 from where he moved on
to Heidelberg in 1861, continuing an active political career (often
advocating the liberal views he had opposed when still in Zürich) as
member of the Parliament of Baden and elected representative in
the Zollverein. He became one of the founders of the Protestant
Union ( Protestanten-Verein) as well as of the German jurists’
meetings ( Juristentag), using both as a basis from which to argue
for German unification under Bismarck and against a Grossdeutsch
solution headed by the Habsburgs. During the 1870s Bluntschli
regarded his political activities as at least as significant as his
teaching. Much of his activism was targeted against Catholic
influence (especially the Jesuits). His political writings combined
liberal–humanitarian themes and a stress on individual rights with
occasional lapses into antisemitism and adherence to the obscure
Christian dogmas of his admired FredricRohmer.374 When Bluntschli
died in 1881 his branch of conservative–liberalism was still
successfully engaged in the alliance with Bismarck that would
towards the end of the century tie liberals to compromises that
perpetuated the split in the party and slowly undermined its ability to
fight the onslaughts from left and right.375
But the failure of international law to become the avant-garde of a

new internationalism was also a consequence of factors internal to
the way the men of 1873 argued about it. Key problems were their
ambivalent notion of civilized conscience–consciousness,
accompanied by superficial organic metaphors about the State or the
condition of international politics, the projection of personal morality
onto international problems, as aspects of what was perceived from
the outside as a technical profession. Neither contemporary
internationalists, nor future generations of lawyers, could sustain
that kind of political jurisprudence. Its politics was too closely
associated with the reform agendas (and fate) of domesticliberalism.
And it was too arrogant to suggest that the intuitions of a group of
lawyers with a cosmopolitan orientation might provide a credible
foundation for thinking about international relations or conducting
foreign policy. Even as the theory of the “organ of the juridical
conscience–consciousness of the civilized world” offered a basis on
which to avoid critiques directed against rationalism, naturalism, and
positivism, and to carry on with doctrinal work without too 374
Roeben, “Bluntschli,” pp. 67–74.
375 Cf. Sheehan, German Liberalism, pp. 258–271.
91
much constraint, as constructive theory it was hopelessly manqué:

an eclectic, fragile facade over what must often have seemed as the
banal prejudices of a cultured but declining bourgeoisie.
Rolin, Westlake, Asser, and most of the other members of the
Institute had little ambition as theorists. Lorimer’s idiosyncratic
naturalism received no following. Even Bluntschli’s organic
generalizations were dismissed by the following generation as
“Diletanttismus und politisches Räsonnement.”376 The men of 1873
were not interested in philosophy but in extending the mores of an
esprit d’internationalité within and beyond Europe. To get on with
their politics, however, they needed distance from the available
legal–dogmatic positions – from the rationalism of von Martens or
Klüber and the statist positivism of Austin or Lasson. But their
reluctance to occupy confidently any one of the three major
positions of the period’s legal theory (rationalism, naturalism,
positivism) was accompanied by their constant borrowing of aspects
of each.377
This explains the difficulty of classifying late nineteenth-century

international lawyers and makes it such a profound mistake to follow
Lassa Oppenheim (1858–1919) and to label them simply as
“naturalist”
“Grotians” or “positivists.”378 In order to appreciate their pragmatic

and eclectic spirit, and to understand why the next generation could
dismiss them so easily, yet building upon the foundations they had
erected, I would like to conclude by a brief interpretation of their
significance as
“founders” of the modern international law profession.
The men of 1873 were not satisfied with the rationalism of the
successive editions and translations of von Martens and Klüber, nor
the passion for “system” in Kaltenborn’s 1847 treatise. These were
too abstract and cold for the tastes of men educated in the
teachings of the historical school and active politicians in the liberal
cause. The contribution of Grotius or Pufendorff had been valuable
in its time but incompatible with modern legal science, unable to see
law as a historically and 376 Oertzen, Die gesellschaftliche Funktion,
p. 119. Similarly, Georg Jellinek, “Johann Caspar Bluntschli,” in
Ausgewählte Schrifte und Reden (2 vols., Berlin, Häring, 1911), II,
pp.
289–291.
377 Bluntschli adopted his eclecticism quite consciously, hoping to

overcome the old controversy between rationalism and historicism
by the creation of a third way that would not fall into a shallow and
technical positivism, either. Cf comments in Roeben, “Bluntschli,” pp.
232–233.
378 For Oppenheim’s discussion of nineteenth-century international

lawyers as an account of positivism’s victory, cf. International Law.
Volume I: Peace (2 vols., 3rd edn., 1920), pp. 114–118.
92
a geographically bounded construction. For the men of 1873,

international law was to be social and cultural in a deep sense: not
as a mere succession of treaties or wars but as part of the political
progress of European societies. They each read individual freedoms
and the distinction between the private and the public into
constructive parts of their law. If they welcomed the increasing
interdependence of civilized nations, this was not only to make a
point about the basis of the law’s binding force but to see
international law as part of the progress of modernity that was
leading societies into increasingly rational and humanitarian
avenues.379
Yet they could not fully reject rationalism, either, for it was an aspect
of the culture they so appreciated. They needed it to oppose the fin-
de-siècle dangers of anarchism, nationalism, and war as well as to
create distance between their societies and what colonial
administrators encountered as they penetrated deeper into
“uncivilized” territory. So they theorized rationalism and natural law
into a default position, a last reservoir from which to grasp
arguments when other sources ran dry.
Bluntschli, for example, postulated a universal human nature as a

guiding idea ( Rechtsidee) behind all law, but also that this idea was
not in itself law but an inspiration to it.380 Nevertheless, he
constantly referred to human nature as an additional point to
strengthen whatever conclusion he wished to defend. Like Maine,
Westlake held that recourse to natural law when positive principles
of private international law ran out either camouflaged a reference
to Roman Law or then amounted “in practice to little else than the
judge’s private opinion of what is equitable.”381 Yet he, too, made
constant references to rational arguments and 379 Nobody made
these points more forcefully than Lorimer, for whom “empiricism,
utilitarianism, and the like, degenerate into mere objectless groping
among lifeless facts and life-destroying fictions.” His argument for an
international law that was a necessary aspect of international
relations, only declared by positive sources (but never created by
them), has been too easily dismissed as a revival of old natural law.
In fact, Lorimer’s “necessity” was a socially and ethnically based,
teleologically oriented concept that grounded international law as
science. Like the others, he accepted inductive and historical studies
as part of legal science, but stressed the need to collect the facts
they produced under a general theory about social specificity and
development. He had a clear view about why this had not
traditionally been so: “there has been all along a sad lack of
consistent application to the subject of men of first-rate ability.” This
was now being corrected, however, with “the writings of Bluntschli,
or Mancini, or Rolin Jaequemyns.” Lorimer, Institutes, I, p. 83.
380 Cf. Roeben, “Bluntschli,” p. 233.
381 John Westlake, “Relations between Public and Private

International Law” (1865), in Collected Papers, p. 287.
93
the virtues and honorable conventions of his society when arguing

about particular international institutions.382 It is easy to see why
the men of 1873 could not adopt a completely cultural view of the
law, either. For that would have left them no platform from which to
argue for their preferred reforms.
For example, in 1849, the English barrister Richard Wildman (1802–

1881) had vehemently criticized the famous 1822 American case of
La Jeune Eugénie, in which Justice Joseph Story had held the slave
trade as “a violation of the law of nature, and therefore contrary to
the law of nations.” Instead he accepted Chief Justice Marshall’s
ruling in the Antelope to the effect that as the slave trade had not
been decreed to be illegal by positive treaty, it could only be deemed
lawful.383 Most nations of the world, including in Africa, had, until
recently, continued to pursue it and if the standards of international
law were (as Wildman thought they should be) “usages, national
acts and general assent,” then there was no basis on which to decide
otherwise than in favor of the master suing for his property and
return a slave to him “with costs and damages.”384 The slave trade
might be contrary to the law of nature, but that did not mean it was
contrary to the law of nations. If law was indeed cultural, then there
was no basis for applying the moral intuitions of European elites
against practices in which European States had undoubtedly been
long involved.
The lawyers of the Institut could not have accepted such a

conclusion.
For them, the legal status of slavery or the slave trade could not be
inferred from cultural habits but directly from human nature: that
the slave trade had been agreed as illegal by treaty was a measure
of the moral conscience of European nations. But illegality could not
be dependent on such agreement – even if there might not always
exist positive guarantees to enforce it.385 The new generation
would not allow cultural arguments to encroach upon its liberal
conscience. That conscience might sometimes express itself through
a formal natural law argument, but more often it was simply taken
for granted that the equal freedom of human beings was applicable
everywhere and transgressed the limits of relativism justifying, for
instance, Christian intervention (as 382 For an early example, cf.
John Westlake, “Commercial Blockade (1862),” in Collected Papers,
pp. 312–361.
383 For a recent discussion of these cases, cf. Alfred B. Rubin, Ethics
and Authority in International Law (Cambridge University Press,
1997), pp. 101–108.
384 Richard Wildman, Institutes of International Law (2 vols.,

London, Benning, 1849), I, pp. 9–14.
94
in Greece in 1826–1828 or in the Principalities in 1877–1878) when

the interests of humanity were being infringed by the excesses of a
barbarous or despoticgovernment.386
The successive rejection of rationalist, naturalist, and positivist

positions, yet the partial retention of arguments from each, offered a
mélange of tropes and styles, doctrines and understandings, that
came together only through the fact that the Rolin Kreis used them
as parts of its worldview and interpretative framework. The
acceptability of this was received from the additional argument that
their intuitions were an intrinsic part of a profession that saw itself
as the “organ of the juridical conscience of the civilized world.” To
speak from such a position provided a remarkably flexible basis for
legal argument. The evolutionary view justified differing treatment of
de facto different situations. It allowed rationalist and utilitarian
arguments when passion and excess seemed to be the enemy. Its
rationalism was, however, an instrumentality of the liberal heart, and
not an autonomous theoretical dogma. It was not the rationalism of
Kaltenborn in the 1840s that aimed towards scientific “systems” but
one that looked for political effect. It was the rationalism of uniquely
“rational” liberal values.
The men of 1873 were, of course, a heterogeneous group. Their

scientific positions differed, as sometimes did their political
preferences.
But they were united in their wish to be seen as neither rationalists

nor moralists, nor mere describers of valid (positive) law. Centrists in
this respect, too, I want to think of them as amateur sociologists,
who thought that law emerged from human society in some
spontaneous, even mystical way, and that it was the point of
international law as science (instead of a taxonomy of rules or a
diplomatic technique) to 386 For Rolin, intervention in the Danubian
principalities against Turkey was “un droit et un devoir imposé par
l’humanité et par des exigences supérieures aux convenances
individuelles de chaque Etat,” “Chronique du droit international”
(1878), X RDI, p.
19. Though Westlake allowed intervention formally only in the cases

where general peace was threatened, he accepted that it would be
idle to argue that in cases of religious or ethnic oppression
neighboring States should look on quietly: “Laws . . . must not
create or tolerate . . . situations which are beyond endurance . . . of
the best human nature.” This was the principle by which
interventions in Turkey were to be tried, International Law, I, p. 320.
Bluntschli justified forcible intervention against those committing
particularly serious (“gemeingefährlich”) violations of international
law, including slavery, religious oppression, the suppression of
independent peoples, and in case of break-up of constitutional order,
Das moderne Völkerrecht, pp.
264–265, 269. For a general argument in favor of Christian

intervention everywhere against despotism and barbarism, and for
disinterested Christian trusteeship over
“barbarians” cf. Hornung, “Civilisés et barbares,” pp. 201–206 and

281–298.
95
canvass how this came about. Choosing a sociological language

allowed them to avoid the standard criticisms that were voiced
against abstract rationalists or utopian moralists on the one hand, or
codifiers of diplomatic practices on the other. Simultaneously, it
pushed the profession of international law into the forefront of
progress as the “organ” of the popular consciousness in which it saw
the law’s ultimate foundation.
Yet, as sociologists, they were amateurs. They had no sociological

theory beyond Bluntschli’s crude and sometimes outright racist
ponderings about an organic link between statehood and the human
community. Lorimer fared no better with his “de facto principle,” the
division of humankind into civilized, barbarian, and savage
communities and his awkward naturalism that divested the human
will altogether from law-creating effects. What little generalization
others employed was usually constituted by short discussions of the
increasing interdependence – a word that Lieber claimed to have
invented – that European modernity seemed to bring along.
Whatever sociology was employed in actual situations or problem
areas was received from introspection of their own cultural or moral
sensibilities. Such introspective sociology was – within limits – an
effective form of argument as it was accompanied by bits of
evolutionary science. Unpleasant things could be opposed as being
outdated, or barbarian, without resort to what otherwise might have
appeared openly political positions. If evolution was indeed scientific
truth then the fact that you were a half-civilized Oriental in a way
that justified the continued maintenance of Western consular
jurisdiction in your territory was merely stating a fact. Such
argument appeared both normative and rational because scientific.
Its truth seemed based on sociological evidence that was easily
verifiable: the Oriental did, in fact, look different.
Such shifting between fact and evaluation was a constant feature in

their writings, present already in the ambivalence concerning the
translation of the expression “conscience juridique” in the Institute’s
Statute.
While the German original of Bewusstsein had to do with cognition

of facts, the French term was closer to the English “conscience,”
connoting a world of partly unselfconscious, emotional sensibility. It
is precisely such shifting that makes it pointless to try to class these
writers – any one of them – as “positivists” or “naturalists.” They
were always both at the same time – their arguments about valid
positive law implying loaded assumptions about political worth, and
their humanitarian sentiments always receiving expression in the
practices of their own States or in some sociological understanding
of the fact of European civilization.
96
Society – conscience – organ – law; with all its flexibility, the

inference proved shallow. The concept of conscience and the organ
theory opened up the way to present aspects of the lawyers’ private
morality as public law but hardly served as serious sociology. It
proved a useful ground of attack but quite useless as a quarter of
defense. What after all was this conscience but a set of unanalyzed
prejudices about good manners? What was its relationship to
(political) will – and if it was “will,” did it not take away the
distinction between science and legislation? If, on the other hand, it
referred to some non-will-related fact (whether natural or structual),
then an explanation was owed of the striking coincidence that the
superiority of Western culture was revealed precisely to that Western
elite whose privileges it justified.
97
Sovereignty: a gift of civilization –
international lawyers and imperialism,
1870–1914
Surveying the state of international law at the turn of the century,

Enrico Catellani (1856–1945), Professor at the University of Padua
and member of the Institut de droit international gave a gloomy
view of the situation. If there was one tendency, he wrote, that was
evident from the first moments of the new century, it was the
increasing use of force in the determination of the fate of peoples.1
The law was moving away from the mid-nineteenth-century ideals of
justice and equality. No doubt, there had been many developments
in a positive direction: the increase and technical improvement of
treaty law and private international law, progress in arbitration and
the emergence of functional international cooperation.2 These
developments were, however, overweighed by negative ones. No
real international society had come to existence beyond Europe and
the fundamental rights of peoples or States were no better protected
than a century before. Europeans still acted from a position of
superiority towards others: capitulation regimes, consular
jurisdiction, and brutal colonial wars had become banal aspects of
the international everyday. Advancing civilization oppressed and
impoverished indigenous populations to the point of extinction – a
fact accepted by imperial powers as an inevitable consequence of
modernity. Even in Europe, powerful States had set up a permanent
reign of control over the continent so that smaller powers enjoyed
less autonomy than ever.3 All in all, Catellani exclaimed, the
nineteenth century had closed with imperial domination,
methodological enslavement of populations, and war.
The particularly worrisome feature of this was, he then pointed out,

1 Enrico Catellani, “Le droit international au commencement du XXe
siècle” (1901), VIII RGDIP, p. 585.
2 Catellani, “Le droit international,” pp. 386–400.
3 Catellani, “Le droit international,” pp. 400–408.
98
Sovereignty: a gift of civilization that instead of being hidden behind

hypocritical justifications such practices were openly advocated as
consistent with new philosophical and scientific doctrines, especially
sociology and evolutionism. Collectivist theories – such as the
doctrine of the survival of the fittest – had become acceptable
defenses to override individual rights. The historical school in
Germany and Comtist sociology in France had taught that individuals
were determined by their collectivities and that there were no
universal principles, that laws and moralities were relative to
particular periods and locations.4 All of this was invoked by great
powers to give war a new justification. Catellani ended his
melancholy overview as follows: “if the international society must in
the immediate future live and develop in accordance with the law of
the struggle for life and the survival of the fittest, I myself wish that
my country will not remain on the side of the weak and the
incapable, destined for submission and disappearance.”5
International lawyers were confronted by imperialism at a time when
the optimistic faith in the universal spread of civilized principles had
entered a crisis.6 But if Catellani and others were disappointed by
European 4 Catellani, “Le droit international,” pp. 408–413.
5 Catellani, “Le droit international,” p. 586.
6 Very little has been written on imperialism and international law.

Not only does there seem to exist no full-length study of the matter,
there is an almost complete silence on it. There is, for instance, no
entry for “imperialism” in the Max Planck Encyclopaedia of
International Law. Nor is the word “imperialism” carried in the
indexes of major international law textbooks. With few exceptions,
international lawyers have treated the subject as part of the history
of territorial acquisition. The most comprehensive treatment is Jörg
Fisch, Die europäische Expansion und das Völkerrecht (Stuttgart,
Steiner, 1984).
Perhaps there is a sense that “imperialism” is too much a politically

loaded word, “no word for scholars.” The equation works both ways:
in the voluminous amount of historical publication on European
imperialism, international law is practically absent –
with the exception of references to effective occupation as the basis

for title in non-European territory (with particular reference to the
Act of Berlin of 1885).
“Imperialism” always appears as a political, economic, military,

social, or cultural
“fact,” a series of incidents or relationships instead of a normative

category. It was first used in the 1850s and 1860s as a (British)
characterization of French policies conducted under Napoleon III.
Thereafter, it has been linked to the expansive foreign policies of
individual countries more generally, usually with a tint of criticism,
perhaps by reference to Lenin’s famous thesis about the highest
stage of capitalism. One general definition of imperialism reads: “the
process by which either formal empires or significant influence and
control short of direct rule – ‘informal’ empires – came into being
and then grew.” Andrew Porter, European Imperialism 1860–1914
(Basingstoke, 99
behavior in the colonies, the ground from which they argued for
humane treatment of the natives was an outdated concept of natural
law that had little intellectual credibility even in their own
professional milieu. Most of them agreed with Theodor Woolsey
(1801–1889), President of Yale and the author of a leading American
textbook of the period, that lawyers making use of natural principles
were in fact spinning the web of a system out of their own brains as
if they were legislators of the world.7 In their nostalgicreferences to
a universal natural law they were ignoring the extent to which even
the philosophes had wondered about the appropriateness of
applying identical precepts for the administration of all societies. The
ambivalence about the powers of natural reason was plainly evident
in Montesquieu whose Esprit des lois distinguished between “laws in
general” that were based on human reason and thus applicable to all
nations and laws in particular: “that should be in relation to the
nature and principle of each government . . . to the climate of each
country, to the quality of its soil, to its situation and extent . . .
to the religion of the inhabitants, to their inclinations, riches,

numbers, commerce, manners and customs.”8 The view of law as
reflection of society and culture and not as derivation from universal
principles could not simply be unlearned. Even if most late
nineteenth-century lawyers agreed that a world without some
conception of universal, rational law would be unthinkable, they
emphasized law’s social and historical basis and struggled over
complex formulas to fix the relationship between the two. Yet it was
hard to accept that one’s own position shared in such contextuality:
where Savigny’s historical explorations revealed that the German
Geist resided in the rational formulas of Roman law, Maine con-
textualized the use of rational law by English and international jurists
as a culturally specificadoption of analogies from the Romans. But
though variations between European cultures might be satisfactorily
accounted Footnote 6 ( cont. )
Macmillan, 1994), p. 2. Another definition draws a line between

imperialism and colonialism: “Imperialism presupposes the will and
the ability of an imperial center to define as imperial its own national
interests and enforce them worldwide in the anarchy of the
international system. Imperialism implies not only colonial politics
but international pol -
itics for which colonies are not just ends in themselves, but also
pawns in global power games.” Jürgen Osterhammel, Colonialism. A
Theoretical Overview (trans. from German S. L. Frisch, Princeton,
Wiener, 1997), p. 21. In this chapter, imperialism appears as an
insistence on the extension of formal European sovereignty in the
colonies.
7 T. D. Woolsey, Introduction to the Study of International Law (5th

edn., London, Sampson, 1879), p. 13.
8 Baron de Montesquieu, The Spirit of the Laws, trans. T. Nugent,

introduction F.
Neumann (New York and London, Hafner & Collier, 1949 [1748]), p.
6.
100
Sovereignty: a gift of civilization for by reference to history and

context, it seemed nonetheless impossible not to believe that what
was common to Europeans encapsulated some kind of a non-
contextual, objective form of experience, civilization tout court.
Penetrating deeper into the colonies – Africa in particular –
Europeans came into contact with societies and cultural forms that
seemed to share little of what they felt was the common core of
their civilized identity. How were they to think of such societies and
Europe’s relationship to them? In the eighteenth century, Europeans
had often either dismissed primitive societies on account of their not
partaking of the same kind of humanity as that enjoyed by the
Europeans, or idealized them into Noble Savages, representatives of
a Golden Age lost to Europe.9 Neither attitude had much by way of
reasoned background and they often emerged in connection with
stories intended to make a political point about present Europe
rather than to provide a basis for thinking about foreign cultures. In
the course of the first half of the nineteenth century, such attitudes
gave way to more historicized explanations such as the Comparative
Method that viewed primitive peoples as earlier stages of human
development in an overall law-like frame of progressive history.10 By
the 1870s the assumption of human development proceeding by
stages from the primitive to the civilized had come to form the
bedrock of social anthropology and evolutionary sociology that
provided much of the conceptual background for cultivated European
reflection about what Europeans often sweepingly termed the
Orient.11
19 Cf. e.g. Jean-Jacques Rousseau, A Discourse on Inequality, trans.

with introduction by M.
Cranston (London, Penguin, 1984 [1755]), citing travellers’ stories

about “the strength and vigour of men in barbarous and savage
nations,” pp. 143–145 and passim. For comment, cf. J. W. Burrow,
Evolution and Society. A Study in Victorian Social Theory (Cambridge
University Press, 1966), pp. 4–6, 75–76. On the two modes of
thinking about the primitive and of the Noble Savage idea as a
strategy to undermine the idea of nobility itself, cf. also Hayden
White, Tropics of Discourse. Essays in Cultural Criticism (Baltimore
and London, Johns Hopkins University Press, 1985 [1978]), pp.
183–196.
10 Burrow, Evolution and Society, pp. 11–14, 78–82.
11 Of particular importance were E. B. Tylor, Primitive Culture:

Researches into the Mythology, Philosophy, Religion, Language,
Custom, and Art (7th edn., New York, Brentano, 1924
[1871]) and Primitive Culture (2 vols., New York, Harper, 1958). The
idea of a universal history as “the realization of a hidden plan of
nature to bring about an internally
– and for this purpose also externally – perfect political constitution”

is most influentially presented in Immanuel Kant, “Idea for a
Universal History with a Cosmopolitan Purpose,” in Political Writings,
Hans Reiss, trans. H. B. Nisbet (Cambridge University Press, 1991),
pp. 41–53. The quote is from Kant’s Eighth Proposition, p. 50 .
101
Like much nineteenth-century social reflection, international law

imagined itself in terms of progressive, or pedigree history. It posited
an early origin – usually somewhere in Western Antiquity, perhaps
the universalism of Stoic thought – and then described itself in terms
of how the promise of that origin had been preserved or enhanced
by later developments, and how the present could be seen as its
highest (though always incomplete) stage of flourishing.12 A random
example of how pedigree history worked can be gleaned in the
popular German textbook by Franz von Liszt (1851–1919), for whom
international law was a historical–contextual aspect of European
culture and not a set of immutable, God-given principles. Although
legal relations between communities had existed since Greek and
Roman Antiquity, the origin of a systemic law lay in the Westphalian
treaties. It was a necessary precondition of international law, he
wrote, that there exist independent States of approximately equal
power that owing to common culture and interests engage in
frequent contacts on a secular basis. From that point he traced
international legal history through five subsequent periods in which
the original idea of a universal law between formally equal
communities was gradually strengthened through increasingly
complicated legal arrangements – with the last (and highest) period
coinciding with the Hague Conferences and forceful European
penetration in Africa, Asia and the Far East.13
This type of history aimed at more than a neutral description of the

flow of past events into the present.14 Its point was to justify
present European expansion by making it appear as the fulfillment of
the universalist promise in the origin.15 In the case of Liszt and
others, the positive substance of this development was captured in
the concept of
“civilization” that now took the place of natural law as the universal
standard of evaluation and with the force of apparent natural
necessity called for European expansion. Law, wrote Bluntschli’s
successor in Heidelberg, August von Bulmerincq (1822–1890), was
the guardian of 12 For a good description of “pedigree history,” cf.
Raymond Geuss, Morality, Culture and History. Essays on German
Philosophy (Cambridge University Press, 1999), pp. 1–3.
13 Franz von Liszt, Das Völkerrecht. Systematisch dargestellt (5th

edn., Berlin, Häring, 1907), pp. 15–38. A brief standard history that
specifically identifies the Stoics as the initiators of a general human
law is Frantz Despagnet, Cours de droit international public (2nd
edn., Paris, Larose, 1889), pp. 5–26.
14 Cf. also Burrow, Evolution and Society, pp. 93–100.

15 This view is expressly argued in Joseph Hornung, “Quelques vues
sur la preuve en histoire, comparée avec la preuve judiciaire, sur les
documents de l’histoire contemporain et sur l’importance historique
de l’actualité” (1884), XVI RDI, pp. 71–83.
102
Sovereignty: a gift of civilization civilization. As shadows escape the

light, law and civilization constantly reduced the space left for their
antitheses: politics and barbarism.16 As we have seen in chapter 1,
much of what the lawyers behind the Institut de droit international
had to say about the conditions of international society related to
the degrees of civilization possessed by its members.
That “civilization” was not defined beyond impressionistic

characteriza-tions was an important aspect of its value. It was not
part of some rigid classification but a shorthand for the qualities that
international lawyers valued in their own societies, playing upon its
opposites: the uncivilized, barbarian, and the savage. This provided
a language for attitudes about social difference and for constructing
one’s own identity through what the historian Hayden White has
called “ostensive self-definition by negation” – a reflex action
pointing towards the practices of others and affirming that whatever
we as Europeans are, at least we are not like that.17
Although there is no necessary relationship between the

Comparative Method, pedigree history, and racism, on the one hand,
and expansion, on the other, for men of liberal conscience such
equation seems practically inevitable. In Bluntschli, the narrative
about progress as civilization came together with racial speculation
in a striking way. In an article written in 1857 to the German
Staatswörterbuch, he observed that of all the races the highest were
the Aryan and the Semitic, the former a race of rationalism and
philosophy, the latter a race of emotion and religion.
In particular, he opined, “All higher science is of Aryan origin.”18 The
superiority of the Aryan races lay in the way they emphasized the
dignity and honor of the human being. The Negro, for example,
allowed his master to enslave him, even threw himself on the
ground before his master, and “lifted the master’s foot himself on his
head.” The Aryan would never suffer such. The Aryan would also
stress the honor of women – expressed in monogamy – and the
honor of the family –
expressed in the fact that although the man was the head of the
house-hold, his power over family members was not unlimited. The
right of property and especially of the ownership of land were
distinctly Aryan institutions, designed to give human beings “eine
feste Heimat.”19
Above all, the Aryans were State people, Bluntschli wrote, having 16
A. Bulmerincq, “La politique et le droit dans la vie des états” (1877),
IX RDI, p. 364.
17 White, Tropics of Discourse, pp. 151–152.
18 J. C. Bluntschli, “Arische Völker und arische Rechte,” in

Gesammelte kleine Schiften (2
vols., Nördlingen, Beck, 1879), I, p. 66.
19 Bluntschli, “Arische Völker,” pp. 74–77, 78.
103
already organized in political societies in ancient India. This

progressive idea had been realized in Europe and was apparent in
Europe’s world-dominance. Even if lower races sometimes succeeded
in organizing themselves into States, these were theocracies lacking
a balanced relationship between State and religion.20 Only Aryan
States had realized human rights while in most non-Aryan
communities the masses were treated as slaves or lived in wild
independence. Only Aryan states had developed into rule-of-law
States in which the King “liebt das Licht und ist ein Rechtskönig.”21
The Aryans had a natural drive for progress ( Vervollkommnung):
from the earliest days they had organized their political lives for the
attainment of common purposes instead of waiting for divine
intervention. No race could compete with them in the theory of the
State which among Aryans had come to the greatest “elevation and
clarity of ideas” in the Germanic people.22 And there was a
Missionsbewusstsein: the Aryans were to educate other races in
political theory and statehood so as to fulfill their great historical
assignment: “to develop and complete the domination of the world
which already lies in the hands of the Aryan peoples in a consciously
humanistic and noble way so as to teach civilization for the whole
mankind.”23
Bluntschli’s ideas may have been expressed in a language that many

of his colleagues might have found distasteful – and he himself later
avoided it. Though Lorimer went even further in his antisemitism,
and in his indictment of “Mohammedism,” his arguments were
dressed in a more conventionally Darwinistic garb.24 Yet there is no
reason to assume that the properties which they valued in “Aryan
races” would not have been valued by Institut members generally.
Generalizations about the lack of a proper concept of the State in
the Orient, about the fatalism or stagnation of non-European
societies – such as Maine’s casual division of societies into
progressive and stationary ones – were a part of the educated
common sense of the period that portrayed the East as voiceless,
feminine, irrational, despotic, and backward and the West as
rational, male, democratic, and forward-looking.25 Despite all the
talk about Turkey’s 20 This fact was cited against Turkey in
Bluntschli, “Le Congrès de Berlin et sa portée au point de vue de
droit international” (1879), XI RDI, pp. 420–430.
21 Bluntschli, “Arische Völker,” pp. 82, 86.

24 James Lorimer, “La doctrine de la reconnaissance. Fondement du

droit international”
(1884), XVI RDI, pp. 333–359.
25 Cf. Edward Saïd, Orientalism. Western Conceptions of the Orient

(Harmondsworth, Penguin, 1995 [1978]), pp. 57–73 and comment in
Bart Moore-Gilbert, Postcolonial Theory. Context, Practices, Politics
(London, Verso, 1997), pp. 35–40.
104
Sovereignty: a gift of civilization admission into the European

community of nations in 1856, little had changed in terms of
attitudes. Lorimer had nothing but scorn for those who forecast
Turkey’s rapid integration into the community of civilized nations: the
Turks probably did not even belong to the progressive races!26 Even
the Swiss critic of Western imperialism and member of the Institut,
Joseph Hornung (1822–1884), held the Orient to be profoundly
decadent and worth study only insofar as it had participated in the
origin of civilization, a kind of living souvenir of the West’s pre-
history.27
This is not to say that international lawyers would have developed a

fully homogeneous colonial discourse. There were significant
variations of tone and emphasis in the way they treated European
expansion, some of which reflected national backgrounds, some
political leanings or personal idiosyncrasies. Many had preserved
Rousseau’s ambivalence about the ethical value of this development
and spoke about colonization, at least of colonization by others,
through a complicated language of humanitarian regret and
historical inevitability. The ambivalence was particularly evident in
the French lawyers, perhaps in part as a reflection of the persistence
of the discourse of the philosophes in French culture generally and a
strong sense of a mission civilisatrice based on republican ideals.28
Louis Renault (1843–1918), for example, the future doyen of the
French international law community, writing in 1879, repeated
Montesquieu’s distinction between a natural law (that was largely
negative, prohibiting the causing of harm to others) and a cultural
law, based on the progress of civilization, the marvelous discoveries
of modern science, and common traditions. Yet it was the former
that controlled what could be achieved by the latter: too often, he
wrote, the Europeans had misused their power against the “so-called
barbarians” and waged unjust wars against them, violating the most
elementary rules of international law.29 Such a general criticism in a
textbook hardly counted as 26 Lorimer, “La doctrine de la
reconnaissance,” pp. 342–343.
27 Joseph Hornung, “Civilisés et barbares,” (1884), XVI RDI, p. 79.
28 Alice Conklin defines the French civilizing ideal in terms of

“mastery” – not only of others but of oneself, nature and society:
“the French believed that they had triumphed over geography,
climate and disease to create new internal and external markets,
and because they before all other nations had overcome oppression
and superstition to form a democratic and rational government.” The
non-European world lacked precisely these qualities: “the crucial
ability to master – that they were just as obviously barbarians, in
need of civilizing.” Alice L. Conklin, A Mission to Civilize. The
Republican Idea of Empire in France and West Africa 1895–1930
(Stanford University Press, 1997), p. 6.
29 Louis Renault, Introduction à l’étude de droit international, in

L’oeuvre internationale de Louis Renault (Paris, Editions
internationales, 1932 [1879]), pp. 11–12, 17.
105

serious resistance to colonization, however. Renault had nothing but
sympathy for French consular jurisdiction in Turkey and China.30
A more critical full-length survey of European colonization was

published in Paris a decade later by Charles Salomon (1862–1936)
who was genuinely ironical about the civilizing mission: “No word is
more vague and has permitted the commission of more crimes than
that of civilization.”31 With the exception of Vitoria and Las Casas,
no attention had been paid to indigenous rights. Salomon
condemned “the deplorable excesses that tarnished the history of
Spanish colonisation.”32 Although Salomon admired the tolerant
spirit in France in the seventeenth century and noted a marked
improvement in the way the natives now were treated by the English
– especially by the Quakers – he still held colonization as violent and
unjust for the natives: “the history of all colonies begins with
violence, injustice and shedding of blood: the result is everywhere
the same; the disappearance of the native races (des races
sauvages) coming into contact with civilized races.”33 Although the
requirement of effective occupation did mean an improvement in the
law, the result of the 1884–1885 Berlin Conference had made little
practical difference. “It cannot be said that the history of
colonization during the past five years would present a morally more
adequate image than that of the past century.” ”34 Salomon read
the contemporary language of civilization as pure hypocrisy that
sought only the advancement of commerce.35 To be civilized, he
thought, gave no basis for more extensive rights but in fact imposed
duties: lack of civilization was a problem, not a vice. But though he
made detailed references to past and contemporary European
excesses, and spoke in favor of treating indigenous communities in a
humane way, and sometimes from a basis of equality, Salomon’s
book hardly constituted an attack on colonialism itself. Its problems
were attributed to external causes: egoism, greed, and vanity.
Gaston Jèze (1869–1953), too, who achieved moderate fame in the

1930s as the legal adviser of the Ethiopian Negus and as target of
right-wing protests in Paris, in 1896 wrote critically about the way
colonization had been left for adventurers and profit-seeking private
companies.36 He joined Salomon in condemning the destruction of
30 Renault, Introduction, p. 16n.1.
31 Ch. Salomon, L’occupation des territoires sans maître. Etude de

droit international (Paris, Giard, 1889), p. 195.
32 Salomon, L’occupation, p. 64. Cf. also p. 193.
33 Salomon, L’occupation, p. 68.
34 Salomon, L’occupation, pp. 83–84.
36 Gaston Jèze, Etude théorique et pratique sur l’occupation comme

mode d’acquérir les territoires en droit international (Paris, Giard &
Brière, 1896).
106
Sovereignty: a gift of civilization native communities during the early

history of European expansion.37
Likewise, Edouard Engelhardt (1828–1916), Jules Ferry’s assistant

and one of the French delegates at the Berlin Conference,38
published a series of articles on the proper notion of the
protectorate, waging a brief battle within the Institut in order to
insist that territorial acquisition be connected with administrative
duties.39 Salomon, Jèze, and Engelhardt each advocated the formal
extension of European sovereignty into colonial territory as the only
means to check the excesses of purely commercial colonization. This
was not a radical point by Frenchmen, however, as French
colonization had always been conducted as official State policy, often
through military conquest. French lawyers were as enthusiastic
about the colonial venture as any, and never failed to mention how
the native treaties concluded by the French–Italian adventurer Pierre
Savorgnan de Brazza (1852–1905) in the French Congo in 1880 had
been negotiated in an atmosphere of friendly brotherhood with local
chiefs in contrast to the aggressive manipulations of the
British–American H. M. Stanley (1841–1904) at the service of the

King of the Belgians or the German Carl Peters (1856–1918) acting
on his own in East Africa.40
Humanitarian sentiments and regret about European brutality were

of course not simply a preserve of the French. A representative
mixture of historical and racial generalization, ambivalence about
progress and popular humanitarianism can be gleaned from a
speech by Lord Russell (1832–1900), speaking as an Englishman to
the American Bar Association in 1896. Affirming the progressive
nature of human history, he added “progressive, let us hope, to a
higher, a purer, a more unselfish ethical standard.”41 He had no
doubt that as with religion, countless crimes had been committed in
the name of civilization in the course of European expansion.
“Probably it was inevitable that the weaker races should, in the end,
succumb, but have we always treated them with consideration and
with justice?” Having rhetorically asked his audience
”What indeed is true civilization?,” he let himself define it by an

unambiguously Victorian set of virtues:
37 Salomon, L’occupation, pp. 29–81; Jèze, Etude théorique, pp. 90–

103.
38 Jules Ferry (1832–1893) was a liberal politician, minister of

foreign affairs and an advocate of French colonialism in Africa and
the Far East.
39 Many of these articles are collected in Edouard Engelhardt, Les

protectorats. Anciens et modernes. Etude historique et juridique
(Paris, Pedone, 1896).
40 Cf. e.g. Jèze, Etude théorique, pp. 152–160.

41 Lord Russell of Killowen, “International Law” (1896), XLVIII Law
Quarterly Review, pp. 315, 317.
107
Civilization is not a veneer; it must penetrate the very heart and core
of societies of men. Its true signs are thought for the poor and
suffering, chivalrous regard and respect for woman, the frank
recognition of human brotherhood irrespective of race or colour or
nation or religion, the narrowing of the domain of mere force as a
governing factor in the world, the love of ordered freedom,
abhorrence of what is mean and cruel and vile, ceaseless devotion to
the claims of justice.42
It is a measure of the complex innerlichkeit of a Victorian lawyer and

nobleman that he could dwell on such attributes after having in the
early part of his lecture decisively dismissed natural law and morality
as stable bases for international law. His “civilization” consisted of a
set of psychological dispositions that appeared as simple “facts”
imbedded in a reassuringly progressive historical frame. Although
progress required some tragic sacrifices, it was still possible to
perceive its benefits in the opposition between Western
humanitarian sensitivity and Oriental barbarism: did not recent
reports tell that Menelik, the victorious Emperor of Abyssinia, had
ordered the cutting off of the right hands and feet of 500 Italian
prisoners? Here finally there was an unambiguous measure of
progress. Though similar acts had been quite common in Europe
some time ago, today the civilized world had learned to react to
them with horror.43
In general, however, British lawyers such as Twiss, Westlake, and

Hall had a much more matter-of-fact view of colonization than their
French colleagues. Sir Travers Twiss, for instance, who acted as legal
counsel to King Léopold in the early 1880s, argued against the
majority view that private associations could not receive right of
dominion in the colonies.
On the contrary, citing the cases of Maryland and Liberia – and

anticipating what the Congo might in his view become – he
described their activities in predominantly philanthropic terms.
Quoting Vattel and Chief Justice Marshall approvingly, he also limited
indigenous territorial rights by reference to the extent they had
come to be effectively used.44
Westlake and Hall absented public law completely from the relations
of protecting and protected communities: the only international law
duties owed by the colonizer were towards other colonizers. Nor did
colonization bring any determinate administrative duties. The
situation in different protected territories differed so radically that
the colonizing State
“must be left to judge how far it can go at a given time, and through
what form of organisation it is best to work.”45
42 Russell, “International Law,” p. 335.
43 Russell, “International Law,” pp. 325–326.
44 Travers Twiss, The Law of Nations Considered as Independent

Political Communities (2 vols., 2nd edn., Oxford, Clarendon, 1884), I,
pp. x–xvi and 217–224.
45 W. E. Hall, A Treatise on International Law (4th edn., Oxford,

Clarendon, 1895), pp. 132, 133.
108
Sovereignty: a gift of civilization While German lawyers started to

write about colonialism only after Bismarck’s famous volte-face in
1884, their treatment of it drew more upon the tradition of national
public law than upon international law: the focus of German interest
lay in how the German Schützsgebiete should be seen from the
perspective of the imperial constitution.46 Early commentators such
as Paul Heilborn (1861–1932), Karl Heimburger (1859–1912), or
Friedrich Geffcken (1830–1896) showed little awareness of the moral
ambivalence of the civilizing mission and concentrated their energy
on clarifying the meaning and limits of concepts such as
“protectorate” or “territorial sovereignty” ( Gebietshoheit) or

defending Germany’s right as a latecomer to the imperial game that
would correspond to its role as a Great Power.47 They understood
colonization as a perfectly natural drive; just as ownership was a
projection of the owner’s person in the material world, colonial
possession was an aspect of the healthy State’s identity and self-
respect. One early German study maintained that international law
held the State’s quest for territory a justified expression of its life-
energy (“eine berechtigte Äusserung seine Lebensenergie”), and
protected this as long as it did not conflict with the legal spheres of
other (European) States.48
But despite occasional disagreement about particular geographical

disputes or doctrinal matters such as the conditions of effective
occupation, the effect of native treaties or the legal position of
colonial companies, international lawyers shared a sense of the
inevitability of the modernizing process. Even Hornung dressed his
criticism of European behavior in the colonies in the form of an
appeal to charity and concern for the weak and the uneducated.49
International lawyers were not insensitive to the humanitarian
problems that accompanied colonialism. They all admired the
Spanish scholastics of the sixteenth century.50 They saw it as their
role to minimize such problems through the export of rational, public
law-based administrative structures to manage the colonial
encounter, to include sovereignty among the benefits civilization
would 46 Cf. Carl Von Stengel, “La constitution et l’administration
des colonies allemandes”
(1895), III Revue de droit public et de la science politique en France
et à l’étranger, pp. 275–292.
47 Paul Heilborn, Das völkerrechtliche Protektorat (Berlin, Springer,

1891); Karl Heimburger, Der Erwerb der Gebietshoheit (Karlsruhe,
Braun, 1888).
48 Heimburger, Erwerb, p. 45. Likewise, F. H. Geffcken, “L’allemagne

et la question coloniale” (1885), XVII RDI, p. 114.
49 Hornung, “Civilisés et barbares” (1886), XVIII RDI, p. 188.
50 This was hardly a radical position, as even the Spanish

government had officially adopted the view of Las Casas against that
of Sepulvéda. V. G. Kiernan, Imperialism and Its Contradictions, ed.
and introduction by Harvey J. Kaye (New York and London,
Routledge, 1995), p. 102.
109
bring. If they also thereby legitimized some of the worst injustices in

the history of modernity, they did this unwittingly, and it is a moot
question whether their absence from the scene – marginal as they
always were –
would have provided the Age of Empire with any better credentials.
After the Napoleonic wars, European expansion took place with little
sense of a conscious process. Europeans had expressed some
systematic interest in the exploration of non-European spaces in the
eighteenth century but the upheavals of century’s end made the
society turn inwards. Great Power diplomacy sought to reconstruct
the European equilibrium and with the exception of the Eastern
Question, the European Concert focused until 1884 exclusively on
European affairs.
In some ways, official Europe was losing ground. The independence

of Spanish America (1822) and the secession of Brazil from Portugal
brought the decay of two empires to a conclusion. French energies
were absorbed by three revolutions. The seizure of Algeria in 1830
as part of the restaurationist policy of Charles X had led France into
an endless and unpopular guerrilla war. The French Parliament had
no enthusiasm for colonial ventures and when the Empire fell in
1870, many felt that imperial ambition was partly to blame.51
Likewise, the “great mass of German bourgeoisie wanted no part in
colonial adventure.”52 German attention was focused on the
continent, on unification as well as on constitutional and social
conflict at home. In the 1870s Bismarck still rejected proposals by
the German Kolonialverein to set up colonies. He thought them
expensive and was against the idea of having to request funds from
the Reichstag in a way that might have strengthened the latter’s
hand against the Chancellor.53 Italy, too, was busy getting united.
Russia moved back and forth in the east and Austria was
preoccupied in the Balkans.
European populations had little interest in colonies. Attention was

directed at social upheaval at home and at the advantages and
problems of industrialization. Questions relating to non-European
regions were 51 James J. Cooke, New French Imperialism 1880–
1910: The Third Republic and Colonial Expansion (Newton Abbot,
Archon, 1973), pp. 13–14.
52 L. H. Gann, and Peter Duignan, The Burden of Empire. An

Appraisal of Western Colonialism in Africa South of the Sahara
(Stanford University Press, 1971), p. 187.
53 Cf. e.g. Henri Wesseling, Le partage de l’Afrique 1880–1914,

traduit du néerlandais par Patrick Grilli (Paris, Denoël, 1996), pp.
152–154.
110
Sovereignty: a gift of civilization the preserve of humanitarians and

Christian missionaries. The State limited itself to the adoption of
legal provisions under which private trade and economic
development, education and technological regeneration might be
undertaken through commercial or humanitarian societies.54 The
establishment of Sierra Leone (1791) and Liberia (1822 and 1847)
were understood as mainly private, humanitarian ventures, only
slightly colored by economic motives.55 The main interest in Africa
was not colonization but the prevention of the slave trade, organized
on the basis of a Declaration from Vienna in 1815 and through
bilateral treaties that granted Britain the privilege of patrolling the
African coasts in search of vessels suspected of slaving.
The years 1815–1870 constituted the heyday of British

predominance overseas. But in Britain, too, successive Prime
Ministers from Castlereagh onwards opposed the formalization of
British rule. As Macaulay pointed out in 1833: “To trade with civilized
men is infinitely more profitable than to govern savages.”56 Britain’s
was an “empire of free trade,” maintained by unchallenged naval
supremacy and the absence of serious industrial or diplomatic
competition from potential European rivals.57 Britain’s advocacy of
free trade was firmly grounded in self-interest. Not without
justification, colonization was understood to be contrary to free trade
and colonies were regarded as an economic burden.58 In 1846,
British colonial defense cost the value of half of the total colonial
trade.59
54 Ronald Hyam, Britain’s Imperial Century 1815–1914. A Study of

Empire and Expansion (London, Macmillan, 1976), pp. 108–116.
55 Winfried Baumgart, Imperialism; The Idea and Reality of British

and French Colonial Expansion 1880–1914 (Oxford University Press,
1982), pp. 11–13; Hyam, Britain’s Imperial Century, pp. 91–97.
56 Quoted in Hyam, Britain’s Imperial Century, pp. 106, 105–108.
57 Cf. generally Ronald Robinson and John Gallagher, with Alice

Denny, Africa and the Victorians. The Official Mind of Imperialism
(2nd edn., London, Macmillan, 1981). This did not mean that there
would have been no advances in official empire at the time.
Between 1839 and 1851, for instance, Britain obtained as formal

colonies New Zealand, the Gold Coast, Natal, Punjab, Sindh, and
Hong Kong. Cf. Hyam, Britain’s Imperial Century, pp. 8–15, 86–90,
120–121.
58 Cf. e.g. Gann and Duignan, The Burden of Empire, pp. 12–14,
18–19. As late as 1876, the capitalist and humanitarian William
Mackinnon aimed to conclude a treaty with the Sultan of Zanzibar
that would have given Mackinnon’s company sovereign rights over
the area between the East African coast and the Great Lakes.
Salisbury intervened out of fear of formal engagements that this
might have entailed. Five years later still, Gladstone politely refused
the Sultan’s request for the establishment of a British Protectorate
over this strategically placed island. Cf. Wesseling, Le partage de
l’Afrique, pp. 189–190.
59 David Newsome, The Victorian World Picture (London, Fontana,

1997), p. 131.
111
Instead, recourse was had to strategies of informal influence. The

largest piece of the Empire, India, had been ruled by the British East
India Company since 1600 and its charter was not taken under
direct administration until after the Indian mutiny of 1857.60
Predominance in China was based on treaties (of Nanking, 1842 and
Tientsin, 1858) that guaranteed the entry of goods through and
extraterritorial rights in determined treaty ports, limiting the need for
imperial intervention to
“gingering up” operations through gunboat diplomacy.61 In West

Africa and elsewhere, the occasional show of limited military or naval
strength was normally sufficient to protect British trade and
missionaries.62 White settlement colonies (Australia, Canada, New
Zealand, Cape Colony) were granted responsible government in an
effort to minimize the British taxpayers’ burden. During 1815–1870
the slogan “trade, not rule”
formed the core of British overseas policy.63
At this time, as we have seen in chapter 1, no profession of

international law existed. Von Martens and Klüber had written for the
education of diplomats and men of public affairs. Their outlook
reflected the preoccupations of the powers engaged in the
reconstruction of European States–society and they had little to say
about colonial expansion. Their Droit public de l’Europe was,
however, intended less as an instrument of exclusion than of
integration – however much the idea of a specifically European
political or cultural realm was premised upon a projected non-
European otherness. They were of course not the only lawyers with
60 Cf. generally, John Keay, The Honourable Company. A History of
the English East India Company (London, HarperCollins, 1991).
61 Cf. Hyam, Britain’s Imperial Century, pp. 123–133, Kiernan,

Imperialism and Its Contradictions, pp. 152–187; Gerrit W. Gong,
The Standard of “Civilization” in International Society (Oxford,
Clarendon, 1984), pp. 130–153; and generally Frances Wood, No
Dogs and Not Many Chinese. Treaty Port Life in China 1843–1943
(London, Murray, 1998).
62 In 1860–1870 British traders sought to open the Niger especially
for palm oil trade: for this purpose, they received protection by the
navy and there was occasional stiff fighting to protect trade, Gann
and Duignan, The Burden of Empire, p. 173. On British gunboat
diplomacy in 1815–1870, cf. Hyam, Britain’s Imperial Century, pp.
15–21.
63 Conventional histories of the British Empire depict a clear break

between an essentially anti-imperial mid-Victorian era and the “new
imperialism” of the last two decades of the century. This break has
been questioned by the Robinson–Gallagher thesis (Robinson and
Gallagher, 1981) about the “imperialism of free trade” of the early
period: instead of “trade, not rule,” it was “trade if possible,
otherwise rule.” In any case, the British possessions did grow
steadily, even during the early period of informal empire in 1815–
1870.
112
Sovereignty: a gift of civilization a program of cultural integration.

Friedrich Saalfeld (1785–1834), for instance, writing in 1833, pointed
out that the uniform culture of and reciprocal relations between
Christian nations had created a consensus over central international
law principles.64 When Saalfeld wrote that international law was
part of public law, he thereby based it firmly on Western
jurisprudential categories: to know international law was to know it
as “part of ” public law and European diplomacy.65 Both von
Martens and Klüber opened their discussion of the law by a
classification or even an enumeration of European States. The law’s
substance then followed in terms of the absolute and relative rights
of those States and the sum total of their (peaceful and hostile)
relationships. Their texts became portraits of European political
society as it stood in 1815.
On the other hand, however, von Martens and Klüber both felt they
needed to say something of the world beyond Europe. Both were
educated in the Aufklärungsideale of the eighteenth century and like
Montesquieu, Kant, or Rayneval held that natural law provided for
the equal worth of individuals, irrespective of race or religion. They
thus espoused quite a liberal conception of the right of native
ownership.
Klüber, for instance, pointed out that: “no nation is authorized,

whatever its qualities, including a higher level of culture, to divest
another nation of its property, not even savages or nomads.”66 And
von Martens agreed: The law of property being the same for
everybody, independently of their religion or habits, natural law does
not authorise Christian peoples to appropriate areas that are already
occupied by savages against their wishes, even if practice offers only
too many examples of such usurpations.67
Such a well-entrenched right of property did not, of course, position

native communities as equal to European States. As later lawyers 64
This is visible not only in regard to the treaties and customs of
European nations –
that was evident – but also in how secondary sources (the nature of
the thing, tacit agreement and analogy) presuppose a cultural
knowledge of the sphere in which it is to be applied. Friedrich
Saalfeld, Handbuch des positiven Völkerrechts (Tübingen, Ostander,
1833), pp. 4–5.
65 Saalfeld, Handbuch, p. 5.
66 J. L. Klüber, Droit des gens moderne de l’Europe (Stuttgart, J. G.

Cotta, 1819), p. 194.
67 G. F. de Martens, Précis du droit des gens moderne de l’Europe,

précédé d’une Introduction et complété par l’exposition des
doctrines des publicistes contemporains et suivi d’une Bibliographie
raisonnée du droit des gens par M. Ch. Vergé (2 vols., 2nd French
edn., Paris, Guillaumin, 1864), 1, pp. 128–129 § 36 (footnotes
omitted). However, in an appendix to the first edition as well as in
his Recueil des traités, von Martens included treaties with North
American Indians “as well as treaties with rulers of the Barbary
States, the Philippines . . . Persia, China and Ceylon,” Dorothy V.
Jones, License for Empire; Colonialism by Treaty in Early America
(University of Chicago Press, 1982), p. 6 and generally on treaty
relations with non-Europeans, pp. 5–18.
113
routinely remarked, the property rights of indigenous populations

that were taken from the Roman concept of occupation fell short of
public law imperium, or of sovereignty, and to invoke them against
European sovereigns was to confuse categories that were to be held
distinct.68
Klüber and von Martens would probably have agreed. At any rate,
they took no exception to the famous construction of British title to
American territory by the argument crystallized in Chief Justice
Marshall’s 1823
decision that allowed the Indians a right of occupancy but gave the
Federal Government as possessor of sovereignty the power to
extinguish it.69 On the other hand, they were not dealing with
European publiclaw claims over vast stretches of territory. When
they wrote, the Orient was still principally an object of commerce,
travel, and proselytizing. The colonial encounter took place between
individual natives or native tribes on the one side and private
individuals, missionaries, humanitarian associations, and trade
companies on the other. Beyond appealing to humane behavior on
both sides, there was no need to envisage norms governing the
formal relations between European and non-European communities,
even less of jurisdictional boundaries between European States.
At the same time, lawyers were digesting the lesson of the historical
school, and emphasized the cultural limits of European diplomatic
law.
Here is the definition of international law given by Henry Wheaton

(1785–1848), an attorney with the United States Supreme Court and
a diplomat posted in Europe, whose Elements of International Law
became one of the most widely used treatises by the middle of the
century: “The ordinary jus gentium is only a particular law,
applicable to a distinct set or family of nations, varying at different
times with the change of religion, manner, government, and other
institutions, among every class of nations.”70 For Wheaton – who
knew his Savigny well – European positive law was a compilation of
the “customs, usages, and conventions 68 Cf. e.g. John Westlake,
Chapters on the Principles of International Law (Cambridge
University Press, 1894), pp. 129–133, also published in The
Collected Papers of John Westlake on Public International Law (ed.
L. Oppenheim, Cambridge University Press, 1914), pp. 131–135. For
the development of the public law concept of territorial right in
terms of imperium in the nineteenth century, cf. e.g. Anthony Carty,
The Decay of International Law? The Limits of Legal Imagination in
International Affairs (Manchester University Press, 1986), pp. 50–64.
69 The decision recognized that British right had been received by

discovery. It gave right to the Federal Government (against the
States) to extinguish title of occupancy – but only “either by
purchase or by conquest.” Johnson v. McIntosh, 21 US (1822), p.
579.
Cf. also Cherokee Nation v. Georgia, 30 US (1831), p. 1.
70 Henry Wheaton, Elements of International Law. With a Sketch of

the History of the Science (2
vols., London, Fellowes, 1836), I, pp. 50–51.
114
Sovereignty: a gift of civilization observed by that portion of the
human race in their mutual intercourse.”
From this it followed that: “the international law of the civilized,

Christian nations of Europe and America, is one thing; and that
which governs the intercourse of the Mohammedan nations of the
East with each other, and with Christian, is another and a very
different thing.”71
Klüber and von Martens did not call their international law the Droit
public de l’Europe for nothing. For Wheaton, as for later professional
lawyers, Western consular jurisdiction as it existed in 1836 in Turkey,
the Barbary States, and other Islamic countries was but a logical
offshoot of the law’s cultural peculiarity: Europeans were to be
governed by European law; anything else would be arbitrariness.
For early nineteenth-century lawyers, native communities remained

outside international law in the technical sense that the Droit public
de l’Europe did not regulate their relations with the Europeans. It
sufficed that the individuals – Europeans and natives – would receive
the protection of a natural law that would treat them as equal
traders or travelers, equally obliged to show courtesy to and remain
from violence against each other. For the situation in the colonies,
this was for a long time quite sufficient. The extension of natural law
– in particular that concerning property – explained why the natives
were bound to honor the lives and possessions of Europeans moving
beyond the reach of European legal principles and on what basis the
commercial relations between Europeans and natives would be
conducted. Private interest in land was protected by the natural law
argument which linked territorial rights to the cultivation of land, and
implied the distinction between nomadic and sedentary populations
that opened much the largest part of non-European territory for
European settlement.72
Such a personalized natural law was embedded in the

cosmopolitanism of the eighteenth century, its admiration of the
unspoiled ways of life in savage communities.73 Voltaire, Rousseau,
and Diderot had professed sympathy towards the natives as an
instrument of their critique of the religious and political
establishment in Europe. Their knowledge of non-European cultures
remained, however, anecdotal and their admiration reflected at least
in part the scarcity of actual contacts with them.
The same is true of the discussions of non-European cultures by

early 71 Wheaton, Elements of International Law, I, p. 51.
72 Salomon, L’occupation, pp. 202–204; Jèze, Etude théorique, pp.

103–112 and Johann Caspar Bluntschli, Das moderne Völkerrecht
der civilisierten Staaten als Rechtbuch dargestellt (2nd edn.,
Nördlingen, Beck, 1872), pp. 168–169.
73 Burrow, Evolution and Society, p. 52.
115
nineteenth-century lawyers. No in-depth studies were available of

the political or legal systems of non-European societies that could
have provided a basis for inferences about a distinct legal sphere
beyond Europe.
Europe’s natural law continued to hold an image of the native as the
“savage” that was more a reflection of Europe’s own fears and

desires than experience of native ways of life.74
But natural law is – as Rousseau famously pointed out against

Grotius
– a weak system of legitimation and always amenable for the

justification of the policies of the day. There was nothing in Klüber,
von Martens, or Wheaton that would have been critical or even
suspicious of official colonialism. Each held, as a matter of course,
that European nations had – by all lawful means – the right to
extend their settlement and authority by discovery and effective
occupation in new countries.75
As Robinson and Gallagher observe in their important study of British

expansion in Africa after 1879: “Because those who finally decided
the issue of African empire were partly insulated from pressures at
Home, and remote from reality in Africa, their historical notions, their
ideas of international legality and the codes of honour shared by the
aristocratic castes of Europe had unusually wide scope in their
decisions.”76
If politicians, ministers, and colonial officials had a relatively free

hand in deciding on what action to take, it is not insignificant to
what extent abstract notions of natural law buttressed their
confidence that expansion was not simply an economic or strategic
problem but also –
and perhaps even largely – “a moral duty to the rest of humanity.”77
The reasons for the sudden acceleration of the pace of European

expansion has been subject to much controversy. Explanations
referring to developments in Europe (“metropolitan theories”) have
been contrasted with changes outside Europe (“peripheral
theories”).78 Economic, social, 74 For a discussion of this aspect of
European writing about what lies outside, cf. Tzvetan Todorov, The
Morals of History (trans. Alyson Waters, Minneapolis and London,
University of Minnesota Press, 1995).
75 Cf. Wheaton, Elements of International Law, I, pp. 109–110.
76 Robinson and Gallagher, with Denny, Africa and the Victorians, p.

21.
2.
78 For a general overview of different explanations, cf. Porter,

European Imperialism; Michael Doyle, Empires (Ithaca, NY, Cornell
University Press, 1986) and with special reference to Africa, G. N.
Sanderson, “The European Partition of Africa: Coincidence or
Conjecture?,” in E. F. Penrose (ed.), European Imperialism and the
Partition of Africa (London, Cass, 1975), pp. 1–54.
116
Sovereignty: a gift of civilization and ideological causes have been

set against more traditional diplomatic and political explanations. To
what extent the “new imperialism” that led to the partition of Africa
soon after the Berlin Conference of 1884–1885 and the
intensification of European penetration in the Pacific and South-East
Asia was a qualitatively “new” phenomenon or merely the logical
extension of old European policy has likewise seemed uncertain. The
facts can hardly be contested, however: Despite initial and
sometimes quite open resistance by leading politicians and
populations at large, from 1879–1882 onwards European powers
suddenly took active steps for the creation of formal empires.
By 1870, British overseas predominance had eroded. Other powers

assumed an increasingly active imperial policy. The first steps were
taken by France whose influential Ministère de marine et des
colonies had since 1865
pursued large-scale military operations from Senegal deep into

Western Sudan, against the Tukolori and other native kingdoms. In
1876 and 1881 France set up formal protectorates in Annam and
Tunisia.79
Britain reacted by intensifying informal influence. One of these ways

was a revival of chartered companies that had come under much
criticism earlier in the century. Expansion in Africa had always been
conducted by mercantile associations (Royal African Company,
African Company of Merchants) led by ambitious capitalists such as
George Goldie, William Mackinnon, and Cecil Rhodes.80 With the
chartering of the British North Borneo Company in 188181 a new
precedent was created for the exercise of informal rule without
having to request funds from Parliament or the Treasury – which in
all probability would not have been granted. By the time the
scramble was over, more than 75
percent of British acquisitions south of the Sahara were acquired by

chartered companies.
79 Cf. Wesseling, Le partage de l’Afrique, pp. 238–252; David

Levering Lewis, The Race to Fashoda. Colonialism and African
Resistance (New York, Weidenfeld & Nicolson, 1987), pp.
75–83.
80 For example, in 1870 British possessions in West Africa were

restricted to isolated coastal spots while occasional military
excursions (e.g. against the Ashanti in 1874) were without lasting
territorial effect. A Parliamentary Select Committee in 1865
even advocated partial withdrawal – no such withdrawal took place.

Cf. Gann and Duignan, The Burden of Empire, pp. 171–172;
Baumgart, Imperialism, pp. 14–15.
81 The company’s powers included “life and death over the

inhabitants, with all the absolute rights of property vested in the
Sultan over the soil of the country,” cf. M. F.
Lindley, The Acquisition and Government of Backward Territory in

International Law (London, Longmans, 1926), pp. 100–101. For the
early activities of the chartered companies in Africa and elsewhere,
cf. J. Flint, “Chartered Companies and the Transition from Informal
Sway to Colonial Rule in Africa,” in Stig Förster, Wolfgang J.
Mommsen, and Ronald Robinson (eds.), Bismarck, Europe and
Africa. The Berlin Africa Conference 1884–1885 and the Onset of
Partition (Oxford University Press, 1988), pp. 69–71.
117
German colonization followed similar lines. In his famous imperial

manifestos of 1884 and 1885 Bismarck repeated his staunch
opposition to the “French system” that involved expansion by formal
armies followed by resident colonial officials.82 What eventually
became German South West Africa was acquired in 1882 by a
tobacco merchant from Bremen, Adolf Lüderitz who had set up shop
in Angra Pequeña north from the British Cape Colony and to whom
Bismarck, greatly irritated by British reluctance to acknowledge him
freedom of action in the area, wrote a Schutzbrief in April 1884. In
the following June he told the Reichstag that his negative attitude
towards annexation had not changed and that material responsibility
for the colony should always be left to the company.83
This technique provided only temporary relief for European

governments, however. Eventually the companies resorted to
protectionist practices (in breach of their charters), proved unable to
administer territories granted to them, or failed to forestall
expansion by other powers.
Governmental interference was required to protect traders and

settlers or to prevent anarchy and, eventually, to set up formal
rule.84 A typical development took place in Western Africa where Sir
George Goldie’s (1846–1925) United (National) African Company had
started out in the Niger region in 1879 in which both France and
Germany were seeking possessions. In 1883, Sir Percy Anderson,
the head of the Foreign Office’s African bureau wrote: “Action seems
to be forced on us . . .
Protectorates are unwelcome burdens, but in this case it is . . . a

question between British protectorates, which would be unwelcome,
and French protectorates, which would be fatal.”85 The British
received a free hand in the area from the powers united at Berlin in
December 1884. The Berlin Act, however, required that acquisition
be accompanied by effective occupation. As the colonial office was
not ready to set up an administration in the area – nor the Treasury
to pay for a formal protectorate
– Goldie’s company was chartered in June 1886 to “enforce treaty

rights, to collect customs duties and to spend the receipts solely on
the expenses of rule.”86 But Goldie never had any intention to
implement the trade 82 Cf. Salomon, L’occupation, pp. 117–118.
83 Quoted in K. J. Bade, “Imperial Germany and West Africa:

Colonial Movement, Business Interests, and Bismarck’s ‘Colonial
Policies,’” in Förster, Mommsen, and Robinson, Bismarck, Europe,
and Africa, p. 137.
84 Earlier – as in Fiji in 1874 – there had already been genuine fears

of abuses against the indigenous population by unscrupulous
traders, triggering governmental intervention. Cf. Hyam, Britain’s
Imperial Century, pp. 208–209.
85 Quoted in Sanderson, “ The European Partition of Africa,” p. 11.

182.
118
Sovereignty: a gift of civilization or humanitarian provisions of the

Act.87 He immediately excluded all competition in the river
(including competition by Africans). In 1891
Britain was forced to increase its direct administration in the region

and two years later to set up the Niger Coast protectorate.88
In East Africa as well, formal rule fell upon Europeans as a result of
private pre-emption. With a Schutzbrief of March 3, 1885 Bismarck
brought the Zanzibar inland regions that had been the object of
frantic treaty-making between the eccentric adventurer Carl Peters
and native chiefs under a German protectorate whose administration
was granted to the German East Africa Company ( Deutsch-
Ostafrikanische Gesellschaft, DOAG).89 On the British side, William
Mackinnon (1823–1891), the founder of the British and India Steam
Navigation Company, insisted that the British make a similar move.
In October 1886 Britain and Germany divided the area formerly
claimed by the Sultan of Zanzibar between themselves. Mackinnon’s
Imperial British East Africa Company (IBEAC) was chartered on
September 3, 1888.90
Neither company lived up to imperial expectations. Mackinnon

remained on the brink of bankruptcy and projects to subsidize his
company fell to naught. The company’s agents were withdrawn from
Uganda in 1891. After a period of indecision and political conflict, the
charter of the IBEAC was withdrawn and formal protectorate was
established over Uganda on August 27, 1894 and over all territory
between Buganda and the coast on July 1, 1895.91 The DOAG
misman-aged its territory by excessive taxation with the result that a
rebellion ensued. As the company proved unable to put up a
meaningful resistance, German officers and a force of African
mercenaries were sent in to crush the rebellion – a task that was
carried to a conclusion by 1889.
87 J. Flint, “Chartered Companies and the Transition from Informal

Sway to Colonial Rule in Africa,” in Förster, Mommsen and Robinson,
Bismarck, Europe, and Africa, pp.
78–79. Cf also the detailed criticism of Goldie’s blocking of the Niger

by A. de Lapradelle, “Chronique internationale” (1899), XI Revue du
droit public et de la science politique en France et à l’étranger, pp.
279–289.
88 Cf. Robinson and Gallagher, with Denny, Africa and the Victorians,
pp. 180–189; Wesseling, Le partage de l’Afrique, pp. 253–264.
Goldie’s charter was withdrawn in 1900.
89 The Charter of Protection was granted to the German

Kolonialverein (Colonization Society) on February 27, 1885. The
Charter went as follows: “We grant unto the said Society, on the
condition that it remains German . . . the authority to exercise all
rights arising from the Treaties submitted to us, including that of
jurisdiction over both the natives and the subjects of Germany and
of other nations established in those territories . . . under the
superintendence of our Government,” Edward Hertslet, The Map of
Africa by Treaty (3rd edn., 3 vols. London, HMSO, 1909), II (no.
209), pp. 681–682.
pp. 193–202.
pp. 290–294, 307–330; Wesseling, Le partage de l’Afrique, pp. 253–
264.
119
Two years later, Germany took over German East Africa as a formal
protectorate.92 By 1895 all German colonies in Africa (South West
Africa, Togo, Cameroons, German East Africa) had come under direct
imperial Schutzgewalt, as much parts of the Empire under
international law as departments or provinces.93 With the brutal
crushing of the Herero uprising in South West Africa in 1905 and the
“Maji-Maji”
rebellion in German East Africa the following year, German rule in

Africa was irreversibly turned into military conquest and direct
imperial administration.94
The most ambitious scheme to exercise empire in Africa without the
burden of formal sovereignty was the granting of a charter to Cecil
Rhodes’ (1853–1902) British South Africa Company (BSAC), on
November 29, 1889.95 In exchange for requiring no subsidy from
government, and against the opinion of humanitarian societies,
Rhodes received a practically free hand to administer the area
(Matabeleland, Barotseland, Zambesia, and other territories north of
the British Bechuanaland).96 But his irresponsible policy and
particularly his association with the privately organized Jameson raid
on the Transvaal government at the end of 1895 led “almost
inevitably” to the most dev-astating colonial war ever, the Boer
War.97
None of the attempts at keeping formal sovereignty – with all the

atten-dant burdens – at arm’s length were successful. The strategy
of the “cat’s paw,” i.e. the use of local rulers such as the Sultan of
Zanzibar or Ismaïl Pasha in Egypt and the enlisting of local
assistance in administration to carry out imperial purposes, fell
because it was intrinsically contradictory.
It was impossible not to rule and yet insist on internal reform and
abolition of the slave trade.98 Even Gladstone’s liberal government
that had in 1880 come to power on a vocally anti-imperialist
platform two years 92 Cf. Wesseling, Le partage de l’Afrique, pp.
200–203, 221–222; Thomas Pakenham, The Scramble for Africa
1876–1912 (New York, Random House, 1991), pp. 346–349.
93 von Stengel, “La constitution et l’administration,” pp. 275–292.
94 For the two wars, cf. e.g. Pakenham, Scramble for Africa, pp.
602–628.
95 In this case, the British Government might have extended direct

rule had it wished to do so. But “[t]he British public opinion,
Parliament, the Treasury, and the Cabinet were no more eager in
1889 to undertake new costs in Africa than they had been in 1884.
In fact, it was British government intervention and prodding, as
much as Rhodes’ ambition, which secured the granting of the charter
in 1889,” Flint,
“Chartered Companies,” pp. 81–82.
96 As Robinson and Gallagher, with Denny put it, “the company in

operation was a colonial enterprise effectively under colonial, not
imperial, control,” Africa and the Victorians, p. 243.
97 Flint, “Chartered Companies,” p. 72.
98 Cf. e.g. Hyam, Britain’s Imperial Century, pp. 117–118;

Sanderson, “The European Partition of Africa,” pp. 15–16; Gann and
Duignan, The Burden of Empire, p. 185.
120
Sovereignty: a gift of civilization later blundered into military

occupation of Egypt as a response to the worsening financial crisis
and a nationalistic revolt in the country, leading first to an
international financial administration and finally in 1914 to the
declaration of a formal British protectorate.99 As the Marxist
historian V.
G. Kiernan has observed, “There was always an ambiguity between

preserving native institutions and culture and controlling the many
through the few. It would mean at least a dilution of the civilising
mission, at worst its abandonment.”100
The end of informal empire meant that European publicinstitutions –
in particular, European sovereignty – needed to be projected into

colonial territory – something that only the assimilationist French
had advocated earlier in the century. Arguments about sovereignty
and international law then appeared with particular intensity in two
contexts: to deal with conflicts of jurisdiction between European
powers and to determine the rules applicable in the relations
between the colonizing power and the indigenous population. To
agree on such principles was the ostensible purpose of the Berlin
Conference of 1884–1885. Here law became part of the moral and
political controversy about the justice of colonialism.
At the meeting of the Institut de droit international in Paris in

September 1878, Gustave Moynier drew the attention of his
colleagues to the increasing interest that the exploration of the
Congo river had had after Stanley’s spectacular resurgence at the
mouth of the river on August 5, 1877. It was necessary to check the
impending scramble and to see to the orderly progress of the
civilizing mission in this enormous region of central Africa. This could
be done, he suggested, by setting up a regime of free navigation in
the Congo river, administered by an international commission after
the example of the Danube. The proposal was not felt as urgent,
however, and no action was taken on it.101
Five years later, the Belgian de Laveleye proposed in Rolin’s Revue

an international regime of neutralization for the region in an attempt
to avoid its division between the colonial powers.102 He confessed
that full neutralization might be utopian, however, and suggested as
an alternative (which may in fact have been his principal intention)
that the Association internationale Africaine that had been set up in
1876 through the 199 Cf. e.g. Robinson and Gallagher, with Denny,
Africa and the Victorians, pp. 122–159.
100 Kiernan, Imperialism and its Contradictions, p. 130.
101 (1879–80), 3–4 Annuaire IDI, p. 155.
102 Emile de Laveleye, “La neutralité du Congo” (1883), XV RDI, p.

254.
121
initiative of Léopold II, King of the Belgians, be recognized as a
“neutral and independent” administrator of the territory. To those

who doubted whether a private organization might be granted such
status, he responded in advance by referring to the position of the
Red Cross as well as the recent chartering by Britain of the North
Borneo company.103
Though members largely agreed, many of them – particularly Twiss

–
protested against the word (and possibly the concept of )

“neutralisa-tion.” In fact, military forces and vessels were needed in
the river to protect traders and natives against each other and
against pirates and slave traders. Instead, an agreement on the
internationalization and freedom of navigation in the river might be
concluded and a declaration of disinterest made by the powers. The
Association could, he suggested, be vested with the mission to
proselytize and exercise sovereign rights over the territory in the
image of medieval orders such as the Teutonic knights, the
colonization societies that set up Liberia and Maryland, or indeed the
British North Borneo Company.104 In September 1883
Moynier repeated his suggestion, observing that with Stanley’s more

recent discoveries, an uncontrolled scramble was beginning and
action needed to be taken soon.105 In response, the Institut
adopted a voeu, pre -
pared by its Secretary-General, the Belgian Professor Egide Arntz

(1812–1884), appealing to the powers for the realization of freedom
of navigation in the Congo in the interests of Europeans as well as
the natives.106 Later, the expert statements of Twiss and Arntz
appeared in 103 de Laveleye, “La neutralité du Congo,” pp. 256–258.
104 Sir Travers Twiss, “La libre navigation du Congo” (1883), XV
RDI, pp. 436–442, 547–563, and (1884), XVI RDI, pp. 237–246.
Twiss made a distinction between the lower and the upper Congo
and suggested for the former an international protectorate under
Portugal’s presidency and for the latter a system of “free towns”
consisting of the stations of the Association internationale or the
Comité des Etudes with which Stanley was formally employed.
105 Cf. Gustave Moynier, “Mémoire à l’Institut de droit international,

à Munich, le 4
septembre 1883,” in La question du Congo devant l’Institut de droit

international (Geneva, Schuchardt, 1883), p. 7.
106 “Navigation sur le fleuve Congo,” Résolution du 17 septembre

1883 (1883–85), Annuaire IDI, p. 278. Moynier’s proposal was also
opposed in view of its “unrealistic”
nature, ibid., pp. 275–278. Originally, the Portuguese Government

protested against the declaration which it saw as contrary to its
territorial claims in the region. For his part, Arntz responded by
pointing out that unlike the Portuguese had assumed, the
declaration did not suggest a neutralization of the area but only
agreement on freedom of navigation and free trade – something, he
argued, to which the Portuguese could and did seem to have no
objection. Egide Arntz, “Le Gouvernement portugais et l’Institut de
droit international” (1883), XV RDI, pp.
537–546.
122
Sovereignty: a gift of civilization the debates within the US Senate in

support for the decision to recognize King Léopold’s Association as a
sovereign State.107
The Berlin West African Conference was opened on November 15,
1884 and the General Act was signed on February 26, 1885. The
Conference had three official aims: the organization of freedom of
navigation in the Congo and Niger rivers, the guarantee of freedom
of trade in the Congo basin and mouth, and agreeing over the rules
concerning the acquisition of new territory.108 It was a multilateral
attempt to channel the scramble in Africa into pacificchannels. From
the perspective of its initiators (Germany and France) it also
constituted an attempt to limit the exorbitant claims that they saw
Britain making on vast stretches of practically unexplored African
territory. International lawyers have invariably focused on the
territorial aspects of the Conference and have therefore,
unsurprisingly, been disappointed by the result.109 Only two articles
of the Final Act dealt with territorial acquisition, and even they
through general formulations whose applicability was limited to an
almost meaningless minimum. Article 34 required powers to inform
each other of new acquisitions. Article 35 read: “The Signatory
Powers of the present Act recognize the obligation to insure the
establishment of authority in the regions occupied by them on the
coasts of the African Continent sufficient to protect existing rights
and, as the case may be, freedom of trade and of transit under the
conditions agreed upon.” The Conference rapidly agreed on the
principle of effective occupation, although it had originally been
directed against the British whom Bismarck had accused of
espousing a kind of a Monroe doctrine for Africa. The British,
however, had no difficulty in agreeing to the result as no criteria for
what would constitute “effectiveness” were 107 Cf. US Congress,
Senate Committee on Foreign Relations, Session of March 26, 1884,
Report (Occupation of the Congo Country in Africa), no. 393, pp. 16–
37.
108 In his opening words, Bismarck emphasized the humanitarian

objectives of the Conference that aimed to: “d’associer les indigènes
d’Afrique à la civilization en ouvrant l’intérieur de ce continent au
commerce, en fournissant à ses habitants les moyens de s’instruire,
en encourageant les missions et entreprises de nature à propager les
connaissances utiles et en préparant la suppression de l’esclavage,
surtout de la traite des Noirs.” Protocoles de la Conférence de
l’Afrique occidentale réunie à Berlin, du 15 novembre 1884 au 26
février 1885, De Martens (1885–1886), X
Nouveau recueil général, 2nd series, p. 201. For a general history of

the Conference, cf.
S. E. Crowe, The Berlin West African Conference 1884–1885

(London, Longmans, 1942).
109 Cf. e.g. Salomon, L’occupation, p. 96; Jèze, Etude théorique, pp.
32–36 and Jörg Fisch,
“Africa as terra nullius. The Berlin Conference and International

Law,” in Förster, Mommsen, and Robinson, Bismarck, Europe, and
Africa, p. 348.
123
laid down.110 Chartering a company would continue to suffice. In

fact, Bismarck’s letter of protection to the German East Africa
Company was dated only one day after the Conference.
The rule was also limited in time and space: it was to apply only to
new acquisitions and only to acquisitions on the coasts – at a time
when there was practically no coast left to occupy. Significantly, the
Conference refused to apply it to the African interior because this
would have required an exact determination of the formal claims of
the powers and would have resulted “en fait à une partage de
l’Afrique” – something the Conference was desperate to avoid.111
Finally, at a British proposal, protectorates were excluded from the

ambit of Article 35 – although they had become the main form of
European influence in Africa and often indistinguishable from
annexation
– despite criticism about such an unscrupulous blurring of

jurisprudential distinctions.112 In contrast to the traditional concept
of a protectorate as a taking over of the foreign affairs of a State
that otherwise remained sovereign (or “semi-sovereign”), the African
protectorates were established by treaties with native chiefs or
unilateral letters from European capitals with the most varied
content and certainly without implying that any kind of sovereignty
resided in the native community. They constituted a flexible means
for staking a claim of precedence and maintaining a free hand
against such communities without the establishment of formal
administration.113 They allowed the British, for instance, to uphold
their unlimited commercial empire while at the same time avoiding
the financial and administrative burdens (e.g. keeping the peace and
abolishing the slave trade) that would have resulted from formal
occupation.114 The British 110 Cf. e.g. Fisch, “Africa as terra
nullius,” pp. 349–350. For the anti-British aims of the conference, cf.
also Salomon, L’occupation, pp. 86–90.
111 Conférence de Berlin, De Martens, Nouveau recueil, X, p. 343.
112 Cf. e.g. Salomon, L’occupation, pp. 226–242; Heilborn, Das

völkerrechtliche Protektorat, pp.
5–7, and Fisch, “Africa as terra nullius,” pp. 358–360, 363–366. For a
positive assessment, cf. Sir Travers Twiss, “Le congrès de Vienne et
la conférence de Berlin” (1885), XVII RDI, p. 215.
113 For contemporary commentary, cf. e.g. S. McCalmont Hill, “The

Growth of International Law in Africa” (1900), LXIII Law Quarterly
Review, pp. 250–255; A.
Mérignhac, Traité de droit public international (3 vols., Paris, LGDJ,

1905–1912), II, pp.
180–225; Ernest Nys, Le droit international: Les principes, les
théories, les faits (3 vols., new edn., Brussels, Weissenbruch, 1912),
II, pp. 98–105. As John Hargreaves notes,
“Europeans reinterpreted their doctrine of protectorates to justify

arbitrary exercises of power,” “The Berlin Conference, West African
Boundaries, and the Eventual Partition,” in Förster, Mommsen, and
Robinson, Bismarck, Europe, and Africa, p. 319.
114 As Lindley points out, a treaty of protectorate secures exclusive

control over the area concerned “with the ultimate right of annexing
it.” Acquisition and Government, p. 186.
124
Sovereignty: a gift of civilization Bechuanaland protectorate of 1884,

for example, was “an interesting example of a protectorate in which
the internal as well as the external sovereignty has passed to the
protecting Power, but the territory has not been formally annexed, so
that, in the eyes of British law, it is not British territory.”115 Not
being British territory, British law, including that against slavery, for
instance, did not apply in Bechuanaland.
Imperial powers opposed formal sovereignty as it constituted a

burden to the one who had it and limited everyone else’s freedom of
action. To have enacted a clear rule on the conditions of colonial
sovereignty would too easily have encompassed the wrong
situations. Its consequences would have been impossible to calculate
– though the British were certain that it would have gone against
their claims all over the world.116 Instead of agreeing on a rule, it
was better to leave conflicts to be settled by ad hocagreements
between the powers, free to take into account whatever conditions
they might think relevant. Much the larger part of the Conference
was used in bilateral behind-the-scenes talks.117
Hence the two important treaties of 1890, the Anglo-French Treaty

on the spheres of interest in Western Sudan and the corresponding
Anglo-German treaty on East Africa had nothing whatsoever to do
with an application of formal rules. The exchange of Zanzibar for
Helgoland by Germany in the latter treaty – the absolute sine qua
non of the agreement
– would never have been attained by the application of fixed rules

about territorial entitlement. The agreements effectively determined
the rights of precedent that the three principal powers accorded to
each other –
without requiring them to take formal action. Inevitably, lawyers

came to see such agreements as a return to fictive sovereignty –
deliberate attempts to undermine what few administrative duties had
been imposed on the colonizing powers by the Berlin Act.118
Today, historians dismiss the Berlin Act as in practice irrelevant for

the scramble.119 However, this is not wholly adequate.120 Although
the words 115 Lindley, Acquisition and Government, p. 187.
116 Which is why the Franco-German invitation to the Conference

“sent Granville and his officials scurrying to consult legal experts and
compile the precedents and places likely to be affected,” Robinson,
“The Conference in Berlin and the Future in Africa, 1884–1885,” in
Förster, Mommsen, and Robinson, Bismarck, Europe, and Africa, p.
9.
117 For a rapid overview of the bilateral agenda of the Conference,

cf. Robinson “The Conference in Berlin and the Future in Africa,
1884–1885,” pp. 11–15.
118 For an early criticism, cf. Salomon, L’occupation, pp. 254–256.
119 “none of the thirty-eight clauses of the General Act had any
teeth. It had set no rules for dividing, let alone eating, the cake.”
Pakenham, Scramble for Africa, p. 254.
120 Cf. also G. N. Uzoigwe, “The Results of the Berlin West Africa
Conference: An Assessment,” in Förster, Mommsen, and Robinson,
Bismarck, Europe, and Africa, pp. 542–544.
125
of the General Act did not determine anything about the behavior of
European States, they both divested European expansion from some
of its potential burdens (by limiting “effectiveness” undefined) and
allowed private interest to parade as public interest – as well as
irreversibly excluding any pretensions to sovereignty that indigenous
communities might have entertained. Articles 34 and 35 treated
“sovereignty” as a quality that could attach only to a European
possession.121 Moreover, sovereignty was treated first and foremost
as an exclusivity, unaccompanied by clearly defined obligations.
Much of the drafting process was constituted of the watering down
of the duties of the colonizing power.
The word “jurisdiction” in the original Franco-German draft was

replaced by the less formal expression “authority” in the final text of
Article 35. The duty “to establish and maintain sufficient authority”
was amended to read “to ensure sufficient authority” so as to allow
the maintenance of indigenous administration where feasible. The
requirement to “keeping the peace” in the original draft was deleted
as too broad and the occupying power’s main duty was defined in
terms of safeguarding
“acquired rights.” Finally, the exclusion of protectorates from the

ambit of the rule – a condition without which the British might not
have assented to anything – went a long way towards undermining
whatever guarantees had been attained for the establishment of a
stable system of colonial sovereignty.122 How all this was to be
applied in practice was left for the powers to agree on a case-by-
case basis. As Ronald Robinson concludes: “The leading powers who
decided the issue were clearly intent on avoiding colonial liabilities,
on averting a scramble for the interior, and frustrating the supposed
colonial ambitions of their rivals.”123 By contrast, the articles on
freedom of navigation and free trade did constitute a “genuine
attempt to internationalise future trade in Central Africa.”124 In this,
however, they failed miserably. No effective internationalization took
place. The provisions that ostensibly dealt with free trade in practice
consolidated Goldie’s monopoly in the lower Niger.
121 The proposal was made by the United States delegate Mr.
Kasson that the conference might also discuss the rights of
indigenous tribes, pointing out that international law: “suit
fermement une voie qui mène à la reconnaissance de droit des races
indigènes de disposer librement d’elles-mêmes et de leur sols
héréditaires,” and suggesting that his government would be
prepared to require that acquisition be based on free consent. To
this, the Chairman Mr. Busch observed that “M. Kasson touche à des
questions délicates sur lesquelles la Conférence ne saurait pas
éxprimer d’opinion,” “Le Conférence de Berlin,” de Martens, Nouveau
recueil, X, pp. 335–336.
122 Cf. the criticism in e.g. Jèze, Etude théorique, pp. 265–267.
123 Robinson, “The Conference in Berlin and the Future in Africa,

1884–1885,” p. 25.
124 Robinson, “The Conference in Berlin and the Future in Africa,

1884–1885,” p. 16.
126
Sovereignty: a gift of civilization The international commission

planned for the Congo was never set up and Léopold established a
fully exclusionary system in the river. As Sheryl Crowe has written in
her authoritative history of the Conference:
“Free trade was established in the basin and mouths of the Congo
and the Niger. Actually highly monopolistic systems of trade were set
up in both these regions. The centre of Africa was to be
internationalized. It became Belgian.”125
The myth of civilization: a logic of exclusion–inclusion As

European States were struggling in Africa and elsewhere to minimize
their colonial liabilities, yet to maximize their influence, the
international law profession organized itself through the
establishment of Rolin’s Revue and the setting up of the Institut de
droit international. As we have seen, the new generation of lawyers
– Rolin, Bluntschli, Westlake – reaffirmed international law’s
European pedigree, holding international law to be a product of
European history and culture, and used the distinction between
civilized and non-civilized communities to deal with the process of
European expansion. Although they discussed colonial problems
from a variety of perspectives, some more, some less critical, their
discourse provides a uniform logic of exclusion–inclusion in which
cultural arguments intersect with humanitarian ones so as to allow a
variety of positions while at every point guaranteeing the controlling
superiority of
“Europe.” The most frequent commentator on the colonial process

among members of the Institut was Westlake who in 1894 – the
year when Britain finally turned to official empire in Africa by the
annexation of Uganda – wrote: “International law has to treat
natives as uncivilised.
It regulates, for the mutual benefit of the civilised states, the claims
which they make to sovereignty over the region and leaves the
treatment of the natives to the conscience of the state to which
sovereignty is awarded.”126
For Westlake, it was absurd to think of native possession in terms of

sovereignty, or colonial expansion, as conditional upon treaties with
native chiefs. “Sovereignty” was a purely European notion. Just as a
person cannot transfer what he does not have, the chief cannot
transfer a sovereignty of which he has no concept.127 Westlake
followed a long tradition of lawyers by granting that the natives did
possess the concept of occupancy, or of private ownership, and were
thus perfectly capable of holding or disposing of property. But in
European eyes this could be only 125 Crowe, The Berlin West African
Conference, p. 3.
127 John Westlake, “Le conflit Anglo-Portugais” (1891), XVIII RDI,

pp. 247–248.
127
a private law matter. Native treaties dealing with large territories

could create acquired rights under Article 35 of the Berlin Act, but
they could not transfer sovereignty.128 Colonial title was always
original and never derivative; it followed from European law’s
qualification of the acts of European powers, not from native
cession.
But though Westlake had few scruples about colonization, even he

did not suggest that the colonial encounter took place in a legal
vacuum.
After all, even he held that the treatment of the natives was a
matter of Western conscience – a notion not bereft of legal
implications, as we saw in chapter 1. In a polemic of 1910
concerning the character of the relationship between the British
Government and the native States of India (that is to say, the
“territories outside British India [ruled by] Native Princes and Chiefs
under the suzerainty of the Crown”), Westlake emphatically rejected
the idea that such relations could ever come under international law.
They were relations of British constitutional law – yet this meant also
that “the same principles of natural justice which underlie
international law must be applied to their relations.”129
Late nineteenth-century textbooks normally affirmed international

law’s non-applicability in non-civilized territory – but not without
provision made for the universal validity of humanitarian and natural
law principles or human rights.130 Bluntschli and Fiore, for instance,
both argued that international law provided a number of human and
private rights to all individuals regardless of their citizenship or the
degree of civilization of their communities.131 In 1909 Fiore
regarded it an urgent task to define more clearly the rules that
would govern the European–savage relationship.132 Even Robert
Adam’s detailed early study of German colonization law which
completely rejected the idea of native sovereignty held it self-evident
that the natives enjoyed rights “provided by reason and nature” that
included the rights of private ownership and contract over lands
actually taken to use.133
128 Westlake, “Le conflit Anglo-Portugais,” pp. 247, 249. Likewise,

Salomon, L’occupation, pp. 233–235.
129 John Westlake, “The Native States of India,” in Collected Papers,

p. 624.
130 For a useful early review, cf. Mérignhac, Traité de droit public
international, II, pp.
430–435.
131 Bluntschli, Das moderne Völkerrecht, pp. 19–20, 60–61.
132 Pasquale Fiore, “La science de droit international. Horizons

nouveaux” (1909), XVI RGDIP, pp. 478–479.
133 Robert Adam, “Völkerrechtliche Okkupation und deutsches

Kolonialrecht” (1891), VI, Archiv des öffentlichen Rechts, pp. 234–
240. Cf. also E. von Ullmann, Völkerrecht (Freiburg, Mohl, 1898), p.
195; P. Schoen, “Zur Lehre von dem Grundlagen des Völkerrechts”
(1914–1915), VIII Archiv für Rechts und Wirtschaftsphilosophie (
ARWP ), pp.
314–315.
128
Sovereignty: a gift of civilization But if all lawyers accepted that

individual non-Europeans enjoyed natural rights, only a few
extended such rights to non-European communities. However, both
major French studies of the period concluded that if only savages
lived in a more or less organized community, their land would escape
being labeled as terra nullius and colonial title could be created only
by cession.134 This was not to say they thought that native
communities enjoyed equality with European States, only that they
were not automatically open for European occupation or conquest.
In this respect, international lawyers routinely distinguished between
non-European communities of different degrees of civilization. For
example, in a 1891 study of the concept of the protectorate, the
German public law expert Paul Heilborn used Lorimer’s scheme to
distinguish between the relations Europeans had with civilized non-
European States (such as Japan, China, Persia) and with non-
civilized communities ( Stämmen).
While international law as a legal system was inapplicable to both, a

number of its rules could be applied in the relations Europeans
maintained with the former group: the rights of independence and
non-intervention were applicable to such communities, as were all
the rights contracted with Europeans. The relations between
European States and Stämmen, on the other hand, never possessed
an international law character.135
At the other end of the spectrum were the critical articles and
interventions within the Institut by the Swiss lawyer Joseph
Hornung. He attacked not only Western brutality in the colonies but
also its double standards: if intervention in favor of oppressed
Christians in Turkey had been lawful throughout the century, it
should also have been possible to intervene in favor of Africans and
Asians living under tyrannical rule.
But we Europeans, he insisted, have treated the Orient in terms of

our commerce, the protection of our nationals. Colonialism was
justified, Hornung claimed, but only in the interests of the colonized.
Colonization should become a part of the moral mission towards

world federation.136 None of this implied that European and non-
European communities were equal. Hornung had no appreciation for
Oriental cultures and lived securely in the prison-house of
paternalism. The barbarian is not such because he is bad: “Those
who know them well are able to say that with good treatment, much
will be received from 134 Cf. Salomon, L’occupation, pp. 201–242;
Jèze, Etude théorique, pp. 112–121.
135 Paul Heilborn, Das völkerrechtliche Protektorat, pp. 7–28.
136 Joseph Hornung, “Civilisés et barbares” (1885), XVII RDI, pp. 1–

18, 447–470, 539–560 and (1886), XVIII RDI, pp. 188–206 and
281–298. Cf also Hornung (1879–80), 3–4 Annuaire IDI, pp. 305–
307.
129
them.”137 Moreover: “They are children, of course, but then, let us

treat them as one treats children, through gentleness and
persuasion . . . We accept the hegemony and trusteeship of the
strong but only in the interests of the weak and in view of their full
future emancipation.”138 Even if Hornung was considered somewhat
of a humanitarian radical, not many members of the Institut
disagreed with him – though they may not have shared his
pathos.139 They had by now learned to integrate cultural
distinctions into a hierarchical ordering of developmental levels.
Again, this is not to say that they wrote or thought in identical ways.
Some such as Adam or Westlake stressed the law’s cultural
background and thus excluded the native from the ambit of
European law – while immediately qualifying this through a
secondary position that re-integrated the native in a European
conceptual system as a beneficiary of human rights or the dictates of
civilized conscience. Others such as Salomon or Hornung appealed in
favor of humanitarian attitudes – while as a secondary position
always excluded native communities from equality with European
sovereigns. The colonial discourse of late nineteenth-century
international law was able to accommodate positions as apparently
wide apart as Westlake’s and Hornung’s to create a solid defense of
the extension of European influence. It was a discourse of
exclusion–inclusion; exclusion in terms of a cultural argument about
the otherness of the non-European that made it impossible to
extend European rights to the native, inclusion in terms of the
native’s similarity with the European, the native’s otherness having
been erased by a universal humanitarianism under which
international lawyers sought to replace native institutions by
European sovereignty.140
It is sometimes suggested that a universalist conception of

international law represented by Enlightenment jurists fell due to the
rise of 137 Hornung, “Civilisés et barbares” (Part 3, 1885), XVII RDI,
p. 559.
138 Hornung, “Civilisés et barbares” (Part 4, 1886), XVIII RDI, pp.

188, 189.
139 Robert Adam, for instance, held his federalism as a complete

utopia but agreed in the characterization of the civilized–uncivilized
relationship as that between the mature and the immature, or
parent and child, “Völkerrechtliche Okkupation,”
p. 245.
140 The two attitudes – full differentiation and full identification –
structured European attitudes towards the natives from the outset. A
classic discussion of the way that the logic of identification in a
Spanish “defender of the Indians” such as Bartolomé de Las Casas
and the logic of difference in the conquistador Hernando Cortés
betrayed
“agreement on one essential point: the subjugation of America to

Spain” is in Tzvetan Todorov, The Conquest of America. The
Question of the Other (trans. by Richard Howard, New York, Harper,
1982), pp. 177, 168–182 (and also pp. 151–167 on the isomorphic
contrast between Las Casas and Sepúlveda).
130
Sovereignty: a gift of civilization
“positivism” in the late nineteenth century.141 This is not an

adequate image of the structure of colonial law. In the first place, as
was argued in chapter 1, the leading international jurists were not
“positivists” in any clear sense but made constant use of arguments
about morality or natural law – as even Westlake did in his
contemplation of the British–Indian relations. A right or a duty to
intervene outside Europe was routinely asserted, as the French
lawyer–diplomat Engelhardt put it, in order to ensure respect for
“une loi générale et absolue établie par le consensus gentium.”142 If
the lawyers sometimes disagreed on the opportunity or manner of
conducting intervention, they never doubted its principle.
In the second place, this gives too much credit to the “universalism”
of earlier jurists such as Grotius or Vattel, or indeed Klüber and von
Martens. They used natural law because in the absence of large
numbers of treaties, arbitrations, or a profession of commentators
there was little else on which they could rely. More importantly, their
“universalism” was a projection of their Western humanism, a
secular variant of the Christian view of a single God. This may or
may not have been politically admirable (the Conquistadores, after
all, were also universalists). But in terms of dealing with otherness,
the historical school had at least recognized the hypocrisy that was
the flip side of universalism – the technique of including the non-
European into a universe of European concepts by doing away with
native identity (for instance, by excluding native ownership of land
through the imposition of a thoroughly European standard of
“cultivation of the soil” as condition of ownership).143
But if the distinction between the civilized and the uncivilized did
structure colonial international law at the end of the nineteenth
century, it did so accompanied by considerable doubt about its
adequacy. Even Lorimer’s threefold division between civilized,
barbarian (or half-civilized), and savage (uncivilized) nations seemed
too crude for application in special studies that increasingly drew
upon anthropological and sociological accounts such as Tylor’s 1871
study of primitive culture.144
141 This has been the influential thesis in Charles Henry

Alexandrowicz, The European–African Confrontation. A Study in
Treaty-Making (Leyden, Sijthoff, 1973).
142 Edouard Engelhardt, “Le droit d’intervention et la Turquie”

(1880), XII RDI, p. 365.
143 Cf. Richard Tuck, The Rights of War and Peace. Political Thought
and the International Order from Grotius to Kant (Oxford University
Press, 1999), pp. 106–108 and 195–196.
144 James Lorimer, Institutes of International Law. A Treatise of the

Jural Relations of Separate Political Communities (2 vols., Edinburgh
and London, Blackwood, 1883), I, pp. 93 et seq.
131

Charles Salomon, for instance, concluded that there were an infinite
number of degrees of civilization and forms of statehood. Had not
“stories of travelers” suggested that “there existed in the heart of

Africa Negro communities that offered practically all the
characteristics of a State”?145 Franz von Holtzendorff held that it
was not at all the lawyer’s task to define notions such as “culture” or
“civilization”: it should suffice to record the existence of peaceful
relations between independent States that allowed common rules to
govern their behavior.146 For Jèze, all such distinctions were
arbitrary and subject to misuse: “there is no reason to distinguish
between different States on the basis of religion, color, race, or the
civilization of their inhabitants.”147
In 1875, the Institut sought to provide clarity for this issue by
commencing a study under the chairmanship of Sir Travers Twiss on
the possibility of applying customary (European) international law “in
the Orient.”
A questionnaire was sent out to experts in Oriental law with the

purpose of finding out whether the beliefs and legal institutions of
Oriental and Christian States were sufficiently similar to admit the
former “into the general community of international law.”148 Out of
eight questions the first two were formulated in a general manner:
Were the beliefs of the West and the Orient in regard to obligations
towards foreigners sufficiently similar? Did Oriental peoples share
the same view of the binding force of treaties as Christians? Two
questions focused on missionaries: Was there need for special
protection of proselytizing activities? Had the behavior of
missionaries given occasion to hostility? Two questions dealt with the
need to maintain or reform consular jurisdiction and one was
formulated as follows: Did experience admit the possibility of
common rules on the status and capacity of persons in mixed
Christian–Oriental communities?149
As responses started coming in it turned out that the questions could

146 Franz von Holtzendorff, Handbuch des Völkerrechts, auf

Grundlage europäisches Staatenpraxis (4 vols., Berlin, Habel, 1885),
I, p. 13. In practice, the position that the degree of civilization was a
factual question left its determination to a case-by-case decision by
the European powers. Cf. Adam, “Völkerrechtliche Okkupation,” p.
246.
147 Jèze, Etude théorique, p. 210. Likewise, A. Mérignhac, Traité de

droit public international, II, pp. 430–431.
148 Text in (1877), 1 Annuaire IDI, p. 141.
149 A final question dealt with the possible need to adopt measures
to regulate the maritime transport of Chinese “coolies.” Cf. (1877), 1
Annuaire IDI, pp. 51, 141–142.
132
Sovereignty: a gift of civilization not be answered in general terms.

More subtle distinctions were needed.
While some Orientals were, Twiss summarized in his report, “pirates

and even cannibals,” others such as Turkey, Siam, China, and Japan
had had long and stable relations with the West.150 In regard to the
former, Europe’s superiority would remain a necessity for a long time
to come.
As to the latter, Twiss had become convinced that there was no such
difference between the ideas and faith of Christian and Oriental
nations or in their attitudes towards the pacta sunt servanda, that
the latter could not be admitted in the community of nations. The
difficulties lay not in theory but in practice, in enforcement. Many of
China’s and Turkey’s treaties, for instance, had been made after
defeat in war. Attitudes to implementation therefore remained
hostile. Were China, for instance, free to do so, it would immediately
repudiate the treaties of Tientsin and Peking (1858 and 1860) and
return to isolation.151 Religious views were generally tolerant –
although a special difficulty concerned Islamic attitudes towards
Christians. The experts agreed that the time for lifting the protective
veil of consular jurisdiction had not yet arrived, although it should be
better organized so as to avoid the injustices that often accompanied
it.152
Because the problem about the degrees of Oriental civilization

turned out too difficult for the Institute to resolve, the project was
reformulated so as to focus on technical questions such as what
reforms were needed in the judicial institutions of the more
developed Oriental nations in view of abolishing consular jurisdiction.
It was continued by special studies on individual nations153 – with
not a few lawyers arguing in favor of giving up or reforming consular
jurisdiction in Japan and elsewhere.154 A number of States
concluded bilateral treaties with Japan to this effect in 1894 and
negotiations were conducted with other Oriental countries until the
topic was dropped from the Institut agenda in 1895. The matter,
noted Rolin, had become “delicate” and its treatment might offend
the sensibility of certain nations.155 Attention was directed away
from the abstract standard to a case-by-case negotiation 150 Sir
Travers Twiss, “Rapport” (1879–1880), 3–4, Annuaire IDI, p. 301.
151 A. Krauel, “Applicabilité du droit des gens à la Chine” (1877), IX

RDI, pp. 387–401.
152 Twiss, “Rapport,” pp. 301–304.
153 Twiss, “Rapport,” p. 311; Cf. also the Report by Professor

Bulmerincq in (1888–1889), 10 Annuaire IDI, pp. 259–263.
154 Cf. e.g. Paternostro, “La revision des traités avec le Japon au
point de vue du droit international” (1891), XVIII RDI, pp. 10, 177–
182 and the report by de Martens in (1882), XIV RDI, pp. 324–328.
155 Gustave Rolin-Jaequemyns (1895–96), 14 Annuaire IDI, p. 201.
133
of the conditions of integration of particular States into the European

system. For a long time, however, private law relations continued to
be administered within consular jurisdiction, in some cases by mixed
tribunals (with or without appeal to a Western court) while full
diplomatic recognition and entry into the public law community had
to wait until the 1960s.
No stable standard of civilization emerged to govern entry into the
“community of international law.” This was implicitly accepted by the

Institute as well in connection with a project on the law of colonial
occupation after the Berlin conference. The rapporteur, Ferdinand
von Martitz (1839–1922) from Freiburg, had proposed to classify as
terra nullius all territory “that is not under the sovereignty or
protection of States that form the international legal community,
whether or not inhabited.” It turned out impossible to define which
were such States – and the matter was again left for treatment on a
case-by-case basis – with lawyers trying to infer some criterion from
the de facto treatment of Turkey, Japan, China, Siam, and Persia.156
But European behavior never followed a criterion; however much
Japan insisted that by any reasonable measure it was at least as
civilized as any European State, the way it was treated was a
function of what European diplomacy saw as useful.157 Of course,
international lawyers were not ignorant of the existence of
civilization outside Europe. But the concept never worked, and was
never intended to work, as an all-or-nothing litmus test.158
Although Westlake admitted that States such as China, Siam, and
Persia had attended the Hague Conferences of 1899 and 1907, and
had thus been accepted into the
“system,” that system still fell “short of recognizing their voices as of

equal importance with those of the European and American
powers.”159
The Ottoman Empire’s celebrated entry into the realm of European

Public law in 1856 had little consequence for the dismissive
treatment that European powers gave to the protests of the Sublime
Porte as they encroached gradually deeper into its decaying imperial
realm.160 The 156 For a review of the discussion, cf. Salomon,
L’occupation, pp. 209–210.
157 The best study of the matter is Gong, Standard of Civilization.

158 Cf. also Fisch, Die europäische Expansion, pp. 284–287.
159 Westlake, “The Native States of India,” p. 623.
160 The powers, Salisbury pointed out in 1877, had granted Turkey’s
territorial integrity only on condition that it would not mistreat its
subjects. If it did so, in the eyes of the European powers, then that
grant was withdrawn. Gustave Rolin-Jaequemyns,
“Chronique de droit international: L’année 1877 et les debuts du

1878 au point de vue de droit international” (1878), X RDI, pp. 8,
17–18, 20. Turkey’s refusal to discuss the matter in early 1877
meant, Rolin opined, that it was henceforth alone 134
Sovereignty: a gift of civilization existence of a “standard” was a

myth in the sense that there was never anything to gain. Every
concession was a matter of negotiation, every status dependent on
agreement, quid pro quo. But the existence of a lan-
guage of a standard still gave the appearance of fair treatment and

regular administration to what was simply a conjectural policy.
Despite their doubts about the possibility or the need to define

“civilization,” international lawyers were still deeply embedded in the
language of the standard. Without such language, it would have
been impossible to rationally explain, let alone to justify, why non-
European communities could be subjected to massive colonization.
Because the European States and their modes of communication
were by definition civilized, the whole issue was reduced in practice
to the question as to when outside communities would have started
to resemble the Europeans to the extent that they could be smoothly
integrated into the European system. “Our community of nations is
not a closed one,”
wrote Alphonse Rivier in 1889. “Just as it opened itself for Turkey, it

will open itself for other States as soon as these have reached a
level of spirituality comparable to ours”.161 Historical optimism and
imperial ambition shook hands: progress would gradually bring
civilization to non-European communities. And becoming civilized
meant becoming like the Europeans’ image of themselves:
“Everything is reduced to an appreciation, from the point of view of
international law, whether a State, by virtue of its organisation, laws,
habits, fulfils the necessary conditions to be admitted on the basis of
equality to the general community of international law.”162 But the
non-European community could never really become European, no
matter how much it tried, as Turkey had always known and Japan
was to find out to its bitter disappointment.
Here was the paradox: if there was no external standard for

civilization, then everything depended on what Europeans approved.
What Europeans approved, again, depended on the degree to which
aspirant communities were ready to play by European rules. But the
more eagerly the non-Europeans wished to prove that they played
by European rules, the more suspect they became: had not
Bluntschli responsible for its fate. After the Berlin Congress Salisbury
bluntly noted that the Porte had henceforth only a “relative
independence.” Edouard Engelhardt,
“Considérations historiques et juridiques sur les protectorats.”

(1892), XXIV RDI, pp. 349–383.
161 Alphonse Rivier, Lehrbuch des Völkerrechts (Stuttgart, Enke,

1889), p. 5.
162 Paternostro, “La revision des traités,” p. 7. For an assessment of

China in this regard, cf. Joseph Hornung, “Note additionelle” (1882),
XIV RDI, p. 243.
135
argued that only “non-Aryans” bowed down in front of their

masters?
In order to attain equality, the non-European community must
accept Europe as its master – but to accept a master was proof that
one was not equal.
Between universality and relativism: colonial treaties In 1878

King Léopold enlisted Stanley’s services for a Comité des Etudes du
Haut-Congo, financed mainly by Belgian interests, ostensibly for the
purposes of research of the Congo river and basin but in fact to map
out this part of the “magnifique gâteau africain” and to conclude as
many treaties as possible with the native chiefs of the region.163 In
these treaties, the chiefs would transfer their lands to the Comité
which Léopold silently transformed in 1882 into another organization
– the Association Internationale du Congo, that was to form the
nucleus of his future
“Independent State of the Congo.”164 These treaties, Léopold’s

instructions to Stanley read, must “grant us everything.” For
example, in the treaties concluded on April 1, 1884 the chiefs of
Ngombi and Mafela agreed in exchange for “one piece of cloth per
month . . . besides present of cloth in hand” to:
freely of their own accord, for themselves and their heirs and
successors for ever
. . . give up to the said Association the sovereignty and all sovereign

and governing rights to all their territories . . . and to assist by labor
and other works, improvements or expeditions which the said
Association shall cause at any time to be carried out . . . All roads
and waterways running through this country, the right of collecting
tolls on the same, and all game, fishing, mining and forest rights,
are to be the absolute property of the said Association.165
As Stanley was still making provisions for the voyage, de Brazza was
advancing on the north bank of the river, formally as an agent of the
French national committee of the Association Internationale Africaine
that 163 The Comité was organized as a private company with an
initial budget of 1 million Belgian francs, provided by an international
group of financers, Pakenham, Scramble for Africa, p. 146. Léopold
wrote to Stanley at the end of 1881:”La Belgique ne désire aucun
territoire en Afrique, mais il est indispensable que vous achetiez pour
le Comité des études autant de terrain qu’il vous est possible de
obtenir, et que vous placiez successivement sous la souveraineté de
Comité, dès que possible et sans perdre une minute, tous les chefs,
depuis l’embouchure du Congo jusqu’aux chutes Stanley.” Letter
reproduced in Georges Henri Dumont, Léopold II (Paris, Fayard,
1990), p. 172.
164 Pakenham, Scramble for Africa, p. 161.
165 Quoted in Adam Hochschild, King Leopold’s Ghost. A Story of

Greed, Terror, and Heroism in Colonial Africa (Boston, Houghton
Mifflin, 1998), p.72.
136
Sovereignty: a gift of civilization had been set up in Brussels in 1876

but in fact concluding treaties of cession for his beloved but
somewhat apprehensive France.166
To cite native treaties in the manner of Stanley and de Brazza as

irrefutable proof of their employers’ sovereignty was controversial
from the outset. The French Government, for instance, together with
the radical député Georges Clemenceau, were initially quite reluctant
to accept de Brazza’s famous Makoko Treaties from 1880 that
granted French sovereignty to vast areas north of the Stanley Pool in
the Congo river.167 The treaties were, however, “forced upon the
[French] government under a press campaign whipped up by de
Brazza” and duly ratified in November 1882.168 From 1883 onwards
de Brazza was officially instructed by the government to conclude
more of such formal acts of cession. The following year Bismarck
despatched the German explorer Gustav Nachtigal (1834–1885) to
sign treaties of cession with West African chiefs. In a famous race
between Nachtigal and the British Consul, Nachtigal came out
victorious owing to a delay in the latter’s receiving blank treaty forms
from London. By July 1884 German colonial protectorates had been
set up in Togo and the Cameroons.169
During his time in King Léopold’s service Stanley alone was said to
have concluded at least as many as 257 such treaties.170 As
Salomon wrote,
“there was scarcely a modern traveller who would not have found
himself in the role of a diplomatic agent and would not have
attached to his collection of souvenirs some treaty of territorial
cession.”171
It is not difficult to see why imperial expansion took the form of

seeking native consent in written form. Both conquest and symbolic
annexation were associated with early Spanish and Portuguese
colonialisms that contemporaries had learned to reject on moral
grounds.
Besides, conquest would involve excessive costs. But as Gaston Jèze

166 On the famous race between Stanley and de Brazza, cf. e.g.
Robert Stanley Thomson, Fondation de l’Etat indépendant du Congo
(Brussels, Office de publicité, 1933), pp. 76–100.
167 Cf. de Martens, Nouveau Recueil, X, p. 215.
168 Baumgart, Imperialism, p. 19; Lewis, Fashoda, p. 39.
169 Cf. Wesseling, Le partage de l’Afrique, pp. 258–259; Robinson

and Gallagher, with Denny, Africa and the Victorians, pp. 171–175
and Pakenham, Scramble for Africa, pp.
197–199, 207–208.
170 Marc Ferro, Colonialism. A Global History (London and New

York, Routledge, 1997), p. 76. Stanley himself boasted of having
concluded over 400 treaties during five years in the Congo, Jèze,
Etude théorique, p. 142. But when the treaties that he had made
with the Chiefs of Uganda were examined, it turned out that they
were in reality blood brotherhood or non-aggression pacts, Frank
McLynn, Hearts of Darkness. The European Exploration of Africa
(London, Pimlico, 1993), pp. 315–316.
137
pointed out: “it must also be asked whether the acquisition conforms
to ideas of justice, whether the acquisition of certain territories does
not constitute, from a purely moral point of view, a reprehensible
act, in a word, whether the occupation, as manifestation of
acquisition, is legitimate.”172 Native consent given in a treaty of
cession seemed to constitute an irreproachable moral–legal basis for
European title and did away with the suspicion that Europeans were
merely following in the footsteps of the fifteenth-and sixteenth-
century empires. Clearly, it was a problematic practice. Despite the
(somewhat ambiguously formulated) proposal by the American
delegate at the Berlin Conference, Mr. Kasson, however, no
requirement of native consent was included in the Berlin Act –
although the conference did recommend that such consent be
normally secured. The problem was both conceptual and practical.
First, as the Martitz Report pointed out: “[a] treaty of cession cannot
be concluded by entities other than States that recognize
international law.”173
If native communities lacked international standing – formal

sovereignty – treaties with them could hardly enjoy validity under
international law. Secondly, many of the treaties had been concluded
under circumstances where it was doubtful whether one could speak
of the free or informed consent of the native who drew his “x” on
it.174 Stories about the practices of treaty-making followed by
Stanley in the Congo or Peters in East Africa did nothing to enhance
their credibility.175
The lawyers responded to such problems with broadly three types of

argument.176 For one group that included Rolin and Westlake,
representatives of two active colonial powers, such transactions
were irrelevant from the point of view of international law. Treaties
with “ignorant Chiefs” could neither create not transfer
sovereignty.177 They might have a factual effect in consolidating
European occupation or creating an environment of confidentiality,
and they might create private rights that the sovereign must honor.
That is to say, they might be needed for polit-
ical reasons.178 But they could not be taken account of in

international law as basis for European title. Because the native does
not possess the 172 Jèze, Etude théorique, p. 52.
173 (1887–88), 9 Annuaire IDI, p. 247.
174 Salomon, L’occupation, pp. 218–220; Jèze, Etude théorique, pp.

148–153. Cf. also E.-L.
Catellani, “Les droits de la France sur Madagascar et le dernier traité

de paix”
(1886), XVIII RDI, p. 153.
175 The treaties that Peters claimed as the basis of his annexations
in East Africa had been made in the German language.
176 Cf. also Lindley, Acquisition of Territory, pp. 10–23, 169–177.
177 Cf. also Rivier, Lehrbuch, p. 136; Nys, Le droit international, II,
pp. 111–116.
178 Adam, “Völkerrechtliche Okkupation,” pp. 259–261.

138
Sovereignty: a gift of civilization concept of sovereignty, he cannot

transfer it: a stream cannot rise higher than its source.179 Seldom
has the adage about the connections between knowledge and power
been more graphically illustrated: possession of land was the
function of possessing a concept.
On the other hand, it was obviously true that the non-European

party did not necessarily understand the treaty’s meaning to the
Europeans. To refuse to recognize the validity of such treaties may
have seemed the only way to preclude manipulation of the unequal
negotiation situation by the European power.180 But how then could
Western title at all be validated? To rely on de facto presence would
have failed to distinguish between peaceful colonization and total
war against the inhabitants. Also, it left the European governments
in an awkward position as they had regularly referred to native
treaties as at least a part of the justification of their title. As the
German lawyers, well aware of the ambition of the Kaiser, pointed
out, it would have been an inconceivable affront to the honor of His
Majesty to insinuate that the treaties he had made with native chiefs
were concluded under dubious circumstances and were best treated
as scraps of paper.181 Moreover, if one rationale for colonization was
to award the peaceful enjoyment of possession, then some proof of
peacefulness was required and it was hard to think what else could
count as such than some expression of native consent.
For such reasons, a second group insisted that native treaties were
indispensable ingredients or even the only legally valid basis of
European title.182 Though the Berlin Conference had not accepted
the American proposal to this effect, it had expressly recommended
it. And the practice was treated as serious by the powers
themselves. By the 1920s, attitudes had changed to the extent that
a leading authority on the issue held it to be a majority view that the
natives could dispose over their lands and that European sovereignty
should normally be based on 179 Cf. John Westlake, International
Law (2 vols., 2nd edn., Cambridge University Press, 1910), I, pp.
123–124; Chapters, pp. 144–155; Pasquale Fiore, “Du protectorat
colonial et de la sphère d’influence (hinterland)” (1907), XIV RGDIP,
pp. 150–151.
180 Later lawyers have sometimes associated this position with the
theory of legal positivism. This, however, is wrong as we have seen,
for neither Rolin nor Westlake was a positivist in any clear sense.
181 Cf. Fisch, Die europäische Expansion, p. 336.
182 This position is in a very absolute form in Henri Bonfils and Paul
Fauchille, Manuel de droit international public (2nd edn., Paris,
Rousseau 1898), pp. 280–281. From the fact that the texts of the
treaties often referred to the local chief as sovereign entitled to
dispose of land rights, Alexandrowicz draws the doubtful conclusion
that they were actually so regarded. Alexandrowicz, The European–
African Confrontation, pp. 30–40, 118–122, 127–128.
139
treaties.183 Already in the 1880s, however, the French lawyers Jèze

and Salomon had held that inhabited countries could not be
regarded as terra nullius. They did not precisely hold that every
native community held sovereignty over its land. Sovereignty might
be lacking because of the tribe’s unorganized or nomadic ways of
life, for example. Both held the civilizing mission a perfectly
legitimate European pursuit. But even in such cases, native
communities enjoyed at least something like a right of self-
determination that seemed to call for the necessity of native
consent:
“it is not permitted to force happiness on people – in this matter,

everyone is his own best judge.”184 Jèze even argued that not only
was native consent necessary but that consent should be free,
intelligent, and given in accordance with local usages.185
But this position made little difference as practically all expansion

was accompanied by native treaties. A reliable scrutiny of the reality
of native consent would have been impossible to carry out and
seemed anyway to require the application of European standards.
The embarrassing possibility that some part – perhaps a very large
part – of European acquisitions was based on formal acts of dubious
seriousness could not be easily done away with. Could it be just an
accident that Alexandre Mérignhac (1857–1927), Professor at
Toulouse and associé of the Institut came to the conclusion that
while Stanley’s or Nachtigal’s treaties arose from cynical
manipulation, French protectorate treaties were concluded in an
impeccable fashion?186 Accepting the validity of the treaties seemed
to imply that as legal subjects native communities were equal with
European States. For all the lawyers, this would have been an
absurdity. Even Jèze expressed the opinion that the need to
conclude treaties did not arise from equality between the parties but
from the prudential need to carry out the civilizing mission as
efficiently as possible. He never even considered the possibility that
transfer of territory would not take place.187
Most lawyers came to hold an intermediate view. Although colonial

title was normally original (and not derivative), native treaties were
still relevant – perhaps even necessary – as evidence of the
peacefulness of 183 Lindley, Acquisition and Government, pp. 20–23,
169–177. It is not clear, however, that Lindley interpreted the views
of all the authors he cites in a way they would have accepted.
184 Salomon, L’occupation, p. 207 and the discussion in Fisch, Die

europäische Expansion, pp.
321–325.
185 Jèze, Etude théorique, pp. 116–117.

186 Mérignhac, Traité de droit public international, II, pp. 435–437.
187 Jèze, Etude théorique, p. 128.
140
Sovereignty: a gift of civilization the possession claimed by the

colonizer, as “proof of the expansion of the State’s influence
commercially and politically amongst the tribes.”188
Engelhardt, for instance, held that the parties in Berlin had solved
this question by recommending that treaties (either of cession or of
protectorate) be always concluded with the non-European
community.
Although European title would still be original, native consent could

be interpreted as an indispensable part of it.189 The German
Heimburger explained this as follows. Because the natives enjoyed
no sovereignty (not having that concept), they could not transfer it.
The content of what ostensibly were treaties of cession was simply
not to oppose the occupation by the colonial power and to agree to
European rule. No embarrassing implication of equality was entailed:
the relationship was not legal but quasi-legal and the duty to
execute the treaty followed from “the natural reasonableness and
bona fides of civilized States.”190 The ambivalence of the situation
was reflected in the official collections of treaties.
Martens’ great Recueil listed native treaties until around 1880. By

1890, they had disappeared. But both the official British Foreign and
State Papers as well as the French de Clerq Recueil continued to
publish them.191
The question of the legal validity of native treaties presents an

identical structure to the exclusion–inclusion logic surveyed above.
Whichever legal position one took was in the main compatible with
colonial interest, yet had its difficulties, too. European predominance
could be secured by granting the validity of colonial treaties as well
as dismissing them. When colonial enthusiasts such as the Belgian
professor and later Secretary-General of the Institut Baron
Descamps (1847–1933) insisted that indigenous chiefs were
perfectly capable of transferring sovereignty, they seemed to imply a
normative universe in which the Europeans and the Africans acted as
formal equals.192 Such universalism, however, had nothing to
foreclose the possibility or even likelihood of manipulation. To deal
with this problem, lawyers automatically retreated to paternalism:
the native was unable to understand his interests. To be a
universalist and yet to acknowledge cultural difference was 188
Frantz Despagnet, Essai sur les protectorats (Paris, Larose, 1896),
pp. 246–251; S.
McCalmont Hill, “The Growth of International Law in Africa,” pp.

254–255.
Likewise, Martitz (1887–1888), 9 Annuaire IDI, p. 247; Rivier,

Lehrbuch, pp. 136–137; Ullmann, Völkerrecht, pp. 187–188 and e.g.
T. J. Lawrence, A Handbook of Public International Law (8th edn.,
London, Macmillan, 1913), p. 52. On Laband’s position, cf. Fisch, Die
europäische Expansion, p. 326.
189 (1888–89), 10 Annuaire IDI, p. 177.
190 “Der naturliche Billigkeit und der bona fides der zivilisierten
Staaten,” Heimburger, Erwerb, p. 114.
191 Fisch, Die europäische Expansion, p. 337.
192 E. Descamps, L’Afrique nouvelle (Paris, Hachette, 1903), pp. 39–

40.
141

possible – and common – through an argument that arranged such
difference in a single hierarchical, evolutionary frame.
A universalism that accepted native treaties not only signified

respect for the native but also erased the native’s particularity and
overlooked the historical nature of the colonial confrontation. In the
sixteenth century Vitoria and Las Casas had argued that the
American Indians came under a universal natural law in a way that
provided ground for their humane treatment. But it also made it
possible to discipline Indians as in constant breach of the law which
required them to accept European trade and proselytizing.193 Yet,
as the French learned after their originally assimilationist policy in
Algeria had failed, the universalism on which it was based had
constituted a “philosophic excess bequeathed from the Revolution of
1789 . . . a preposterously demanding commitment” – and a receipt
for disillusionment and cynicism.194 By the time of the
establishment of the Tunisian protectorate in 1881, French
colonialists started to change over to the British technique that
sought to leave native institutions in place wherever possible.195
Late nineteenth-century lawyers usually rejected the indiscriminating
universalism of Enlightenment thought and emphasized the cultural
difference of the Orient. But this led them to denying the benefits of
European law to the non-Europeans. In the former case, imperialism
was grounded in an absolute logic of identity, in the latter on the
absolute affirmation of difference. Neither position had any
determinate consequences: both were equally amenable for a
defense as well as criticism of colonialism.196 Therefore, the
question of the legal basis of the colonial encounter could not be
treated through a theory of native treaties. Turning away from such
theory, lawyers hoped to deal with it in terms of the classical law of
occupation – integrating native treaties as a subsidiary category
within it. In this way, it could be hoped that European expansion
would receive a stable legal base in firmly European thought about
the justice of territorial sovereignty – while a 193 The classic is
Todorov, The Conquest of America, discussing Columbus’ turn from
initial assimilationism to enslavement and Las Casas’ erasure of
native particularity through schematic descriptions of the natives’
Christian “humility” and “goodness,”
pp. 42–50 and 160–167. Cf. also Antony Anghie, “Francisco de

Vitoria and the Colonial Origin of International Law” (1996), 5 Social
and Legal Studies, p. 321.
194 Lewis, Fashoda, p. 80.
195 Nonetheless, in many places – West Africa, for instance – the

turn from “assimilationism” to a (democratic) “associationism” was
completed only in the aftermath of the First World War. Cf. Conklin,
A Mission to Civilize, pp. 174–211.
196 This remains invisible for such critics such as Alexandrowicz and
Gong who associate colonialism with positivism.
142
Sovereignty: a gift of civilization guarantee might be attained against

the manipulation of the colonial relationship for private interests.
While Stanley concluded treaties of cession in the Congo, many

wondered about whether a private association such as the Comité
des études or Léopold’s Association internationale du Congo was in a
position to enjoy sovereign rights. French lawyers in particular,
perhaps unsurprisingly bearing in mind de Brazza’s simultaneous
exploits in the region, vehemently denied this.197 As the recognition
of the Association as the sovereign in the Congo came up in the
United States Senate in 1884 Léopold hired Twiss and Arntz, two
members of the Institut, to make a legal defense on behalf of his
Association – although “he had no illusion about the power of
juridical arguments.”198 Twiss included his arguments in a series of
articles on the Congo in Rolin’s Revue as well as in the preface of the
second edition of his Law of Nations, pointing out that in fact
colonization by private entities had been the predominant form of
Western expansion since the sixteenth century and that for this
purpose chartered companies and philanthropic associations had
often been vested with sovereign rights. In his view, the analogy
between the Congo association and the American Colonization
Society that declared itself the Commonwealth of Liberia in 1847
was “striking.”199 Arntz wrote a legal brief that was handed out to
the Foreign Relations Committee of the Senate endorsing the
arguments by Twiss and providing further examples from Antiquity
onwards of cases where States had been founded by private
individuals.200
However, most international lawyers insisted that the work of

civilization required direct rule and effective sovereignty for the
European colonizer:
Becoming subjects of the power which possesses the international

title to the country in which they live, natives have on their
governors more than the common claim of the governed, they have
the claim of the ignorant and helpless on the enlightened and
strong; and that claim is the more likely to receive justice, the freer
is the position of the governors from insecurity and vexation.201
197 Thomson, La Fondation, pp. 101–103.
198 Dumont, Léopold II, p. 175. Cf. also Thomson, La Fondation, pp.
147–162.
199 Twiss, The Law of Nations, I, p. xiii.
200 Argument of Professor Arntz, US Senate, Committee on Foreign

Relations, 26
March, 1884 (Occupation of the Congo country in Africa), Report no.

393, pp. 33–35.

143
Laissez-faire had shown its negative effects during domestic

industrialization and through disappointments in the colonies. The
Indian mutiny of 1857 had already led to the transfer of the
administration of the territory from the East India Company directly
to the Crown. Jèze pointed out that at least the French nation was
constitutionally prevented from delegating sovereignty to private
entities: the French people were sovereign and could decide to
delegate only the exercise of certain rights of sovereignty, and even
this only under extensive and continuous State control.202 For
Salomon, too, a company could never enjoy sovereignty; it was at
best an instrument, a negotiorum gestio – for the State-sovereign.
The British and German technique of informal empire was

unacceptable. It was in a way: “to colonize anonymously, without
costs and without responsibility, to exclude large territories from the
civilising activities of other powers in order to hand them over to
private companies that pursue no other objective than immediate
personal enrichment.”203 It was the duty of legal doctrine, he
added, to work against such practices and to insist that there could
be no right without correla-tive obligations. The German Heimburger
agreed with his French colleagues. It was impossible to accept that
commercial entities could possess public law sovereignty, with all the
rights and duties attached thereto. They could act as agents of
States but not as subjects of international law in their own name.204
In 1889, Rolin argued that colonization by chartering companies to
deal with territorial administration failed to distinguish between
ownership and imperium and to effect the humanitarian treatment of
the populations – of this, the Abushiri rebellion in German East Africa
should have taught a lesson: direct rule was infinitely better. If early
colonization had indeed been undertaken through private
companies, the juridical concept of colonization had now been
transformed: a company could not carry out the required
humanitarian and civilizing tasks.205 The same critique underlay
Salomon’s critique of company sovereignty: if a State colonizes
through a company, this would then take place only for the
company’s own enrichment: “It would be naïve to require a limited
liability company to 202 Jèze, Etude théorique, pp. 344–358.
204 Heimburger, Erwerb, pp. 48–77. However, Robert Adam argued

that although Heimburger was in principle right, international
practice had accepted company sovereignty, “Völkerrechtliche
Okkupation,” pp. 220–225.
205 Nonetheless, he presumes that “si mauvaise que puisse être

l’administration d’une compagnie de marchands européens, elle est
toujours meilleure que celle d’un sultan.” Gustave Rolin-Jaequemyns,
“L’année 1888 au point de vue de la paix et du droit international”
(1889), XXI RDI, p. 192.
144
Sovereignty: a gift of civilization make sacrifices in order to improve

the condition of the natives at the risk of diminishing its
dividends.”206 Most of the lawyers of the new generation argued
that colonization should not be delegated to private entities or
hidden behind ambiguous formulas that allowed the colonizer to pick
the fruit without paying the price. They insisted on the need to
establish effective Western sovereignty in colonized territories not
only in order to deal with territorial conflict between the European
powers (although that was the reason why the problem had arisen)
but to protect European settlers and traders and to see to the
civilization of the inhabitants. By the end of the century, the question
of principle had largely lost its actuality: private companies had been
useful as a means of occupying new territory. In order to exploit and
administer the colonies, official State intervention had become a
practical necessity.207
The legal analysis of colonization was not independent of the
purposes that lawyers envisaged for the imperial venture.208 The
economic purpose – securing vital imports and new markets for
expanding domestic production – did not necessarily call for formal
empire. But already in 1884 when Germany started looking towards
Africa the large trade companies of Hamburg refused to take on the
administration of the recent annexations in Togo and the
Cameroons. In their view, it was the task of the State to set up
administration and police in these territories to create and maintain
orderly conditions for trade and settlement. This seemed effectively
confirmed by the financial and administrative difficulties that led to
the withdrawals of the charters of the British and German companies
in the 1880s and early 1890s.
The political objective – securing influence or prestige – was also

easier to attain by formal than informal means. When de Brazza left
for the Congo in 1879 the French insisted that he plant the tricolor
and not the flag of the French Committee of the Association
International Africaine precisely as they held that this enjoyed no
protection by international law.209 In the creation of settlement
colonies, too, formalization seemed rational and its justification was
received from the Enlightenment idea that territorial rights were
based on effective land use. For example, as 206 Salomon,
L’occupation, p. 197. Likewise, Frantz Despagnet, Cours de droit
international public (2nd edn., Paris, Sirey, 1899), pp. 430–431.
207 Arthur Girault, “Chronique coloniale” (1897), VIII Revue de droit

public et de la science politique en France et à l’étranger, pp. 120–
121.
208 Colonies have been classed as exploitation colonies for

principally economic purposes, maritime enclaves as points of
commercial penetration into the hinterlands or settlement colonies
for European and native settlement. Cf. Osterhammel, Colonialism,
pp. 10–12.
209 Thomson, La Fondation, pp. 80–81.
145
the first German settlers arrived in Samoa in 1878 – in Germany,

colonization was predominantly thought of in terms of finding new
territory for a rapidly growing population210 – Bluntschli expressed
his skepticism about whether Bismarck could refrain from taking
protective action.
Private treaties with the chiefs were, he opined, hardly sufficient to

protect the settlers and their trade interests. And when he turned his
gaze towards Africa and the first efforts of German colonization
there, he saw them bluntly in terms of “the great civilizing mission of
the German Reich.”211 Immediately after Bismarck’s declaration of a
colonial policy in 1884 Geffcken, the editor of Klüber’s textbook and
a member of the Institut, wrote a long article about German colonial
policy enthusiastically speculating about the economic and
demographic advantages that colonization would bring to Germany,
ending his review in the French colonialist Paul Leroy-Beaulieu’s
famous adage: “la nation qui colonise le plus est la première, et . . .
si elle ne l’est pas aujourd’hui, elle le sera demain.” Like Bluntschli,
Geffcken was from the outset of the opinion that colonization could
not continue through the activities of private companies – that stage
had been passed – “a colony cannot be governed by private actors,
it needs a government, a jurisdiction.”212
Another argument for formal colonization was received from the

increasing disillusionment of the humanitarians as experience of
expansion increased. When Livingstone propagated the introduction
of his
“three Cs” – Civilization, Commerce and Christianity – in Africa in the

1830s, there was no doubt in his mind that Africa needed to be
regenerated spiritually as well as materially. He never dreamed,
however, that this would take place by annexation. But by the 1870s
philanthropic humanitarianism was on the decline. The Indian
mutiny of 1857 had come as a shock to the European communities.
A great number of Europeans had been killed and the British had
reacted by “retributive savagery which is one of the most shameful
episodes in British history.”213 Other disappointments followed in
Ceylon and Bengal. A war was fought by the British in China and
Persia and native disturbances in Africa and elsewhere were met
with increasing toughness. The 210 Cf. Geffcken, “L’Allemagne et la
question coloniale,” pp. 105–114.
211 Bluntschli, “Eigenthum,” in Gesammelte kleine Schriften, I, pp.

229–230.
212 Geffcken, “L’Allemagne et la question coloniale,” pp. 105–131,

128. He repeated this view five years later. Cf. Geffcken, “Le traité
Anglo-Allemand de 1er juillet 1890”
(1890), XXII RDI, pp. 599–602. By 1895 all German colonies had
become formal parts of the Empire while only in New Guinea did
there remain a company to carry out some administrative tasks. Cf.
Von Stengel, “La constitution et l’administration des colonies
allemandes” (1895), III Revue de droit public et de la science
politique en France et à l’étranger, pp. 275–292.
213 Hyam, Britain’s Imperial Century, p. 137.
146
Sovereignty: a gift of civilization Xhosa rebellion in South Africa left

over 35,000 natives dead. The 1865
Morant Bay rebellion in Jamaica arose from an insignificant quarrel

over land rights: in the resulting skirmishes eighteen people were
killed.
Governor Eyre reacted by having 439 persons hanged, at least 600

flogged and thousands of homes burned to the ground.214
Such events were a shock to those who had hoped that Western
civilization would be adopted by indigenous populations almost
automatically. Demands were made for a “strong hand” in guiding
the natives to the path of civilization. Liberia and Haiti were held by
the 1870s as
“object lessons concerning the black man’s assumed incapacity to

take care of his own affairs.”215 By the same time efforts to convert
Africans to Christianity in a massive way had almost come to a
standstill. Many missionaries who had worked in Africa for decades
reacted with bitterness and brought back home stories of the
natives’ depravity. As servants of explorers they were untrustworthy,
as cultivators or agriculturalists, ineffective. Such stereotyping was
encouraged in the writings by racist explorers such as Stanley,
Burton, and Speke. Tales of atrocity, horror, and of African racism
were spread by the papers all over Europe.216 The attitude was
summarized in terms of amateur political theory by the commercial
artist Charles Castellani, reflecting on his experience on the
Marchand mission from French Congo to the Nile in 1897: “It is the
triumph of anarchy, it is the state of nature that I had to learn about
first hand.”217
Most international lawyers of course continued to admire Vitoria and

Las Casas and to write critically of the egoism, greed, and
inhumanity that accompanied early European expansion. But they
could have no illusions about the spontaneity with which the natives
were willing to live by European rules. An effective and responsible
administration of those rules was needed. Geffcken speculated about
teaching the natives European methods of agriculture so that they
would leave idleness and barbarism and “would be rendered useful
for the world.”218
Rolin interpreted the crushing of the Abushiri rebellion and the full-
scale blockade of the East African coast as part of the struggle
against slave-trading Arabs.219 To achieve pacification, international
lawyers 214 Hyam, Britain’s Imperial Century, pp. 150–154.
215 Gann and Duignan, The Burden of Empire, p. 170.
216 Gann and Duignan, The Burden of Empire, pp. 128–129; Hyam,
Britain’s Imperial Century, pp. 159–161.
217 Quoted in Lewis, Fashoda, p. 172.
218 Geffcken, “L’Allemagne et la question coloniale,” pp. 119–122.
219 Gustave Rolin-Jaequemyns, “L’année 1888 au point de vue de la

paix et du droit international” (1889), XXI RDI, pp. 199–208.
147
insisted on the importation of European legal and political

institutions, that is, European sovereignty – the idea that Bluntschli
had envisaged as the most significant heritage of “Aryan” political
thought – into the colonies.
Finally, formal sovereignty seemed needed also to deal with the

potential of conflicts between rival colonial powers. As soon as
Stanley had descended the Congo River in 1877, international
lawyers had expressed concern over the eventual disputes between
European powers that might ensue and that would give “a sad
image of our antagonisms to the Negroes whom we seek to
civilize.”220 The need to foreclose such conflicts worked as a
powerful argument in favor of the formal extension of public law
sovereignty, and the formal delimitation of such sovereignty, in Africa
and elsewhere.
For such reasons, from the first clashes of colonial powers outside
Europe – in the Far East, in Africa, and in the Pacific Ocean in the
1870s
– a public international law doctrine developed that was concerned

with the criteria for the establishment and delimitation of European
sovereignty in the Orient. This was received from analogies from the
Roman law of occupation which performed the double feat of
avoiding the embarrassment of having to explain European title as
derived from cession by native chiefs and pointing towards the need
to set up an effective administration of the territory on which
sovereignty was claimed.
By this shift of attention from native treaties to the occupation of

terra nullius, non-European communities became a passive
background to the imperial confrontation.221 The law that was
applied to the natives became a kind of a shadow of the inter-
European law that laid down the rules for the confrontation. That
was the shadow of a disturbed conscience: even if the acquisition of
sovereignty was based on unilateral action, attached was always a
rejoinder about the civilizing mission and the need of native
cooperation.222
The law of occupation was seen as great progress from earlier ages.
Textbooks described it within a narrative about the law of territory

that commenced with the 1494 Treaty of Tordesillas that delimited
the Spanish and Portuguese empires by reference to a Papal dictum.
They criticized the exaggerated importance given in the sixteenth
and seventeenth centuries to discovery and symbolic annexation and
emphasized 220 Gustave Moynier, La question du Congo, p. 4.
221 Cf. Fisch, Die europäische Expansion, pp. 300–302, 287.
222 For a particularly striking example, cf. Adam, “Völkerrechtliche

Okkupation,” pp.
234–235, 260.
148
Sovereignty: a gift of civilization the rational basis of the rule that

required effective presence as the condition of territorial right.223
Only actual occupation could be squared with a political theory that
linked the right of possession to actual use of the territory for some
beneficial purpose.224 Only occupation with the requirement of
publicity as its inextricable part could create a stable system of
European sovereignties, provide protection for acquired and
indigenous rights, abolish slavery and the slave trade, and do away
with the portrayal of Africa in the explorers’ books as a continent of
superstition, savagery, cultural inferiority, political instability, and
overall backwardness.225
The limits of sovereignty: civilization betrayed For such

reasons, the members of the Institut greeted the proposal for a
conference on African affairs with enthusiasm, crediting the idea to
the writings by Moynier and de Laveleye. After the Berlin Conference
had ended, however, they were quite puzzled about what to think of
its results. They welcomed the free trade and free navigation
provisions.
Twiss, himself a member of the British delegation, predicted that the

free trade regime will “prepare the civilization of populations that
occupy an area perhaps larger than the whole of Europe.”226 But
they were ambivalent about the territorial provisions. Even as they
felt that the requirement of effective occupation constituted an
important advance, they also held that it had already been part of
valid customary law for some time and that its formulation in the Act
had been unduly limited: in fact, it had been left to doctrine and
practice to generalize it into being applicable outside African
coasts.227 They thus inscribed in the Institute’s work program of
1885 a further study of the matter.
When would occupation be possible? What type of government was

to be accompanied by it? If the Act was not to apply to colonial
protectorates, what administrative duties did they entail? Westlake’s
assessment that “nothing less than a regular government was
contemplated as the contribution to be made by a state to the
general interest” went clearly further than most States would have
conceded, which is probably why 223 Cf. e.g. H. S. Maine,
International Law. The Whewell Lectures (London, Murray, 1887),
pp. 66–67; Westlake, International Law, I, pp. 103–105.
224 Mérignhac, Traité de droit public international, II, pp. 458–461.
225 Westlake, International Law, I, pp. 96–113. For the explorers’

stories of Africa as part of the case for Empire, cf. McLynn, Hearts of
Darkness, pp. 310–315.
226 Twiss, “Le Congrès de Vienne,” p. 216.
227 For some such ambivalence, cf. Salomon, L’occupation, pp. 263–
273.
149
he developed the doctrine of “inchoate title” as a right of preference

based on acts of lesser intensity than formal government.228
In his study for the Institut on the effects of the Berlin Act on the
law of colonial occupation, the German professor Martitz proposed
that it should always be possible to occupy a territory or set up a
protectorate over an area that did not already come under the
sovereignty or protectorate of one of the States members of the
international legal community (“des Etats qui forment la
communauté de droit des gens”). This proposal was rejected,
however, as many members held that the treatment of almost all
non-European territory as res nullius in this way went simply too far.
As no other proposal was adopted either, the conditions of
occupation (or protectorate) were left obscure.229 As far as the
resulting obligations were concerned, Martitz tried almost to reverse
the position attained in Berlin by suggesting that occupation and
protectorate (“occupation à titre de protectorat”) should both entail
at least some degree of formal rule.230 Occupation was to be
accompanied by the establishment of a responsible local government
with sufficient means to ensure the regular exercise of its authority.
The establishment of a protectorate would have required setting up
some system to protect acquired rights and to see to the education
of the natives. However, no formal occupation by Europeans would
have been required.231
Engelhardt produced a draft that was modeled after the French

system and applied the requirement of effectiveness also to
protectorates, putting them at the level of occupation with regard to
duties concerning the protection of natives. The protecting power
should have at least the duty to ensure that a local authority was in
control of the protected territory.232
Neither position was clearly endorsed in the final Declaration

adopted in 1888. No agreement was reached on the kinds of
territory that could be considered terra nullius and thus subject to
occupation. There was 228 Westlake, International Law, I, pp. 109–
111.
229 For discussion, cf. Fisch, Die europäische Expansion, pp. 330–
332 and Despagnet, Essai, pp. 231–234.
230 Rapport de M. Martitz (1887–1888), 9 Annuaire IDI, p. 249.
231 Certainly, the very basis of the distinction confirmed at Berlin

was to exempt protectorates from such duties, Twiss, “Le Congrès
de Vienne,” p. 215.
232 Cf. (1887–88), 9 Annuaire IDI, pp. 251–255; (1888–1889), 10

Annuaire IDI, pp.
189–190; Salomon, L’occupation, pp. 332–333 and Jèze, Etude
théorique, pp. 240–241.
Engelhardt was prepared to accept protection of acquired rights and

the duty of keeping the peace. But he also defended the French view
that the occupying power should have a duty to guarantee free
movement, free trade or non-discrimination.
“Etude de la déclaration de la Conférence de Berlin relative aux

occupations” (1885), XVII RDI, pp. 435–436.
150
Sovereignty: a gift of civilization agreement that this did not require

that the territory be uninhabited. But Institute members continued
to differ about the type of native community whose presence would
preclude occupation.233 As far as protectorates were concerned,
they were unwilling to limit the flexibility that was provided by Article
35.234 In the end, the Declaration failed to propose a change in the
prevailing practice that allowed the colonial powers to gain full
political control with practically no administrative or humanitarian
duties attached.
International lawyers were unable to safeguard the effective

extension of the benefits of Western sovereignty into the Orient.
What little administrative duties accompanied occupation could
always be avoided by setting up a protectorate instead. Despite
criticisms, protectorates continued to mean whatever the protecting
power wanted them to mean.235 It was still possible to make
extensive spheres of interest and Hinterland claims that had nothing
to do with the civilizing mission.236
And whatever the relationship between the colony and the

metropolis, the inhabitants of the former invariably became only
subjects, never citizens in the latter. In fact, none of the rights valid
in European territory were automatically extended to the colony.237
In a particularly critical attack in 1909 Jean Perrinjaquet from Aix-en-
Provence observed that greed and the wish for exploitation without
administrative and policy costs had led European countries to
employ hypocritical techniques of annexation without sovereignty.
Colonial protectorates had become a regular feature in the French
realm (Cambodia, Annam, Tunisia). Annexation of Bosnia-
Herzegovina by the Austro-Hungarian Empire was veiled as a lease.
So was the British de facto annexation of Cyprus. It was striking how
the European States continued to pay lip service to the inviolability
of the Ottoman Empire while constantly occupying and bargaining
among themselves over large chunks of it. A dangerous gap
between appearance and reality was created; different types of
annexation were treated differently and their consequences varied,
one of the worst injustices being the fact that the 233 (1888–1889),
10 Annuaire IDI, pp. 177–184.
234 Cf. Salomon, L’occupation, pp. 94–96, Fisch, Die europäische

Expansion, pp. 330–332 and Despagnet, Essai, pp. 234–240.
235 Cf. e.g. Adam “Völkerrechtliche Okkupation,” pp. 276–281; Nys,

Le droit international, II, pp. 111–116.
236 For a critique, cf. e.g. Enrico Catellani, “Les possessions

africaines et le droit colonial de l’Italie” (1895), XXVII RDI, pp. 429–
430.
237 For the relations between the Hauptland and Nebenland in

Germany, cf. Heimburger, Erwerb, pp. 85–87.
151
inhabitants of the colony were regularly prevented from being

citizens and thus deprived of whatever benefit European sovereignty
might otherwise have entailed.238
The efforts of international lawyers to export formal sovereignty into
the colonies had been frustrated by political reality. Egypt, for
instance, remained formally a part of the Ottoman empire until the
British protectorate was declared in 1914. Yet it had been informally
ruled by the British since 1882. Since that time, there existed no
important Khedival administration or ministry that was not led by the
English: “Every minister has his English legal counsellor or under-
secretary for whom he only lends his name, while the provincial
administrators are themselves assisted by English moustechars . . .
As a result, the Khedive rules and England governs.”239
The requirement of effective administration over colonial territory

had already been limited quite drastically in the Berlin Act. In the
years that followed, it was further diluted so that by the turn of the
century extensive Hinterland claims and spheres of interest had
become part of a colonial routine whose validity was confirmed in
the Fashoda affair.
After the fall of Khartoum in 1885, the Sudan was vacated by

European or Egyptian forces and administered as part of the
Mahdiyya, a theocracy in perpetual jihad against the infidel under
the leadership of the Mahdi.240 Egypt had formally abandoned the
territory, described by one historian as “the largest, most militant
and most organized political entity ruled by Africans.”241 Since 1893,
Théophile Delcassé (1852–1923), the ambitious French under-
secretary of colonies, had entertained the idea of challenging British
hegemony in Egypt (as well as the plan for a unified “Cape to Cairo”
British African Empire) by undertaking a French advance from the
Congo towards the Nile in order to create a horizontal French belt
across Africa from the Atlantic to the Red Sea. The British responded
the following year by concluding a 238 J. Perrinjaquet, “Des
annexations déguisées de territoires” (1909), XVI RGDIP, pp.
316–367. Evidently, the author was unaware of the practice that
barred even inhabitants of formally annexed territories from full
citizenship.
239 Ed. Engelhardt, “Considérations historiques et juridiques sur les

protectorats”
(1892), XXIV RDI, p. 377.
240 The Mahdi, or Sheikh Muhammad Ahmad ‘Abd Allah, was the
leader of the Mahdist rebellion against the English and the de facto
ruler of the Sudan in 1885–1898.
241 Lewis, Fashoda, p. 137.
152
Sovereignty: a gift of civilization treaty with King Léopold in which

the territory immediately west from the Nilotic Sudan was leased to
him. The French were furious. Gabriel Hanotaux (1853–1944), the
Foreign Minister, held the treaty “zero with zero ramifications.”
Before ratification, Léopold changed his mind, however, and signed a
treaty with the French instead, giving France the territory of Upper
Ubangi that led straight from the French Congo to the Nile. Now it
was time for the British to be angry and in 1895 Foreign Secretary
Edward Grey made a declaration in which he affirmed the continued
validity of the Cape to Cairo plan and that any attempt to check this
– by foreign advance in the Nile region, for instance – would be
considered an “unfriendly act.”242
Nonetheless, the liberal lawyer Léon Bourgeois (of whom more in

chapter 3) who served at the time as the French Prime Minister,
approved of the plan to send a French occupation expedition, under
the leadership of captain Jean-Baptiste Marchand (1863–1934)
through the Sudan to establish French presence in the small island
of Fashoda, 469
miles south of Khartoum in the section of the White Nile that
traverses the Bahr al-Ghazal province of the Sudan. After an epic
journey of over two years, Marchand finally hoisted the French flag
in Fashoda on 10
July 1898.
Meanwhile, the British government had decided to avenge the loss

of Khartoum and to reoccupy the Sudan together with Egyptian
forces. For this purpose, Lord Kitchener had been sent to fight the
Mahdist der-vishes whom he defeated at Omdurman on September
2, 1898. In the morning of September 19 Kitchener appeared
outside Fashoda where his army of 24,000 men met with captain
Marchand’s handful of Europeans and 150 Senegalese tirailleurs. At a
polite rendez-vous not without theatrical qualities Kitchener offered
to facilitate an honorable withdrawal for Marchand who responded
that he and his men would rather die for La Patrie than retreat. After
a frantic series of exchanges between London and Paris, the danger
of full-scale war between the two countries was averted by the new
Foreign Minister Delcassé’s decision to give in: Marchand was
conveyed thanks and told to prepare the evacuation: “they have the
troops . . . we only have the arguments.”243
The French had assumed that the rules of the scramble had been
laid out in Berlin and based sovereign rights on actual occupation (or
at least 242 Lewis, Fashoda, pp. 47–59; Pakenham, Scramble for
Africa, pp. 465–467.
243 For the end of the Fashoda crisis, cf. e.g. Lewis, Fashoda, pp.
206–230 and the graphic description in Pakenham, Scramble for
Africa, pp. 524–556. The quote is from Pakenham, p. 552.
153

occupation by Europeans, for there had never been any question of
recognizing Mahdist sovereignty). From this perspective, the French
claim to Fashoda seemed the stronger one.244 After Egypt and
Britain had evacuated the Sudan in 1885, the territory had become a
terra nullius, available for effective occupation on a first-come-first-
served basis.245 Yet none of this worked out in Fashoda. The 1895
declaration by Sir Edward Grey of a British sphere of interest in the
whole of the Nile valley prevailed over French occupation. In the
agreement between Britain and France of March 1899 that settled
the affair and later in the treaties forming the Entente cordiale of
1904, there was no longer any pretence of effective occupation as
the governing rule for colonial title.
France and Britain agreed on spheres of interest inter se: in

exchange for a recognition of British predominance in Egypt and the
Sudan, France would receive a free hand in Morocco and Tunisia.
French lawyers who commented on the Fashoda affair shared the

disappointment of French public opinion – “Never was an affair
conducted in poorer way,” wrote Albert de Lapradelle (1871–1955) in
1899, outlining the many weaknesses even in the French legal
case:246 the doubts about whether Marchand’s small troop had
succeeded in establishing de facto effective occupation, the pathetic
argument about French title flowing from an agreement with the
indigenous Shilluks of the region, the express recognition by
Hanotaux a couple of years earlier of the Ottoman Empire’s
sovereignty in the region. But after Fashoda, international lawyers
could hardly continue to insist that colonial title could follow only
from setting up effective administration “to protect acquired rights,”
as required by the Berlin Act. The turn back from effective
occupation to abstractly delimited spheres of interest now became
an accepted means to manage imperial rivalry.247 In one sense, at
least, this was the more reasonable position: insisting on effective
occupation 244 Cf. e.g. Marcel Moye, Le droit des gens moderne
(Paris, Sirey, 1929), pp. 70–71.
245 Arthur Girault, “Chronique coloniale” (1898), X Revue de droit
public et la science politique en France et à l’étranger, pp. 461–462.
There was, however, an embarrassing uncertainty about the title of
the Ottoman Empire of which Egypt was – formally at least
– simply a province over the Sudan. Presumably it had not been in

the Egyptian Khedive’s power to renounce possessions of the Porte
after the Mahdist rebellion. If the English had no basis for their
claims over the Sudan, the French, too, may have been bound by
their earlier declarations not to encroach on the Porte’s possessions.
Cf. Georges Blanchard, “L’affaire Fachoda et le droit international”

(1899), VI RGDIP, pp. 390–427, esp. pp. 395–396, 418–421.
246 Cf. A. Geouffre De Lapradelle, “Chronique internationale”

(1899), XI Revue de droit public et science politique en France et à
l’étranger, pp. 295–297.
247 Cf. e.g. Mérignhac, Traité de droit public international, II, pp.
444–447.
154
Sovereignty: a gift of civilization would have only exacerbated

conflicts as enterprising colonial officials would have clashed on the
ground seeking to grasp as much territory as possible. In the Anglo-
French and Anglo-German treaties of 1890 the principal powers
divided West and East Africa between themselves without the
slightest concern over effectiveness of occupation: what was
important was not the setting up of administration for civilizing or
other purposes but to find a suitable quid pro quo on which to
guarantee interest in future expansion. The key provision of the
Anglo-French treaty of July 1898 on the Niger delimited spheres of
interest in territories that had hardly been visited by representatives
of the parties.248
The return to fictive sovereignty at the turn of the century was
surveyed by international lawyers with a sense of regret: even if the
new treaties provided a new means to fight the slave trade, they
were still seen by T. A. Walker (1862–1935) as an incident of “might
makes right” –
though he then consoled himself that they nonetheless belonged to

“the great Scheme of the World’s progress.”249 Many lawyers still
continued to write as if effective occupation were a principal legal
requirement of colonial title but accepted the fact of colonial
protectorates and spheres of interest as part of a reality they had to
reckon with.250 By 1914, occupation was no longer seen as an
instrument of civilizing mission. A more matter-of-fact type of
commentary took over in which the principal protagonists were the
colonial powers, not native populations. There was an implicit sense
that the civilizing mission had come to naught; the colonial question
was transformed into a balance of power problem in which there
was scarcely room for philanthropic or humanitarian ideals.
Legal commentary on the Act of Algeciras, for instance, was

exclusively devoted to analysis of its effects on the relations between
Britain, France, and Germany. The standard metaphoricreading of
Joseph Conrad’s Heart of Darkness was enacted in the lawyers’
colonial debates: but the journey down the river took place in
Europe and led to the cataclysm of 1914.
Perhaps the most striking effort to create European sovereignty –

and the greatest disappointment about the civilizing mission – can
be gleaned in 248 Cf. text and comment in Girault, “Chronique
coloniale,” pp. 454–459 and De Lapradelle, “Chronique
internationale,” pp. 280–284.
249 T. A. Walker, The Science of International Law (London, Clay,

1893), p. 161.
250 Fiore, “Du protectorat colonial,” pp. 151–153.
155
the story of the “Independent State of the Congo,” created in 1884–

1885 in part by the private activity of King Léopold II of the Belgians
and in part by the concerted action of European powers. The story is
familiar, so only its broad outlines need be recalled here. At
Léopold’s initiative, a conference of private explorers and scientific
experts set up in Brussels in September 1876 an Association
Internationale Africain (AIA).251 The initiative was enthusiastically
applauded by the Institut which understood it as having to do
principally with the suppression of slavery and slave trade in the
Congo basin.252 Rolin, for instance, commended the scientificand
philanthropicobjectives of his King though he also doubted whether
the setting up of stations in the region could always take place in a
peaceful way.253 Soon thereafter, as we have seen, Moynier and de
Laveleye suggested that an effort should be made for the
neutralization or internationalization of the river. Simultaneously,
Léopold employed Stanley first for his Comité des Etudes and in
1882 for the Association internationale du Congo (AIC) that was to
be the “diplomatic dress [in which] he would found the Congo Free
State.”254 By the deliberate confusion of these various bodies
Léopold was able to create the impression that a venture that was
essentially his private activity bore an international and humanitarian
purpose. The securing of the formal recognition of the United States
on April 22, 1884 for the Association as possessor of sovereignty
over the as yet undefined territory of the Congo was a crucial
breakthrough. By the closing of the Berlin Conference in February
1885 the blue flag of Léopold’s Association had become recognized
by all European States as the flag of a sovereign State and the
“Independent State of the Congo,” with King Léopold as its head of

State, was invited to adhere to the Berlin Act and thus became
formally bound by it.255
251 For the background, cf. Thomson, Fondation, pp. 41–53;

Dumont, Léopold II, pp.
150–159; Pakenham, Scramble for Africa, pp. 11–29, 239–255; Jan

Stengers, “Leopold II and the Association International du Congo,” in
Förster, Mommsen, and Robinson, Bismarck, Europe, and Africa, pp.
229–244 and Hochschild, King Leopold’s Ghost, pp. 61–87.
252 Reported in (1877), IX RDI, pp. 318–319.
253 Gustave Rolin-Jaequemyns, “L’oeuvre de l’exploration et de

civilization de l’Afrique centrale” (1877), IX RDI, pp. 288–291.
254 Pakenham, Scramble for Africa, p. 161.
255 Already the previous year, Léopold’s diplomacy in the United

States had borne fruit.
In the President’s address to the Congress of December 4, 1883, he

stated: “The objects of the society are philanthropic. It does not aim
at permanent political control, but seeks the neutrality of the valley.”
Pakenham, Scramble for Africa, p. 244.
For the story of the recognitions and of King Léopold’s deliberate

obfuscation of the nature and purposes of the Association cf. also
pp. 243–253 and Dumont, Léopold II, pp. 179–186, Thomson,
Fondation, pp. 147–162, and Hochschild, King Leopold’s Ghost, pp.
75–82.
156
Sovereignty: a gift of civilization The Independent State was not a

formal creation of the Berlin Conference. But nor was it simply the
effect of one man’s diplomacy either, as some accounts suggest, but
served a general European interest.
By agreeing on free navigation and free trade in the area European
States sought to secure maximal commercial advantage in the
enormous territory in the middle of Africa without administrative
burdens for any one of them.256 It is a well-known paradox that to
secure freedom of trade, someone has to be given exclusive rights
to enforce it. To deal with the paradox, the powers chose an
apparently neutral outsider with philanthropic pretensions.257 This is
why Belgian lawyers (Rolin and de Laveleye) were able to interpret
the arrangement as an international protectorate and to enlist the
enthusiasm of the Institut. After the Conference had ended, the
institute expressed its gratitude to King Léopold for having assumed
the humanitarian task of administering the Congo.258 The Baltic-
Russian Martens who doubted the colonial venture generally thanked
the King in gracious terms: “It is without a doubt that thanks to the
generosity and the political genius of King Léopold, the Congo State
will have a regime in full conformity with the requirements of
European culture.”259
But as soon as Léopold had received the endorsement of the

powers, he started building the unprecedented system of wealth-
extraction and servitude that characterized his rule over the territory.
In 1885 he passed a decree claiming all “vacant lands” as the
property of the State. This meant that all uncultivated areas outside
native villages – in practice over 90 percent of the country – became
at a stroke the private property of the King. Later decrees set up an
administrative system under which private companies (in many of
which Léopold himself was a substantial shareowner) were granted
concessionary monopolies to extract ivory and minerals, and in the
1890s especially rubber. New decrees from 1891–1892 prohibited
the inhabitants from collecting products received from the State’s
property. Unauthorized trade was severely punished. A labor tax was
introduced under which the inhabitants were expected to work in
principle forty hours a month in order to collect rubber for the State’s
purposes. Although such a system was in use in other colonial 256
As Robinson observes, the Congo Free State was an elaborate
(although faulty) attempt to provide a neutral, international
framework under a King whose “international credentials seemed
unimpeachable,” “The Conference in Berlin,” p. 23.
257 Cf. Robinson, “The Conference in Berlin,” p. 17.
258 Déclaration, Bruxelles 1885 (1885–1886), 8 Annuaire IDI, pp.

17–18.
259 F. de Martens, “La Conférence du Congo à Berlin et la politique

coloniale des états modernes” (1886), XVIII RDI, p. 268.
157
territories as well, in the Congo the number of hours was converted

to units of quantity (or rubber especially) that, together with the
system whereby administrators and company agents received
premiums on amounts of produce they were able to collect, turned
much of the population into full-time slave laborers. These and other
measures were administered with a ruthlessness that saw no
equivalent in the African colonies. No schools or hospitals were set
up during the King’s reign or other measures undertaken in
compliance with the provisions of the Berlin Act.260 Frequent
uprisings were suppressed by Léopold’s Force publique, whose
methods of warfare included massacres of the populations of whole
villages, the notorious severing of the hands of killed or sometimes
simply recalcitrant natives, and the destruction of native cattle and
crops.261 Though statistics of the period are unreliable, as many as
8–10
million Congolese died as a result of these measures.262
Criticism of the King’s rule first appeared in the international press in

the 1890s but increased towards the end of the century. Journalists
and missionaries reported on the reign of terror first sporadically but
thanks to the indefatigable energy of the humanitarian activist
Edmund Morel (1873–1924), soon methodologically and with
increasing effect at the political level. In 1903 the British House of
Commons passed a resolution calling for an international
examination of the allegations. In the same year an official report
was produced by the British consul in the Congo, Roger Casement
(1864–1916), that graphically described the practices of the King’s
administration and was of decisive importance in producing the
popular outrage that crystallized in the creation of the Congo Reform
Association of which Morel became the head.263 The Casement
Report was followed up by a number of similar documents by British
and American consuls, and also a 1905
report by a Commission of Inquiry set up by Léopold himself that

detailed additional facts of the system of slave labor in the Congo.
Finally the pressure on the King built up to the extent that he was
compelled to transfer the territory to Belgium in 1908 – though not
without 260 There is a wealth of writing on the system of
administration set up in the Congo in and after 1885. Cf. e.g. Roger
Anstey, King Leopold’s Legacy: The Congo under Belgian Rule 1908–
1960 (Oxford University Press, 1966), pp. 1–10. The facts were
revealed to Belgian audiences by Félicien Cattier, Etude sur la
situation de l’Etat indépendant du Congo (Brussels and Paris, Larcier
and Pedone, 1906). A more recent account is Hochschild, King
Leopold’s Ghost, pp. 115–181.
261 On the Swahili wars, cf. Lewis, Fashoda, pp. 61–72.
262 Lewis, Fashoda, p. 92; Hochschild, King Leopold’s Ghost, p. 233.
263 Anstey, King Leopold’s Legacy, p. 12.
158
Sovereignty: a gift of civilization a sizeable financial

compensation.264 Belgian behavior in the Congo continued,
however, to remain subject to criticism until the Congo Reform
Association was dismantled in 1913 and the oncoming war directed
popular attention elsewhere.
What attitude did international lawyers take in this process? After

1885, textbooks regularly made a note of the anomalous birth
history of the Independent State, of the personal union that existed
between Belgium and the Congo, and of the neutralization and
freedom of navigation regimes that were applicable on paper in its
territory. Until 1908, however, they did not normally include any
mention of the humanitarian criticisms of the possible violation by
the King of the Berlin Act.265
In the 1890s French lawyers sometimes commented upon the

recurrent negotiations between King Léopold and the Belgian
Government concerning the eventual Belgian annexation of the
Congo.266 No in-depth studies of the situation in the country – that
is to say, on its compliance with the provisions of the Berlin Act –
were undertaken by international lawyers. A significant exception to
this general silence, however, is constituted by a few Belgian studies
on the laws and practices of the Independent State. A first general
overview of the treatment of the native population, clearly directed
to foreigners, was written by Félicien Cattier (1869–1946), privat-
docent and professor of public law at the University of Brussels and
later Chairman of the Union minière du-Haut-Katanga (1932–1939
and 1944–1946), in Rolin’s review in 1895. By reference to legislative
texts from the Congo administration, and without an independent
examination of how they were applied, Cattier sought to
demonstrate the admirable way in which the Independent State had
fulfilled its humanitarian obligations.267 The “general spirit” of the
administration was, Cattier wrote, to leave as many native
institutions as possible to continue as before – although often the
inhabitants themselves sought assistance from European laws or
tribunals. A slow but perceptible change was underway in the “native
mentality” that induced the inhabitants to cultivate the habit of work
in order to receive the benefits of civilization. All native rights were
recognized by the legislation in 264 For the Congo reform movement
and the annexation of the Congo by Belgium, cf.
Dumont, Leopold II, pp. 275–317; Hochschild, King Leopold’s Ghost,

pp. 185–305.
265 Cf. e.g. Bonfils–Fauchille, Manuel, pp. 81–82, 178; von Liszt,
Das Völkerrecht, pp. 40, 43–44 passim.
266 The French had an obvious interest in the annexation inasmuch

as Léopold had in 1884 promised France a right of first option if he
decided to give up the territory.
267 F. Cattier, “L’Etat indépendant du Congo et les indigènes”

(1895), XXVII RDI, pp.
263–281.
159
force, which also contained severe penalties for misbehavior. All in

all, he concluded that ”the totality of the measures taken form a full
body of legislation whose application protects the indigenous people
against all forms of oppression and exploitation.”268
The article was an altogether clumsy work of propaganda and can

only partly be excused by Cattier’s later disillusionment with the
King’s operations and his taking a visible role in advocating the
handing over of the country to Belgium – “the Belgian solution.”
Cattier’s 1906 Etude sur la situation de l’Etat indépendant du Congo
created a shock in Belgian political milieus and contributed
significantly to the transformation of attitudes in favor of immediate
annexation. The target of the book was, however, less the
humanitarian aspects of the King’s reign than his having stowed
away on personal accounts millions of francs borrowed from the
Belgian State ostensibly to pay off Congo’s budget deficit. But Cattier
also had an audience with the British Foreign Secretary, Lord Grey,
arranged through the Congo Reform Association, whom he seems to
have impressed with his Belgian solution.269
None of the other Belgian lawyers, however, expressed public

criticism towards the Congo administration. Both Rolin and his friend
Rivier from Brussels had been appointed members of the Conseil
supérieur of the Independent State, an appeals body that was set up
by Léopold to respond to the growing criticisms. Both had already
left the scene in 1903 as the international campaign against Léopold
became official. At that moment, however, the most visible Belgian
international lawyers Ernest Nys (1851–1921) and Baron Edouard
Descamps (1847–1933) rallied to the vocal defense of their King.270
Nys, a distinguished legal historian, Professor of International Law at
the University of Brussels, and member of the Institut, wrote a series
of articles as a response to the British notes verbales, completely
rejecting accusations on inhuman treatment or breach of the free
trade or navigation provisions.271 He responded to the British with a
series of tu quoque arguments: every State 268 Cattier, “L’Etat
indépendent du Congo,” p. 281.
269 Cattier, L’Etude sur la situation, pp. 353–358; Anstey, King

Leopold’s Legacy, pp. 10, 15; Dumont, Léopold II, pp. 300–303;
Pakenham, Scramble for Africa, pp. 644–645, 657.
270 Cf. Ernest Nys, “L’état indépendant du Congo et le droit

international” (1903), 2/V
RDI, pp. 333–379; le chevalier Descamps, “Le différend anglo-

congolais” (1904), 2/VI RDI, pp. 233–259.
271 Ernest Nys, “L’état indépendant du Congo et les dispositions de

l’acte générale de Berlin” (1903), 2/V RDI, 1903, pp. 315–332 and
“L’état indépendant du Congo et le droit international,” pp. 333–379.
160
Sovereignty: a gift of civilization considered vacant lands as State
property; all colonial powers used methods that were in use in the
Congo. How the State dealt with vacant lands was in any case not a
matter for international law but for the State’s own constitutional
and private law to resolve. “A State uses the territories that
constitute its private domain as it wishes; it sells them, it rents them
out, it attaches such conditions to the concessions it grants as it
sees warranted . . . in none of this does it owe an explanation to
other States.”272 No violation of the free trade provisions of the
Berlin Act was involved, Nys claimed. Neither State ownership of
vacant lands nor the granting of concessionary rights constituted a
monopoly under Article 5 which prohibited the parties only from
establishing “any kind of commercial monopoly or privilege”
(“monopole et privilège d’aucune sorte en matière commerciale”):
this concerned only the right to buy and sell, to import and to
export, and had nothing to do with property rights over natural
resources.273 In a lengthy, pedantic survey of the status of the
Congo State in light of the events of 1884–1885 Nys joined the other
Belgians in arguing that the recognitions did not possess constitutive
character and that in any case, neither they nor the obligations of
the Berlin Act conditioned the statehood of the Congo in any
way.274 He maintained that the Congo had carefully complied with
all the provisions of the Berlin Act, including those having to do with
the protection of the indigenous people: “The Independent State of
the Congo has not neglected any effort, has not spared itself any
sacrifice in order to realize the humanitarian wishes of the
Conference of Berlin of 1884 and 1885.”275
In the following year Nys was joined by Descamps, Professor of

International Law from Louvain, a Catholic politician, advocate of
international arbitration, and a member of the Belgian delegation at
the Hague Peace Conference of 1899. Descamps later received fame
as the member of the Comité des juristes that drafted the Statute of
the Permanent Court of International Justice on whose proposal
“general principles of law recognized by civilized nations” were
inserted in the list 272 Nys, “L’état indépendant du Congo et les
dispositions de l’acte générale,” p. 328.
273 Nys, “L’état indépendant du Congo et les dispositions de l’acte

générale,” pp.
329–332.
274 Nys, “L’état indépendant du Congo et le droit international,” pp.

333–371.
275 “L’Etat indépendant du Congo n’a négligé aucun effort, ne s’est

épargné aucun sacrifice pour réaliser les voeux humanitaires de la
conférence de Berlin de 1884 et de 1885,” Nys, “L’état indépendant
du Congo et le droit international,” p. 373. As proof he cited an
official June 1903 report from the Congo.
161
of sources the Court was to apply.276 Now he published a colonialist

tract, L’Afrique nouvelle, speculating on the advantages small
European countries such as Belgium as well as Africa itself would
receive from colonization. The book was an over 600-page attempt
to refute the attacks against the administration of the Congo from
the outside – oddly out of balance, however, by never identifying the
attacks that provided its source of energy. In form, it was a history
of the Independent State from the Berlin Act to the country’s present
administrative structures. Much space was devoted to proving that
the Berlin Act had created an economic regime of freedom of
commerce and not ownership against those who “have tried to . . .
deny the right of the State.”277 The labor tax was defended as a
natural form of collecting revenues in African society –
rather like military service. In the hands of civilized government, it

also taught the natives the value “of regular employment and thus
began the work for their moral and material improvement.”278
Whatever problems might have emerged in its application should not
be rashly accredited to the State.279 The book stressed the King’s
personal role as the century’s greatest philanthropist, fighter against
the slave trade, and initiator of an altogether new phase in African
colonization. Everything possible had been done for the civilizing
purpose; autocracy was necessary – but gradually even the (mature)
natives would receive rights of citizenship.280
Critics had “exaggerated the facts, generalized from isolated cases,

or formulated impossible demands.”281 Behind the criticisms had
been
“certain individuals that are unsatisfied for divers reasons, are in a

bad mood and throw their complaints to the winds.”282 For
Descamps, colonization of Africa was not only justified but “decreed
by the double law of conservation and progress that is a proper law
of humanity.”283
In 1904 he returned to the matter in Rolin’s Revue with the specific

intent of responding to the Casement Report.284 Like many
Belgians, 276 Descamps was an active politician, member of the
provincial council of Brabant and of the Belgian Senate after 1892.
He was Secretary-General and President of the Inter-Parliamentary
Union and Minister of Arts and Sciences in 1907–1910. For
biographies, cf. A. De Lapradelle, Maîtres et doctrines du droit des
gens (2nd edn., Paris, Editions internationales, 1950), pp. 325–335;
Arthur Eyffinger, The 1899 Hague Peace Conference (The Hague and
Boston, Kluwer, 1999), pp. 135–136.
277 Descamps, L’Afrique nouvelle, pp. 132, 201–207.
278 Descamps, L’Afrique nouvelle, pp. 140, 150–153.
279 Descamps, L’Afrique nouvelle, p. 259.

280 Such rights were already enjoyed by the non-indigenous
Congolese, Descamps, L’Afrique nouvelle, pp. 278–283, 301–305.
284 Descamps, “Le différend Anglo-Congolais,” pp. 233–259.
162
Sovereignty: a gift of civilization Descamps assumed that the attacks

were based on ulterior motives: the economic interests of
Manchester and Liverpool, a wish to direct attention away from
Britain’s own colonial problems. His substantive response consisted
of three points. First, every State needed to make sure that vacant
lands are not left for spoliation (something he assumed an automatic
effect of “primitive” Congolese agriculture). Second, the
humanitarian complaints were in part correct, in part based on
mistaken or exaggerated facts. Even as problems had emerged,
there was no evidence that they were caused by the State rather
than by individual administrators or traders – and action had been
taken to punish them and prevent their re-occurrence. Third,
Descamps denied that the Berlin Act established any international
supervision. Arbitration, for instance, as proposed by the British note
verbal was out of the question: the provision on the amelioration of
the condition of the natives delegated the State a wide discretion on
how this should take place. “As such, this engagement is manifestly
not among those to which the parties of the Berlin Act had intended
to accord each other perfect rights that would involve the authority
to exercise their fulfillment or to control their exercise.”285
Apart from the apologies by Nys and Descamps, the international

law community stayed silent during the peak years of the Congo
controversy, 1903–1908. The indifference of international lawyers is
perhaps best demonstrated by the absence of any reaction to Cattier
in 1895 or to Nys and Descamps in 1903 and 1904, despite the fact
that by the latter date extensive information on the red-rubber
policies of the Congo was readily available. Bearing in mind the pride
Institut members took in having initiated international action in the
Congo in 1878, and their enthusiasm for Léopold’s early efforts, it
seems odd that neither they nor the Institut took a position in regard
to the problems. To be sure, many of the early Congo activists had
died by 1903 (in addition to Rolin and Rivier, also De Laveleye in
1892 and Twiss in 1897). But Moynier, for instance, had in 1890
become honorary consul of the Congo in Switzerland and continued
to write about African and other affairs until his death in 1910. As
his biographer notes, his silence over the treatment of the Congolese
“throws a shadow over the memory of the philanthropist.”286
Westlake who often commented on African events and disputes, and
who felt no scruple to criticize European behavior in the Balkans,
285 Descamps, “Le différend Anglo-Congolais,” p. 245.
286 Bernard Bouvier, Gustave Moynier (Geneva, Imprimerie du

Journal du Genève, 1918), p. 33 n1.
163
never wrote on the practices of the Independent State – apart from

commenting on its birth history and neutralization.287 Even as the
anti-Congolese movement became part of British foreign policy and
British radicals were indicting King Léopold in the House of
Commons, Westlake did not feel a need to examine the matter from
an international law perspective.288
Although a number of French lawyers discussed the status of the

Independent State, and the plans of annexation by Belgium, they
held aloof from criticisms voiced by the Congo Reform Association –
possibly because many of such accusations might have been
directed at the practices in the French Congo that had been
administered by private companies since the late 1890s after
Léopold’s model and whose rubber-rich regions experienced a
comparable loss of population – in some areas up to 50 percent.289
Only after 1908, after the transformation of the Congo into a Belgian
colony, did international lawyers feel able to say something about
the way the King had exercised his sovereignty. Frantz Despagnet
(1857–1906), for example, inserted a passage in his treatise in
which he speculated that the Congo State might have violated the
Berlin Act and that the situation had been “perhaps illegal and
certainly contrary to humanity and morality.”290 The same
conclusion was made also by Jesse Reeves (1872–1942) in his
survey in the American Journal of International Law of the status of
the Independent State after its incorporation as a Belgian colony in
1909.291
The actuality of the matter in 1908 is explained by the fact that

some of the powers –in particular Great Britain – refrained from
recognizing the annexation of the Independent State – less perhaps
as protest against the treatment of its population than owing to a
sense that as the Congo 287 Westlake, International Law, I, pp. 30,
46.
288 Westlake continued publishing until his death in 1913 but none
of his (published) writings dealt with the humanitarian problem in
the Congo. For bibliography, cf.
Memories of John Westlake (London, Smith & Elder, 1914),

Appendix, pp. 147–154. It is difficult to see why this was so. He
regularly commented on the ongoing disputes in which Britain was
involved. He may have agreed with Nys that the matter was purely
an internal or constitutional one or, more charitably, held it
unnecessary to add his voice to the anyway quite loud British
criticisms against the country of so many of his old friends.
289 Hochschild, King Leopold’s Ghost, p. 280. For detailed statistics,
cf. Catherine Coquery-Vidrovitch, Le Congo au temps des grands
compagnies concessionaires 1898–1930 (Paris and The Hague,
Mouton, 1972), pp. 494–506.
290 Frantz Despagnet, Cours de droit international public (4th edn.,

Paris, Sirey, 1910), p. 101.
291 Jesse S. Reeves, “The Origin of the Congo Free State,

Considered from the Standpoint of International Law” (1909), 3
American Journal of International Law ( AJIL), pp. 117–118.
164
Sovereignty: a gift of civilization had been created through

international action, its future fate should also be decided
internationally. The debate among international lawyers thus focused
on the formal status of the Independent State, on whether it owed
its sovereignty to the powers that recognized it and which might
now be able to “derecognize” it and to take its fate into their hands
– or whether its statehood arose independently of the recognitions
and the King’s cession to Belgium was fully valid.292 The proposal of
international action, however, soon showed itself unrealistic and
most international lawyers probably agreed with the conclusion that
“[i]t was the anomalous character in international law of the State
which has made the Congo question so difficult of treatment” and
that the anomaly could now finally be disposed of as: “the Congo
Free State now passes out of existence and becomes in fact what it
should have been long ago, a Belgian colony.”293
This view captures the original understanding of the international

lawyers that the work of civilization went hand in hand with public
law sovereignty. Though the Congo venture was initiated as an
extension of European sovereignty into Africa, it failed, and the task
was to explain precisely in what that failure resided. For Reeves as
for other international lawyers, the original colonial project remained
viable and the Congo State had failed only because it had deviated
from that project. No real public law sovereignty had ever come into
existence in the Congo.
As Cattier argued in his indictment of 1906: The Independent State

was
“not a colonial power; it [was] a financial enterprise . . .

administered neither in the interests of the indigenous people nor
even in the interests of Belgium [but] for the benefit of the King-
Sovereign.”294 The annexation by Belgium brought the Congo within
the steady advance of civilization by ensuring that the arbitrary reign
of private interest and privilege would no longer prevail:
as a colony it will become subject to government by discussion. In a

country where party strife is active, where liberal ideas find such
ready expression, responsible parliamentary government must surely
be a guaranty that the provisions of the Berlin Act will be observed
in spirit as well as in letter295
Though probably correct, this explanation reveals a blind spot

among international lawyers towards the atrocities that went on at
the same time in “normal” or “legitimate” French or German colonies
in Africa 292 Cf. in particular, Paul Errera, “Le Congo belge” (1908),
28 Revue de droit public et de la science politique en France et à
l’étranger, pp. 730–753.
293 Reeves, “The Origin of the Congo Free State,” p. 118.
294 Cattier, Etude sur la situation, p. 341 .
295 Reeves, “The Origin of the Congo Free State,” p. 118.
165

and on which they kept an equal or even fuller silence than on the
Congo. These cases were no anomalies.
The first decade of the twentieth century saw not only a regime of
terror in King Léopold’s realm but also in the French Congo as well
as in German South West Africa, where of an estimated Herero
population of 80,000 in 1903 fewer than 20,000 were alive after
General Lieutenant von Trotha’s extermination order (
Vernichtungsbefehl ) had been put into effect in 1906.296 Neither
the Institut nor international lawyers individually felt it necessary to
draw attention to these events, occurring as they did as parts of
mainstream imperialism by European great powers. It was easy for
international lawyers such as Rolin or Westlake to appeal against the
slaughter of Armenian Christians by Turkey, or in favor of Finland’s
autonomous status within the Russian empire. In these conflicts, the
threat came from the outside, and was directed at apparently
European cultural and political values. When the threat came from
formal (colonial) States, however, and was directed against
communities sharing little of what Europeans held valuable, the
matter became difficult. Attention to them would either have
destroyed the myth of the inseparability of European public law
sovereignty and civilization, or it would have posed questions about
the meaning of sovereignty whose implications would no longer have
been confined to the margins but would have struck at the heart of
the legitimating principle of Europe’s own political order.
One obvious paradox should have set alarm bells ringing that all was
not right. The argument about the civilizing mission was completely
unhelpful as discussion turned to disputes between the colonial
powers themselves. Reading through the first three decades of
Rolin’s Revue, one gets no sense that colonization was viewed as a
common European venture. Although all lawyers spoke in terms of a
homogeneous
“Europe” acting upon an equally homogeneous “Orient,” in fact

everyone’s conscience juridique supported the controversial colonial
policy of his homeland. The British lawyers accepted British
colonialism in a matter of fact way, having a much more liberal view
of the activities of colonial companies than their continental
colleagues. Westlake’s writings on the Anglo-Portuguese conflict in
Southern Africa or between England and 296 Pakenham, Scramble
for Africa, pp. 611–615.
166
Sovereignty: a gift of civilization the Boers faithfully ratified the

British positions.297 The German international law community saw
colonization as a natural part of Germany’s development into a
leading European power.298 No questions about the justification of
expansion were posed: everybody did it and the only problem was
that Germany had made its move late in the day. No critical accounts
were published by German international lawyers of the extreme
brutality with which the native uprisings were suppressed. In the
relevant years 1900–1914, the Archiv des öffentlichen Rechts that
had earlier devoted a number of studies to colonial questions
remained silent.
The criticism of commercial colonization by French lawyers was

initially quite compatible with French colonial policy. When the
French, too, turned increasingly from the 1890s to colonial
companies, the criticisms diminished.299 In disputes with other
powers, French lawyers loyally underwrote French positions. The
historian and geographer Henri Castonnet des Fossés (1846–1898)
had no doubt that the French annexation of Madagascar in 1884 was
based on effective possession and consent – the Hovas having been
incited to rebellion by the British.300 Engelhardt defended the
French protectorates in North Africa and the Far East. After the 1904
entente with Britain and Germany in North Africa, French lawyers
turned their attention away from colonial matters – they were
removed from the realm of the international. Their patriotism
remained unshaken, however. In 1920 Marcel Moye (1873–1939),
Professor of International Law at Montpellier, continued to make a
sharp distinction between French and non-French colonialism. He
contrasted the “regrettable acts” undertaken in the Congo with
French North Africa that had, in his view, become “sans contredit un
des 297 Cf. e.g. John Westlake, “L’Angleterre et la République Sud-
Africaine” (1896), XXVIII RDI, pp. 268–300.
298 Geffcken, “L’Allemagne et la question coloniale,” p. 131. He also

defends the way German colonizers put indigenous cultivation under
European supervision – this was both morally and commercially
defensible.
299 The main critic being Jèze. Good reviews of the new French
attitudes towards colonization through commerce in the 1890s are to
be found in Coquery-Vidrovitch, Le Congo, pp. 25–30 and Pierre
Guillen, L’expansion (Politique étrangère de la France 1881–1898,
Paris, Imprimerie nationale, 1984), pp. 53–69. Despagnet draws
critical attention to this practice in the second edition of his Cours de
droit international public, pp. 429–432.
300 H. Castonnet des Fosses, “Les droits de la France sur

Madagascar” (1885), XVII RDI, 1885, p. 442. The French arguments
are challenged in E.-L. Catellani, “Les droits de la France sur
Madagascar et le dernier traité de paix” 1886, XVIII RDI, pp. 151–
158.
167
plus belles colonies du monde” – passing over in silence the

continued popular resistance in Algeria and Morocco.301
The Belgians, as we have seen, apart from Cattier (who was not an
inter-
national lawyer) were united in the rejection of the criticisms of King

Léopold’s rule in the Congo. Fedor Martens – otherwise a
skepticabout colonization – engaged in a lengthy polemic with
Westlake to defend the Russian penetration into the Caucasus.302
Manuel Torres Campos (1853–1918) saw Spain as the great civilizing
force in the dark continent and foresaw a development of four great
linguisticempires (English, Chinese, Russian, and Spanish) in which
Spain would be “the great representative of the Latin family.”303
Even Catellani, whom we met at the outset of this chapter
complaining about the dominance of force in international relations,
defended the Italian annexation of Assab and Massawa on the Red
Sea in the 1880s. He hoped that Abyssinia would see in Italy “a
sincere friend and a precious ally” and regarded it as perfectly
natural for Italy to plan the colonization of Tripolitania in order not to
fall into the status of a second-rate power.304 In particular, Catellani
defended the Italian reading of the Treaty of Ucciali (1889) against
Abyssinia’s Menelik in the controversy about whether the Treaty
created an Italian protectorate over the country.305 Though he did
not precisely advocate an Italian attack on Abyssinia, when that
attack came, and with it Italian disaster at the battle of Adowa on
March 1, 1896, he poured his disappointment into the indictment of
the use of force by colonial powers generally in his critical overview
of fin-de-siècle international law.306
That international lawyers moved so easily from arguments about

the civilizing mission to supporting the controversial policies of their
native country should have signaled to them that no single
civilization spoke in their voice. The sovereignty which they offered
to the colonies was more 301 Marcel Moye, Le droit des gens
moderne. Précis élémentaire à l’usage des étudiants des facultés de
droit (Paris, Sirey, 1920), p. 81.
302 Fedor Martens, “Chronique de droit international. La Russie et

l’Angleterre dans l’Asie centrale” (1879), XI RDI, pp. 227–301. For
his rejoinder to Westlake cf. (1880), XII RDI, pp. 47–59.
303 M. Torres Campos, “L’Espagne en Afrique” (1892), XXIV RDI, pp.

445, 472–473.
304 M. E. Catellani, “La politique coloniale de l’Italie” (1885), XVII
RDI, pp. 227–228, 236–237, 238. But he did prefer that Tripolitania
remain a part of the Ottoman Empire.
305 M. E. Catellani, “Les possessions africaines et le droit colonial de

l’Italie” (1895), XXVII RDI, pp. 423–425.
306 At Adowa, Menelik’s force of 100,000 completely wiped out the

Italian invasion force of 20,000. By the end of the battle, half the
Italians were dead, wounded, or missing.
168
Sovereignty: a gift of civilization an instrument for inter-European

struggle than a program to reorganize non-European society. Aside
from failing to forestall conflicts between European powers,
sovereignty proved disappointing in two ways. First, it was rarely
exported outside the metropolitan territory in an effective way. By
1904 colonial protectorates, spheres of interest and Hinterland
claims, and forms of indirect rule had become accepted parts of
empire.
Indigenous Kings and other notables continued to rule “as quasi-

employees of the colonial administration.”307 The African colonial
entity remained an abstraction: its forty or so colonial territories had
been amalgamated out of approximately 10,000 indigenous units. In
Nigeria, the ratio of British administrators to native inhabitants was
1:100,000.308 Political emancipation could hardly be achieved under
such conditions. Thus, as the first African elites graduated from
European universities, their nationalism remained a work of
imagination that, when it strove for African sovereignty, could be
initially dismissed as practically irrelevant.
But second, where sovereignty did become a reality – as it did in the

Congo – its beneficiality was far from evident. When Descamps and
Nys claimed that the Congo administration was an internal affair,
they detached sovereignty from its liberal justifications. The Congo
situation showed that sovereignty and civilization did not
automatically go hand in hand and that they did not because
sovereignty had no determined meaning. It could be associated with
liberality and with tyranny, it could justify a limited State that
delegated its power to private actors, or an interventionist State –
just as it could carry out a politics of assimilation or association (and
more frequently hovered between the two). As abstract status it did
not dictate any specific colonial policy – after all, it had not replaced
the need for domestic politics in the metropolitan territories either. It
merely created a right of exclusivity in its European holder.
It was their failure to spell out the meaning of sovereignty in social

and political terms, as applied in non-European territory, that in
retrospect made international lawyers seem such hopeless apologists
of empire. This failure, again, was related to the ignorance of the
lawyers of the conditions in the Orient. When an attempt was made
by the Insti-
tut to conduct a study of those conditions, the result was a

perplexing variety of data that seemed to exclude all general
conclusions. This lack 307 Alexandrowicz, The African-European
Confrontation, p. 111.
308 Cf. e.g. H. S. Wilson, African Decolonization (London and New

York, Edward Arnold, 1994), pp. 11–26.
169
of a substantive policy of legal reform made the profession fall back

on generalities about the civilizing mission – with the risk that
supporting the more or less controversial colonial policies of this or
that European power involved them every now and then in the
quarrels that were waged in European parliaments. In this situation,
international lawyers found little room in which to argue in a
distinctly professional way – until the failures of sovereignty gave
rise to arguments about the internationalization of the civilizing
mission.
In Europe, as we saw in chapter 1, liberal lawyers stressed the need

to balance nationalism with an enlightened esprit d’internationalité.
If sovereignty failed to further the civilizing mission in the colonies,
why not extend the internationalist spirit there as well? Such an
argument had been made already in Joseph Hornung’s five articles
in Rolin’s journal in 1885–1886. Not only must European intervention
be organized in a collective way, he had written, its objective must
be a Kantian Völkerstaat:
“directed in the common interest by the most enlightened and the

most liberal States.”309 Other lawyers, too, had defined colonization
in international terms. Rolin and de Laveleye had interpreted
Léopold’s rule in the Congo as an international mandate. Catellani
redefined “colonial protectorate” as an international protectorate,
emphasizing – like Lord Lugard, the leading British colonial ideologist
– the colonial power’s
“dual mandate” towards the population as well as other powers

(particularly in terms of commercial access).310 When Moynier and
de Laveleye anticipated inter-European conflict in the Congo, they
proposed the “neutralization” of the area to provide for free trade,
freedom of navigation and the duties of civilization.
There were only a few precedents for such proposals: the

internationalization applied to European rivers and to a few
protectorates since 1815, the administration of treaty ports in China
and Japan, perhaps the joint financial administration of Egypt by
leading European powers, and consular cooperation between
Europeans in key Oriental regions.
These arrangements were not conceived as international

administration but as forms of practical coordination between
interested powers. They were often controversial, temporary, and
anything but central to the civilizing mission. By 1945, however, the
League of Nations would cite them (together with the Berlin
Conference) as early precedents for the 309 Hornung, “Civilisés et
barbares” (part 3), pp. 542–544.
310 Catellani, “Les possessions africaines,” p. 421.
170
Sovereignty: a gift of civilization mandates system that was set up

under Article 22 of the Covenant.311
By that time, the doctrine of the “sacred trust of civilization” had

replaced formal European imperialism as the perspective from which
international law conceived Europe’s outside. In a few years, it was
transformed into the notion of trusteeship under the United Nations
Charter that, for its part, became only an interim status leading to
political sovereignty for non-European territories.312
At the end of the First World War, popular opinion had turned
decisively against formal empire. Territorial gains had also been
excluded from the Allied war aims. Thus the question arose what to
do with the former German colonies and the non-Turkish parts of the
Ottoman empire that had been handed over to the entente
powers.313 As one among his fourteen points, President Wilson
declared to the US Senate in early 1919 that the subject peoples’
interests should be at the same level as those of established powers
and that the “well-being of peoples not yet able to stand by
themselves . . . forms a sac red trust of civilization.” As is well
known, the result was limited League supervision of three classes of
former German and Turkish colonies: the “A” mandates (Syria and
Lebanon, Palestine and Transjordan, and Iraq), that received internal
self-government and were expected to become independent at a
future date, the “B” mandates (the Cameroons, Togoland,
Tanganyika, Rwanda-Urundi) for whose administration the
mandatory remained responsible, and the “C” mandates (South West
Africa and the Pacific Islands) that were to be administered as
integral parts of the Mandatory’s territory.314 It was unclear how the
system should be legally characterized. The involvement of the Allied
Supreme Council, the Mandatory powers, the League and individual
States (especially the United States) created a long-standing
controversy on where sovereignty over the mandated territories lay,
and how wide-ranging were the duties 311 Cf. The League of
Nations, The Mandates System; Origin – Principles – Applications
(League of Nations Publications, Geneva, 1945), pp. 7–13. Cf. also
Alexandrowicz, The European–African Confrontation, pp. 115–116.
312 R. N. Chowdhury, International Mandates and Trusteeship

Systems. A Comparative Study (The Hague, Nijhoff, 1955) contains a
well-founded criticism of the anachronism in attempts to “see” the
origin of the mandates in the writings of nineteenth-century jurists
and the Berlin Conference, pp. 13–24.
313 The distribution was carried out within the Allied Supreme
Council in January 1919.
314 For the establishment of the mandates system, cf. e.g. Albert
Millot, Les mandats internationaux. Etude sur l’application de l’article
22 du Pacte de la Société des Nations (Paris, Larose, 1924), pp. 5–
86.
171
of the mandatory power and those of the relevant League organ

(the Permanent Mandates Commission, PMC) were.315
Whatever position lawyers took in the complex debates about where

sovereignty with regard to the mandates lay, it soon became clear
that there was something artificial about that question.316
Sovereignty was not a unitary attribute that either was present or
absent so that once it was known where it lay, controversies over
the rights of the protagonists would be resolved. On the contrary,
the abstract question of sovereignty was distinguished from the
rights and duties that were distributed in a complex way between
the five parties: the mandated territory and its population, the
mandatory power, the Allied Supreme Council, the League of
Nations, League members. Lawyers such as Henri Rolin (1874–
1946), Professor at the University of Brussels, specialist in colonial
law, who argued that formal sovereignty lay with the mandatory
immediately added that it was, however, limited in a number of ways
vis-à-vis the territory and League organs.317 Those who argued that
sovereignty lay with the territory itself needed to make fine
distinctions between the way it lay in regard to the three classes of
mandates and in relation to the mandatory power on the one hand,
and League organs on the other.318
And there were almost as many intermediate positions as there were

interested lawyers. In addition, each mandate was governed by the
provisions in its specificmandate agreement so that the resulting
diversity could not be described under a unitary concept of
sovereignty at all.
Such parceling of sovereignty became quite central to the

reconstructive scholarship of the 1920s that threw its whole weight
against what James Brierly (1881–1955), the occupant of the
Chichele Chair in Oxford, called “the extravagances of an anti-social
nationalism.”319
The First World War had destroyed belief in political sovereignty in

Europe. European lawyers were arguing that there was no
“sovereignty” in abstraction from the competencies States had or
from the way they were bound into a network of economic and other
relations with others, preparing ground for the profession’s “turn to
international 315 For one overview of positions cf. L. Oppenheim,
International Law. A Treatise (2 vols., 4th edn. by Arnold McNair,
London, Longmans, 1928), I – Peace, pp. 213–215. Cf.
also Chowdhury, International Mandates, pp. 220–226.
316 Francis B. Sayre, “Legal Problems Arising from the United

Nations Trusteeship System” (1948), 42 AJIL, pp. 271–272.
317 Cf. Henri Rolin, “Le système des mandats coloniaux” (1920),
III/1 RDI, pp.
329–363.
318 Millot, Les mandats, pp. 91–167.
319 James Brierly, “The Shortcomings of International Law” (1924),

V British Year Book of International Law ( BYIL), p. 15.
172
Sovereignty: a gift of civilization institutions.”320 Brierly was still

criticizing sovereignty in the interests of Great Powers. Now an
increasing number of lawyers connected that critique
with
federalist
proposals.
Sir
John
Fischer
Williams
(1870–1947) observed at the end of the decade the presence of a

“feeling so widespread among the general publicthat international
law is largely a failure.” With many others, he suggested that “it is in
the Covenant of the League of Nations and its development that a
remedy may be looked for.” Sovereignty was to be understood as the
realm of private freedom that international law left to the State.321
In 1923 the Permanent Court of International Justice had already
stated that sovereignty had no fixed content but was wholly
dependent on the development of
international relations. In its Wimbledon judgment it distinguished

between sovereignty and sovereign rights: the fact that a State was
sovereign did not mean that it could not have contracted out any
number of rights. Its sovereignty was not in conflict with binding
law; on the contrary, its ability to bind itself was an attribute of its
sovereignty.322 Equally compatible with the situation of a State
living in hermeticisolation as with a State in a tightly woven network
of obligations, legal sovereignty now became a “bundle of rights and
duties,”
determined from within an overriding international order.323
If sovereignty could fail in Europe, it could equally well fail in the

colonies. As critiques of sovereignty became louder, they were
accompanied by a new language through which to conduct the
civilizing mission as well. The mandates grew to represent a form of
colonial administration no longer carried out by single colonial
sovereigns but by the “international community.” By the 1930s, it
had become well established in French colonial law, for instance,
that mandates constituted a form of international administration,
implemented by the administering power on behalf of the
international community as represented by the League.324 In 1931,
the Institut de droit international, too, defined the mandatory
relationship as coming under international law, the mandatory 320
Cf. generally, David Kennedy, “The Move to Institutions” (1987), 8
Cardozo Law Review, pp. 841 et seq.
321 Sir John Fischer Williams, Chapters on Current International law
and the League of Nations (London, Longmans, 1929), pp. 10–11,
64–65, 69.
322 Cf. Permanent Court of International Justice, Case of the S.S.

Wimbledon, Ser. A.1
(1923) and Nationality Decrees in Tunis and Morocco, Ser. B.5

(1923).
323 Cf. Martti Koskenniemi, From Apology to Utopia. The Structure

of International Legal Argument (Helsinki, Lakimiesliiton kustannus,
1989), pp. 212–220.
324 Cf. Louis Rolland and Pierre Lampue, Précis de législation

coloniale (2nd edn., Paris, Dalloz, 1936), pp. 93–109.
173
territory as a subject of international law, and the powers of the

mandatory as having been vested in the exclusive interest of the
subject population and under the control of the League and the
Permanent Mandates Commission. The mandates were considered to
be “evolutive” and the League was held to possess the power to
modify them in view of the development of the population.325
But if the concept of sovereignty was emptied of meaning by the

argument that its meaning was derived from international law, the
concept of the sacred trust could be emptied of meaning by
becoming whatever the administrator wanted it to mean. European
predominance continued. In the first place, the Permanent Mandates
Commission had only very limited powers. It worked on the basis of
reports produced by the mandatory power. Hearing of petitioners or
on-the-spot inspections were normally excluded. The assumption
was that the League organs and the mandatory power would work
in cooperation and in a non-adversarial way.326 Hence, for example,
“the British ruled their Mandated acquisitions as parts of the Empire,
administering them like any other Crown Colonies.”327 In the second
place, the “science of colonial administration” developed by the PMC
had a long-lasting effect by distinguishing political sovereignty from
the widespread net of economic dependencies into which the
colonial territory was integrated as a source of raw materials and a
market for metropolitan products. As Antony Anghie has pointed out,
the Commission conceptualized “development” through a liberal
understanding that split political emancipation and economic
integration from each other, and supported an ideology of
modernization that ensured control by Western interests. Through
twenty years of internationalized administration, “the civilizing
process
[was] reproduced by international institutions using the new

international law of pragmatism.”328
The internationalization of colonialism under the mandates and

trusteeship systems was part of the civilizing mission in the precise
sense that it reinstated Europe’s role as the gatekeeper for the
benefits of public 325 “Les mandates internationaux” (1931–II), 36
Annuaire IDI, pp. 233–234. The last point was, however, disputed
among Institut members, cf. ibid., pp. 36–67.
326 Cf. League of Nations, The Mandates System, pp. 46–51 and for
the conditions of independence under the mandates system, Annex,
pp. 118–120.
327 Jan Morris, Farewell the Trumpets; An Imperial Retreat

(Orlando, Harcourt, 1978), p. 208.
328 Antony Anghie, “Time Present and Time Past: Globalization,

International Financial Institutions and the Third World” (2000), 32
New York University Journal of International Law and Politics, p. 285
and generally pp. 277–286.
174
Sovereignty: a gift of civilization diplomacy for the colonial world. It

restated the logic of exclusion–inclusion that played upon a
Eurocentric view about the degrees of civilization and legal status.
Decolonization effectively universalized the European State as the
only form of government that would provide equal status in the
organized international community. The first generation of political
leaders in the third world in the 1950s and 1960s may have
disagreed about whether to aim for independence by devolution or
revolution. But it had thoroughly integrated Western ideas about the
State form as the only viable shell within which to develop into
modernity.
In an ironic twist, the more Western politicians and lawyers decried

the vices of sovereignty, the more the representatives of the new
States emphasized the sacredness of the boundaries they had
inherited from their colonial past. Such emphasis on formal
sovereignty, however, failed to strike at the heart of European
domination: “the extraction of wealth from an already impoverished
Africa was in no way halted by the ‘transfer of power.’ ”329 In an
important sense, “neo-colonialism” is a misno-mer, the North–South
encounter returning since 1960 to the informal, economically driven
domination that has formed the mainstream of Empire since the
sixteenth century. The State form also failed to provide room for the
development of viable alternatives for indigenous political
organization, especially in Africa. It was connected with sacred but
awkward boundaries as well as authoritarian government, with
colonial administration taken over by oligarchies and sometimes
tyrants, enjoying the protection of the blind justice of legal
sovereignty.
The demise of official imperialism has modified little of the

exclusion–inclusion logic. Inclusion in the world of public diplomacy
coexists peacefully with exclusion from the spheres of spiritual and
material well-being whose management lies beyond international
publicpolicy. The acceptance of the State form and the diplomatic
protocol, like Christianity five centuries ago, may have disciplined the
non-European world, but has done little to liberate it. The essence of
statehood is equality and independence: judged against that
standard, redistribution under a New International Economic Order
(NIEO) could even at best appear as a temporary return to
ideologically loaded authoritarianism.330 The 329 Basil Davidson,
The Black Man’s Burden. Africa and the Curse of the Nation-State
(New York, Times, 1992), p. 219.
330 Cf. Martti Koskenniemi and Marja Lehto, “The Privilege of

Universality.
International Law, Economic Ideology and Seabed Resources”

(1996), 65 Nordic Journal of International Law, pp. 533–555.
175
spectacular failure of the State form in Africa may have undermined

whatever was left of the universalist reformism of publicdiplomacy
without, however, occasioning a rethinking of the conditions of the
colonial encounter.331 Were not Africa’s shocking mistakes and
failures final proof that the same standards should not be applied to
it as were applied to civilized nations?
The story of international law and formal empire in 1870–1914 may

be a story of arrogance, misplaced ambition, and sheer cruelty. But
it is indissociable from the wider narrative of a liberal
internationalism that thinks of itself as the “legal conscience of the
civilized world” and whose humanitarian aspirations cannot be
dismissed as a set of bad-faith justifications for Western domination.
Instead, the problem must be sought from the connection liberals
have made between progress and civilization on the one hand, and a
particular political form, Western statehood, on the other. The men
of 1873 saw the great danger in Africa and elsewhere in terms of a
continued anarchy inside “primitive” communities and an
unrestricted scramble driven by private economic interests between
the European powers. They hoped to deal with these dangers by
introducing European public administration into the colonies. When
that attempt failed, they moved to support the internationalization of
colonial administration, again with the view to replacing indigenous
political forms with European ones. That most international lawyers
enthusiastically welcomed decolonization was completely conditioned
by their interpretation that this meant the final universalization of
Western forms of government. When in more recent years those
forms of government have nonetheless failed, international lawyers
have been left uneasily poised between exhaustion and arrogance in
face of the endemic political, social, and economic crises in the third
world: either leaving the colonies a playground of “tribal” policies
and Western private economic domination, or suggesting ever more
streamlined versions of civilized guardianship over “failed States.”
Both are reaction formations to an unarticulated – yet pervasive –
liberal unease about the virtues of Western political institutions.
For those institutions do not carry the good society with themselves.
The same types of government create different consequences in

different 331 A process of rethinking may be starting, however. Cf.
Makau W. Mutua, “Why Redraw the Map of Africa? A Moral and Legal
Inquiry” (1995), 16 Michigan Journal of International Law, pp. 1113–
1143 and Obiora Chinedu Okafor, “After Martyrdom: International
Law, Sub-State Groups, and Construction of Legitimate Statehood in
Africa” (2000), 41 Harvard International Law Journal, pp. 503–528.
176
Sovereignty: a gift of civilization contexts; there is nothing

predetermined about the State form. It can be used for freedom and
for constraint, and history is full of examples of both. Equally, empire
comes under many disguises. While we often associate it with formal
colonies, in fact the more efficient form of hegemony may be
invisible, or indirect; the use of freedom to create constraint. In such
case, anti-imperialism consists in a struggle for formalism: the
establishment of formal administrative structures, police, and
government.
However, formal sovereignty can undoubtedly also be imperialist –

this is the lesson of the colonial era from 1870 to 1960 which in
retrospect seems merely a short interval between structures of
informal domination by the West of everyone else. Under such
circumstances, even a well-meaning internationalism is the Dr. Jekyll
for the Mr. Hyde of imperialism. The Congo Free State, a mandates
or a trusteeship arrangement may, just like a global trading system
or a Multilateral Agreement on Investment under a World Trade
Organization (WTO), be used for freedom and for constraint.
Administrative structures – whether those of sovereignty or
internationalization – only marginally determine the policies for
which they are used. We recognize their character only by reference
to substantive ideals about the political good we wish to pursue.
Here lies the difficulty. Institutions do not replace politics but enact
them.
The men of 1873 felt that the introduction of Western institutions in

the Orient would be to do history’s work, that it would gradually
transform backward societies into the European State form. The
historical and the normative assumption coalesced in their image of
themselves as the juridical conscience–consciousness of the civilized
world. None of this language, or this self-image, is available today.
As we look back at periods of formal and informal colonialism,

international administration, and independence, whatever technique
of administration has been chosen seems often far less significant
than how, in fact, the administration has behaved. There is no
particular virtue in being tortured or killed by one’s own countrymen
instead of foreign invaders. A colonial officer, an international
administrator, and an indigenous politician may each be susceptible
to corruption – but each may be equally able to organize the
building of a school, a hospital, or a department store. This is not to
say that it should be a matter of complete indifference as to who
should rule us, and which technique of rule is being employed.
History may teach us to lean in one direction rather than another. In
particular, it may often suggest that it is better to live in a political
society whose administrators speak our language, share our rituals
and know our ways of life. But there is no magic 177
about such relationships, and communities that are closed to

outsiders will rot from the inside. But whatever the choice of
institution, it should be a matter of debate and evidence, and not of
the application of universal principles about “civilization,”
“democracy,” or “rule of law.”
178
International law as philosophy: Germany
1871–1933
“[T]he victorious war is the social ideal: the victorious war is the
ultimate means for every highest objective. In war the State
demonstrates its real being, it is the fullest proof of the special
quality of the State . . .
In the victorious war legal thought sets the ultimate norm which
decides which State has Right on its side . . . Who can, may also.”1
These are certainly among the most frequently quoted sentences
from Erich Kaufmann’s (1880–1972) 1911 book Das Wesen des
Völkerrechts und die Clausula rebus sic stantibus which expounded a
theory of the total State as Europe’s historical and spiritual reality.
For Kaufmann, a conservative legal theorist and a practitioner –
including being a legal adviser at the foreign ministry of the Federal
Republic in the 1950s – and a member of the Institut de droit
international, the view of international law as superior to the State
emerged from an unhistorical moral nihilism. Because the State –
and not the shallow and discontinuous realm of the cosmopolitan –
was the concrete enfolding of human spirituality, international law
could never aspire to a normativity higher than the State. Useful as a
mechanism of coordination, international law possessed no intrinsic
value, represented no world-historical process of enlightenment or
transcendence. No social ideal was embedded in it. Therefore, all
treaties bore an implicit reservation: they were valid only as far as
the conditions that were present at their conclusion did not change
so that the 1 Erich Kaufmann, Das Wesen des Völkerrechts und die
Clausula rebus sic stantibus (Tübingen, Mohr, 1911), pp. 146, 153.
The first sentence makes a hidden reference to Rudolf Stammler’s
Kantian view of a “community of persons of free will” as the social
ideal.
For critical citations, cf. e.g. Leonard Nelson, Rechtswissenschaft

ohne Recht (Leipzig, von Veit, 1917), pp. 146, 172; Walther
Schücking, Die völkerrechtliche Lehre des Weltkrieges (Leipzig, von
Veit, 1918), p. 12n.
179
treaty’s provisions would have become incompatible with the self-

preservation of the State.2
Although Kaufmann’s 1911 book has been admired as a real tour de

force, it has also been indicted as an example of “Hegelian” or
“nationalist” theory, a specimen of ideas that led to the 1914
cataclysm. This reputation is only partly deserved.3 Certainly
Kaufmann’s arguments drew upon Hegel’s philosophy of law and
responded to an idiosyncratic
“German” way of conceiving the nature of Germany’s statehood. On
the other hand, the critique came from non-disinterested sources: a
liberal orthodoxy that imagined law either as human will or formal
legality, ideas targeted not only by the 1911 book but by Kaufmann’s
writings throughout the Weimar era. For Kaufmann, voluntarism and
formalism failed to capture life as other than abstract and
unhistorical categories: the unconnected individual enjoying “natural
rights” and creating social constraint out of free will. No social ideal
was embedded in such individualism and it failed to describe a
concrete reality existing anywhere. To understand the world required
going beyond rationalism. This could be done, he suggested, by
following his admired conservative–monarchist constitutional lawyer
Friedrich Julius Stahl –
“Germany’s last significant public law theorist” – who had in the

1830s put forward a “theistic metaphysics, an ethical and religiously
grounded irrationalist positivism.”4
A quarter of a century later, the “Non-Aryan” Kaufmann had been

forced to step down from his chair at the University of Berlin –
though he was allowed to hold private seminars at his home until he
had to flee to the Netherlands in 1938. Three years before, he had
traveled to the Hague to give the Cours général, speaking there to
foreign students as a Platonist idealist:
I strongly affirm the objective existence and the reality of the

phenomenon of the collective spirit . . . The collective spirit rests on
the one hand on the existence of trans-subjective and
transcendental values and norms that constitute the moral substance
of all community and, on the other hand, on the final affinity of the
roots of human spirits.5
2 Kaufmann, Das Wesen des Völkerrechts, p. 204.
3 Writing 50 years later, Kaufmann still held that this “youthful” work
contained the nucleus of all his later oeuvre. Erich Kaufmann,
Rechtsidee und Recht. Gesammelte Schriften ( GS ) (3 vols.,
Göttingen, Schwartz, 1960), III, p. xx.
4 Erich Kaufmann, “Über die konservative Partei und ihre

Geschichte” (1922), GS III, pp. 133–134.
5 Erich Kaufmann, “Règles générales du droit de la paix” (1935), 54

Recueil des cours de l’Académie de droit international ( RdC ), pp.
554–555.
180
International law as philosophy: Germany 1871–1933
Was there a contradiction between Kaufmann’s views of 1911 and

1935? There was certainly a stylistic transformation that did not only
reflect the context and the change of language from the German to
the French. What remained common to both texts was Kaufmann’s
attempt to find a higher level of normativity than provided by formal
legality.
The total State of 1911 and the “collective spirit” of 1935 both
articulate a transgression, an attempt to overcome the liberal
dichotomies of the individual and community, force and law, faith
and reason. What may have shifted in the years between was the
assumption of where that higher level lay, not the conviction that the
tangible worlds of the day’s law and politics failed to reflect it.
When Kaufmann wrote his 1911 book, Germany had become the
European State that had most reason to feel that formal
international relations had been superseded by a new constellation
of power. As an industrial economy and a military power it had no
rival on the continent.
The prevailing distribution of the colonies or Britain’s arrogant

mastery of the seas could not fail to seem anachronistic obstacles to
its expansive spirit. Kaufmann’s argument about the absence of an
objective legal system above the State and his emphasis on the
intrinsic limit to the binding force of treaties put in question the legal
value of the status quo while entitling Germany to take the
necessary action to change it. In this regard, the situation in 1935
was not significantly different. The Versailles Treaty was condemned
by practically all German lawyers, right and left, as a Diktatfrieden.
The League of Nations had not been able to set up an alternative
social ideal. Internationalism stumbled from one frustration to
another. In 1935 Kaufmann was careful to point out that justice
could not be reached by induction from what empirically existed:
“it is rather a spiritual, trans-subjective reality that pre-exists any

particular social phenomenon.”6
The story of international law in Germany between 1871 and 1933 is

a narrative about recurrent attempts to square the circle of
statehood and an international legal order by lawyers trained in
public law, often philosophically inclined, and coming from the
widest range of political conviction. Nowhere was the challenge to
international law posed more strongly than in Germany. Nowhere did
lawyers take more seriously the task of responding to that challenge,
or develop more sophisticated theories to that effect. Where the
members of the Institut de droit international 6 Kaufmann, “Règles
générales,” p. 459.
181
represented a self-confident, aristocratic liberalism that took for

granted the moral superiority of its worldview, German lawyers
struggled with complex philosophical arguments to ground the
possibility of a scientifically credible and politically legitimate
international law, one that would correspond to “concrete reality”
and manifest some kind of “social ideal.” If the protagonists’
arguments sometimes only repeated platitudes about the opposition
of German “depth” and Anglo-French “superficiality,” the tables were
quickly turned as the Germans themselves often found that the
deepest legal reality lay as the thinnest form over social life.
The distance between the völkisch idealism of German lawyers in

1871
and Hans Kelsen’s formalism half a century later may seem as wide
as international law itself. In a historical and political sense they are,
however, just a step apart, and sometimes merge into each other.
The history of international law in Germany during that period is a
narrative about philosophy as the founding discipline for reflecting
about statehood and what lies beyond. In this narrative “concrete
reality”
sometimes appears as State power, sometimes as the power of a

cosmopolitan history – and “social ideals” sometimes intensively
romantic–national, sometimes liberal–individualist. This debate came
to an end by the Second World War.
In the very year when the German empire was declared, Adolf
Lasson published his Princip und Zukunft des Völkerrechts, which
gave expression to the idea that sovereign States could not be
members of a legal community above them and that their natural
relations could only be those of envy, struggle, even hate. Treaties
between States reflected relations of power and could be maintained
only as long as those relations remained stable. Far from being
illegal, war remained a “means of negotiation”
in which the States sought to find out what the real power relations
between them were, and to conclude a peace treaty accordingly.7
Like Kaufmann later, Lasson drew inspiration from Hegel’s view of

statehood as the realm of concrete freedom. A people was unfree as
long as the legal order that constrained it failed to reflect its inner
nature and consciousness. There was evidence to back up this view:
Princip was an elaboration of an earlier essay on the spiritual–
cultural significance of 7 Adolf Lasson, Princip und Zukunft des
Völkerrechts (Berlin, Hertz, 1871), pp. 66–75.
182
war that Lasson had written to celebrate Prussia’s victorious

campaign of 1866.8 For Lasson, an early convert from Judaism to
Christianity, interest in international law was informed by a
philosophical critique of rationalism. That human freedom could be
realized only in the State made it impossible to accept the Kantian
utopia of an intrinsically individualist, cosmopolitan law. It would
prevent the people from developing in accordance with its deep
spiritual quality, its inner life-principle (“eigenen inneren
Lebensprincip” ).9
As we saw in chapter 1, none of this meant, for Lasson, that there

should, or could, be no international law. On the contrary, he wished
to develop international law into a more effective instrument for
cultural cooperation: there should be more openness and
codification – treaties on technical and economic matters – as well
as diplomatic congresses and permanent institutions. Lasson’s view
on the future of international law hardly differed from that of the
internationalists of the time. But where his arguments came from an
anti-rationalist and anti-formalist perspective on Germany’s
statehood, mainstream public law developed in the opposite
direction.
Since 1815, German public law had participated in the creation of a

unified identity to the German people. For Savigny, that identity
received concreteness in Juristenrecht, a common legal
consciousness articulated by the profession into positive law. By
contrast, later
“organic” theory maintained that the unity of the Volk was reflected
in the German State, manifested in the juridical concepts through
which public lawyers sought to establish the autonomy of their
discipline. This development was illustrated in the work of Carl
Friedrich von Gerber (1823–1891), who came from the organic
school but for whom a properly juridical study of statehood was
possible only by setting aside the ethical or historical considerations
that had infected it in the past. From a juridical perspective, he
wrote in a brief but influential book in 1865, the Volk became
conscious of itself in the State which thus became “the highest legal
personality known to the legal order.” State power was the power of
a personified, spiritual organism.10 What the “organic” nature 18
Das Culturideal und der Krieg (Berlin, 1868). After Princip, Lasson
never returned to the topic during his long career as a legal
philosopher. Cf. Georg Lasson, “Adolf Lasson”
(1918–1919), XII ARWP, pp. 1–10.
10 “Die Staatsgewalt ist die Willensmacht eines persönliche

gedachten sittlichen Organismus,” Carl Friedrich von Gerber,
Grundzüge des deutschen Staatsrechts (3rd edn., Leipzig, Tauchnitz,
1880), p. 19.
183
of the State meant juridically, Gerber argued, was that it had “like all
law”
to do with formalized relationships of will.11 The highest will was the

monarch’s, in whose hands lay the State’s monopoly of power.
Authoritarianism arose from the organic view: State power was the
spiritual power of a people having become conscious of itself.12
Von Gerber did not think that State power knew no limits. On the
contrary, it became completely constrained by the objective of
advancing the common interest. Though these limits were difficult to
set in abstracto, von Gerber included a number of individual rights
and freedoms, as well as socio-cultural objectives, among them.13
The problem was, as Otto von Gierke (1841–1921) and other liberals
retorted, that the limits were determined from the inside of State
will, and not from the history or interests of autonomous
communities ( Genossenschaften) or an independent theory of
subjective rights.14 This debate brought to the surface the tension
between the authoritarian and individualist strands in the theory of
the State. On the one hand, the State appeared as a hierarchical
structure, and the citizen its passive object; on the other, the State
embodied the nation’s pursuit of self-determination without which
individual freedom would be nothing.15 Von Gerber dealt with this
tension by allowing the State’s organic justification to recede to the
background, and by concentrating on the State as a conglomerate of
(possible) acts of will, described through formal legal concepts that
claimed neutrality in regard to the authoritarian and individualist
views.16
Paul Laband (1838–1918), whose four-volume commentary on the

Reich constitution started appearing in 1876 was the most influential
of von Gerber’s successors and completed the development of public
law into independence from its social or historical base. Although
Laband did not object to the organic theory, he made no use of it
and grounded the unity of the Reich in its formal character as a
Bundesstaat (instead of a mere Staatenbund). The Reich was a
single legal person because it 11 On the meaning of “organic,” cf.
Gerber, Grundzüge, pp. 217–225 and the useful commentary by
Olivier Jouanjan, “Carl Friedrich Gerber et la constitution d’une
science du droit public allemand,” in O. Beaud and P. Wachsmann
(eds.), La science juridique française et la science juridique
allemande de 1870 à 1918 (1990), 1 Annales de la faculté de droit
de Strasbourg, pp. 56–58.
12 Gerber, Grundzüge, pp. 1–3, 19–23. Cf. also commentary in
Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland
(3 vols., Munich, Beck, 1992–1999), II, pp. 334–337.
13 Gerber, Grundzüge, pp. 31–42. Cf. also Jouanjan, “Carl Friedrich

Gerber,” pp. 60–61.
14 For these critiques, cf. Stolleis, Geschichte, II, pp. 360–362.
15 For the development of this tension in early nineteenth-century

German political theory, cf. Leonard Krieger, The German Idea of
Freedom. History of a Political Tradition (Boston, Beacon, 1957), pp.
147–165.
16 Von Gerber, Grundzüge, pp. 220–225.
184
enjoyed sovereign rights, because its own organs enjoyed

Kompetenz-Kompetenz, and because its legislation overrode that of
member States.17
Laband formalized von Gerber’s view of laws as commands (

Befehle) that were constituted of expressions of legislative will.18
Unlike von Gerber (who wrote before unification, and needed
general principles in his constructive work) Laband drew his
materials – legal relationships and legal
“institutions” – from the positive law of the Reich which he

subsumed under general legal concepts.19 From such concepts –
which he assumed to be autonomous, like the rules of logic – he
then deduced consequences and analogies which enabled him to
fulfill the postulate of the closed nature of the legal system.
Laband was no “denier” of international law. On the contrary, he
expressly rejected the view of international law as only (external)
domestic public law.20 Of course, treaties were not identical to
domestic laws ( Gesetz). The latter were commands by State
authorities to their subjects whereas treaties were contracts (
Rechtsgeschäfte) that contained reciprocal promises by States to
each other.21 This did not do away with their legal character. They
were “acts of will by States,” enforceable by States against each
other, and binding among them. This was a matter of international
law, however. From the perspective of Staatsrecht, treaties became
binding through the public law enactments that transposed their
provisions into national laws.22
The new method created a sharp distinction between the material

principles through which the German nation was explained and
formal law, and directed the lawyers’ attention to the latter. In this
way, it created an apparently non-political defense of the liberal–
authoritarian compromise that the Reich constitution was.23 In his
doctoral dissertation the legal philosopher Carl Bergbohm (1849–
1927) applied the same technique to defend international law
against the “deniers,” arguing that 17 Paul Laband, Das Staatsrecht
des Deutschen Reiches (5th edn., 4 vols., Tübingen, Mohr, 1901,
1911–1913), II, pp. 64–67, 85–88.
18 Laband’s influential two-part theory of material law ( Gesetz)

distinguished between the statement of the law ( Rechtssatz) and
the act of will or command ( Befehl) that citizens behave accordingly
and that public authorities take the necessary action to implement
and sanction it. Laband, Das Staatsrecht, II, pp. 1–23.
19 Laband, Das Staatsrecht, I, pp. vi–viii.
20 Paul Laband, Deutsches Reichstaatsrecht (5th edn., Tübingen,

Mohr, 1909), pp.
160–161n1.
21 Laband, Das Staatsrecht, II, p. 153; Laband, Deutsches
Reichsstaatsrecht, p. 158.
22 Laband, Deutsches Reichstaatsrecht, pp. 158, 161–165.
23 Peter von Oertzen, Die soziale Funktion der Staatsrechtlichen

Positivismus (Frankfurt, Suhrkamp, 1974), pp. 319–326.
185
international law, too, emerged from State will but existed as a set
of autonomous concepts and institutions, particularly in formal
treaties.
Bergbohm demonstrated that neither law-giver, adjudication, nor

sanctions were a sine qua non for a legal system, yet that each was
present in some rudimentary form as well. His main point, however,
was that international law was “law,” not because it reflected moral
or humanitarian ideals but because it emanated from self-legislation.
States were bound because “[t]hey could doubtless make their own
will binding on themselves without violating their independence.”24
This is what “realists” such as Lasson or “moralists” such as

Bluntschli had never understood, Bergbohm claimed. The former had
confused the fact of competition and struggle among States with the
formal question of the possibility of international law. The latter had
infused law with historical materials and ethical ideas in a way that
made it easy for deniers to ridicule a law they saw violated every
day. A clear distinction between existing and desired law was
needed, and this was provided by the theory of self-legislation which
set international law on the same level as public and constitutional
law.25 However, Bergbohm’s “will” was not an elusive, psychological
fact. One consequence of modernity, he explained, was precisely the
development from vague feelings to more certain knowledge – to
science. In international life, this was manifested in the conclusion of
an increasing number of law-making treaties to lay down general
rules of behavior.26 This enabled the establishment of a scientific
study of law that would not be dependent on mere Rechtsgefühl, but
could focus on formal State acts independently of their material
background.27
Before 1871 the organic theory had seen itself as the juridical
representation of the German Volk. After unification, that function
was given over to Reich legislation. The resulting Gesetzpositivismus
opened up the possibility of explaining international engagements as
binding on the 24 Carl Bergbohm, Staatsverträge und Gesetze als
Quellen des Völkerrechts (Dorpat, Mattiessen, 1876), pp. 19, 60–63.
25 Bergbohm, Staatsverträge, pp. 7, 42.
26 Bergbohm, Staatsverträge, pp. 3–5.
27 One difficulty was that the juristic method focused on law as legal
enactments ( Gesetz) that were not available in the international
realm. Bergbohm accepted that this fact did not support codification,
but he did not believe it disqualified international law as law.
Accepting Laband’s distinction between the material and the formal
notion of Gesetz, Bergbohm noted that a (material) Gesetz included
two parts: the behavioral norm directed to the legal subjects and the
directive to the authorities to enact a reaction if the norm was
violated. Because most international law did not contain the latter, it
was law as will but not as Gesetz. The failure to make this distinction
had often
– wrongly – led to the “denial” of international law.
186
same basis as domestic law – as formal emanations of State will. At

the same time, it required distinguishing between the domestic
Gesetz that implied a hierarchical relationship and the international
Rechtssatz that did not. Defining international law as coordination,
German lawyers accepted that there was no principle of political
legitimacy above the people – though they often construed the
people’s normative demands so as to include the protection of
fundamental rights or the fulfillment of social or economic needs.
Above all, they were now able to work with an autonomous system
of legal concepts that avoided collapsing the law into power or
humanitarian morality.
The international political context was, however, anything but fruitful

for the development of a serious Gesetzpositivismus. It was
attempted by Paul Heilborn (1861–1932) from Berlin who, drawing
on the earlier work by Kaltenborn and Bulmerincq, proposed a
logically coherent system of international law concepts that were to
be as independent as possible from diplomacy and morality as well
as from private and public law. System, wrote Heilborn, was an
instrument of knowledge and a way to truth, consisting in the
arrangement of concepts that resulted from the ultimate cause of
each science, into a consistent and self-contained whole. What was
the “ultimate cause” of international law? This did not lie in its
material objectives or leading principles. On these, there was too
much disagreement. It lay, instead, in its “internal” definitions, of
which the most important was this: “international law is the totality
of legal norms recognized by States as governing their
relationships.”28 From this single sentence – which presumed no
external objective, no material principle – Heilborn inferred the
concept of the State as legal subject and of law as the effect of its
will. The system followed therefrom as the enumeration of legal
subjects and their fundamental rights.29 Heilborn was aware of
criticism directed against the “dry abstractions” of systemic
exercises. He responded by the Kantian argument that Laband would
have endorsed: it was impossible to understand the material world
without first having a clear sense of the concepts through which one
looks at it.30 Heilborn’s four-page proposal for the systemic
arrangement of international law concepts may have had particular
didactic advantages or disadvantages – the division of the norms
into a general and a special part, the further division of the former
into subjects and objects, and the theory of right, and the latter into
individual legal relations and 28 Paul Heilborn, Das System des
Völkerrechts aus den völkerrechtlichen Begriffen (Berlin, Springer,
1896), p. 370.
29 Heilborn, Das System, pp. 2–4.
30 Heilborn, Das System, pp. 414–417.
187
self-help.31 As a way to do international law, however, it was already

out of step with the anti-formalistic outlook of the times.
From form to substance: the doctrine of the rational will By

the last decade of the nineteenth century legal formalism had
become widely criticized as a Lebensfremd abstraction that failed to
capture the dynamism of social life. But sweeping references to the
“conscience of the civilized world,” such as routinely made by

Bluntschli and his colleagues at the Institut, were no less old-
fashioned in view of the criteria that natural and historical sciences
suggested should be integrated into the study of societies. As early
as 1878 the young Georg Jellinek proposed that ethics should finally
be divorced from metaphysical speculations and from its obsession
with individual morality and instead be aligned with insights received
from the workings of human drives (egoism and altruism in
particular) in primitive societies by anthropologists and
ethnographers. It should have recourse to moral statistics in order to
examine the emergence of norms and the effects of social solidarity
and focus on the division of labor in the formation of behavioral
patterns of collectives. Ethnological studies ought to be used with a
view to outlining the emergence of types of consciousness; and
principles of political economy ought to be applied to examine the
conditions of material growth. All in all, through collaboration from
psychology, natural and social sciences, there was hope that
“ethics would finally be established in a scientificway” as a social

ethics.32
The point of a scientific study of society was to seek and articulate

social laws that could then be translated into political laws, or from a
slightly different angle, “to answer the question of how to ground an
ethical argument.”33 Whatever other merit science had, it suggested
a way to transcend the controversies about the right principles of
government that tore European societies and puzzled colonialists
and to which there seemed no politically compelling response. In
producing an explanation for what held modern, secular, industrial
society together, the turn to science 31 Heilborn, Das System, pp.
408–412.
32 Georg Jellinek, Die sozialethische Bedeutung von Recht, Unrecht

und Strafe (Hildesheim, Olms, 1967, reprint of the 1878 edn.), pp.
1–41, 41.
33 Geoffrey Hawthorn, Enlightenment and Despair. A History of

Social Theory (2nd edn., Cambridge University Press, 1987), p. 256.
Likewise, Hans Kelsen, Der soziologische und der juristische
Staatsbegriff (2nd edn., Tübingen, Mohr, 1927), pp. 46–74.
188
became one of the intellectual strategies whereby contemporaries

tried to cope with the relativism, cynicism or outright irrationalism in
many fin-de-siècle cultural currents.34
The question “What holds society together?” seemed particularly

acute in the international realm where the absence of a tangible
supranational standpoint had agonised lawyers through the
nineteenth century. German experience provided little constructive
materials. The Reich had emerged from a series of wars and
Bismarck’s attitude on foreign affairs was openly based on
Machtpolitik. Did not Lasson – and later Kaufmann – argue precisely
that the normal condition of States was struggle, and that war
remained the ultimate judge among them? A century earlier Kant
had assumed that exit from this situation was a rationally dictated
moral obligation that could be fulfilled by a social contract among
States designed to set up a confederation.35 This was hardly a
practical option. Instead the internationalists now focused on the
innumerable cultural, commercial, and other ties to which Germany
was bound and to which international law – they believed – gave
normative expression. Where deniers focused on the absence of a
common sovereign, the internationalists responded by a cultural
argument about a European community that was to be advanced by
a well-administered balance of power policy.
There was something of a dialogue des sourds in this debate, the

protagonists agreeing on much more than they were willing to
concede. The hard core of the disagreement lay in the philosophical
question of (the basis of) obligation. How could independent States
be bound?
The men of 1873 had responded by referring to a civilized

conscience-consciousness whose requirements, they assumed, were
transparent to everyone. This response could not withstand
examination. The realm of morality and goodness was transformed
into the realm of the will. Most public lawyers, especially in Germany,
and especially since Kant, now theorized about social reality as the
territory of supreme, rational human will. Gerber already postulated
that “Die Staatsgewalt ist die Willensmacht eines persönlich
gedachten sittlichen Organismus.”36 After Bergbohm’s 1876 book,
this view was adopted practically by every 34 For a review of the
partly irrationalist, partly romantic revolt against the positivism of
the period, cf. H. Stuart Hughes, Consciousness and Society. The
Reorientation of European Social Thought 1890–1930 (New York,
Knopf, 1958).
35 Immanuel Kant, “The Metaphysics of Morals,” in Political Writings

(Hans Reiss ed., 2nd, enlarged edn., Cambridge University Press,
1991), p. 165 (§ 54).
36 Gerber, Grundzüge, p. 19.
189
German internationalist. When Heinrich Triepel (1868–1949)

published his widely read study on the relations of international and
national law in 1899, he held it self-evident that all law was an effect
of legislative will, and did not even bother seriously to consider
alternatives.37 Many international lawyers, and not only in Germany,
shared his confidence. Law became psychology writ large: to know it
was to see it as the effect of a human voluntas. Questions of
morality proper – principles of right conduct dictated to individuals or
communities from beyond – were translated into questions about
whose will prevailed in society.38 Relations of will became a kind of
human causality (whose will worked as an effective motivation for
action?) that permitted an observational study of society after the
model of natural causality.
However, this implied an attitude towards (ordinary) morality and

politics that was not simply skeptical but threatened to set up a
superior morality under which the will to power, the subject’s
commitment to assert its subjectivity over others, would become the
single defensible normative principle. This would have become
uncomfortably close to what Nietzsche had written and would have
entailed no legal doctrine of a social “ought.” Before 1914, many
German internationalists had already pointed to the logical
difficulties in a purely will oriented theory of legal obligation.39 But
lawyers subscribing to a view of law as will had done so only to
distance themselves from the “fictions” of natural law. Once that
task had been undertaken, they quickly moved from pure
voluntarism into something other, or more, than it. It was, they
retorted, not “real” or
“arbitrary” will on which they argued, but a “rational will” or will

expressed in its external manifestations: actual behavior or the
treaty text as pure form.40 Or they argued that the “acceptance” of
law did not always have to be express but could be inferred from the
context, from the “necessary relationship that every legal rule should
have with the communal principle in the international community.”41
For law as science, it was not necessary that a rule be actually
declared by States for 37 Heinrich Triepel, Völkerrecht und
Landesrecht (Leipzig, Hirschfield, 1899), pp. 28–35.
38 Cf. Paul Heilborn, Grundbegriffe und Geschichte des Völkerrechts

(Handbuch des Völkerrechts, Erste Abteilung, Berlin, Stuttgart, and
Vienna, Kohlhammer, 1912), pp. 5–8.
39 E.g. L. von Bar, “Grundlage und Kodifikation des Völkerrechts”

(1912–1913), VI ARWP, pp. 145–158.
40 P. Schoen, “Zu Lehre von Grundlagen des Völkerrechts” (1914–

1915), VIII ARWP, p. 293; Heilborn, Grundbegriffe, pp. 6–7.
41 Franz von Holtzendorff, Handbuch des Völkerrechts (4 vols.,

Berlin, Habel [Parts II–IV
Hamburg, Richter], 1885), I: Einleitung in das Völkerrecht, pp. 44,

45.
190
it to be law, it was – unless a contrary will was demonstrated –

sufficient that it could be inferred from the social needs of the
situation, including the need to protect national self-determination.
Here it is necessary to pause to consider briefly the extraordinarily

important “German” idea of freedom as the sense of compulsion to
will what is necessary. It was already central to Kant’s critical
philosophy that undogmatic knowledge was self-determined;
enlightenment came from throwing off the self-imposed immaturity
that came from alien guidance, typically expressed in dogmatic
empiricism or rationalism, and religion.42 This epistemological view
implied autonomy as a personal and social ideal and a concept of
law as self-determination: legislation by the will over itself. For Kant,
freedom was not the indiscriminate realization of one’s passions or
interests – indeed, this was immaturity in the above sense. Freedom
could exist only as a looking beyond such contingencies.
To be free was to make one’s will harmonious to universal reason – a

reason according to which one should always act in accordance with
what one can simultaneously will as universal law. Where
enlightenment lay in reliance on reason, freedom consisted in the
acceptance of what reason dictated as duty.
In the context of domestic society, this became covalent with the call
to obey positive law and laid the groundwork for the doctrine of the
Rechtsstaat – “Argue as much as you like, and about whatever you
like, but obey!”43 In the international realm, however, there was
little positive law available. Kant had considered the case of human
history – locating freedom at the level of individuals while redefining
the human species as the realm of nature. To make the two
compatible, Kant was compelled to assume that nature was
ultimately moral (nature as realization of freedom).44 In an
analogous way, internationalists thought that national freedom could
be realized only within the realm of necessity that international
relations was. An implicit morality was thus read into the facts of
interdependence towards which lawyers now turned – with the
simple argument that these facts could always be read as the
content of unde-clared (but rational) will. There may be differences
of opinion about what were the “necessary consequences drawn
from the common will of nations” (“nothwendigen, aus dem
Gemeinschaftswillen des Staaten zie-henden Schlussforderungen”) –
but this was normal and could be dealt 42 Cf. Immanuel Kant, “What
is Enlightenment?,” in Political Writings, pp. 54–60.
43 Kant, “What is Enlightenment?,” p. 59.
44 Immanuel Kant, “Idea for a Universal History with a Cosmopolitan

Purpose,” in Political Writings, pp. 41–53 and comment in Krieger,
The German Idea of Freedom, p. 93.
191
with by interpretation.45 Now constraint could be found in non-

psychological laws: balance of power, economic interdependence or
solidarity.
Human will might be the immediate motivation for action but how it
functioned was dependent on “deeper” social laws. Even Heilborn
acknowledged this. Having defined law as self-legislation, he inferred
its continued validity over “arbitrary” will from the same source: “But
if the creation of a legal order is a necessary implication of human
nature, then its negation is excluded by the same necessity. The
intrinsic consciousness of right and duty in human beings does not
allow law as arbitrary propositions [ willkürliche Satzung] but as the
just order of life.”46 The view of law as rational self-legislation gave
expression to the social ideal of autonomous, self-determining legal
subjects. It was a liberal idea. But it connected only with difficulty
with any concrete reality. Inasmuch as the theory was not presented
as one of revolution (which it was not), it tended to portray any
actual social order as intrinsically rational.47 If no importance was
given to the actual (however “dogmatic”) will, the argument
collapsed into a defense of the status quo. Now surely lawyers –
least of all German lawyers – could not just think that the present
order was law by its intrinsic force. What was the relationship of
psychological
“will” to the more properly sociological concept of “power?”

Nietzsche’s concept of the will to power was suggestive but
ambivalent. Which was the dominant term in the relationship: was
power an instrument of will, or will a rationalization for power?
Should lawyers examine political reality by reference to how some
people (or States) wanted that reality to be – or should they assess
the normative nature of State policies by reference to what worked
in practice?
This difficulty may be illustrated by reference to the 1894 study of

treaties by the Swiss liberal internationalist Otfried Nippold (1864–
1938). He observed that in international relations power seemed to
go before the law and that this had been nowhere more visible than
in European behavior in the colonies. Treaties that were cited as
proof of the beneficial expansion of international law had been
imposed by brutal force on peaceful communities.48 Rejecting
Weltstaatlich utopias as imperialism in disguise he emphasized the
centrality of treaties in a 45 Holtzendorff, Handbuch, I, pp. 45–46.
46 Heilborn, Grundbegriffe, p. 6.
47 Kant himself was an advocate of enlightened absolutism. Cf. “The

Contest of Faculties,” in Political Writings, pp. 186–189 and
comments in Krieger, The German Idea of Freedom, pp. 86–125.
48 Otfried Nippold, Der völkerrechtliche Vertrag, seine Stellung im

Rechssystem und seine Bedeutung für das internationale Recht
(Berne, Wyss, 1894), pp. 4–5.
192

strictly consensual legal system: “Alles positive Völkerrecht ist auf
den Willen der Staaten zurückzuführen.”49 The problem lay not in
excess voluntarism but in the law’s insufficient regard to the actual
wishes of communities. Prevailing doctrines refrained from
concluding that imposed treaties – including peace treaties – were
invalid. They were enchanted by effective power in contradiction
with their professed voluntarism. A treaty imposed by force (whether
or not a peace treaty) was not voluntarily concluded and cannot be
rationalized as binding under a system of coordinative wills . 50
For Nippold, it was clear that treaties were the most important
source of international law. Like other liberals, he imagined State will
as the rational will to participate in increasing cooperation and even
in the harmonization of domestic laws. A natural Annäherung and
Ausgleichung were slowly leading to something like a world State.51
Despite his sociological language, however, Nippold saw most
progress in international law as a result of the work of
Wissenschaft.52 He proposed the establishment of an international
organization of jurists with a much larger membership than that of
the Institut as well as the setting up of an international training
school for international lawyers – a proposal that culminated in the
establishment of the Hague Academy of International Law in 1913.
His work did not contain a serious effort to analyze the social forces
that would determine the direction of future integration. It was an
armchair sociology he espoused, built on the assumption that States
would – when gently guided by men of science – come to
understand where their real interests lay, and agree on a world
federation.
Here was its weakness: irrespective of its sociological language,

Nippold’s view emerged from a Kantian rationalism that defined
internationalism as rational – and thereby undermined his criticism
of the present system of imperial power. For to distinguish between
beneficial internationalism and malignant imperialism one needed to
have substantive criteria; in the absence of a material theory of
progress, Nippold could do this only by falling back on his liberal
intuitions.
Looking for a realisticlaw at the turn of the century, German

internationalists alternated between a voluntarism that protected the
right of (German) self-determination and a set of naturalist
assumptions about 49 Nippold, Der völkerrechtliche Vertrag, pp. 51,
4–6, 18–22.
50 Nippold, Der völkerrechtliche Vertrag, pp. 7–8, 165–177.
51 Nippold, Der völkerrechtliche Vertrag, pp. 252–282.
52 Nippold, Der völkerrechtliche Vertrag, p. 13.
193
the international world (culture, history, society) that explained the

necessity of Germany’s being bound into legal relationships. It is not
that the law now finally became a philosophical instrument for social
engineering as Roscoe Pound (1870–1964) interpreted the latest
stream in the profession.53 Pound came from the outside and failed
to understand the Europeans’ view of the discipline as the bearer of
a humanist tradition. What the profession sought from philosophy
was reassurance that its normative project was still valid and might
perhaps finally devise a correct relationship between cosmopolitan
community and patriotism. A century earlier, Kant had been able to
align his liberalism with the former; now the more pressing need
was to defend the latter.
The social conflicts engendered by industrialism and mass politics in

Germany in the 1890s were reflected in the political realm as a crisis
of public law and the conception of the State: Wilhelminian rule
conflicted with the needs and outlook of modern society. The
imperial constitution of 1871 had set up a “system of skirted
decisions” in which the position of the central government towards
the Länder (Prussia in particular) remained obscure, and the
monarchic principle, while formally preserved, conflicted with the
powers of the Reichstag, creating a tension that Imperial Chancellors
from Bismarck onwards did their best to exploit for conservative
advantage. Struggle between these power positions had had the
result “that the German Empire had already become, in principle, an
almost ungovernable entity by the 1890’s.”54 Under such conditions,
German liberals had increasing difficulty in fitting their loyalty to the
central government with liberal principles and often compromised to
join with the Prussian Junkers to create a common anti-socialist
front.55 This sometimes meant a strengthening of State power by
social 53 Roscoe Pound, “Philosophical Theory and International
Law” (1923), II Bibliotheca Visseriana, pp. 89–90.
54 Wolfgang J. Mommsen, Imperial Germany 1867–1918. Politics,

Culture and Society in an Authoritarian State (London, New York,
Sydney, Auckland, Arnold, 1995), p. 147.
55 Stolleis, Geschichte, II, pp. 454–455, Kaarlo Tuori,

Valtionhallinnon sivuelinorganisaatiosta, (2 vols., Helsinki,
Suomalainen lakimiesyhdistys, 1983), I, pp. 59–60. The social
democrat party (SPD) espoused theoretical Marxism and was largely
supported by the working class. Proscribed during 1878–1890 it
grew rapidly to become the largest party in the Reichstag elections
of 1912.
194
legislation and development of ideas of “Leistungsstaat”56 – a

strategy that prompted Max Weber’s famous critique of bureaucracy
and further complicated the traditional alliance between liberals and
the State.
Throughout the nineteenth century, German academic public law

sought to provide an Archimedean point for a politically split society
by its construction of legal system from the principle of the
Volkswille that constituted a way to attain unification in the mind
even as it had been lacking in reality. In principle, the Allgemeine
Staatslehre might have continued to provide that unifying focus in
the 1890s had it not by then become politically too polarized. Natural
law had been long discredited and völkisch Idealism hardly provided
a credible basis for reflection on the condition of a deeply divided
Volk. Legal philosophy was in a “chaotic state.”57 Advances of
natural sciences in the latter half of the nineteenth century could be
accommodated neither with Hegel’s idealism nor with the leading
school of public law positivism associated with von Gerber and
Laband. A more realistic conception of the State was needed.
Theorization about the public realm, too, needed to start from

facts.58
But it was not obvious what the relevant “facts” were, in what the
law’s positivity consisted.
A purely sociological theory reduced the State to a reflection of

underlying social tendencies, sometimes, as in France, to an
instrument of social solidarity (cf. chapter 4), but in Germany to an
instrument of a group (a race, a class) to exercise power (
Herrschaftsinstrument).59 The most effective of these was the
historical materialism of Karl Marx and Friedrich Engels that reduced
the State to an ephemeral reflection of economic forces. But even
mainstream opinion learned to think that the State was above all an
institution with a monopoly of violence. The liberal internationalist
Franz von Liszt (1851–1919) quite casually defined the State as: “a
power that stands over individuals . . . a will to rule that is
something other than the sum of individual wills, a power to rule
that comprises individuals and constrains them also against their
will.”60 At the opposite end stood the ”free law” theories of
Hermann 56 Cf. e.g. Fritz Ringer, The Decline of the German
Mandarins. The German Academic Community, 1890–1933 (Hanover
and London, Wesleyan, 1990 [1969]), pp. 130–136.
57 Stolleis, Geschichte, II, pp. 423–424.
58 Stolleis, Geschichte, II, p. 435; Juha Tolonen, Stat och Rätt (Åbo
Akademi, 1986), p. 108.
59 These were particularly Jewish theorists and it may be that the

theory represented their personal experience, cf. (on Gumplowicz,
Ratzenhoffer, Menger, and Oppenheimer), Stolleis, Geschichte, II,
pp. 442–447.
60 Franz von Liszt, Das Völkerrecht (5th edn., Berlin, Häring, 1907),
p. 7.
195
Kantorowicz (1877–1940) and others that emphasized the

significance of socially spontaneous Individualrecht and marginalized
formal State law altogether.61
Such theories were without illusion about the State. They were also
politically dangerous. Either they made the legitimacy of State power
suspect as an ideological facade, or they dismissed public policy as
altogether irrelevant in the determination of social order. Ludwig
Gumplowicz (1858–1909) a Staatslehrer from Graz of Polish origin,
for instance, insisted on the need to let go of the illusion of law as
an expression of common will. No such will existed; the State was an
aggregate of groups struggling against each other with the result
that some groups were always more powerful than others and the
minority invariably ruled over the majority. That science was to focus
on these naked facts might make the groups that benefited from this
state of affairs uncomfortable: “But it is not up to science to worry
over the momentary comfort of the ruling classes.”62 Quite
consistently, Gumplowicz – a denier of international law – closed the
1902 edition of his book on the social State-idea in an obituary for
the Rechtsstaat.63
Brutal realism was an uneradicable part of the cultural pessimism of

the 1890s. Many German readers of Nietzsche fixated on the
doctrine of the will to power as a substitute for conventional morality
that provided a convenient ground for unscrupulous self-assertion.
The direction of pessimism was not necessarily towards revolution.
Gustave Le Bon’s (1841–1931) shallow but extremely popular theory
of the manipulability of all groups, including electoral bodies and
parliamentary assemblies had unabashedly conservative
implications: “As regards the possible effects of reason on the spirit
of the electorate, one would have to have never read the minutes of
an electoral meeting not to have a firm view on the topic. What are
being exchanged there are claims, abuses, sometimes blows, but
never reasons.”64 These and comparable views 61 Cf. Gnaeus
Flavius (Hermann Kantorowicz), “Der Kampf um die
Rechtswissenschaft” (1906), in Rechtswissenschaft und Soziologie,
Ausgewählte Schriften zur Wissenschaftslehre (Karlsruhe, Müller,
1962), pp. 13–29.
62 Ludwig Gumplowicz, Die sociologische Staatsidee (2nd edn.,

Innsbruck, Wagner, 1902), p. 4. Theological, rationalistic, and
juridical ideas of the State were to be replaced by sociology that
took its starting-point from the primal existence of social groups for
which the State was an instrument and the individual a dependent,
malleable material, Gumplowicz, Die sociologische Staatsidee, pp.
51–52.
63 Gumplowicz, Die sociologische Staatsidee, pp. 219–224. Cf. also

the comments in Max Seydel, Grundzüge einer allgemeinen
Staatslehre (Würtzburg, Stuber, 1873), pp. 31–32.
64 Gustave Le Bon, Psychologie des foules (Paris, PUF, 1963 [1895]),
p. 109. Cf. also Gumplowicz on “social suggestion,” Die sociologische
Staatsidee, pp. 205–219. On the 196
about irrational forces lying at the heart of political organization not

only created doubts about the legitimacy of the State but
encouraged attitudes of cynicism or revolution that were
diametrically opposed to the civic virtues advocated by public law.
Under such conditions, liberal lawyers were called upon to defend

the State as the representative of the general interest. But they
could no longer do this by conceiving of the nation as a historically
determined, organic Volkswille or a reflection of the social contract.
The former view smacked of anachronistic conservatism. The latter
was vulnerable to scientific objections: the original contract was a
myth.65 So they fell back on the Hegelian view of the State as the
reconciliation of the ideal and the actual, individual and the
community. They adopted “a universalism whose purpose it was to
ensure individual freedom and progress, by establishing a rational,
impersonal, and legal framework realized through the state.”66
Where Kant had combined freedom with reason, and become
vulnerable to the critique of abstract character of the latter, the
liberals now substituted the concrete State in its place.67 A strong
State could be created without undermining individual freedom
through democratic reform and by strengthening rational authority –
that is to say, bureaucracy – in which the liberal elite would have a
decisive role.
In the Rechtsstaat the bureaucracy would rule itself “according to

fixed and logical principles . . . whic h stood above the rulers and the
ruled.”68
This strategy produced two paradoxes whose effects would show up

only later in the course of political struggles within the Weimar
Republic. To conceive of the State as a form of self-rule by the
bureaucracy slowly widened the gap between the public realm and
the civil society that would finally break the legitimacy of the
Rechtsstaat.
Bureaucratic routinization would become a mortal threat to the

freedom it had once been created to support. On the other hand,
the Rechtsstaat imbued the State in Germany with an ethical
character absent in France or Britain. As most of State law, however,
continued to be produced by 1890s turn of sociology from its
historical orientation to the problem of the crowd, cf. Stephen Kern,
The Culture of Time and Space (Harvard University Press, 1983), pp.
221–222.
65 Georg Jellinek, Allgemeine Staatslehre (3rd edn., Berlin, Springer,

1922), pp. 148–158, 204–218. Cf. also Tuori, Valtionhallinnon, I, p.
53.
66 Michael Freeden, Ideologies and Political Theory. A Conceptual

Approach (Oxford University Press, 1996), p. 210.
67 For a more recent analysis, cf. Paul Franco, Hegel’s Philosophy of

Freedom (New Haven and London, Yale University Press, 1999), pp.
278–341.
68 Ringer, The Decline of the German Mandarins, p. 9.
197
authoritarian means and for authoritarian purposes, the broad

cultural result was that “the autocratic State thus became a moral
agent charged with the realization of liberty which was not
conceived as freedom from restraint, as elsewhere, but instead as
the ‘inner freedom’ of ethical self-direction in compliance with duty
as determined by the State.”69 That a State which showed itself to
the naked eye as a Herrschaftsinstrument, vested with the monopoly
of violence, could also appear as a cluster of logically related rules,
principles, and legal institutions, designed to protect freedom, was
an act of intellectual gymnastics by liberal lawyers made possible by
the impeccably German arguments they had learned from Kant and
Hegel. Yet the more democratic struggles called for an alliance
between the liberals and the State, the more important became the
threat posed by this strategy to the vague internationalism of those
same liberals. Was it possible to support both the State and the
international order?
Rechtsstaat – domestic and international: Georg Jellinek

Georg Jellinek’s (1851–1911) eclectic theory of the State synthesized
a number of separate trends in German public law into a
comprehensive defense of the Rechtsstaat that also created a
professionally plausible justification of international law. His oeuvre
was at once a continuation of the formalism of the Gerber–Laband
school and an overcoming of it by an explicit orientation towards
social reality from neo-Kantian premises.
Its political realism was reflected in the theory of law as a matter of

State will while it also bound that will into a process of cultural
determination.
In his dissertation to the University of Leipzig in 1872 the twenty-

one-year-old Jellinek had already contrasted the metaphysical
pessimism of Schopenhauer to the constructive optimism of Leibnitz
and had no difficulty in agreeing with the latter. Pessimism was
philosophically untenable, an attitude projected on world history by
people living through unhappy times, a philosophy of quietism and
death. Even in such times, however, many spirits would continue to
struggle; even if nations may run their course, humanity will
progress and emerge rejuvenated from the ashes of the past. In
Leibnitz, individuality and conflict were reconciled at a higher level of
structural harmony, and the present world was the best of possible
worlds whose defects only highlighted its brilliant 69 James T.
Kloppenberg, Uncertain Victory. Social Democracy and Progressivism
in European and American Thought 1870–1920 (Oxford University
Press 1986), p. 178.
198
harmony. This was a true German philosophy, the philosophy of

optimism and action, struggle for progress and the perfection of the
world.70
Jellinek was educated in the family of a Viennese Rabbi in a broad
“Humboldtian” way. Even his contemporaries admired his breadth of

learning and he himself confessed that though he had concluded a
mar-riage of convenience with law his real love remained with
philosophy.71
Jellinek’s first legal product, Die sozialethische Bedeutung von Recht,

Unrecht und Strafe (1878), participated in the debate about the
possibility of overcoming laissez-faire by the ethically oriented
economic and social policy that had been advocated by the
influential Verein für Sozialpolitik.72 In 1883 Jellinek was appointed
Extraordinary Professor in PublicLaw at the University of Vienna but
failed to attain full professorship due to a virulent antisemitic
campaign conducted by Wiener Presse that was scan-dalized over
the prospect over a Jew teaching the international law of a
Christian–European State community. Consequently he left Vienna
and was invited to a full chair in Heidelberg in 1890 where he
befriended the neo-Kantian legal philosopher Wilhelm Windelband
and Max Weber, for whom he provided inspiration by his use of the
concept of the ideal type and through his theory of the religious
basis of human rights.73
Jellinek was a good specimen of the modernist wing of the German
academic community that sought to respond to the uncertainties of
the age by an accommodation of insights from modern science –
sociology, anthropology, and psychology. These insights enabled him
to construct a complex argument about the Rechtsstaat that ended
up paradoxically espousing contradictory positions on two themes.
His methodology created space for a fully autonomous public law
while also basing that law firmly on sociological insights about the
centrality of power in the 70 Georg Jellinek, “Die Weltanschauungen
Leibnitz’ und Schopenhauers. Ihre Gründe und ihre Berichtigung.
Eine Studie über Optimismus und Pessimismus,” in Ausgewählte
Schriften und Reden (2 vols., Berlin, Häring, 1911), I, pp. 1–41.
71 Andreas Fijal and Ralf-René Weingärtner, “Georg Jellinek –

Universalgelehrter und Jurist” (1987), 27 Juristische Schulung, p. 98.
72 The Verein had been set up in 1872. Its leading members were
the economists Gustav Schmoller and Lujo Brentano who were
identified with the new “ethical direction,”
cf. Ringer, The Decline of the German Mandarins, pp. 146–147.
73 Cf. Guenther Roth, “Introduction,” in Max Weber, Economy and

Society (2 vols., trans.
Guenther Roth and Claus Wittich, University of California Press,

1978), I, p. lxxvii.
A different version of Jellinek’s career move is told in Willibald M.

Plöchl, “Zur Entwicklung
der
modernen
Völkerrechtswissenschaft
an
der
Viennaer
Juristenfakultät,” in F. A. von der Heydte et al. , Völkerrecht und

rechtliches Weltbild, Festschrift für Alfred Verdross (Vienna, Springer,
1960), pp. 43–44.
199
State. His law was founded on (subjective) State will – while

accompanied by a sociological argument about how that will was
(objectively) constrained so as to give reality to individual rights and
to international law.
Although the main body of Jellinek’s work was in the field of public
law, and written into his Allgemeine Staatslehre of 1900, read widely
beyond Germany,74 its relevance for international law is direct and
has been lasting. The distinction between a sociological and a legal
perspective on the State made it possible to characterize diplomacy,
too, as both struggle for power and the administration of a legal
system. The thesis of the normative power of the factual created
space for a Kantian internationalism that built on self-legislation by a
will aware of the constraints under which it had to work.
Jellinek’s defense of the reality of international law consisted of a

demonstration that it was essentially similar to other, uncontroversial
types of (public) law. It had been conventionally assumed that
treaties possessed legal character only by delegation from higher-
level norms of natural law, analogies from the law of obligations, or
from custom.75
This perspective had failed to create a “juristic” conception of
international law. To achieve this, one needed first to ask what in
general explained the law’s binding force. This, Jellinek wrote, was
its practical validity ( praktische Geltung), understood in a
psychological way, as a feeling or conviction of validity.76 “The
positivity of the law is based in the final analysis always on the
conviction of its validity. On this purely subjective element the whole
legal order is built.”77 A legal norm was felt as valid (and thus
“valid”) when it acted as motivation for the will of a legal subject.78
What joined uncontroversial cases of law was that they expressed
legal relationships as relations of will. Now sometimes, as in 74 In a
short period of time, three editions came out and the third had been
reprinted six times by 1929. The book was translated into French,
Spanish, Italian, Czech, Russian, and Japanese. Cf. Roland Holubek,
Allgemeine Staatslehre als empirische Wissenschaft. Eine
Untersuchung am Beispiel von Georg Jellinek (Bonn, Bouvier, 1961),
pp.
3–4.
75 Georg Jellinek, Die rechtliche Natur der Staatenverträge. Ein

Beitrag zur juristischen Construktion des Völkerrechts (Vienna,
Hölder, 1880), p. 4.
76 Jellinek, Die rechtliche Natur der Staatenverträge, p. 2.
77 Jellinek, Allgemeine Staatslehre, pp. 333–334. Jellinek saw only

two alternatives: the law arose either from a source that was
independent from human will – in which case the concept of law was
“metaphysical speculation” – or as a matter of human
consciousness, of human will.
78 The relationship of such a subjectively based theory of law to

Max Weber’s views about legitimation is clear.
200
much civil law, that relationship was between a superior and an

inferior will and expressed a relation of power ( Herrschaft). It was
this relationship that those had in mind who doubted the reality of
international law: there was no superior–inferior relationship
between States. However, all legal relations were not between two
separate wills. Jellinek’s proof of international law’s binding force
consisted in showing how in a number of uncontroversial cases law
emerged from a will that limited itself. Self-legislation explained not
only the State’s being bound by constitutional and administrative law
but the very possibility of there being subjective rights against the
State in a situation where a naturalist justification of such rights was
not scientifically plausible.79
Among later jurists, Selbstverpflichtungslehre has received a

reputation as a disingenuous offshoot of an étatist positivism. How
can a will limit itself ? If a State is bound only if it so wills, does not
that make obligation mere illusion? Obligation vanishes when the
State changes its mind.80 Such criticisms fail, however, to address
Jellinek’s (Kantian) move away from a pure voluntarism into a more
genuinely sociological understanding of the law in terms of the
structural constraints imposed on State will by the environment. In
order to understand Jellinek’s delicate oscillation between a (purely)
psychological and a (purely) sociological theory of law, it is
necessary to examine the way he saw law both as an autonomous
scientific discipline and firmly embedded in social and psychological
reality.
In accordance with the teaching of his Heidelberg colleagues Weber

and Rickert, Jellinek made the distinction between natural sciences
and the Geisteswissenschaften, locating the theory of the State
firmly as part of the latter. It had no natural object – for instance, it
could not be reduced to a study of the Volk with the view to
elucidating some natural organism in which the State and the people
were entangled. Nor could it be thought of in terms of ethics or
teleology, for these led into metaphysics: “To grasp an objective
purpose exceeds the capacity of our knowledge.”81 It was to be an
empirical science – not a science of the objective being of States but
of States as they appear (and, perhaps, must appear) to
consciousness.82 Like all science, Staatslehre was synthetic, it did
not 79 Jellinek, Die rechtliche Natur der Staatenverträge, esp. pp.
19–28.
80 Cf. e.g. Nelson, Rechtswissenschaft, pp. 26–30, 57–66; von Bar,

“Grundlage und Kodifikation des Völkerrechts,” pp. 145–157; Hans
Kelsen, Das Problem der Souveränität und die Theorie des
Völkerrechts (2nd edn., Tübingen, Mohr, 1928), pp. 168–174.
81 Jellinek, Allgemeine Staatslehre, p. 151.
82 Cf. Holubek, Allgemeine Staatslehre, pp. 9–14, 23–25.
201
seek to present things in themselves but in light of the scholar’s

concepts that sought to make sense of the disparate representations
in the external world.83 The theory of the State should not ask
“what is a State?”
but “how do we think about States?”. The State was a mental

construction, existing ultimately nowhere but in our heads. It was
not arbitrary for this reason, however, but a “thought-necessity,”
needed in order to make sense of the appearances of the social
world.
A useful legal theory had to explain the variations that appear in

empirical reality. This was not the case with, for instance, the
prevailing theory about composite international persons, a crucial
problem of public law in the wake of the American Civil War, the
establishment of the Swiss Confederation (1848), and of the German
Reich (1871). Full confusion reigned. Every new case, Jellinek wrote,
had become sui generis.
What now were needed were general legal concepts, based on

induction and formulated as ideal-types under which the complexity
of appearances could be managed.84 A federal or confederal
structure was not something that existed in the events themselves.
It was imposed on them by the observing scientist seeking to
synthesize perceptions offered by empirical reality. Such syntheses
were not effects of general causes or invariable laws: in human
sciences and law generalizations were possible only in the form of
broad types (though different, human beings also resembled each
other) that created cultural affinities between phenomena. Individual
particularities were abstracted away, leaving only general and formal
categories.85
From these premises Jellinek developed his “two sides theory” of the
State – the State as a sociological and a juridical conception, a
distinction that mirrored the Kantian dichotomy between the world
as Sein and as Sollen. In the sociological realm, the State could be
portrayed as a set of relations of will that took the appearance of
Herrschaft, the use of power by some over others. Or it appeared as
a geographically based community
of
individuals
pursuing
determined
objectives.
Synthesizing legal thought joined these aspects – relations of power

and pursuit of purposes – together by conceiving those who
exercised power in terms of organ status within the purposefully
acting State.86 Hence 83 The theory of the State did not examine
empirical States but aimed to group them by induction into ideal-
types that would then be used as explanatory aids, Allgemeine
Staatslehre, pp. 36–42.
84 Georg Jellinek, Die Lehre von den Staatenverbindungen (Vienna,

Hölder, 1882), pp. 11–16; Allgemeine Staatslehre, pp. 33 et seq.
85 Jellinek, Allgemeine Staatslehre, pp. 29–42.
86 This does not mean that the State is a fiction: it is an organizing

principle, “eine unserem Bewusstsein notwendige form der
Synthese,” Allgemeine Staatslehre, p. 170.
202
the definition of the (sociological) State as a “permanent community

of individuals possessing an original power to rule.”87
This did not, however, exhaust the State’s being. No social institution
or event – and certainly not the State – could be reduced to one
single frame of explanation. From a juridical perspective, the State
could be conceived as a legal subject, in which case the sociological
community ( Verbandseinheit) appeared as a particular kind of
corporation ( Körperschaft).
Again, this described no objective reality. Constructive legal thought

used a category such as “Körperschaft” to explain its object.88
Through it, the commands, prohibitions, and permissions by
determined individuals could be imputed as acts of the State and
seen as creative of legal norms. From a sociological perspective,
these norms expressed the will of those in power; from a legal
perspective, they were binding because they emanated from the
State.89
Thus the theory of the State was split in two: the sociologically
inclined Allgemeine Soziallehre des Staates and the legal–normative
Allgemeine Staatsrechtslehre. The inclusion of both aspects as parts
of a general theory enabled the taking account of the advances in
sociology and history without reducing the legal State to a passive
reflection of either.90
Jellinek’s psychological theory enabled him to maintain the

autonomy of law from social power in a way that had been an
important aspect of German public law positivism and served two
purposes in the consolidation of bourgeois society. First, by treating
all legal subjects as formally equal, it justified the exchange relations
in the market whose functioning required that traders be abstracted
from their particular situation and entitled the State to intervene in a
corrective fashion without the accusation of partiality.91 Second, by
abstracting itself from teleological, historical, or “organic”
explanations, it separated the formal structures of the State from the
infights in the political realm and offered State organs – the Imperial
Chancellor and the bureaucracy in particular –
the ability to operate outside the bitter conflicts that tended to

paralyze parliamentary politics.92
Both aspects were useful in the description of the international

world, 87 Jellinek, Allgemeine Staatslehre, pp. 180–181.
88 Jellinek, Allgemeine Staatslehre, pp. 169–173, 182–183.
89 Holubek insists that in this way, Jellinek’s theory went far to

justify de facto power relations, Staatslehre, e.g. pp. 18–19, 50–57.
This is true inasmuch as State will is seen as the (arbitrary) will of
the power-holders. This is not, however, the way Jellinek sees it.
90 Jellinek, Die Lehre von den Staatenverbindungen, pp. 9–10.
91 Tuori, Valtionhallinnon, I, pp. 41–50.

92 For a critical view, cf. Holubek, Staatslehre, pp. 54–57.
203
too, as the realm of sovereign equality where States were abstracted

from their particular qualities and not submitted to an external
political or moral assessment of their activities. A sociological
understanding of diplomacy as a realm of Herrschaft was not
incompatible with a legal understanding of the international as a
system of market relations between formal States that were legally
bound to the extent that they consented to so being. The
emergence of the legal from the sociological took place by
reconceiving relations of power as relations of will. The sovereignty
of the State thus became “the quality of a State to be obligated only
through its own will.”93 Moreover, to say that the State is bound by
its own will is nothing else than to affirm that the organs have the
competence to legislate which law affords them. Or from the reverse
perspective: if State law binds its organs – and this is of course the
very purpose of public law – then this, too, means that State is
bound by its own will. Rechtsstaat follows automatically from
Jellinek’s premises.94
Self-legislation is then not in conflict with international law but, on

the contrary, a guarantee of its legal force.95 It reconciles autonomy
and authority within a structure of argument received from Kantian
ethics:96
only an act that comes from autonomous choice can have ethical
significance. An act produced by irresistible external force has no
moral value.
The autonomous individual legislates for herself. Acting within the

international sphere, the sovereign State is in an analogous position.
It legislates for itself and its capacity to do so – its autonomy – is the
exhaustive explanation for why it is bound. But this is not true only
of its international obligations. The whole of the State’s
constitutional and public law are based on self-legislation.97 To think
self-legislation impossible is to think of the Prince as legibus solutus,
an argument for absolutism.
93 Jellinek, Die Lehre von den Staatenverbindungen, p. 32.
94 This meaning is often (and sometimes tendentiously) overlooked

by critics. Least of all is Selbstverpflichtung to be seen as a naturalist
analogy from individual rights as presented e.g. by Ernst Reibstein,
Völkerrecht. Eine Geschichte seiner Ideen in Lehre und Praxis (2
vols., Munich, Freiburg, 1963), II, pp. 40–41. Cf. also Léon Duguit,
Le droit social, le droit individuel, et la transformation de l’Etat
(Paris, Alcan, 1908), pp. 53–54 as well as Léon Duguit, L’Etat, le
droit objectif et la loi positive (2 vols., Paris, Fontemoing, 1901), I,
pp.
124–131.
95 “Was bis jetzt nur trotz der Souveränetät und gegen die
Souveränetät behauptet werden konnte, kann nun durch die
Souveränetät erklärt werden.” Jellinek, Die Lehre von den
Staatenbindungen, p. 36.
96 Cf also Jellinek, Die rechtliche Natur der Staatenverträge, p. 14

and Jellinek, Gesetz und Verordnung (Tübingen, Mohr, 1911, reprint
of the 1887 edn.), p. 192.
97 At one point Jellinek goes further, arguing that all obligation is

self-assumed: even in superior–inferior relations (such as those
between the State and the citizen) the decision to obey is ultimately
based on the citizen’s understanding of what is required of her.
Jellinek, Die rechtliche Natur der Staatenverträge, p. 15.
204
Admittedly, such a psychological jurisprudence came close to the

relativism of the Lebensphilosophen of the period. No external
morality dictated to States what they should will. The State’s only
clear duty was to be true to its autonomous self. Did this not make
the international world look like that “monster of energy,” that “sea
of forces flowing and rushing together,” of which Nietzsche had
spoken in a famous passage in 1885, the world as “the will to power
– and nothing besides! ”?98 But Jellinek immediately retreated from
a purely relativist, subjective understanding of will. The will was
constrained through the normative power of facts, normative Kraft
des Faktischen. Human thought vested states of things that have
stood for a long time – social normality – with normative quality.99
What exists becomes what should exist. This was no illegitimate leap
from facts to norms: the relationship was mediated by
consciousness.
The mind vested tradition with normative sense. But the mind, too,
countered its own conservatism by its tendency to rebel against
states of things that failed to meet expectations of justice. In both
directions, facts received normative meaning through the activity of
the mind, free and constrained simultaneously.100
The argument about the normative force of facts combined

voluntarism with social power in a way that provided a conceptual
basis for a theory and critique of legitimacy. It could have functioned
in the international sphere as in the domestic. In his 1880 book on
the law of treaties, however, Jellinek received the force of
Selbstverpflichtung from the purpose of the State and the nature of
the international society.101 Why can the State not free itself from
an obligation by changing its mind?
True, it may effectively change its mind where there is a reasonable

motive for doing so. This has always been accepted by the doctrine
of rebus sic stantibus. No compact is concluded to remain for ever in
force –
yet few of them contain formal termination clauses.102 But to

suggest that a State may always modify its obligations by a further
change of mind is to think of State will as completely arbitrary. This
cannot be so.
The State – as we have seen – is a purposeful community. Among its

purposes is the wish to engage in contacts with other States. To
break one’s compacts would go against this. It would make social life
impossible. To 198 Friedrich Nietzsche, The Will to Power (ed. Walter
Kaufmann, New York, Vintage, 1967), p. 550 (italics in original).
99 Jellinek, Allgemeine Staatslehre, p. 337.
100 This is close to Tönnies’ distinction between Wesenwille and

Kürwille – the former expressing a will close to a person’s nature,
the latter an arbitrary choice. Cf. Ringer, The Decline of the German
Mandarins, pp. 164–165.
101 Jellinek, Die rechtliche Natur der Staatenverträge, pp. 40–45.
102 Cf. also Jellinek, Die Lehre von den Staatenverbindungen, pp.
102–103.
205
have a purpose is to will the presence of the conditions under which

the purpose may be fulfilled.103 If a State can fulfill its purpose only
by participating in international life, then it must keep its promises
unless there is a reasonable motive – such as Notrecht – for
disregarding them.104 No State can be reasonably assumed to
commit suicide! This is not to say that the “living conditions of
nations” (“Natur der Lebensverhältnisse”) under which States are
compelled to seek their purposes are natural law
– they are the concrete reality States have to take into account in
their interaction with each other.
In his 1880 book, Jellinek countered the weaknesses of pure

voluntarism by a sociological rejoinder: law is based on will, but will
is constrained by the environment, conceived in a rationalistic
manner. The need for cooperation compelled States to project each
other as legal subjects towards which they made promises that
enabled cooperation for the attainment of reciprocal and common
interests.105 Although confederations and other interState
compacts, he argued in 1882, were based on regular treaties, and as
such on Selbstverpflichtung, they were also a socially conditioned
feature of modern life. Interdependence pushed (rational) States
into cooperation: “Gemeinschaft ist überall da vor-handen, wo es
Verkehr gibt.”106 This was a community of interests and purposes
whose internal cohesion was constantly being strengthened by
cultural development and the needs of international administration
and which was expressed in legislation but based ultimately on
“nature.”107
Rationalism and politics: a difficulty
Jellinek brought public and international law together with sociology,

politics, and history, combined philosophical idealism with dogmatic
positivism, natural science with psychology. Such use of a technique
of multiple perspectives was not dissimilar from that used in the
literature 103 Jellinek, Die rechtliche Natur der Staatenverträge, p.
44.
104 Jellinek, Die rechtliche Natur der Staatenverträge, p. 62.
105 Jellinek, Die rechtliche Natur der Staatenverträge, pp. 48–50.

For critics, the view that the State was constrained by the
environment was no legal constraint: it described a factual condition
which States might or might not take account of, Nelson,
Rechtswissenschaft, pp. 60–62.
106 Jellinek, Die Lehre von den Staatenverbindungen, p. 94.
107 Jellinek, Die Lehre von den Staatenverbindungen, pp. 95, 109–
113. Jellinek had used an analogous argument in his discussion of
the emergence of norms in primitive society in Die sozialethische
Bedeutung in 1878, pp. 16–22, 25. There he defended a social
conception of ethics against an individualist one in a way that
suggested a collective determination of the contents of voluntas, cf.
e.g. pp. 33–41. For a criticism of this as naturalism, cf. Triepel,
Völkerrecht und Landesrecht, pp. 80–81n.
206
and art of the period: accepting different descriptive vocabularies

suggested the existence of more than just one reality.108 By
opening up diverse ways of thinking about the State Jellinek was
able to satisfy the need for a realistic appreciation of social power,
simultaneously justifying the Rechtsstaat.109 But he bought the
success of his construction by an altogether unwarranted
assumption of the intrinsic rationality of the European political order,
a rationality that he needed in order to explain why the self-
legislating freedom of States would not lead into anarchy or
imperialism.
In the period after the establishment of the Empire, from 1871 to

1890, it must have seemed plausible to argue that though
international law was based on State will, that will would reflect the
rational necessities of the surrounding world. If the complex network
of treaties with which Bismarck had managed European foreign
policy could be seen as a reflection of deeper social necessities – the
workings of the balance of power, for instance – then there was
nothing suspicious about it. In 1890, Jellinek reflected upon the
state of the international order in relatively optimisticterms. True, no
legal arrangement would do away with the “unchanging nature of
the human soul” that sometimes called for war in order to realize a
revolutionary idea, or to bring in a better period. The possibility of
war remained an index of freedom, the ability to transcend existing
(irrational) power. But with the increase of interdependence and the
costs of war for national societies, interest in peace would continue
to grow: “Indeed, it may be said that the interest towards the
maintenance of peace has now attained an unprecedented
intensity.”110
But to assume that States would continue to hold themselves bound

by their agreements even against their short-term interests was to
think of them as rational interest-calculators in a world where there
was no doubt that everyone’s long-term interest lay in cooperation.
Both assumptions seemed difficult to sustain. The nationalist politics
of European States seemed far from a rational process of interest-
calculation. And there was little evidence that cooperation instead of
decisive action would bring about the best national result. After
Bismarck’s fall, the Reinsurance treaty 108 Cf. Kern, The Culture of
Time and Space, pp. 139–149.
109 Stolleis regards it as a summary of nineteenth-century German

public law theory, Geschichte, II, pp. 451–454. But it may perhaps
also be seen as a break towards an increasingly eclectic legal study.
110 Georg Jellinek, “Die Zukunft des Krieges” (1890), in

Ausgewählte Schriften, II, pp. 537, 515–541.
207
with Russia was allowed to lapse. Chancellor von Bülow’s declaration

of a German Weltpolitik (“world policy”) in 1897 was accompanied
by a grasp for new colonies in Africa and the Far East, the creation
of economic spheres of influence, and a massive increase in naval
power. What historians call “social imperialism” sought to unite
German classes under an unashamed nationalism and an adversarial
atmosphere in Germany was exploited in the popular mind through
the image of an irreducible opposition between a (deep and
creative) German Kultur and a (shallow and commercial) Anglo-
French “Civilization.” The Kaiser’s eccentric and unpredictable
incursions into foreign policy did nothing to assure other powers of
Germany’s peaceful intentions.111 As Jellinek himself observed at
the opening of the 1899 Hague Peace conference, it was a fine irony
on the Emperor’s part to appoint to the German delegation two
lawyers one of whom (Baron von Stengel) had only recently
published a pamphlet ridiculing the idea of perpetual peace and the
other (Philipp Zorn) had just denied international law’s quality as real
law.112
Whatever the philosophical merits of the theory of self-legislation, its

political credibility was undermined by the perception of European
diplomacy in terms of an aggressive desire for hegemony. The
argument from the “Natur der Lebensverhältnisse” would have
needed a separate defense in order to act as a plausible constraint
for the will to power.
Merely to state that cooperation would bring about peace was to

state the conclusion, not the argument. Self-legislation translated
into international law the Kantian theory of freedom as the
reasonable will. A formal order seems a necessary implication of the
freedom of the single State: “I should exercise my freedom so that it
leaves room for the equal freedom of others.” But such rationalism
had little to do with political reality. It either implied a fundamental
critique of the present international order – or it assumed a
sociology of interdependence, but failed to produce any evidence for
it. Jellinek remained the optimist he declared himself in 1872, who
believed that even war might have beneficial consequences, but his
optimism remained grounded in a liberal faith about the intrinsic
rationality of political and economic modernity that was undermined
by experience.
111 For the argument that Wilhelm II was in fact mentally ill, cf.
John G. Röhl, The Kaiser and His Court. Wilhelm II and the
Government of Germany (Cambridge University Press, 1994). On
Germany’s social imperialism, cf. Mommsen, Imperial Germany, pp.
77–100.
112 Georg Jellinek, “Zur Eröffnung der Friedenskonferenz” (1899), in

Ausgewählte Schriften, II, pp. 542–543, 547–548.
208

At the turn of the century, there were no chairs specifically for
international law in Germany so that the topic was usually combined
with constitutional or administrative law. Even in major universities
such as Heidelberg, Leipzig, and Munich, only a few courses were
given in the subject, and those by public law generalists that had
done little independent research into it. There was undoubtedly no
other juridical discipline, the pacifist liberal Walther Schücking
(1875–1935) wrote in 1913, whose representatives could be
characterized as properly outsiders to the field they taught.113
Some assumed that the situation resulted from the great
codifications (particularly of the German Civil Code, the BGB) that
had monopolized lawyers’ attention in the past fifteen to twenty
years.114 Others felt that it was an outcome of the predominance of
Bismarckian Machtdenken in public administration.115
A 1919 study commissioned by the German League of Nations Union

( Deutsche Liga für Völkerbund) held it nothing short of scandalous
that one of the members of the German delegation to the 1907
Hague Conference, an Admiral, confessed to having read nothing of
international law apart from the textbooks of von Liszt and
Oppenheim. The study proposed to the German ministry of
education a massive increase of university positions in the subject
and its inclusion in the curricula of all institutions of higher learning
as well as in the entry examinations ( Prüfungsexamen) for public
administration. Before the war internationalists had argued that as a
world power Germany could not afford to neglect the study of
international law. Now such study seemed all the more important
inasmuch as it could be used to oppose the domination of the
League of Nations by the Entente powers.116
By 1919 three streams of writing on international law had emerged

at German universities.117 The public law tradition concentrated on
examining treaties from the perspective of the Reich constitution.
Another faction, led by Schücking, aligned the subject as part of its
113 Walther Schücking, “Der Stand des völkerrechtlichen Unterrichts
in Deutschland”
(1913), VII Zeitschrift für Völkerrecht, pp. 375–382.
114 Karl Strupp, “Die deutsche Vereinigung für internationales

Recht: ihre Notwendigkeit, ihre Entstehung, ihre bisherige Tätigkeit”
(1914), XXIV Zeitschrift für Internationales Recht, pp. 355–357.
115 Moritz Liepmann, “Die Pflege des Völkerrechts an den deutschen

Universitäten”
(1919), 6 Monografien der Deutschen Liga für Völkerbund, pp. 14–

15.
116 Liepmann, “Die Pflege,” pp. 5–15.
117 Cf. also Stolleis, Geschichte, III, pp. 86–89.
209
left–pacifist sensibility and called for collaboration across professional

and political boundaries. A third stream, closest to the Institut,
combined its mild reformism with the sophistication of German
Rechtslehre, taking seriously the argument from interdependence
that promised a scientific explanation for how sovereign States could
be free and still bound. Each of the three should be understood by
reference to the German political context and be seen as waging a
distinctly German debate about legal form and legal substance,
social ideals, and the concrete reality. Public lawyers were convinced
of the superior insights that the German legal tradition had
developed of the workings of State and law. Selfconsciously
historical and völkisch, they could not fail to regard the international
as the realm of the unhistorical and the artificial. Pacifists advocated
domestic democratic reform as part of their cosmopolitanism. The
textbook writers of the third stream were in something of a
dilemma. Little of the positive law had emerged from German
sources: the British could always argue from their colonial practices,
their ententes and arrangements since the early seventeenth
century. The French had their political philosophes, their universalist
traditions. What the Germans had was idealist philosophy and a
historical jurisprudence. Schooled in this jurisprudence, and
surrounded by skeptics, German internationalists had to come up
with seriously scientificexplanations to demonstrate that there was
an international realm with a concrete historical and cultural base
and that it was actually useful for German diplomats to pay attention
to it, too.
Public law and the Hague Treaties
As the German system combined international law at the universities

with other branches of public law, it was natural that much of the
writing in the field reflected the general preoccupations of public
lawyers, followed the “juristic Method,” and took the perspective of
the Reich constitution. As Heinrich Triepel noted in 1922, whatever
the internationalists had to say about this system, it did not isolate
international law as Roman law did and often contributed to the
depth and recognized quality of the German scholarship on it.118
Yet, and perhaps Triepel himself was an example of this, it did create
a German Sonderweg in which the national perspective so clearly
dominated over abstract 118 Heinrich Triepel, “Ferdinand von
Martitz. Ein Bild seines Lebens und seines Wirkens” (1922), 30
Zeitschrift für internationales Recht, p. 162.
210
internationalism. This was expressed very adroitly by one of the men

of this tradition, Germany’s representative at the Hague Peace
Conferences of 1899 and 1907, the constitutional lawyer and
monarchist Philipp Zorn (1850–1928) in his Rectoral address at the
University of Bonn in 1911: Germany was the leading power in
Europe – but its unity was threatened internally and externally. He
therefore pleaded that the unity of the German State be held as “the
uppermost law of our public lives”: “So too in that branch of public
law which the German legal language has been accustomed to
calling international law.”119
For Triepel or Zorn – like Laband – international law was made

principally of treaties, conceived as expressions of sovereign will, not
as emanation from an interdependent modernity. Even if the former
took a step in the internationalist direction by his Vereinbarung
doctrine (that sought to respond to the criticisms against self-
legislation), that remained a thin, intellectual construction that failed
to support an autonomous, cultural sense of an international realm.
For Triepel as for Zorn the international was a vacuum that was filled
by the wills of States entering and exiting it more or less as they
pleased. Triepel’s nationalism was graphically illustrated by his
resignation from the Institut in 1919 as a protest against the
Versailles Treaty. But though everyone quoted the passage in Zorn’s
constitutional law book that relegated unratified treaties to the realm
of morality, he was by no means against them, and later became a
firm supporter of compulsory arbitration.120
There is no doubt that these lawyers were closest to the German

government – that is to say, the Emperor – whose aversion to the
esprit d’internationalité seemed conclusively demonstrated by the
appointment of Baron von Stengel (1840–1930) and Zorn as
members in the German delegation to the first Hague Peace
Conference. Von Stengel was a relatively unknown Professor of
Administrative and Constitutional Law from Munich whose merits
included the publication of a textbook on German colonial law and a
pamphlet against utopian ideas of eternal peace. In 1909 von
Stengel still taught the incompatibility of sovereignty with
compulsory arbitration and criticized the compromise under which
Germany had “in principle” agreed to it in the Hague two years
earlier.
He associated it with eighteenth-century French individualist

sentimentalism, pacifism and social democracy that ignored the
lessons of history 119 Philipp Zorn, Das deutsche Reich und die
internationale Schiedsgerichtsbarkeit (Berlin, Rothschild, 1911), p. 6.
120 Philipp Zorn, Das Staatsrecht des deutschen Reiches (2 vols.,

Berlin, 1883–1895), I, pp.
495–500.
211
and constituted mortal dangers for a Germany encircled by hostile

neighbors. No world State was emerging; nations and races were
simply too different. British pacifism was British imperialism in
disguise. A treaty on freezing the levels of armament, for instance,
would leave British naval domination intact. But sentimentalism was
wrong in principle, too. War was not only an instrument of
destruction. It also acted like revolution, pushing aside obsolete
political forms, making room for the new and dynamic, supporting
artistic and scientific creativity, heroism, and the spirit of self-
sacrifice. As Japan’s victory over Russia had demonstrated, von
Stengel wrote, without preparedness for war, Europe would succumb
to the yellow races.121
Von Stengel’s appointment was widely criticized but his role in the
Hague remained small. His 1909 tract collected many conservative
themes about international politics under an assessment of the
Hague Conferences. It responded to ideas prevalent in Germany but
remained an isolated pamphlet within the international law
community. By contrast, Zorn became an active participant in the
Conferences and propagated their results with enthusiasm, publicly
commending Chancellor von Bülow’s change of attitude to arbitration
in 1899 (in which Zorn himself seems to have played an important
role) but criticizing Germany’s steadfast opposition to making it
compulsory in 1907.122 He was proud of the German contribution in
the drafting of the Statute of the Permanent Court of Arbitration and
agreed with Jellinek’s positive assessment of its importance.123 In
his Rectoral address he claimed that the initial German skepticism
had been caused by inflated expectations and used the occasion to
reiterate the pointlessness of its continued opposition to compulsory
arbitration. It had already been adopted in a German–British
arbitration treaty of 1904, and there was no reason why it could not
be generalized. Even without a specific reservation, it was obvious
that vital interests and national honor ( Ehrenklausel) would limit the
potential dangers.
Yet Zorn carefully distanced himself from the pacifists. Whether the
conferences were organs of an “international community,” as
Schücking had recently argued, was not a legal question: participant
States still 121 Cf. Karl von Stengel, Weltstaat und Friedensproblem
(Berlin, Reichl, 1909).
122 On Zorn’s role in settling the “arbitration crisis” created by the

German government’s initial rejection of all permanent arbitration, cf.
Arthur Eyffinger, The 1899
Hague Peace Conference. “The Parliament of Man, the Federation of

the World ” (The Hague, London, and Boston, Kluwer, 1999), pp.
373–378.
123 Philipp Zorn, “Moderne Legitimisten” (1908–1909), II ARWP, pp.

178–179.
212

acted as individual subjects whose will determined what was
attainable.124 In 1911, he cautioned against transforming the Court
from a list of arbitrators into a standing body.125 After 1918,
however, he enthusiastically greeted the establishment of the
Permanent Court and held it natural that the two bodies should be
integrated into one. But he joined lawyers who preferred the Hague
system to the League which he, together with practically all his
German colleagues, understood as an instrument of Anglo-American
imperialism.126
The public law perspective was not intrinsically hostile to

international law. Liberal-minded lawyers such as Robert Piloty
(1863–1926) pointed out that it was an aspect of the move from
absolutism to republicanism that the State saw itself bound by law
also in its external relations.127 Foreign policy was not an affair of
power alone, but a projection of the State’s legal order beyond its
boundaries – a view whose consequences were later explored in
Kelsen’s monism. Yet, however much sympathy public lawyers might
have had for internationalism, it must have seemed awkward to
them to derive the complex legal system of the Wilhelminian State
from it. A preference for the international over the national – or, as
Kelsen put it, for pacifism over imperialism – was by no means a
culturally obvious choice within the profession.
A pacifist profession? Kohler, Schücking, and the First World

War
There existed no international law journals in the German language

at the turn of the century. Occasional articles on international
questions (including colonial and private international law) had been
published in the Archiv des öffentlichen Rechts, set up by Laband
and Felix Störk (1851–1908) in 1885.128 In 1906 Josef Kohler
(1849–1919), a prolific 124 Philipp Zorn, Weltunionen, Haager
Friedenskonferenzen und Völkerbund (Berlin, Dummler, 1925), p. 7.
125 Philipp Zorn, Das deutsche Reich und die internationale
Schiedgerichtsbarkeit (Berlin and Leipzig, Rothschild, 1911), pp. 7–8,
16–28, 44.
126 Zorn, Weltunionen, esp. pp. 47–60.
127 Robert Piloty, “Staaten als Mächte und Mächte als Staaten. Ein
Wort zu den Grundlagen des Völkerrechts” (1914), VIII Zeitschrift für
Völkerrecht, pp. 360–365.
128 Of the 28 articles classed under these items in the Archiv’s first
25 years, three were written by well-known international lawyers –
Heinrich Lammasch (1853–1920) from Vienna, whose contribution
dealt with nationality, Ferdinand von Martitz (1839–1922) from
Tübingen and Berlin who, though trained in legal history,
constitutional, and administrative law, was one of the German
members of the Institut, and whose long article on the suppression
of slavery and the slave trade in Africa 213
writer in legal philosophy, history, comparative law, and in many

fields of legal dogmatics, set up the first German journal devoted to
international law, the Zeitschrift für Völkerrecht und
Bundesstaatsrecht. Kohler’s interest in international law stemmed
from his multidisciplinary and internationalist leanings and Hegelian
idealism. He remained, however, an outsider to the profession (he
never became a member or associé of the Institut), emphasizing in
non-technical articles the close links between international law –
including his own journal – and the pacifist movement. In 1910, for
example, he attacked the standard conservative argument about
war’s inevitability. Even if it was impossible to cease all war
immediately, this was no argument against a policy of small steps.
Even if war exceptionally – as war of liberation – might have positive
effects, such effects were now achievable on the pacific fronts of
economy, technology, and science. Pacifism, he wrote, was not
feminine, as its opponents claimed, but offered many outlets for the
demonstration of manly vitality (“männliche Lebenskraft”).129
Kohler was concerned over the German image as a nation of milita-

rists. As a large power in the heart of Europe it had special reason to
refrain from aggressiveness. He had no doubt that Germany and its
neighbors were equally civilized and peaceful and needed to learn to
talk that way, too. He believed in the cultural unity of humanity and
characterized international law as a “science of peace.”130 In 1913
Kohler welcomed the opening of the Peace Palace in the Hague and
of the new law school – the Hague Academy – and wrote
optimistically about arbitration, the slow coming of a world
federation, and a permanent world court. Though news from the
Balkans was worrisome, he wrote, the Peace Palace was inaugurated
under favorable circumstances.131
Footnote 128 ( cont. )
remained one of the more important legal treatments of the topic,

and Friedrich Geffcken (1830–1896), also a member of the Institut,
commenting on a French–
Chinese dispute. All three articles were published in the Archiv’s first
volume. In later years, most of the international law materials came
from established public lawyers such as von Stengel and Störk or
young doctors who edited their theses for the Archiv.
However, the classification of an academic German jurist as an

“international lawyer” is complicated. As in Germany the subject was
combined with constitutional or administrative law, someone
formally qualified in all these subjects was free to orient himself
through his writings or his participation in professional societies. For
an early positive assessment of the “German system,” cf. Triepel,
“Ferdinand von Martitz,” p. 162.
129 Josef Kohler, “Die Friedensbewegung und das Völkerrecht”

(1910), IV Zeitschrift für Völkerrecht, p. 138.
130 Kohler, “Die Friedensbewegung,” pp. 129–131.
131 Josef Kohler, “Der Friedenstempel” (1913), VII Zeitschrift für

Völkerrecht, pp. 237–240.
214
His optimism did not survive the war. In a joint editorial with Max
Fleischmann (1872–1943, the future editor of von Liszt’s
Völkerrecht) in 1916 Kohler declared that the international law of
agreements had come to an end. The war had demonstrated the
enormous differences in the legal consciousness of European
powers. The English total war ( Wirtschaftskrieg) struck at civilians
and was completely at odds with the German idea of war as struggle
between States. It was time for a German journal to bring forward
the German standpoint. It was time for a jurisprudence that would
not rest content with examining the day’s diplomacy: a new law
should arise from the depth of the histories, lives, and interests of
European societies. Dreams of peace had dispersed like soap
bubbles and the Peace Palace could now open its doors for other
worthy human goals. With undisguised bitterness Kohler admitted
having been himself prisoner of the illusion that other nations would
share his idealism; that they too would have enough to do at home.
All this was error: “Treaties with liars and traitors cannot form
sources of law; only peoples with a sharp moral sense may be
entitled to participate in law-creation.”132 Could the British and the
French be trusted, or be treated as brothers? “Nein und dreifach
nein.” Instead of treaties, a natural law was now needed, Kohler
wrote, that was progressively enveloped in culture as an idea
simultaneously historical and rational; not an abstract conceptual
jurisprudence but a science whose leading principles would emerge
from the observation of life itself. This would be a truly German
science and a legislator that would express necessary historical and
rational truths. The victorious war would inaugurate the Kaiser as
the guarantor of international law and justice.
Kohler’s about-face led to a complete break with the pacifists –

manifested in the firing of Hans Wehberg (1885–1962) from his
recently attained co-editorship in the journal. Kohler himself did not
survive to follow the ups and downs of the German international
lawyers’ relations with the League of Nations. By contrast, Wehberg,
and in particular his friend Walther Schücking, became heavily
involved in the post-war reconstruction. Schücking who was also a
left–liberal politician (member of the Progressive People’s Party and
after its demise in 1918 of the German Democratic Party), a member
of the German peace delegation at Versailles, and the only German
judge at the Permanent Court of International Justice, alternated
between positions of influence and 132 Josef Kohler, “Das neue
Völkerrecht” (1916), XI Zeitschrift für Völkerrecht, p. 7. Kohler also
justified Germany’s occupation of Belgium as a legitimate case of
Notrecht. Cf.
(1914–1915), 8 ARWP, pp. 412–449.
215
marginality. His career highlighted the genuine ambivalence of a

legal politics hovering between pacifist internationalism and
commitment to domestic democratic reform. Schücking sought a
break from the political traditions of the Prussian Machtstaat. He
advocated a German rapprochement with the West and interpreted
his own left–liberal sensibilities as the real heritage of the German
people. Among German international lawyers, his position came
closest to the mainstream of the Institut de droit international: a
naturalistically backed but pragmatically oriented reformism, an
optimistic belief in the harmony of reason, peace and cooperation
within permanent international institutions. It is easy to understand
why Schücking became the most respected German international
lawyer outside Germany – but also why his influence at home
remained negligible apart from the moment after the war when the
direction of his pacifism and German policy briefly coalesced.
Schücking came from a family of liberal traditions but did not engage
in politics until having received a chair at Marburg’s conservative law
faculty in 1902.133 The crises of the first years of the century and
his contacts with left–liberal politicians, his mentor Ludwig von Bar
from Marburg (1836–1913) and above all the Austrian pacifist Alfred
Fried (1864–1921), led him into a political jurisprudence and
alignment with the latter’s “organizational pacifism” that were
completely alien to German publiclaw.134 Like the Statute of the
Institut, Schücking saw the international jurist as an educator of the
people, a “Mentor des Volkes über alle Klasseninteressen.”135
Lawyers were not describers of but participants in international
politics and had a duty not only to report on existing law but to
further its development. Schücking blamed his colleagues for their
backward-looking orientation, their disregard of natural law and of
the socio-economic developments of the fin-de-siècle. Germany was
stuck with nationalism at a time when everyone else was becoming
internationalist.136 In a much-read pamphlet in 1909 he repeated
Bluntschli’s proposal for a European confederation with the long-
term objective of a World State.137 He later had several occasions
to develop his 133 For Schücking’s early years, cf. Detlev Acker,
Walther Schücking (Munster, Aschendorff, 1970), pp. 4–13.
134 He admitted having received much of his education in

international law from Fried.
Acker, Walther Schücking, p. 42.
135 Acker, Walther Schücking, p. 18.
136 Walther Schücking, Die Organisation der Welt (Leipzig, Kröner,

1909), p. 7.
137 Walther Schücking, “L’organisation internationale” (1908), XV
RGDIP, pp. 5–23, later published as “Die Idee der internationalen
Organisation in der Geschichte,” in Der Bund der Völker. Studien und
Vorträge zum organisatorischen Pazifismus (Leipzig, Geist, 1918),
pp. 17–34.
216
proposal, but its outline remained unchanged. Law, pacifism, and

international institutions formed a closed trinity: without one, the
other two would not be attained. The position arose from a genuine
but ethnocen-tricfaith: World State meant a gradual Europeanisation
of the world.138
Schücking’s most famous argument was his interpretation of the

Hague Peace Conferences of 1899 and 1907 as a World
Confederation.
In a book that started with a complaint about the impoverishment of

German spiritual life at the turn of the century – a point he
constantly repeated – Schücking attacked his colleagues for having
completely mis-understood the work of the Hague. For “in the year
1899 the Hague Conference, although not expressis verbis, yet
implicite and ipso facto, created a World Confederation [
Weltstaatenbund].”139 In a long, dogmatic argument Schücking
almost suggested that where there were diplomats and politicians
sitting down with full powers to negotiate a law-making treaty, there
was a confederation. This, he opined, followed as the necessary
result of the employment of conceptual jurisprudence. “ It is the task
of jurists to subsume the new creation under one of the categories
of public law or, if this were impossible, to create a new category for
the novel structure.”140 In contrast to technical cooperation within
international unions, the Permanent Court with its standing
administration was a genuinely political body with unlimited
substantive jurisdiction.141 As the States now had (unwittingly) set
up a confederation of the world, it followed – “logically” – that they
recognized each other as sovereign equals, equally entitled to
independence and territorial inviolability.142 A peaceful world was
created by juristic interpretation! This involved suggesting that
States had set up a creation whose nature not only escaped them
but, had it been expressly stated, would have been immediately
rejected. The oddity of the suggestion is hardly diminished by 138
Walther Schücking, “Die Annäherung der Menschenrassen durch das
Völkerrecht,”
in Der Bund der Völker, pp. 59–78.
139 Walther Schücking, Das Werk vom Haag, Erster Band: Die
Staatenverband der Haager Konferenzen (Munich and Leipzig,
Duncker & Humblot, 1912), p. 81. The book has been translated as
The International Union of the Hague Conferences (trans. G.
Fenwick, Oxford, Clarendon, 1918), in which the expression
“Weltstaatenbund” has been inappropriately translated as “World
Federation,” p. 86. Throughout the book, however, Schücking takes
pains to refrain from arguing that the Hague Convention of his
proposal would set up a supranational form of government.
140 Schücking, Das Werk vom Haag, p. 81.
141 Schücking, Das Werk vom Haag, p. 74. Nonetheless, he

recognized that the optional character of the process and the fact
that not all States had signed the convention remained (practical)
limits to its functions and deviated from its character as a
Weltstaatenbund.
142 Schücking, Das Werk vom Haag, p. 280.
217

Schücking’s oscillation between conceptual jurisprudence and
politics.
He even suggested that the interpretation was a historically

consistent development of the public law tradition: Laband had used
formalism to strengthen the structures of the young Reich; Jellinek
had employed history and philosophy to legitimize the Reich against
its enemies. The next step was internationalism. He proposed a
thirteen-article constitution to be adopted for the Confederation at
the third Hague Conference that was projected for 1915.143
Schücking propagated his Confederation in innumerable public

speeches and at meetings of academic and political societies as well
as through the establishment, in 1910 (with Jellinek, Nippold, Piloty,
Liszt, and Ullmann), of an Association for International Conciliation (
Verband für internationale Verständigung). However, none of his
colleagues agreed with his proposals as such and many were
strongly against them. The activity of the Verband was obstructed by
an imperialist faction and by the difficulty of keeping a distance
towards pacifist organizations.
Although participation in its meetings grew constantly during 1910–

1913, it failed to receive mass support and, though formally
continued until 1926, lost all influence in 1914.144
But if Schücking’s points about the “Work of the Hague” were of

doubtful strength as law, they did become useful when the war drew
attention to future European organization. In 1914 Schücking
became member of the pacifist Bund Neues Vaterland which was
prohibited by the military authorities during the war but re-emerged
after the armistice as one of the most genuinely committed German
organizations to speak for an association of nations as part of the
peace.145 Through the Bund, Schücking had already during the war
taken part in the effort by European pacifists to initiate informal
peace talks.146 Though these 143 This was a modest proposal. The
confederation would have sought to preserve peace without
encroaching on the independence of its members. It would have
administered a judiciary and a codification process, sought to
enhance the protection of individuals, and dealt with administrative
and executive tasks. Its Conference would have met once every ten
years with a governing council and special commissions to deal with
daily affairs. Its decisions would have been subject to national
ratification.
Schücking, Das Werk vom Haag, pp. 236–271.
144 On the Verband, cf. Acker, Walther Schücking, pp. 50–59.
145 Christoph M. Kimmich, Germany and the League of Nations

(University of Chicago Press, 1976), p. 17. Schücking was himself
prohibited from publishing articles, corresponding with foreign
colleagues, and traveling abroad. Cf. his “Der Völkerbundsentwurf
der deutschen Regierung,” in P. Munch, Les origines et l’oeuvre de la
Société des Nations (2 vols., Copenhagen, 1924), II, p. 141.
146 “The Central Organization for a Permanent Peace” was set up in

1914 first in Switzerland and then in the Netherlands. It covered
peace societies from ten 218
attempts were unsuccessful – the British insisted that Germany first

renounce all claims over Belgium – the “Minimal Programme” drafted
through that cooperation contained provisions on future organization
that came from Schücking’s hand and closely followed his Werk vom
Haag.147 At the time, his pacifist colleagues were taken aback by
his concentration on dogmatic questions at the expense of attention
to the tactical problems of the day, sometimes interpreting it as a
pro-German distraction. For Schücking opposed labeling Germany as
alone responsible for the war and avoided taking positions on
minority questions that might have been harmful for Germany. In
general, however, he had little patience for short-term planning and
tactical maneuver. In 1918, as German politicians were already
groping their way towards an honorable peace, he declared that only
an express alignment with pacifism would salvage international law
from its present decay: “in this sea of blood through which we must
wade our way, let us raise our white flag and let it flutter in the
wind: even if the passion of the times may raise ever higher the hate
of peoples against each other, we still believe in the greater power of
love.”148 In 1918 Schücking conducted a minute analysis into the
events that had led from Sarajevo to the war. What had gone
wrong? Schücking had no tolerance for suggestions that nothing
could be done because wars arose from irrational passion or because
they were an inevitable part of the natural order. The Austro-Bosnian
conflict could have been avoided if only more efficient procedures of
settlement had been present.149 Dealing with the July crisis as a
legal conflict (for Schücking any important conflict was bound to
contain legal claims) did not mean recourse to impossibly rigid
methods of settlement. Flexible procedures – such as mediation –
were available and their use would have provided – and should
provide – time for passions to cool down and the parties to reach a
settlement. Though the will of war may be there, it can be controlled
by tying the parties to an efficient negotiating process.150
After the armistice and the November revolution Schücking bound

himself increasingly with the new Germany that he hoped would
develop into a properly Western democracy. His great moment came
in European States – five neutrals and five belligerents – and
debated general issues such as post-war organization as well as
concrete issues such as annexations, reparations, minorities, and
democratic control of foreign policy. Cf. Acker, Walther Schücking,
pp. 66–101.
147 Acker, Walther Schücking, pp. 78–82.
148 Walther Schücking, Die völkerrechtliche Lehre des Weltkrieges

(Leipzig, von Veit, 1918), p. 12.
149 Schücking, Die völkerrechtliche Lehre des Weltkrieges, pp. 42–
51.
150 Schücking, Die völkerrechtliche Lehre des Weltkrieges, pp. 202–

204, 212–219.
219
early 1919 as news of the results of the Paris negotiations reached

Berlin and it began to dawn on the government that not only would
peace not be negotiated by reference to Wilson’s fourteen points, as
Germans had hoped, but that it would not be negotiated at all. In
the previous autumn Schücking had participated in the drafting of a
constitution for the League within the Deutsche Gesellschaft für
Völkerrecht. On this basis he was asked to prepare a proposal for
the German Government together with the influential head of the
Legal Division of the Auswärtiges Amt, Walter Simons (1861–1937),
a future member of the Institut, and the latter’s follower Friedrich
Gauss.151 The result was a text that contained provision for a world
Parliament, compulsory adjudication or mediation of all dis -
putes, and no final right to go to war. It adopted provisions from the

draft of the Gesellschaft on functional cooperation, freedom of the
seas, protection of minorities, and the joint administration of
colonies.152
Introducing it to the German Government in April 1919 Schücking

stressed that it was much more progressive than the Allied draft, a
real manifestation of “liberty, equality, and fraternity among
nations.”153
The Allies included nothing of the German draft in the Covenant.154
As one of Germany’s six main delegates at the Peace Conference,

mis-informed like most of the population about the depth of Allied
feelings against Germany, Schücking went through the worst
disappointment of his career. The predominant position of the
Council and of the Great Powers, the absence of a World Parliament,
and the residual role of war in the Covenant fell far short of wartime
plans and even of Wilson’s proposals. It is of course uncertain to
what extent the German Government felt committed to its own
proposals. They were probably intended at 151 Simons worked for a
brief period after Ebert’s death as acting Reichsprezident and later
became President of the German Reichsgericht. He was expert in
private international law and an active participant in international
jurists’ cooperation. He edited Pufendorff’s De jure naturae et
gentium for the Carnegie Series and published a brief historical
essay on the development of international law since Grotius. He also
gave a series of lectures at the Hague Academy of International
Law: “La conception du droit international privé d’après la doctrine
et la pratique en Allemagne” (1926/V), 15 RdC, pp. 437–529.
152 For the text of the official German draft and a short comparative
introduction, cf.
Hans Wehberg and Alfred Manes, Der Völkerbund-Vorschlag der

deutschen Regierung (Berlin, Engelmann, 1919).
153 Kimmich, Germany and the League of Nations, p. 20. Cf.

Schücking’s comparison of the Paris draft with the German proposal
in Ein neues Zeitalter? Kritik am pariser Völkerbundsentwurf (Berlin,
Engelmann, 1919). Cf. also Acker, Walther Schücking, pp.
114–116.
154 Cf. Walther Schücking and Hans Wehberg, Die Satzung des
Völkerbundes (Berlin, Vahlen, 1921), pp. 11–12.
220

least as much to enlist the support of world opinion as to remedy
the actual gaps of the allied draft.155 Nonetheless, the
disappointment felt by Schücking and the newly organized German
international law community about the Allies’ treatment of Germany
was certainly genuine, and permanently infected the image of the
League in their eyes. Though Schücking, among others, felt that
parts of the peace treaty were outright illegal, he and Wehberg
continued to campaign for early German entry into the League. Their
hope was either to be able to amend those treaties from the inside,
or at least to set them aside in the long-term construction of a
universal and egalitarian international system.
Writing to his wife from Versailles in May 1919 while the German
delegation was waiting for Allied responses, Simons referred to
Schücking as “a great child, a pure heart and an incorrigible
idealist.”156 Though a rather stereotyped image of a pacifist –
especially from the pen of a diplomat – the description does point to
a real problem that lay in Schücking’s apparent denial of the
complexity of the political world, including his own position. He was
a nationalist who interpreted “real”
Germanness as in accord with his politics, and German interest as

always a priori identical with law and peace.157 Yet, this made him
suspect both in Germany and abroad. Despite his close contacts with
the foreign ministry, and his careful taking account of German
interests, he was marginalized by his academic and political
colleagues as soon as they no longer needed him. And his foreign
colleagues sometimes saw his dogmatism as frankly obstructive. For
Schücking, the policy of revision was a “policy of law,” as if it had
been self-evident – and not political at all
– that the Rheinland and the Saar were to be vacated as soon as

possible and that the Anschluss should be immediately realized as a
means to do away with Prussian dominance.158 When the Allies had
little sympathy for such (or other) proposals, Schücking could only
interpret this as a failure by the West to live up to its own declared
principles – a conclusion that made Germany the only advocate of a
Rechtsfrieden.
In 1930 Schücking was elected as the first German judge at the

Permanent Court in the Hague – a position from which the Hitler
Government unsuccessfully sought to withdraw him in 1933.
Although he felt the appointment a crowning point of his career, he
nonetheless complained about the extent to which the judges
seemed guided by 155 Hajo Holborn, “Diplomats and Diplomacy in
the Early Weimar Republic,” in Gordon Craig and Felix Gilbert (eds.),
The Diplomats 1919–1939 (Princeton University Press, 1953), pp.
133–134.
158 Acker, Walther Schücking, pp. 186–190.
221
national preferences and political views – particularly in the 1931

Austro-German Customs union case.159 This was a puzzling but
revealing admission from one who had started his career by
espousing a political jurisprudence. If the Allied judges had voted
against the Union, and Schücking in favor, the former position was a
political aberration while the latter arose from objective legality: an
idealism that sees no paradox in such a coincidence is a weak guide
through the political complexities of a difficult era.
Schücking died in the Hague in 1935 as the most respected German

international lawyer of the era. Yet his influence inside Germany
remained small.160 In the course of the years, he had taken an
increasingly oppositional stance that sometimes verged on an
unattractive form of self-importance – as when he introduced his
draft disarmament treaty by claiming himself (in addition to
Wehberg) as the only German ever to have favored such an idea.161
His open defiance of the legal establishment and the public law
tradition meant that he failed to gather followers during his teaching
in Berlin during 1921–1926 and was ostracized by the faculty. The
atmosphere of Kiel (1926–1933) was more congen-ial but his
parliamentary membership and activities in Geneva continued to
limit his intellectual influence. Not surprisingly, he was targeted by
the Gleichsschaltung of 1933 at which point the development of
pacifism in Germany finally became an impossibility.
The internationalists: between sociology and formalism From

the moment of Reichsgründung there had of course been professors
(of whom Bluntschli, albeit a Swiss, was the most well known) who
steered mid-way between public law conservatism and cosmopolitan
liberalism, hoping to reconcile statehood with a working conception
of the international realm. These men wrote textbooks that went
into several editions, participated in the work of the Institut, and
tried to reconcile its codification activity with the more sophisticated
jurisprudence of their domestic colleagues. Among the first of them
was Baron Franz von Holtzendorff (1829–1889), originally a
criminalist, a friend of Cobden’s 159 Acker, Walther Schücking, p.
204.
160 He was one of the founders of the Deutsche Liga für Völkerbund
in December 1918 as well as of the Deutsches Comité für
europäische Cooperation in 1928, both of which initially had
important public figures as members but failed to develop into mass
organizations. Cf. Acker, Walther Schücking, pp. 147–154, 181–186.
161 Schücking, Das Werk vom Haag, p. 305n1.
222

(of whom he had written a biography), and an activist in the
Protestant lawyers’ movement, whose career in Berlin had been
obstructed in the 1860s by the Prussian Government’s aversion
towards his liberal opinions. From 1873 onwards he held a chair in
Munich where he made a name for himself as a legal Encyclopaedist,
organizing the production of collective volumes in a number of legal
fields. The first instalment of his Handbuch des Völkerrechts
appeared in 1885, containing an almost 400-page introduction to the
basic concepts, nature, sources, and early history of international
law. It was written in the spirit of the Institut and was well received
by its members: Rivier in Belgium and Fauchille in France drew
heavily from it in their own textbooks. Yet it also showed traces of its
background in a formalist public law, confident with historical and
cultural arguments, and void of hyperbolic humanitarianism.
Holtzendorff used the organic metaphor to describe the intercourse

between civilized States as a legal system, instead of just an
aggregate of treaties. Like domestic law, international law had a
deep-structural foundation in European consciousness (“Kulturrecht ”
). The “ethnographic basis of international law” explained why its
applicability was limited to Europe and could not be extended to the
“barbarians.”162 It did have its weaknesses (uncertainty of content
and predominance of self-help) but the more intensive the relations
between European nations became, the more these would be offset
by new forms of legislation, adjudication, or enforcement. It was the
task of legal science to give articulation to the social trends – the
legum leges – that slowly created law out of cultural uniformity.163
In the 1880s Gladstone had argued that “each train that passes a
frontier weaves the web of the human federation.”164
Holtzendorff drew liberally from this commonplace assumption. No

religion existed to unite Europe. Proposals for a Weltstaat would only
turn against the individualism that animated them.165 Instead, the
Europeans would be bound in a network of social, economic, and
cultural relations by the laws of modernity themselves.166
Such arguments explained international law analogously to the way
organic theories had explained modern Germany. But they did not
provide a knock-out argument against Realpolitiker such as Lasson
who 162 Holtzendorff, Handbuch, I, pp. 11, 45. He lamented,
however, that it seemed still dominated by national approaches
which sometimes differed greatly, reflecting differences of legal
culture, most markedly between civil and public law, pp. 71–72.
164 Quoted in Kern, The Culture of Time and Space, p. 229.
165 Holtzendorff, Handbuch, I, pp. 35–37.
223
interpreted European diplomacy as struggle for power between

essentially egoistic nations. To them, Holtzendorff responded by
conceding their starting-point. Statehood was indeed the most
important fact of European life. Instead of undermining international
law, however, it was the very condition of its existence, the
mechanism that held in check civil society’s centrifugal forces. Like
all society, the international world was ruled by the search for
autonomy on the one hand, and integration on the other. Lawyers
had sometimes assumed that international law could be possible
only through preferring the Universalrechtsidee to the
Nationalitätsidee, or individualism over community. But neither had
intrinsic priority. Abstract universals always developed through
concrete particulars. Every individual participated in a universal
society but they all did this through their communities, their States.
How nationalism and cosmopolitanism finally related to each other
was determined by world history of which, in drawing the juridical
limit, international law was an agent.167 This it was to do in
accordance with the requirements of “universaler rechtlicher
Notwendigkeit und nationaler Freiheit.”168
By the end of the century, however, such arguments had become

suspect. Were not differences between European nations ultimately
more important than their superficial similarities? What was
“culture,”
after all, and was it possible to verify its demands? As Holtzendorff’s

chair in Munich was taken over in 1889 by the Viennese professor of
public and criminal law, Emanuel Ullmann (1841–1913), German
lawyers were moving into more sociological language. In an 1898
textbook that came to replace Heffter’s old treatise and competed
with that of Liszt, Ullmann stated confidently that the “power of facts
and practical living conditions” in the international society had
overridden the feelings of independence that emerged from formal
sovereignty. In order to improve their economic performance, States
were drawn to cooperation just as primitive people had once come
together in organized society, limiting their freedom in their self-
interest. “The real living conditions of peoples” had made them
reciprocally dependent of each other. Self-limitation had become
“recognized as a necessity dictated by the nature of practical
relations and conditions.”169
Ullmann’s international law was a thorough description of the

diplomatic system of fin-de-siècle Europe: a world of States, a
system for protecting public interests. Individuals did enjoy freedom
but not as a 167 Holtzendorff, Handbuch, I, pp. 31–34, 38–40.
169 Ullmann, Völkerrecht, pp. 3, 4.
224

matter of international law. The system was based on Christian
morality and natural rights – but they became law only through
formal recognition. Slavery was undoubtedly wrong – but it was
illegal only between parties to treaties that provided so. Like any
human creation, international law was only incompletely realizing the
moral idea.170 Ullmann’s argument oscillated, like Jellinek’s,
between sociology and psychology and led into formalism. On the
one hand, there was the fact of increasing cooperation and
reciprocal dependence – especially in the welfare field – between
States; new patterns of exchange and cooperation between
Kulturvölker. On the other hand, there was a common legal
consciousness, a recognition by European peoples of the practical
necessity of international law.171 As with Jellinek, the sociological
argument upheld the binding force of the law: it was part of the
criteria of positive law that it enjoyed what Ullmann called “objective
determinacy” ( objektive Bestimmtheit), an immediately knowable
reflection of society. On the other hand, a norm must also be
created by a recognized authority – that is, it must be explained as a
purposeful human creation by someone entitled to create it, and be
accepted as law by others.172 The psychological argument
explained the law’s legitimacy, inserting a normative direction into
the sociological one.
Holtzendorff and Ullmann had both turned to international law after

a career in Staatsrecht and criminal law.173 Franz von Liszt of Berlin,
the author of the period’s most widely used German international
law textbook, had a very similar background. His fame is based not
on the textbook but on his extensive work on criminal law where he
had employed the methods of the natural sciences to examine the
causal relations between crime and punishment. A positivist and a
liberal reformer like Holtzendorff, Liszt was also an international
activist in his own field but apart from a small pamphlet at the
beginning of the war refrained from methodological innovation as an
internationalist. Nonetheless, the naturalist–sociological perspective
is very visible. For he saw a State’s membership in the legal
community not as an effect of choice but a: 170 Cf. the discussion of
individual rights in Ullmann, Völkerrecht, pp. 228–229.
171 Ullmann, Völkerrecht, p. 13.
172 Ullmann, Völkerrecht, pp. 19–22. This duality is also visible in

Ullmann’s view that although the emergence of States is a matter of
power and fact – of sociology – and not of legitimacy, through
recognition States may still organize their relations in accordance
with their political priorities, pp. 64–69.
173 Ullmann became an associé of the Institut in 1899 and a full

member in 1904. Cf. Max Fleischmann, “Emanuel von Ullmann”
(1913), VII Zeitschrift für Völkerrecht, pp.
326–331.
225
“necessary result of a community of interests that points out to the

sovereign wills of individual States the way they must take in order
not to be destroyed.”174 Crime and punishment, in other words.
Though international law arose from self-legislation, natural causality
compelled States to direct their (rational) will into cooperation.
However, both Ullmann and Liszt moved rapidly from sociological
and psychological generalities to an affirmation of the law’s
autonomy. The effect of the distinction both made between formal
(immediate) sources of law (custom and treaty) and material
(mediate) sources (social necessity and recognition, natural law,
legal philosophy, and politics) was to reaffirm the independence of
the legal method. The lawyer’s task was limited to interpreting the
formal sources and organizing them into systems. They were the
accessible surface of the (sociological and psychological) materials of
social life, grounded in and explained by but functionally
independent from the latter.175
Such arguments were more modern than those by Holtzendorff, as
they reached beyond the dubious concept of “culture” into
sociological and psychological points about interdependence,
community of interests, and social needs. Nonetheless, they were
not founded on actual studies of social causality but on the need to
explain how States could be sovereign and still form a society; free
and yet bound. That task needed no special study and could be
undertaken with a few dialectical words at the outset of a textbook.
The rest of the law could then be defined in a purely formal way, as
treaty and custom – the materials that everyone in any case agreed
in considering as the proper stuff of the legal profession.
By contrast, in a 1908 book Heinrich Geffcken (1865–1916) from

Cologne (not to be confused with Friedrich (F. H.) Geffcken
[1830–1896], Heinrich’s father, the compiler of the 1882 and 1888

editions of Heffter’s Völkerrecht) suggested basing international law
on a genuinely public law theory of interests. Drawing inspiration
from Jhering, Geffcken drew a distinction between two kinds of
social organisms: those in which members had a common perception
of their interests ( Vorstellungsorganismus) and those in which
specific social techniques had been developed to realize those
interests in practice ( Aktionsorganismus).
The special character of the international society lay in its having

developed into the former but not (yet) into the latter.176 Geffcken
had no 174 Liszt, Völkerrecht, p. 10.
175 Ullmann, Völkerrecht, pp. 27–28; Liszt, Völkerrecht, pp. 12–14.
176 Heinrich Geffcken, Das Gesammtinteresse als Grundlage des

Staats-und Völkerrechts.
Prolegomena eines Systems (Leipzig, Deickert’s, 1908).
226
doubt that international law should be understood to emerge from

Selbstbindung by States. Often, however, State wills expressed
similar objectives behind which lay common interests. The scientific
method would reach from what was on the surface – State will –
into a more fundamental level. International law’s reality was based
on the interest each State had in being recognized by others as a
legal subject, and in remaining bound by promises made. “What we
have been accustomed to calling international law is the set of
materially identical or corresponding laws modern cultural nations
have passed to regulate the living conditions between their
States.”177 Geffcken ended, however, as Heilborn had done, by
proposing a novel systematization of the law’s substance, now
organized on the basis of a theory of interests. The work remained a
piece of conceptual jurisprudence, enveloping a language of
interests, but inflating the importance of legal doctrine and system in
a manner that was anachronistic as soon as it was written.
The first serious sketch for a historical sociology of international law

was published in 1910 by the Swiss lawyer Max Huber (1874–1960),
Professor from Zürich, later a judge and President of the Permanent
Court of International Justice.178 Much of Huber’s intellectual debt
was to Germany, to the legal sociology of Ferdinand Tönnies and to
Otto von Gierke’s Genossenschaft theory. His argument also
resembles Geffcken’s but avoids the latter’s conceptualism. As
Switzerland’s delegate to the 1907
Conference Huber had been bitterly disappointed about Germany’s

obstructionist behavior and his small book can be read in part as a
reaction against the nationalism of the diplomats he saw around
him.
Undoubtedly, States were the concrete reality of the international.

But this did not prevent the emergence of law as an effect of their
economic interests and the homogenization of their cultures.
International law had started out, he argued, as an instrument for
national economies to collect resources first by individual exchange
contracts between isolated States and then by law-making treaties
regulating long-term relations between 177 Geffcken, Das
Gesammtinteresse, p. 39.
178 Huber had been educated in Zürich, Lausanne, and Berlin where
at the age of 24
he submitted his dissertation on State succession to Paul Heilborn.

The strictly positivist thesis was very well received and contributed
to Huber’s award of the chair in Zürich in 1902. For studies on
Huber, cf. Olivier Diggelmann, “Anfänge der Völkerrechtssoziologie.
Die Völkerrechtskonzeptionen von Max Huber und Georges Scelle”
(Dissertation, Zurich, 1998, on file with author); Jan Klabbers, “The
Sociological Jurisprudence of Max Huber. An Introduction” (1992),
Österreichische Zeitung für öffentliches Recht und Völkerrecht, p.
197. Cf also Peter Vogelsänger, Max Huber.
Recht, Politik, Humanität und Glauben (Frauenfeld and Stuttgart,

Huber, 1967).
227
large numbers of States. National economies could no longer

extricate themselves from the network of complex dependence.
None of this meant, Huber held, that States had become
unimportant. International institutions were still much more
frequently individualistic “parallel organs” than vertically integrated
bodies of “social law.”179 Key areas of national security and
economy remained outside integration while cultural factors –
nationalism, imperialism, or a sense of regional solidarity
– contributed to the extent to which some groups of States

developed a deeper integration than others.180
Huber’s discussion of the sociological basis of international law
brought together strands of contemporary sociological theory and
basic assumptions about the international realm that lawyers had
entertained since the mid-nineteenth century. Pacifist
internationalists such as Fried were now able to rely on scientific
data (instead of moral generalization) to argue that the international
world was developing from fragmentation to integration,
coordination to subordination.181 In Huber, they also found a theory
of the international legal community that was based on long-term
collective interests, separated from the aggregate of States’
individual interests. When Huber linked those interests to the recent

democratic changes and the increasing predominance of economic
considerations over purely political ones, he received an image of
the international world that fitted well the profession’s liberal
imagination. Old aristocratic–exclusive diplomacy was being modified
by a “nüchterne Sachlichkeit” of transnational economy, public
opinion, and international organization, all working as instruments of
progress.182 The book came out only late in the day. The fact that it
reached its optimistic conclusion only four years before the war
suggests that something was wrong in its arguments.
1914
Holtzendorff, Ullmann, Liszt, and Geffcken were university men,
academic lawyers trained in Laband’s “juristic method,” constructing
formal legal systems out of rationalistically interpreted historical and
sociological facts. This program was badly hit by the war. If there
was a 179 Max Huber, Die soziologischen Grundlagen des
Völkerrechts (Berlin, Rothschild, 1928), pp.
23–24. This is a republication of the essay from 1910.
180 Huber, Die soziologischen Grundlagen, pp. 61–67.
181 Huber, Die soziologischen Grundlagen, p. 22.
182 Huber, Die soziologischen Grundlagen, pp. 58–60.
228
European cultural community, or an Interessengemeinschaft, it did

not automatically lend itself to the construction of a legal system,
analogous to domestic public law. Peace and justice were not a
spontaneous outcome of economic interdependence or cultural
integration, and merely to insist that rationally thinking it was so was
to discredit rationality rather than a world that seemed stubbornly
“irrational.”
Most German lawyers took an impeccably patriotic line in the war.
Liszt signed the declaration of German intellectuals completely

rejecting accusations of the illegality or inhumanity of Germany’s
unlimited submarine war. When AlbéricRolin informed Institut
members that owing to the impious war, the meeting scheduled for
Munich had to be cancelled, Liszt responded by the observation that
far from being impious the war was sacred, and sent in his
resignation.183 Inside Germany, the war gave vent to the old
antagonisms about the nature of international law. Most lawyers
agreed with Kohler that much of the old law had collapsed. But there
was complete disagreement about what the
“old” law had been like, and, consequently, what was needed by way
of reform. Reading through the German wartime writings one is
struck not only by the force with which the old arguments between
“natural law”
and “positivism” are restated but also by the way politics and history
are as it were suspended for the moment of the academic struggle.
Nothing demonstrates the isolation and helplessness of the German
international law community better than its turn inwards, and
backwards, into nineteenth-century debates about the basis of the
law’s binding force.
These were debates about modernity and tradition between

protagonists who had no idea of the implications at stake and who
clung the more desperately to their narrow doctrinal world the more
intensive the challenge of politics and history from the trenches
became.
From the traditionalist side, lawyers such as Viktor Cathrein (1845–

1931) interpreted the war as a consequence of the overheating of
national passions, loss of the sense of right as well as the
“naturalisticand materialisticideas of our time.” Therefore, he wrote,
our solution must be “back to the old natural law, back to faith in a
personal God and the principles of Natural Law.”184 In a well-
rehearsed technical argument he 183 Albéric Rolin, “Rapport du
Secrétaire-Général” (1919), 27 Annuaire IDI, p. 311. After the
Institut condemned Germany’s war crimes and its violation of
Belgium’s neutrality, Triepel also resigned in 1920. Among the
Germans, only Wilhelm Kaufmann (1858–1926) remained a member
throughout. Cf. Fritz Münch, “Das Institut de droit international”
(1990), 28 Archiv des Völkerrechts, pp. 83, 89, 104–105.
184 Viktor Cathrein, Die Grundlage des Völkerrechts (Freiburg,

Herder, 1918), pp. 96–100.
229
showed, once again, why it was logically impossible to find the law’s
foundation in State will – there had to be a non-voluntary reason for
why will should be binding. Through a familiar dialectics, he
demonstrated how positivist lawyers constantly fell back on non-
positivist assumptions – and how ironicit was that it was they who
kept indicting natural law as a Hydra that always grew a new head
from an old wound.185 Fear of natural law was a fear of sin, a
justified fear that grew out of the secular exaggerations of Hobbes
and Rousseau first, and then from the collapse to a spiritually
impoverished positivism. Yet for all the radical conservatism of his
language – including his proposal to set the Pope as the
international appeals court – Cathrein’s natural law was empty of
reform. God still spoke through States and had enacted the right of
self-preservation and self-perfection at the top of the system.
Familiar ideas about good faith, just war, and suum quique tribuere
formed its substance: pacta sunt servanda was still tempered by the
rebus sic stantibus – and no indication was given about how (or by
whom) to measure the “fundamental” character of the change.
The exact opposite was preached on the modernist side that saw not
positivism but not enough positivism as the problem. Speaking in
occupied Bonn in 1918 at the centennial of the University, its Rector,
Ernst Zitelmann (1852–1923), the private international lawyer and
legal theorist, a kindred spirit of Bergbohm’s, argued that the war
had demonstrated how much of international law still remained the
pious wishes of writers of textbooks. The tendency to fill the gaps of
positive law with political opinions and principles of morality had
simply proven too great.
But no Rechtsgefühl sufficed to create law; interdependence or

cultural homogeneity might push towards but are not law in
themselves. Even the fragments of formal law were often unreal
(that is to say, unverifiable) as they incorporated natural law maxims
that hid fundamental disagreement. Treaties were conditioned by
implied clauses, provisions of Notrecht or rebus sic stantibus under
which anything could be done.186 Had not the whole of the law of
war collapsed at the fundamental disagreement between the
Germans and the English about the very nature of war?
Was there anything else to be expected from the proposed League

than a tired repetition of moral formulas to justify power policies?
For the future, Zitelmann proposed little more than the recapture of
the faith in the dynamism and strength of the German people, its
capacity to endure the harsh peace, its Mut und Klugheit, and its
natural leadership.187
There was a great tiredness about the pamphlets and talks that
poured 185 Cathrein, Die Grundlage, p. 30.
186 Ernst Zitelmann, Die Unvolkommenheit des Völkerrechts

(Munich and Leipzig, Duncker
& Humblot, 1919), pp. 34–39.
187 Zitelmann, Die Unvolkommenheit, pp. 57–60.
230
out of Germany during the war years. Easy to understand as outlets

for frustration and incomprehension in face of the enormity of the
devas-tation, and the disappointment of the peace, these were
works of reassurance, of whistling in the dark, not auguries of
transformation.
However much Cathrein or Zitelmann were able to identify real

problems in the Zeitgeist or its law, they were still engaged in a
philosophical debate that defined the public law consciousness of the
nineteenth century. But neither was a key member of the
international law community. Having written their cathartic works
they could withdraw. For the mainstream lawyers, the liberal
reformers, the problem was not about settling the naturalism–
positivism controversy but the eminently more practical one of
making a reality of pre-war speculation about permanent
international institutions. In a touching 1917 pamphlet Liszt
recapitulated the litany of the pre-war developments that had
seemed to usher in a new cosmopolitan age: treaties, unions,
integrating economies, and developing cultures and industries. In a
rare mode of confession he wrote that he had himself believed the
war impossible until the moment it was declared. This had been a
mistake – a fatal error about the causal force of integration. Interest
conflicts and the drive to expansion had led States into a destructive
policy of shifting alliances.188 The recipe followed the analysis: if
interdependence did not automatically provide for the conditions of
peace or lawfulness, then formal institutions were needed. The
lingering proposals for a Staatenbund must be made a reality. Even
if the proposed schemes were not all functional, that was a minor
problem. Now it was time for practical work.
Getting organized
From German internationalist quarters at the University of Kiel came
in 1914 the transformation of what since 1891 had been a journal of
international private and criminal law, into the Zeitschrift für
internationales Recht (Niemeyers Zeitschrift).189 The journal had
published occasional articles on 188 Franz von Liszt, Vom
Staatenverband zur Völkergemeinschaft: ein Beitrag zur
Neuorienterung der Staatspolitik und des Völkerrechts (Munich,
Müller, 1917).
189 Cf. Ottobert L. Brintzinger, “50 Jahre Institut für internationales

Recht an der Universität Kiel” (1964), 19 Juristenzeitung, pp. 285–
286; Stolleis, Geschichte, III, p. 89, and above all Ingo Hueck, “Die
Gründung völkerrechtlicher Zeitschriften in Deutschland im
internationalen Vergleich” in Michael Stolleis (ed.), Juristische
Zeitschriften. Die neuen Medien des 18.-20. Jahrhunderts (Frankfurt,
Klostermann, 1999), pp. 403–407. The publication of Niemeyer’s
Zeitschrift was discontinued in 1937. The Institute continued its
publishing work in 1948 with the Jahrbuch für internationales Recht
that has since then been transformed into the German Yearbook of
International Law.
231
international law since 1902 but from now on devoted at least half
its space to international law debates and documents. In the same
year its founder,
the
private
international
lawyer
Theodor
Niemeyer
(1857–1939), also set up a Seminar of International Law in Kiel that

soon changed itself into the Institute of International Law and
became the most important research institute in the field in
Germany. It was headed by Niemeyer until the position was taken
over by Schücking for the period 1926–1933.190
Niemeyer was an advocate of legal cooperation and harmonization, a

pragmatic rationalist who, as member of the International Law
Association, had in 1912 organized its small German faction into a
national society with the intention of drawing interest from economy
and public life to international law and to organize the Association’s
1915 Conference in Hamburg as well as to influence the direction of
its codification work.191 In 1917 his initiatives with other academic
lawyers and with the Auswärtiges Amt led to the establishment of
the Deutsche Gesellschaft für Völkerrecht, of which he became the
first President and which the Kiel Institute administered together
with its many other international law activities.192
Other institutions followed suit. In 1922 Albrecht Mendelssohn-

Bartholdy (1874–1936) set up an Institut für auswärtige Politik in
Hamburg as a reaction to the Versailles Treaty and the isolation of
the German international law community. Its main activities lay in
the field of publication of historical and diplomatic acts and in
collaboration with 190 In connection with Schücking’s dismissal in
1933, the Kiel University was transformed into a leading university
for the study and development of Nazi law ( Stosstruppuniversität).
The Institute was handed over to the Nazi lawyer Paul Ritterbusch
(1900–1945) under whom it no longer carried out significant
scientific activities – apart from the one occasion at which Carl
Schmitt gave a lecture on April 1, 1939 on his Grossraumlehre, that
started a wide debate in Germany about the transformation of the
subjects of international law. Cf. Mathias Schmoeckel, Die
Grossraumtheorie. Ein Beitrag zur Geschichte des
Völkerrechtswissenschaft im Dritter Reich (Berlin, Duncker &
Humblot, 1994).
191 Karl Strupp emphasizes the activities of the German contingent

to oppose the Anglo-American theory of “total war” – the view that
war would automatically suspend private contracts and debts, “Die
deutsche Vereinigung fur internationales Recht; ihre Notwendigkeit,
ihre Entstehung, ihre bisherige Tätigkeit” (1914), 24
Zeitschrift für Internationales Recht, pp. 360–363. For Niemeyer’s

reports of ILA activities, cf. (1904), 14 Zeitschrift für Internationales
Recht, p. 152 (1906), 16 Zeitschrift für Internationales Recht, p. 212,
and (1912), 22 Zeitschrift für Internationales Recht, p. 213.
192 Cf. (1918), 26 Zeitschrift für Internationales Recht, p. 280;

Hermann J. Held, “Das Institut für internationales Recht an der
Universität Kiel” (1921), 29 Zeitschrift für Internationales Recht, pp.
146–149 and Stolleis, Geschichte, III, p. 88.
232
Berlin’s “democracy school,” the Deutsche Hochschule für Politik. 193

The Kiel institute received a more serious competitor in 1925 from
the Kaiser-Wilhelm Institut für Völkerrecht in Berlin (now the Max
Planck Institute of Foreign and International Law, in Heidelberg) that
was set up through Heinrich Triepel’s initiative and started to publish
the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
under the direction of Victor Bruns (1884–1943).194 The Institute
was well-resourced and invited lawyers such as Triepel, Kaufmann,
and Rudolf Smend (1882–1975) to sit in its scientific council (
Leitungsgremium). It gave legal opinions to government and
Parliament on a regular basis and its fame was at least in part a
result of the international visibility of its members.195 However,
Niemeyer’s collaboration with the Foreign Ministry , his contacts
abroad, the Kiel Institute’s manifold activities, and the quality of its
archives and libraries assured its place as the leading institution of
study of international law in Germany until 1933. Thereafter, it fell in
the shadow of the Berlin Institute as Bruns became a member of the
national-socialist lawyers’ association (though apparently never a
member of the Nazi party).196
In his Rektoratsrede at the University of Kiel in 1910 and in his later

writings Niemeyer attempted to advance the cause of a scientific,
functionally oriented “positive internationalism” that he saw as a
necessary aspect of social and political progress. International law
had been limited in the past by the dogmas of an étatist positivism
that took no account of the increasingly important intercourse
between societies, companies, and individuals. A sociologically
oriented international law should cover all such relations, becoming
simply “the application of 193 In 1934 the Jewish Mendelssohn-
Bartholdy was compelled to emigrate to England.
The Hamburg Institute was taken over in 1936 by Friedrich Berber

(1898–1984), who entertained close contacts with the future Nazi
foreign minister Joachim von Ribbentrop and united his institute with
the Deutsche Institut für Aussenpolitische Forschung the latter had
set up in Berlin. Stolleis, Geschichte, III, pp. 273–274.
194 Schücking had been the candidate of the social-democrats and

the liberal press but had been turned down by the Faculty. Wolfgang
Kohl, “Walther Schücking (1875–1935). Staats-und Völkerrechtler –
Demokrat und Pazifist,” in Kritische Justiz (ed.), Streitbare Juristen
(Baden, Nomos, 1988), p. 238.
195 Ingo Hueck, “Die deutsche Völkerrechtswissenschaft im

Nationalsozialismus. Das Berliner Kaiser Wilhelm Institut für
ausländisches öffentliches Recht und Völkerrecht, das Hamburger
Institut für auswärtige Politik und das Kieler Institut für
internationales Recht” (forthcoming article, on file with author).
196 However, despite the fact that Kaufmann was replaced by Carl
Schmitt in the Institute’s scientific council, it continued its activities
with relatively little interference and provided at least some room for
independent counseling. Hueck, “Die deutsche
Völkerrechtswissenschaft”; Stolleis, Geschichte, III, pp. 395–396.
233
legal thought to international relations.”197 The international

community was not an abstract–moral entity but emerged slowly
from different types and levels of daily transnational cooperation.
Treaty-making should not be seen as just a technical aspect of
diplomacy but a purpose oriented social process that was realizing
the cosmopolitan dream without practically anyone noticing. Because
of this solidarity of interests, he assured his German audience, no
choice needed to be made between nationalism and
internationalism. Rightly conceived, the two were the same.198
The sociologically inclined internationalism of the Kiel Institute and

the Zeitschrift were close to Schücking’s “organized pacifism.” As
Niemeyer proudly (and by and large correctly) claimed in 1921, his
journal had remained the only forum for scientific internationalism in
Germany during the war. It might have suffered defeats but the core
of positive internationalism was intact, of this the activities of the
League of Nations were tangible proof.199 Accordingly, the Kiel
institute and the Zeitschrift continued to advocate a relatively
consistent positive attitude towards the League even after Germany
had left it.
The establishment of the Deutsche Gesellschaft für Völkerrecht in

January 1917 was warmly supported by the German Foreign
Ministry. Its membership ranged from economists such as Lujo
Brentano (1984–1931) to the sociologists Ferdinand Tönnies (1855–
1936) and Hermann Oncken (1869–1945) and the historian Friedrich
Meinecke (1862–1954).
Important members from the public law community included

Laband, Smend, Walter Jellinek (1885–1955), and Franz Jerusalem
(1883–1970).
Although the war had an effect on the themes dealt with, Niemeyer
was able to direct its activities to constructive objectives. The first
meeting in Heidelberg in October 1917 concentrated on an analysis
of the much-discussed contrast between the “German” and “English”
concepts of warfare, of which the latter was understood as –
unsurprisingly – illegal.
Professor Mendelssohn-Bartholdy’s address summarized the

difference as one between a “heroic” concept of war as struggle
between States and a “commercial” concept of war as struggle
between peoples, the difference itself following from the contrasting
ways in which statehood was 197 Theodor Niemeyer, Völkerrecht
(Berlin and Leipzig, De Gruyter, 1923), pp. 10, 6–10.
198 Theodor Niemeyer, “Vom Wesen des internationalen Rechts”

(1910), 20 Zeitschrift für Internationales Recht, pp. 1–15; Theodor
Niemeyer. “Rechspolitische Grundlegung der
Völkerrechtswissenschaft” (1924), 31 Zeitschrift für Internationales
Recht, pp. 1–39.
199 Theodor Niemeyer, “Vorwort” (1921), 29 Zeitschrift für

Internationales Recht, pp. iv–v.
234
understood in Germany and Britain.200 The second general meeting

was devoted to economic issues, namely to safeguarding the
freedom of trade after the war. Although the choice of the topic
perhaps implied a criticism of the British Wirtschaftskrieg, the
addresses were predominantly directed to the coming post-war
economic order.
As war fortunes started to turn against Germany, interest in the

conditions of the coming peace grew. Many Germans grasped at
President Wilson’s proposals as the best available basis for the
coming talks. The German population was especially enthusiastic
about the proposal concerning a future association of nations.201
Many Germans were genuinely committed to the idea of an effective
Völkerbund. Ferdinand Tönnies, for example, pleaded in favor of the
League at the second meeting of the Gesellschaft in 1918 and, amid
cries of “bravo,” suggested that it was to be superior to the
sovereignty of its members.202 For others, the League’s principal
benefit was that it could be used as an instrument to safeguard
German Great Power status after the war.
Thus it was no surprise that Simons, speaking in his capacity as the

head of the Foreign Ministry’s Legal Division, proposed in September
1918 that the Gesellschaft set up a study group to prepare a draft
statute for the coming association of nations. The Ministry had
already studied such proposals for some time and had come to
appreciate the differences of view that reigned in the matter. It was
time to be active, Simons said, in order to oppose the Anglo-Saxon
concept of a League of victors –
that would not be an association but a capitulation. A long applause

followed his conclusion that Germany must play a leading role in this
work.203 A study commission was set up under Niemeyer’s
leadership which divided itself into eleven sections – two of which
were headed by Schücking – that each dealt with a special aspect of
the League. A large number of members participated in this work,
whose outcome was a detailed draft with commentary on individual
articles, adopted in January 1919. All disputes were to be submitted
to arbitration or conciliation. Economic and military sanctions were
to be decreed by the Executive Council “according to the rules of
international law and the laws of humanity” (Art. 16). The Council
would also determine whether 200 Albrecht Mendelssohn-Bartholdy,
“Der Gegensatz zwischen der deutschen und englischen
Kriegsrechtsauffassung und seine künftige Überwindung im
Völkerrecht”
(1917), 1 Mitteilungen der Deutsche Gesellschaft für Völkerrecht, pp.

23–34.
201 Cf. Kimmich, Germany and the League of Nations, pp. 6–18.
202 2 Mitteilungen der deutsche Gesellschaft für Völkerrecht 1918,

p. 120.
203 2 Mitteilungen der deutsche Gesellschaft für Völkerrecht 1918,

pp. 134–137.
235
an individual member was acting in self-defense. International

unions were to be united under the League’s administration. There
were provisions on disarmament, freedom of international trade, and
the administration of colonies.204
Some of the provisions of the draft found their way into the official
German proposal. Otherwise, however, it was lost in the general
stream of unofficial proposals on post-war organization. It had no
effect on the Allied draft which remained substantially unchanged
from February 1919. The Germans had been unrealistic if they had
expected that the Allies would see the negotiations as other than
implementation of German war guilt. The German Foreign Minister
Brockdorff-Rantzau’s theatrical appeal to the “law” of the fourteen
points, delivered sitting down at Versailles on May 7, 1919, did
nothing to assuage the Allies and created an atmosphere in which
the Germans were compelled to oppose the treaty by the fatal
strategy of trying to redeem their national past.205
Beyond Versailles: the end of German internationalism

German lawyers shared the shock and bitterness in the country
about the conditions of the peace. They had never felt that German
policy had alone been responsible for the war and completely
rejected the war guilt clause. Nor did they think Germany the main
perpetrator of war crimes, as Allied propaganda had suggested. On
the contrary, they felt that the unlimited submarine war, for instance,
was a justified response to the Anglo-American total war on the
German population. There is no reason to think that Zorn was being
insincere or eccentric when he wrote in 1925 that the war had been
launched by France and Britain on Germany.206 Some even argued
that the peace was not binding on Germany because it had not been
negotiated in “practical application”
of Wilson’s fourteen points under which Germany had concluded the

armistice.207 The League was seen as an Entente-dominated body
in which Germany would never have full equality. Until 1923, the
Auswärtiges Amt regarded entry useless as the League did not seem
to have jurisdiction to modify the conditions in the Peace Treaty –
the main objective of German foreign policy.
204 Cf. Deutsche Liga für Völkerbund, “Der Völkerbundsentwurf der

Deutschen Gesellschaft für Völkerrecht” (1919), 1 Monographien
zum Völkerbund.
205 Holborn, “Diplomats,” pp. 137, 145.
206 Zorn, Weltunionen, pp. 49–60.
207 Cf. Alexander Hold-Ferneck, “Zur Frage der Rechtsverbindlichkeit

des Friedensvertrages von Versailles” (1922), 30 Zeitschrift für
Internationales Recht, pp.
110–117.
236
In this situation, the position of the German internationalists became

increasingly complicated. Most German members left the Institut,
which was felt to have taken a pro-Versailles attitude.208 Simons
resigned from his position in the Foreign Ministry. In their early
commentary on the Covenant, Schücking and Wehberg did portray
the League as a continuation of the development towards an
organized world community. But even they had to admit that its
drafting history, placement in the Peace Treaty and the powers of
the Council made it fall far short of that ideal. And they, too, argued
about its significance as a means of revision.209 After 1919 the
discipline of international law became indissociable from the
criticisms of the Peace Treaty, and was pushed to the forefront in the
German call for a Rechtsfrieden.210 The only group of professional
diplomats whose position was strengthened in Weimar were the
members of the Legal Division who dealt with League matters and
led the fight against the Peace Treaty.211 The defenders of the
League were either pushed into the camp of the pacifists – in which
case they were marginalized from policy-making tasks
– or fell into a strategicattitude that undermined the ideological basis

of their internationalism.
Most international lawyers approved of Stresemann’s policy of slow

rapprochement with the West and membership in the League. Even
when they did not condemn the Peace Treaty as outright illegal they
trusted that it was so blatantly unjust that an argument in favor of
revision by a well-behaved League member could not be reasonably
opposed. The far-reaching arbitration treaties that Germany
concluded in the 1920s, for instance, as well as the sweeping
arbitration provisions in the Locarno Westpakt of 1925 were
interpreted by the Deutsche Gesellschaft für Völkerrecht as
additional channels to open the Versailles package.212 After the
Ruhr crisis in 1923, Britain began to solicit German membership and
interest in it grew inside Germany as well. The international
atmosphere resulting from the setting up of the Dawes Plan on the
payment of German reparations in 1924 and the Locarno
agreements made German entry into the League finally possible. But
this was achieved only after a pro-longed dispute about the
reallocation of seats in the Council that ended in Brazil’s resignation
and the humiliation of Poland and its allies.213
208 Cf. Fritz Münch, “Das Institut de droit international” (1990), 28

Archiv des Völkerrechts ( AVR), pp. 76–105.
209 Schücking and Wehberg, Satzung des Völkerbundes, pp. 11–15,

17–18, 44–56, 76.
210 Cf. also Stolleis, Geschichte, III, pp. 87–88.
211 Holborn, “Diplomats,” p. 154.
212 Karl Strupp, Das Werk von Locarno (Berlin and Leipzig, de
Gruyter, 1926), pp. 92–93, 113.
213 Cf. Kimmich, Germany and the League of Nations, pp. 82–91.
237
The position of German international lawyers was summarized by

Karl Strupp (1886–1940) in 1926. The acceptance of the Dawes Plan
and the Locarno guarantee had made operative the obligation of the
Allied powers under Article 431 of the Versailles Treaty to withdraw
immediately all troops from German soil. As League member,
Germany would enjoy equality and could then use Article 19 of the
Covenant to argue for a revision of the rest of the Versailles
obligations “that stuck like knives in the flesh of every German.”
This, he said, was the test of the reality of the Locarno spirit on the
side of the Entente.214
Apart from the small pacifist faction, German lawyers cultivated a

predominantly strategicattitude towards the League. Although its
functional activities were seen as useful, its collective security and
peaceful settlement tasks were understood as a half-serious
smokescreen over Anglo-American imperialism.215 The failure of the
Disarmament Conference was construed as a failure to attain
German equality through playing by League rules and constituted an
argument in favor of unilateral rearmament. Once that step had
been taken, there was no reason to believe that the other provisions
of Versailles would be any more resistant to determined challenge.
As Carl Schmitt argued in 1932, imperialism was not only military or
economic but above all conceptual: it worked through providing
concrete meaning to words such as “war” and “peace,” “security”
and “disarmament.” A conceptual imperialism controlled weak or
defenseless States by controlling the meaning that formal legality
received in regimes of “demilitarization”
and intervention. A nation was finally vanquished by letting itself be

controlled by such words: if Germany was not to fall under imperial
domination, it could not let such words control its concept of
international law, its ability to decide what international law,
concretely, meant.216
Ways of escape – I: Hans Kelsen and liberalism as science

Schmitt was right, of course. The League was no weltstaatlich
utopia. Its rules and activities were completely dominated by the
decisions and 214 Strupp, Das Werk von Locarno, pp. 110–112.
215 The story of the drafting of the Covenant as an essentially

Anglo-American project is told e.g. in Fritz Bleiber, Der Völkerbund.
Die Entstehung der Völkerbundssatzung (Berlin, 1939), pp. 155–159.
216 Carl Schmitt, “Völkerrechtliche Formen des modernen
Imperialismus” (1932), in Positionen und Begriffe im Kampf mit
Weimar-Genf-Versailles 1923–1939 (Berlin, Duncker
& Humblot, 1988[1940]), pp. 176–180.
238
policies of the major States. Its inactivity in the Manchurian crisis

may have reflected prudent statesmanship that sought containment
instead of reversal of aggression – perhaps reversal was not even
attainable. But it spelled the end of a collective security based on the
unexceptional duty for members to take action under Article 10 of
the Covenant. When Italy attacked Abyssinia in the fall of 1935,
there was no longer any serious discussion about the application of
military measures and even the economic boycott was organized
formally outside the League, touched only one-tenth of Italy’s trade
(oil was always left carefully outside), and was dropped after the
conquest of Addis Ababa out of fear of leading Mussolini into Hitler’s
bosom.
German internationalists such as Niemeyer or Schücking had sought

in international institutions the remedy for the failure of spontaneous
integration to bring about peace. Their functionalism seemed
increasingly implausible after the attempt to close the gaps in the
Covenant by the Geneva Protocol was finally rejected and the
Disarmament Conference dragged on from one unproductive session
to another. After Stresemann’s death in 1929, German attitudes
towards the League changed into open confrontation. If the other
powers were not willing to grant German equality in the League –
this was how the stakes at the Disarmament Conference were seen
– then it had to be forced on them from the outside. For right-wing
critics such as Schmitt the inability of the League to deal with
German grievances became an index of their general critique of
formal constitutions. Their recipe was to give up the fictions of
legality and to recognize law’s dependence on the decisions of the
powerful. For German internationalists, however, that would have
meant giving up everything the profession had preached in the
nineteenth century as well as traditions they had enlisted as
precursors from much earlier times. But if social spontaneity did not
lead into peace, and moral consensus within the League was only a
fragile veil over political disagreements, what could be done?
Many lawyers sought to find a solution in the revaluation of

statehood, defining sovereignty as the competence to carry out the
purposes of a cosmopolitan order. This type of traditionalism was,
however, vulnerable to critiques of natural law as ideology. Besides,
as the socialist constitutional lawyer Hermann Heller (1891–1933)
pointed out, many of the numerous critiques of sovereignty after the
First World War engaged a straw man – no political theorist had ever
espoused the absolute conception they attacked. Without a concept
of sovereign authority in a concretely existing community ( eine
konkrete Gemeinschaft), they 239
continued to move in an abstract conceptual heaven.217 Yet, there

was force to the argument that the attempt to square the circle of
statehood and international law was doomed to fail on logical
grounds. Either the State was sovereign – and there was no really
binding international order. Or there was a binding international
order – in which case no State could truly be sovereign. Hans
Kelsen’s (1881–1973) relentlessly consistent monism constituted an
efficient critique of the German publiclaw tradition that had tried to
imagine that the national and the international could live
harmoniously side by side as independent normative orders. This, as
Kelsen argued, would have meant that human beings might be
under different obligations at the same time: “do x” and
“do not do x.” This was unacceptable. It was the very point of
knowledge to construct its object as a coherent whole. This was as
true of the science of norms as of any other knowledge. The political
unity of humanity lay on an epistemological, or scientific postulate
(“das Postulat der Einheit der Erkenntnis”) that compelled one to
think either State law or international law as superior. Logicdictated
two alternatives but not how to choose between them. This was a
political choice, described by Kelsen as that between objectivism and
subjectivism, altruism and egoism, pacifism and imperialism.218
With such associations, Kelsen left the reader in no doubt about

which he thought the ethically worthwhile choice. Indeed, the
primacy of the State legal order (a pleonasm, really, for a State did
not have a legal order but was one219), if only pursued with logical
rigor led not only to a denial of international law but also to a denial
of every other national legal order apart from the speaker’s. Since
Laband, German public law had tried in various ways to embrace
international law by deriving its validity from its incorporation or
acceptance in the national legal order. But this, too, led to solipsism:
every other State’s legal order remained an external and potentially
hostile normative world.220 No wonder encircle-ment had become a
collective German neurosis!
As is well known, Kelsen’s project was much wider than merely to

argue that logic compelled a choice between the primacy of
international or State law – as he defined the sovereignty
question.221 The pure 217 Hermann Heller, Die Souveränität. Ein
Beitrag zur Theorie des Staats-und Völkerrechts (Berlin and Leipzig,
De Gruyter, 1927).
218 Kelsen, Das Problem der Souveränität, pp. 102–115, 120–124,

152–153, 317–319.
219 Kelsen, Das Problem der Souveränität, p. 131.

220 Kelsen, Das Problem der Souveränität, pp. 151–204, esp. pp.
187–190.
221 Kelsen, Das Problem der Souveränität, pp. 13–16, 37–40, 102–
103.
240
theory of law developed in the 1920s and summarized in the Reine

Rechtslehre of 1934 constituted an altogether new opening for legal
thought, and certainly a decisive closing of the search for a “juristic
method” that had preoccupied German public law from von Gerber
onwards. Here now was a method that did not compel the lawyer to
become an amateur sociologist or a dilettante moralist.222 The
search for a “firm foundation” to legal thought from outside the law
itself that had defined late nineteenth-and early twentieth-century
jurisprudence had been unnecessary, even mistaken. Law’s special
form of existence was irreducible to social or psychological facts or
moral–political desiderata.
It was constituted in the “validity” of the legal norm, a property it

received by delegation from another norm situated at a formally
higher level. It was a characteristic of legal norms that they
belonged together in systems, constituted in relationships of
delegation of validity. The only properly legal question was whether
this or that normative proposition was “law.” And that question was
conclusively answered by the demonstration that it was part of the
system, the chain of validity: an administrative act was “law” if it had
been in the official’s competence; such competence was provided by
an administrative decree which was
“law” if it was passed in accordance with the relevant statute; the

statute was “law” if enacted in accordance with the constitution and
the constitution was “law” if it had entered into force in accordance
with the first constitution. What closed the ascending chain of
delegations was the famous Grundnorm – the basic norm that
provided for the validity of the whole system, a norm that Kelsen
characterized at different times in different ways but which in 1934 –
and in its most plausible form –
appeared as a necessary hypothesis, a norm which one needed to

believe valid in order that everything that one already knew about
the legal system should be true.223
Kelsen’s epistemological–scientificoutlook and his transcendental

deduction of the basic norm were firmly embedded in his
philosophical neo-Kantianism. Nonetheless, they left no stone
standing of the aca-demicconventions of German publicand
international law. Among the problems to which the pure theory was
able to offer a logically coherent solution were those of the nature of
the State and the relationship between sovereignty and international
law. Since Jellinek, German 222 Published in English as Hans Kelsen,
Introduction to the Problems of Legal Theory. A Translation of the
First Edition of the Reine Rechtslehre or Pure Theory of Law (trans.
Bonnie Litschewski Paulson and Stanley L. Paulson, with an
introduction by Stanley L.
Paulson, Oxford, Clarendon, 1992).
223 Kelsen, Introduction, pp. 55–76.
241
Staatslehre had worked with a two-sided conception of statehood:

one side was empirical and historical, the other normative and
formal. In accordance with their völkisch politics, German lawyers
automatically assumed the priority of the former to the latter. The
really acting agency was the historical State that was the legal
system’s “creator” or “carrier.”
The State, so the argument went, was a factor in the world of Sein
that through its will and power brought about the legal world of
Sollen.224
Kelsen had followed Jellinek’s seminars in Heidelberg in 1908 but

had been unimpressed by them and positively put off by the
atmosphere of uncritical admiration surrounding the older man.225
For him, the two-sided theory was pure fiction, a case of a metaphor
having taken on a life of its own, an effect of the deceit of
Verdoppelung – the mechanism whereby an instrument of
knowledge is reconceived as the object of knowledge. Like “ether”
for physics or “soul” for psychology, “State”
was used as a postulated substance behind perceived relations and

qualities.226 The doubling was twofold: first, normative relationships
were conceived as the substance of a “State”; second, the State was
assumed to have a natural reality to contrast with the ought-reality
that norms have. It was precisely this naturalization of the State that
must be fought by critical law, Kelsen held.227
This was not a politically innocent jurisprudence. At the stroke of a

pen it redefined as ideology all the nineteenth-century historical and
sociological theories that had sought to answer the question of the
“real”
nature of (Austrian/German) statehood as well as the attempt to

derive international law from humanitarian morality or the sociology
of interdependence.228 Where sociology had claimed to provide a
scientific standpoint on society, Kelsen revealed its being just as
value-dependent and political as morality and theology had been.
The various organic, psychological, or functional theories of
statehood were not descriptions 224 Kelsen, Der soziologische und
der juristische Staatsbegriff, pp. 2–3.
225 Rudolf Métall, Hans Kelsen. Leben und Werk (Vienna, Deutige,
1967), p. 11.
226 Kelsen, Der soziologische und der juristische Staatsbegriff, pp.
207–210.
227 Kelsen, Der soziologische und der juristische Staatsbegriff, p.

215. In a delightfully polemic passage Kelsen observed the
resemblance of State theory to Christian monotheism.
In both, a transcendental unity is postulated behind a perceived

reality: Thou shalt have no other God . . . , Kelsen, Der soziologische
und der juristische Staatsbegriff, p. 225.
Cf. also Kelsen, Das Problem der Souveränität, p. 21 and Hans

Kelsen, “Les rapports de système entre le droit interne et le droit
international public” (1926/IV), 14 RdC, pp.
233–248.
228 On Kelsen’s critique of sovereignty as critique of ideology, cf.

Alfred Rub, Hans Kelsens Völkerrechtslehre. Versuch einer
Würdigung (Zurich, Schultess, 1995), pp. 129–131.
242
of something real but suggestions for the evaluation of social action

–
“ethisch-politischer Spekulation.”229 For in the “real” world, Kelsen

insisted, there were simply a lot of persons behaving. Constructive
legal thought projected or described their behavior as activity of the
State by using legal norms such as “competence” and “duty” to
characterize it.230
It was not that this projection was a normative truth aside a

sociological truth of State power. There simply was no “State” at all
outside the juridical realm. When they spoke of “States,” even
sociology and history based themselves on the legal notion, however
much their examination of the reality of the behavior of those
individuals so identified differed from law.231
In other words, the State was neither a person nor a will that stood
against an independent law. The two were not distinct: stripped of
its ideological and metaphoric properties, the State was identical
with the domestic legal order.232 This view corresponded closely to
the political reality of the decaying Danube monarchy in which it was
developed.
Without its form, the Empire was nothing, as Kelsen himself

observed in 1918, when its fate was sealed by the defeat and Kelsen
was busy drafting a plan at the request of the War Ministry for its
replacement by 229 Kelsen, Der soziologische und der juristische
Staatsbegriff, pp. 46–74, 46.
230 Kelsen, Das Problem der Souveränität, pp. 124–130, 143–144,

162–167. On law as a scheme of interpretation, cf. Kelsen, “Les
rapports de système,” pp. 240–241; Kelsen, Introduction, p. 10.
231 There was no single characterization of the “reality” of States.

Definitions of the material Verband of statehood differed as much as
States did. A notion of Wechselwirkung was unable to distinguish
between “State” and other forms of association and forgot that
interaction could be towards integration and disintegration.
Usually sociology referred to psychology; conceiving the State as a

feeling of
“belonging.” But this merely posed the further question of what type
of psychical relationship was involved. An internal “feeling” was an
individual matter that did not ground a realm of collective statehood.
The assumption of a trans-individual unity of wills or parallelism of
psychological processes (common will, group feeling, common
consciousness) led into social psychology – and easily collapsed into
the metaphysical notion of a group soul. (Kelsen thinks Freud a
distinct progress from Le Bon: the masses have no soul, libido is an
individual matter, Der soziologische und der juristische Staatsbegriff,
pp. 21–22.) A State cannot be described as a “psychological mass” –
for it has a permanence that is inscribed in its institutions. The point
is that the members of a group mediate their relations through a
regulating order, that is to say, a system of norms, and come to
think of themselves as members of a State by reference to it. But in
such a case, the State’s existence is a matter by definition
independent of any “feeling of association”: it is a juridical notion
which then offers, through metaphor and Verdoppelung, a point of
identification for the group, Der soziologische und der juristische
Staatsbegriff, pp. 25–30.
232 Kelsen, “Les rapports de système,” pp. 234–235, 242–243;

Introduction, pp. 99–106.
243
national States.233 To speak of the State as a person or as a legal

subject was metaphoric language to address the fact that it was left
for the State’s legal order to point out those human beings who had
particular competencies to create or enforce legal norms.234 Or,
more adequately, and from the perspective of the primacy of
international law, the State was a partial legal order which had a
certain territorial and personal sphere of validity, as determined by
international law. Sovereignty was not an essence which the law
simply had to confront but “a bundle of legal obligations and legal
rights, that is, the unity of a complex of norms” that was determined
from inside the law itself.235 What had traditionally been discussed
as the problem of sovereignty was simply the question of the
primacy of legal orders restated in Verdoppelt language.
In the “real world,” legal norms – rights and obligations – acted as a

specific social technique that regulated the behavior of individual
human beings. To be under an obligation meant the situation where
a certain (undesired) behavior was made the condition for the
application of sanctions. Duties were prior to rights, the latter
describing the condition where the required behavior was
conditioned on the will of the right-holder.236 To say that
international law imposed obligations on States was to state that it
imposed obligations on individuals indirectly, by leaving the
determination of their identity to the domestic legal order.
Here as elsewhere law worked as a frame of interpretation whereby

the acts of individuals were endowed with the meaning of, for
instance,
“treaty-making,” “violation,” or “sanction.”
This did away not only with the theory of the State as a subject of
international law but also with the view of State will as the single (or
most important) source of international law.237 As a social
technique, law came about in two ways: by conscious enactment
(treaties) or spontaneously (custom).238 There were, of course,
psychological motives and social and political causes behind both of
its sources. But law was not a science of motives or causality. From
the legal perspective, the 233 Cf. Métall, Hans Kelsen, p. 42. The
Emperor seems however not to have read Kelsen’s memorandum but
acted under his German advisors, Métall, Hans Kelsen, pp. 21–22,
29.
235 Kelsen, Introduction, pp. 47, 48–49.
236 Kelsen, Introduction, pp. 42–46. In this way, all rights became
political inasmuch as their application was conditioned on “will.”
237 Cf. Kelsen’s critique of self-legislation, in Das Problem der

Souveränität, pp. 168–174.
The very question of “source” could legally be dealt with only as a
problem of where the norm received its validity – and this was
always another norm, Das Problem der Souveränität, pp. 105–107.
244
question about the “source” of law sought only to find out which
directives qualified as (legally) valid. And that question could be
answered only by examining the chain of validity. Whether law arose
from someone’s will or reflected a community’s consciousness were
like the question about its moral appropriateness: they were not
answerable in a legal way, and pointed to other scales of evaluation
than the legal (namely psychology, political theory, or ethics). This
did not mean that these questions were wrong, or nonsensical, only
that there was no legal response to them.239
The pure theory was by no means a Lebensfremd abstraction. On

the contrary, as Kelsen himself stressed, it intervened in politics in
the way a critique of ideology did: by revealing the political content
of theories that had been thought of as neutral:
The Pure Theory of Law exposes once and for all the attempt to use
the concept of sovereignty to lend a purely political argument –
which is always vulnerable to a comparable counter-argument – the
appearance of a logical argument, which would by its very nature be
irrefutable. And precisely by exposing the argument as political, the
Pure Theory of Law facilitates development that has been stunted by
mistaken notions, development in terms of legal policy –
facilitates such development, but does not justify or postulate it. For
that is a matter of complete indifference to the Pure Theory of Law
qua theory.240
In this extraordinary passage Kelsen not only quite correctly
assessed the political significance of the pure theory but also
revealed its limitation, a limitation that explains something of the
failure of his politics.
For Kelsen was by no means a non-political man. He made no secret

of his democratic and left–liberal preferences or of his
cosmopolitanism.241 He felt no scruple participating in political
polemics, revealing himself several times during his career in Austria
and Germany as a firm supporter of the formal–constitutional
order.242 His book on the concept of sovereignty – written during
the war though published only in the 1920s – as well as his Hague
lectures of 1926 ended in a plea towards a humanistic–universalist
standpoint, invocation of a Weltrechtsordnung: the unhappy state of
international law theory was a result of the fact that 239 Kelsen, Das
Problem der Souveränität, pp. 134–139.
240 Kelsen, Introduction, p. 124.
241 Kelsen was closest to Austrian socialists but never formally

joined them. Métall, Hans Kelsen, p. 33. On Kelsen’s political
positions and their significance for his international legal doctrine, cf.
also Rub, Hans Kelsens Völkerrechtslehre, pp. 75–86.
242 Most famously in his debate with Carl Schmitt about the
“guardian of the constitution.” For recent analysis, cf. David
Dyzenhaus, Legality and Legitimacy. Carl Schmitt, Hans Kelsen and
Hermann Heller in Weimar (Oxford, Clarendon, 1997), pp. 102–160.
245
social consciousness had not (yet) developed so as to reach beyond

State boundaries.243
A number of political positions followed from the fundamental
(though in Kelsen’s own view, fundamentally arbitrary) choice in
favor of the primacy of the international legal system. It qualified
States as organs of international law and determined their
jurisdiction from an international perspective.244 It postulated the
international legal order as gapless in the sense of allowing no
(logical) distinction between legal and political matters. Every
dispute was amenable to legal resolution by the logical principle of
the exclusion of the third: a claim could only either be justified or
unjustified in law. It highlighted the role of courts and lawyers: for it
was up to them to declare the individual norm that applied to the
case and this norm was always underdetermined by general
standards. Finally, it emphasized the role of organized coercion: if an
obligation to behave in a certain way existed if the opposite behavior
triggered a “coercive act,” then any pretense of a legal order must
be accompanied by the presence of some institutional system of
constraint.
Some of these positions found expression in Austria’s Federal

Constitution that Kelsen drafted at the request of the Austro-Marxist
Staatskanzler Karl Renner in 1920 and particularly in the setting up
of the Reichsgericht as a real constitutional court.245 They were also
expressed in Kelsen’s support for Stresemann’s Erfüllungspolitik as
well as his criticisms of the Covenant. Kelsen advocated the
separation of the League from the Peace Treaties, criticized the
absence of legislative powers within the League and the
predominance of the Council over the Permanent Court of
International Justice. He was especially critical of the absence of a
provision for competence to the Court to order sanctions.246 The
criticisms were condensed in his 1942 revised draft of the Covenant
that prohibited war (otherwise than as a sanction), provided for
compulsory adjudication of all disputes by the Court, and majority
voting in the Council.247
Many other German-language international lawyers participated in

the Kelsen Kreis from 1911 that grew into the Vienna School in the
1920s.248 Apart from Alfred Verdross (1890–1980), whose
alignments 243 Kelsen, Souveränität, p. 320; “Les rapports de
système,” pp. 325–326.
244 Kelsen, Souveränität, pp. 257–266.
245 Métall, Hans Kelsen, pp. 35–36.
246 Cf. Rub, Hans Kelsens Völkerrechstslehre, pp. 278–283.
247 Hans Kelsen, Peace Through Law.
248 Particularly Verdross, Kunz, and Guggenheim. On Kelsen’s

”disciples,” cf. Rub, Hans Kelsens Völkerrechtslehre, pp. 110–120;
Métall, Hans Kelsen, p. 29.
246
were obscure,249 most of them were liberals or social-democrats,

openly opposed to the rise of the German extreme right and forced
to leave Germany either for that reason, because of their
Jewishness, or both.
Whatever one thinks of the “objectivity” or “value-neutrality” of the

pure theory as legal method, it is plainly wrong to think it arose in a
scholar’s chamber as an instrument to escape from political
confrontation. It implied the Rechtsstaat, accepted that questions
about the content of law were matters of political value, and
sharpened the analytical skills of the political activist. Moreover, open
advocacy for a juristic method was also an argument for the
autonomy of the legal profession – a far from irrelevant suggestion
in 1930s Germany and Austria. And yet, like every revolutionary
idea, after it was institutionalized, it tended towards that fetishism of
the form that Marxist lawyers always accused it of: a totalizing
attitude about the limits of legal propriety, an escape from moral
insecurity, an ideology, in a word.
How did that come about? The beginnings of an answer may be

found in the sharpness of the dichotomy that Kelsen posed between
science and politics that did much to discard politics as an altogether
irrational matter of the heart’s passion. In a way, Kelsen bought the
success of his critique of the German legal tradition by an
emasculation of his politics. The covert insincerity of the last
sentence in the above quote provides a clue to the weakness of the
pure theory – the claim that after theory and critique have revealed
every prior doctrine as politics in disguise, their task is over: the
development of World Law becomes “a matter of complete
indifference to the Pure Theory of Law qua theory.”
Pushing politics outside the realm of science and theory, Kelsen

downgraded its importance in the diplomatic and constitutional
struggles of the day. By casting his own cosmopolitan liberalism as a
matter of subjective value, he deprived himself of a plausible
language in which to defend it – visible in his excessive use of irony
and pathos as styles of political argument. Preference for democracy
came to seem no more than a matter of taste. It is a familiar
paradox of liberal reason that methodological toleration of
contrasting value-systems undermines personal faith in any. Kelsen
himself was religiously indifferent and converted to Catholicism in
1905 out of the good prudential reason to secure himself a future in
Vienna’s notoriously antisemitic law faculty. Clearly, such relative
distance from one’s values provides a 249 Cf. Anthony Carty, “Alfred
Verdross and Othmar Spann: German Romantic Nationalism,
National Socialism and International Law” (1995), 6 EJIL, pp. 78–97
.
247

fruitful ground, and perhaps even good motivation, for the relentless
pursuit of a “value-free,” pure science. But it also undermined
Kelsen’s liberalism by making it seem just the cold and abstract,
empty vessel for egoism that conservatives and revolutionaries
accused it of. It also created a psychologically hazardous position
where political conviction, where pressed by external events, might
easily lapse into professional
“neutrality” as a facade for cynicism, or despair. For the average

lawyer, retreat to pure form must have seemed a tempting technique
to deal with moral insecurity in a hostile environment. Unfortunately,
even on Kelsen’s premises, there was no innocent space for German
lawyers to occupy in Weimar. Pure legality existed only in the realm
of the transcendental.
Kelsen’s political vulnerability lay in his equally “arbitrary” choice of

the primacy of the international over the national. This was to state
the problem, not the solution. For decades, German academics had
been involved in a debate about the relative merits of German Kultur
vis-à-vis the cosmopolitan rationalism of the French Enlightenment.
The primacy debate was indissociable from that politically loaded
dichotomy and Kelsen brought in nothing new to resolve it. A
preference for the international on logical grounds was to invoke
precisely those ideas that that German nationalists associated with
the abstract superficiality of rationalist liberalism, its absence of a
concrete social ideal.
As theory, Reine Rechtslehre was enormously powerful and it is no

surprise that it was furiously attacked. It drew the rug from under
the feet of a legal tradition that had devoted itself to furthering the
project of the (German) nation-State. It revealed the “value-
neutrality” of any substantive legal order as a myth. As the content
of legal standards, law was political through and through, a forum
for struggle that continued from the enactment of legislation to the
determination of the content of every single administrative act or
contract: legal interpretation was everywhere and interpretation was
“a problem not of legal theory but of legal policy.”250 And here
precisely lay the problem. Because Kelsen thought that the question
of the content of the law was a matter of interpretation, and
interpretation was a political act, as lawyer he had nothing to fall
back on when the channel of formal legality was used to destroy
that very legality. To be sure, he could go in political opposition. And
he could argue that the unjust law was to be set aside. The pure
theory was uncommitted to any unconditional obligation of obeying
the law. But 250 Kelsen, Introduction, p. 82.
248
whether one could keep the realms of objective law and subjective
politics distinct, as this required, and overrule the former by the
latter, put an impossible burden on the strength of the lawyer.
After having been fired from his position as Professor at the

University of Cologne in 1933, Kelsen took a position at the Institut
Universitaire des hautes études internationales in Geneva and was
invited by Roscoe Pound to Harvard in 1940. Having failed to secure
a position there, he settled in Berkeley where he taught until his
retirement. Most international lawyers today know of his work and
many continue to admire him as legal theorist. The admiration is
almost without exception tempered by the rejoinder that, of course,
it was just theory and therefore could never be realized in practice.
This is a problematic position: that theory is right but nonetheless
useless or even dangerous and that moral goodness lies in our
carrying out practices on the pragmatic basis betrays an altogether
objectionable admiration of the profession at its most bureaucratic, a
most unreflective, most self-perpetuating form of elitism.
The challenge is to show that a legal theory that offers only a

transcen-
dental realm of legality – a world with no access for the legal
profession –
is false qua theory. This is not a simple task. The problems of the
pure theory do not lie in its internal coherence but in its relationship
to the surrounding world. Despite the critical bite of Kelsen’s
arguments, they still emanate from nineteenth-century German legal
thought: academic, system oriented, and neurotically concerned
over its status as Wissenschaft.
What needs demonstrating is that the prejudice that sets up the

strict dualism of law/politics or objectivity/subjectivity cannot, as a
matter of theory, be upheld. That requires a rethinking of the
premises of public law altogether, and a rejection of the assumption
that knowledge and
“theory” are limited to the realm of the rational, a bringing together

of knowledge and politics from that analytical separation that started
with Kant and grounded both the project of the Rechtsstaat and the
social conditions in which it was destroyed.
Ways of escape – II: Erich Kaufmann and the conservative

reaction
Where Kelsen criticized the League in terms of his cosmopolitan

monism, Erich Kaufmann held it a useful instrument to enhance
Germany’s position vis-à-vis the victorious powers. He was, of
course, a critic of the Versailles Treaty which he felt constituted a
“Diktatfrieden
. . . die an politischen und wirtschaftlichen Sinnlosigkeiten

ihresgleichen 249
in der Geschichte nicht haben.”251 He greeted Locarno as a

necessary though far from sufficient step towards German equality.
Though it did not formally abrogate the Versailles settlement it did
transform Germany’s position from being the object of dictated
duties to an equal participant in a security arrangement that
recognized the legitimacy of Germany’s security concerns. Kaufmann
combined a rejection of liberal rationalism with a much wider
acceptance of international organization than German conservatives
generally did. He endorsed the conclusion of arbitration treaties as
they would enable Germany to bring its many grievances against the
Entente powers before independent organs.252 He was disappointed
at the constant misunderstandings among the Germans about the
League’s character either as an anti-German pact or the rudiments
of a Weltstaat. It was both less and more than what most Germans
assumed; less as its activities frequently resulted only in reports,
decisions, recommendations – paper, paper, paper; more as it
provided procedures for the discussion and sometimes settlement of
legal and political conflicts while the unanimity principle effectively
prevented intrusion in sovereignty.253
Though as legal theorist, Kaufmann was a determined enemy of the

liberal rationalism represented by most German internationalists, this
by no means classed him among the “deniers.” An academic by
background, he was appointed professor at Kiel in 1912 and in
Königsberg and Berlin in 1917 and collaborated with Bruns at the
Kaiser Wilhelm Institut from 1927 until his replacement by Schmitt in
1934. He was much used as legal adviser to the German Foreign
Ministry, negotiating treaties with Germany’s neighbors and
representing Germany, Austria, and the Free City of Danzig at the
Permanent Court of International Justice. All this time, he continued
to write essays and give lectures on international and German
constitutional law, legal theory, and philosophy. As a conservative
(though not a member of the conservative party), he was not, unlike
Kelsen, a friend of parliamentary democracy and held the Weimar
constitution a Lebensfremd abstraction, pieced together from French
and English sources and unrespectful of German legal traditions.254
Kaufmann rejected rationalism in its sociological and formalist
versions and abhorred Jellinek’s and Kelsen’s metaphysical 251 Erich
Kaufmann, “Der Völkerbund” (1932), in GS, II, p. 224.
252 Erich Kaufmann, “Locarno” (1925), in GS, II, pp. 167–175.
253 Kaufmann, “Der Völkerbund,” pp. 229–236.
254 Erich Kaufmann, “Die Regierungsbildung in Preussen und im

Reiche und die Rolle der Partien” (1921), in GS, I, pp. 374–377.
250
skepticism. But he never joined the extreme right nor made

apologies for Hitler’s dictatorship or its international offshoot, the
Grossraumlehre –
although he did regard it an “eternal law of life” that some nations

still had a “vital space” to fill while for others it had already become
too small.255
Although Kaufmann’s Das Wesen des Völkerrechts und die Clausula

rebus sic stantibus (1911) had been written before the war, the war
had done little to discredit its argument, perhaps to the contrary,
and he continued to develop its ideas in his later writings, restating
them for foreign audiences in a somewhat more polished form in his
1935 general course at the Hague Academy. Kaufmann himself
regarded Wesen as principally a book in legal philosophy and later
recognized a certain youthfulness in the delight he had taken there
for paradoxical formulations. Read together with his later writings,
what emerges is an oeuvre that seeks to escape from the superficial
rationalism and paralyzing dichotomies of liberal thought and to
understand – and to control – the world of public and international
law as a concrete reality.256
Kaufmann’s work was aimed against neo-Kantian legal theory (as
represented, for example, by Jellinek and Kelsen) and specifically its
internationalist variant that imagined the international world as
(contractual) market relations between States that had been
abstracted of their particular characteristics and whose rational will
compelled them to join the system to enable the realization of their
(subjective) purposes – a construction that closely resembled liberal
arguments about how to justify constraint in a domestic system of
initially autonomous, self-regarding individuals. This view, Kaufmann
held, profoundly mistook the nature of the State and, therefore, also
of the international realm. Since the mid-nineteenth century liberal
lawyers had employed a domestic model of subordination law in
their analyses of international politics, attempting to inject an
“objective principle” above States – a common value, community will
or economic rationality.257 But since the 255 Kaufmann, “Règles
256 His 1932 assessment of the League was an admirably

undogmatic description of its strengths and weaknesses. Created as
a concert of Great Powers, it had in its practical work been able to
create, if not a social ideal, at least “a special atmosphere, tradition,
spirit and style”: even the more important State interests could be
coordinated through it. Great Powers could expound their ideals and
have them criticized though it. By this means it could effectively
maintain peace – for the moral isolation of Great Powers was far
more dangerous than their ability to show leadership in cooperation.
“Der Völkerbund,” pp. 236–237.
257 Kaufmann, Das Wesen des Völkerrechts, pp. 203–204.
251
demise of the idea of a great Christian Republic, no concrete center,

or objective life-principle, had emerged to provide an effective basis
for the international distribution of social values in the way the
domestic legal order distributed values in the national society.258
There was no community, no Menschenzwecke or leader with
unchallenged authority in the world.259 From the perspective of a
subordination model, international law could seem only a chimera.
Although many lawyers entertained a
“longing for the universal monarchy of an infallible Pope,”260 the

subordination model was finally broken in theory by Hegel and
Ranke and in practice by Bismarck.261
The liberals’ mistake crystallized in their formal concept of the State

that was accompanied by an image of international law that either
followed the subordination model or became a playing field for the
arbitrary wills of States.262 Liberalism, Kaufmann explained, had
failed to produce a conception of the State that would be anything
but a passive receptacle of individual interests and purposes, a
formal defender of individual rights, a cold edifice for the rule of
those in power. Like Kantian ethics, such formalism could never
explain why the State – the individual, concrete State – might, with
good reason, command compliance, sometimes even the lives of its
citizens. For the conservative view, statehood was not a matter of
subsumption under a definition but a spiritual reality that
represented the blood and flesh of earlier generations that present
generations had the responsibility to preserve for future ones. It was
stories and legends from which it was impossible to detach the
interests or wills of its individual members; indeed one’s individuality
was always in part a reflection of them.263
As the centre of social reality, the State united the dichotomies that
remained unresolved within formal thought. When, for example,
liberal rationalism created an irreducible (and destructive)
antagonism between the individual and the community, it failed to
see how the two interacted and constantly constructed each other. A
numerical Einzelheit turned into concrete Besonderheit through
social recognition.264 As a concrete and 258 Kaufmann, Das Wesen
des Völkerrechts, p. 136.
262 Kaufmann, “Vorwort,” in GS, III, p. xxi.
263 Erich Kaufmann, “Über die konservative Partei und seine

Geschichte” (1922), in GS, III, p. 151.
264 Kaufmann, Das Wesen des Völkerrechts, p. 145. Cf. also the
argument on the functioning of the Volksgeist in the individual in
“Zur problematik des Volkswillens” (1931), in GS, III, pp. 274–275.
252
historical matter, there was no antinomy between the individual and

the community, freedom, and the State. What abstract rationalism
could see only as an unbridgeable divide, historical dialectic united in
concrete life.
This was the meaning of Hegel’s dictum about the State being the
reality of concrete freedom.
Judged against the concrete State, the international was weak and
superficial. The liberal imagination often projected it as a cosmopolis
of abstract, unconnected individuals – a “humanity” – whose
members enjoyed natural rights and belonged to their communities
out of free consent. But no individual was abstract or unconnected in
this way. All were products of history and parts of something
international only through their States. Failure to understand this
concrete reality was the reason for the failure of rationalism to
develop a credible concept of either the law or the State.265
Law was a relationship, a measure, a distribution value ( Verteilungs-

wert).266 Unlike morality or aesthetics, it did not speak of the value
of things in themselves; it gave a perspective from which value was
projected onto things. In Europe, the State had become this
projective point, a Machtentfaltung, a single unity (will/power) that
served no higher purpose but whose only desire was to assert itself
in history.267 The way the widest material and moral energies had
been collected and centralized in the State had been brilliantly
exemplified in Germany. Struggle against French attempts at
universal monarchy had finally ended German weakness in the
nineteenth century and concentrated German energies to self-
assertion. Since then, the German State had become the unifying
principle for the cultural life of the German nation, the central, all-
encompassing reality of German modernity, the producer of a
“Gesamtplan des menschlichen Kulturlebens.”268
International law was unable to project or distribute values in this

way. Unlike the State, it lacked a positive perspective, a single
criterion.
Peace, for example, was a purely negative and formal idea that
implied no principle of distribution. A Weltstaat was a Utopia, and
not a beneficial 265 Kaufmann, Das Wesen des Völkerrechts, pp.
182–185.
267 Kaufmann, Das Wesen des Völkerrechts, p. 135. Kaufmann

shared Stahl’s view that this was best realized in a monarchic
constitution where the monarch became the “single nucleus” of the
State – the center without which the State would disperse into an
aggregate of partly conflicting wills. “Friedrich Julius Stahl als
Rechtsphilosoph”
(1906), in GS, III, p. 43.
268 Kaufmann, Das Wesen des Völkerrechts, p. 137. This was so

also in a liberal society where the limits of the private realm are
always dependent on the decision by the State. “Règles générales,”
pp. 363–364.
253
one at that.269 This is what it meant to say that international law

existed not in the form of subordination but as coordination: it
existed simply as agreement.270 This was not agreement that
bound – as liberal lawyers held – because there was a superior legal
order that postulated it ( pacta sunt servanda) but because of the
nature of the sovereign will itself. Kaufmann’s will-to-be-bound was
like the promise in Nietzsche’s aristocratic morality, creating an
entitlement not to others but to oneself, expressing: “a proud
consciousness . . . a special consciousness of power and freedom, a
feeling of the ultimate completion of man. This liberated man, who is
really entitled to make promises. This master of free will, this
sovereign –
how should he not be aware of his superiority of everything which

cannot promise and vouch for itself ?”271
Limits to international law’s binding force followed from its character.
Domestic contracts were binding as they fulfilled ultimately social

purposes. Hence there were, for instance, no principled limits to
legal subjects’ ability to contract.272 Not so in the international
realm. A State could not contract out everything. A treaty that went
against the State’s right of self-preservation would be ipso facto
invalid. Such right of self-preservation was the only properly
fundamental right in the international system.273 Other candidates –
such as equality or Notrecht – presumed objective assessments (of
equality or proportionality) that were alien to coordination law which
left the ultimate assessment to States themselves.274 Substantively,
coordination law may cover as much as subordination law. The
difference lies in the way coordination law leaves the parties “above”
their commitments; free to renounce them if, due to changed
circumstances, they go against the right of self-preservation.275
Although coordination law entailed no centralized values or common

will it did reflect the presence of order in an actually existing whole
(“Ordnung innerhalb eines realen Ganzen”).276 In modern
international life, Kaufmann explained, not unlike other
internationalists, States had a number of common or reciprocal
interests and were often ready to co-operate to further them, even
at the cost of short-term 269 Kaufmann, Das Wesen des
Völkerrechts, p. 135.
270 Kaufmann, Das Wesen des Völkerrechts, pp. 151, 159–160.
271 Friedrich Nietzsche, On the Genealogy of Morals (trans. D.

Smith, Oxford University Press, 1996), p. 41.
275 “Der Staat muss, soll das Koordinationsrecht nicht in

Subordinationsrecht um-schlagen, über seiner Vertragen stehen
bleiben,” Kaufmann, Das Wesen des Völkerrechts, pp. 181, 204.
254

special interests, as long as the latter were not considered vital.
Interessensolidarität made sure that compacts were kept in such

“new”
areas as technical cooperation, traffic and postal connections as well

as in “old” diplomatic law.277 The need for stability and security of
expectations pushed States into compliance while reprisals and
retorsions made sure that no breach would be committed light-
heartedly.278 Yet, these were factual, not normative constraints. In
coordination law, every State may what it can.279 But what it can is
determined by the social environment in which it acts: here lay the
concrete nature of the international order, including the League.
The difficulty in accepting that these arguments ground any binding

international order follows from the way the limits to State action
were conceived by Kaufmann in apparently purely factual, instead of
normative, terms. From the perspective of analytical jurists such as
Kelsen this is unconvincing. From the existence of a need to co-
operate or an obstacle to the realization of one’s purposes a right or
a duty cannot follow.
But this is to assume the validity of a dichotomy that Kaufmann

thinks typical of the rationalist positivism against which his “concrete
thinking”
is directed, errors of one-dimensional thought. The State and the

law, facts and norms, the specific and the general – science and
politics – do not stand opposed to each other but are aspects of the
same (dialectical) reality. “Power” and “law” did not exist in
opposition: the idea of the State presumed a historically determined
transcendence. They may appear to conflict from a particular
individual standpoint; from the perspective of the Weltordnung the
two were indissociable, delimiting each other’s sphere of validity in
historically specific ways. When liberal lawyers seek a criterion with
which to distinguish between a band of robbers and the State, and
attempt to do this by opposing “power” to
“law,” they move in a circle: perhaps the law was enacted by the
Mafia!
The distinction can be made only by reference to the (internal) value

of each concrete community concerned.280
Kaufmann’s 1911 book became a favorite target of liberal critics. In

his 1917 overview of pre-war German international theories as a
“jurisprudence without a law,” the neo-Kantian radical socialist
Leonard Nelson (1882–1927) maintained that Kaufmann’s legal
philosophy 277 Kaufmann, Das Wesen des Völkerrechts, pp. 190–
191.
280 “Werte der konkreten Gemeinschaft,” Erich Kaufmann, “Kritik

der neukantischen Rechtsphilosophie” (1921), in GS, III, pp. 223–
224.
255
destroyed legal concepts altogether: there had been no more

consistent and brutal juridical system for justification of the right of
the powerful.281 Like other critics, he saw the book as a confused
camouflage for State egoism. In his early analysis of the
international law of national socialism, Eduard Bristler (John H. Herz)
regarded Kaufmann’s view of victorious war as the ultimate criterion
of justice as the crowning theory of the imperialist Machtstaat.
Though an outsider to national socialism, and a target of
Gleichschaltung, Kaufmann had become an unwitting facil-itator of
fascism.282
But a more charitable reading of Wesen des Völkerrechts that draws

upon Kaufmann’s other writings is able to appreciate the effort to
deal with the paradoxes and weaknesses that a purely rationalistic or
a purely sociological scholarship entails – the mindless oscillation
between voluntarism and naturalism that became the shared fate of
variations of disenchanted turn-of-the century jurisprudence after
1918. For liberals, Kaufmann’s search for the concrete and the
spiritual was wrought with danger. Did it not legitimize precisely
those national passions that it had been the task of modern
jurisprudence to suppress? Was Kaufmann’s defense of irrationalism
anything but a recipe for anarchy? Were his admiration of Bismarck
and the flexibility of the Wilhelminian constitution only attempts to
prepare ground for a charismatic leader ready to turn charisma into
an instrument of tyranny?
Kaufmann’s romantic conservatism was indissociable from his

nationalism.283 After all, he held a lecture in occupied Brussels in
1915
on the duties of the occupying power in which he conveniently

dismissed the German violation of Belgium’s neutrality as part of
“bad Hague law” while applying the “good Hague law” that provided
for the creation of the conditions of lawfulness by the occupying
power.284 Yet it was not an aggressive nationalism he espoused. For
him German sensitivity for the irrational and its attempt to envelop
the irrational within a comprehensive understanding of the world
positively prevented it from turning into imperialism. It could only
respect the different forms of the irrational, wanting to see its
manifoldness flourish. Imperialism 281 Nelson, Rechtswissenschaft
ohne Recht, p. 231.
282 Eduard Bristler, Die Völkerrechtslehre des Nationalsozialismus

(Zurich, Europa, 1938), pp.
53, 62, 170.
283 This voice is nowhere more eloquent than in Kaufmann’s 1920

talk on the history of the conservative party – an essay exploring the
pervasive opposition between the conservative–romantic German
Geist and its counterpart, the abstract rationalism of the (Western)
Enlightenment, “Über die konservative Partei,” pp. 133–175.
284 Erich Kaufmann, “Das Legalitätsprinzip im Auslandsverfahren in

besetztem feindlichen Gebiete” (1915), in GS, II, p. 6.
256
was the consequence of a Western rationalism that (with Hume) did

recognize reason as a slave of passion but left its own particular
(British or French) passion outside its formal reason while
simultaneously seeking to universalize it under “sociology” and
“natural law.”285
Kaufmann’s teaching could undoubtedly be used for ignoble

purposes – which teaching could not be so used? But it did have a
much better grasp of the dynamics that had divided the German
international law community into two opposite camps – pacifists and
nationalists – than members of either camp themselves had. Its
orientation towards the concrete and the substantive avoided the
pitfalls of formalism and abstraction into which these regularly fell.
In a talk on the future of arbitration in 1932 Kaufmann lamented the
sharp division of attitudes among German lawyers on this matter. An
impassioned examination showed that arbitration had an important
role in the settlement of international problems; but that in vital
questions self-help – that is, power – still provided the ultima ratio.
At the same time, he pointed out that a weak State – such as
Germany – was in a particularly vulnerable position inasmuch as it
had to comply with an unjust law – such as Versailles – but that
there was nothing dishonorable if it then relied on the protective
provisions that such law might contain.286 For Kaufmann after the
1930s unlike, for instance, Carl Schmitt, the law was an autonomous
set of determinate rules and institutions, with an objective and
peaceful ethos, that Germany could use in order to advance its
national interests. Unlike the internationalists, he refused to think of
present law as inherently good only because it was formal law – but
unlike the nationalists, he believed it might be used to Germany’s
benefit. Neither good nor bad in itself, its significance was
determined in the concrete context.
After Wesen des Völkerrechts, the best-known of Kaufmann’s

international law works is his 1935 general course at the Hague. In
the latter, emphasis has shifted towards a more conventional
idealism. Whether because of his delicate situation at the time – he
had been removed from his position at the University and was
obliged to have his lectures cleared by the regime287 – or because
he was speaking in front of a non-German audience, Kaufmann now
presented himself as a Platonist for whom both statehood and
positive law were expressions of, or directed 285 Kaufmann, “Über
die konservative Partei,” pp. 172–175.
286 Erich Kaufmann, “Probleme des internationalen Gerichtsbarkeit”

(1932), in GS, III, pp. 304–319.
287 Detlev F. Vagts, “International Law in the Third Reich” (1990),

84 AJIL, p. 676.
257
towards, substantive ideas of justice. Starting his course by the

defense of the idea of an unwritten general international law that he
received from his general idea of law, he directed his views against
both formalist and sociological positivism – against the “fetishism of
the written law” and the “hubris of the will” that led into a
bottomless nihilism.288
On the basis of positive law and legal institutions it was the task of
jurisprudence to find and articulate this idea:
All profound analysis of reality leads into elements which, though

they cannot be grasped by the senses, and far from having only a
subjective or psychological existence, are objective and constitutive
of what is real: these are real categories of general and eternal
nature, substantive forms that inhere in particular and individual
substances.289
Throughout the course, Kaufmann used dialectics to overcome

objections against extreme étatism and standard naturalism: the
transcendental was embedded in the immanent, the ideal accessible
through the actual. The State was the most important reality of the
social world and the only original subject and guarantor of
international rights.290 Yet the State was bound by the forms of
justice that pre-existed it: distributive, retributive, and procedural,
and by its assignment as the “support and guarantor of objective
law.”291 State law and international law were part of the same
spiritual unity, autonomous from but linked through interpretation,
refoulement and cross-referral.292 National sovereignty became
dependent on supranational values, among which Kaufmann
included individual life, liberty, and property. Quoting Bodin’s view
that sovereignty had no limit apart from those determined by “laws
of God and nature,” he defined sovereignty as an instrument or a
supporter of such values. It became “supreme service and supreme
responsibility.”
In 1935 Kaufmann attacked formalist positivism from a much more

confidently internationalist position than before – indeed, he had
become a member of the Institut de droit international in 1931 and
now spoke of the spirit of legal institutions, the idea of the law, a
transcendental 288 Kaufmann, “Règles générales,” pp. 313–319.
289 “Toute analyse approfondie des realités conduit à des éléments

idéaux qui, bien que non palpables par les sens extérieurs et loin de
n’avoir qu’un existence subjective et psychologique, sont d’ordre
objectif et constitutifs des phénomènes réels: il s’agit de catégories
réelles d’ordre général et éternel, de formes substantielles inhérents
aux substances particulières et individuelles.” Kaufmann, “Règles
290 Kaufmann, “Règles générales,” pp. 397–401.
291 Kaufmann, “Règles générales,” p. 399.
258
concept of justice that he assumed lay behind the often incomplete

and sometimes unjust positive laws and institutions. If he did
subscribe to the view of international law as autolimitation by States,
he did that expressly in the Hegelian understanding that this meant
that they were “required to realise ‘freely’ the commandments of the
objective and eternal ‘laws’
that dominate the objective moral order.”293 The inverted commas

around “freely” and “laws” suggest that neither could be directly
spoken of. Kaufmann continued in 1935 to defend the reality of
collective persons such as States and regarded the spiritual nation
(and not the abstract individual) as the concrete basis of the
international world. But there was no antinomy between humanity
and the nation: humanity consisted of nations and individuals
participated in humanity through national traditions and processes.
States were not withering away; interdependence brought them
together but also intensified their struggle: industries and agriculture
were national assets, useful also for total wars.294 As before, the
State stood in the center of Kaufmann’s law, this time defended not
merely from the inside of the nation but also as an instrument of
supranational values. Like legal realists, Kaufmann now saw the
State as the access-point for those values, the medium whereby
they were: “put in a hierarchy, controlled, enveloped, coordinated,
organized and put in harmony with each other and with the superior
interests of the national community.”295 In 1935 Kaufmann defined
the (liberal) conflict between the State and the international realm
away.
There was international justice – but it could be accessed only

through the State. Neither monism nor dualism was right: it was
impossible to establish a general primacy between the international
and the national.
Each looked towards the other and strove for Aufhebung: this and
the judicial techniques for avoiding contradiction were part of the
dialectic and the teleology embedded in law.296
The 1935 lectures continued the “fundamental” critique of the

formalist positivism and sociological and psychological jurisprudence.
Neither they nor the rationalist neo-naturalism that became popular

after the war could produce an understanding of the concrete
character of States. Where liberal jurisprudence imagined the
international in terms of a market rationality, Kaufmann projected it
as a terrain for struggle between various dialectical poles
(individual/community, 293 Kaufmann, “Règles générales,” p. 460
n1.
294 Kaufmann, “Règles générales,” pp. 335–341, 348–349.
296 Kaufmann, “Règles générales,” pp. 436–437, 440–441.
259

state/society, national/international) whose synthesis produced the
concrete order of the moment. To think of international law simply
as State will was a shallow understanding, not only of the law but of
the direct-edness of will always to an object beyond itself. Law could
not be dependent on a human Vorstellung or Anerkennung. Both
presume there to be something to believe or recognize that lies
outside the human psyche.297
A consciousness of law cannot be a final criterion of law because it

is, by definition, a consciousness of something outside itself. This is
not just a technical, epistemological mistake but an existential one.
Pure voluntarism is a degenerated form of social thought, a nihilism,
blind to the extent to which “will” is always a product of something;
a socially constructed, historically determined entity.
Although Kaufmann’s 1935 lectures constituted an elegant – even if

authoritarian – compromise between the traditions of German public
law conservatism and internationalism, it provided no real relief for
those concerned over the constant disappointments about the ability
of the interwar diplomacy to deal with the impending international
crises.
The international community existed as a series of procedures, but

as a spiritual reality it was empty. There was no agreement on what
“peace”
and “justice” under it might mean. Collective action under

international organs failed to be on behalf of “humanity” and
remained that by a majority against a minority.298 Kaufmann had no
more interest than Jellinek or Kelsen in examining the constraints
that pushed States into cooperation, or the power of the institutions
that States had set up. But unlike the liberals, he did not entertain
hope that interdependence would bring about peace. He had no
faith in the unspirited and abstract realm of the international – and
when he revealed his faith in a transcendental natural law in his
Hague lectures, this was already after the Hitler regime had expelled
him from his position as professor and legal adviser.
Little wonder that instead of a policy-proposal, he resorted to

pathos:
“World history is not, as Hegel formulated it in his History of

Philosophy, a terrain of happiness; the pages of universal history
that speak of happiness are empty. History is a tragedy that always
repeats itself, that requires an attitude of heroism from its
students.”299 Some of that attitude may have been visible in the
philosophical debates that Kaufmann was able to continue with his
students in a seminar at his private home in Berlin-Nikolassee until
late 1938 when he finally had to leave for the 297 Cf. also Nelson,
Rechtswissenschaft ohne Recht, pp. 16–19, 49–50.
260
Netherlands and hide himself – and perhaps also in his return to

Germany among the first refugees in 1946.300 But one cannot help
thinking that as he assumed as international lawyer, a priori, that the
actual was the guarantor of the ideal, and that where that did not
seem to be the case, one was dealing with an inevitable historical
tragedy, this was already an intellectual escape into an imaginary
kingdom of dialectics; the compensation of defeat in today’s world
by a theological faith in victory in tomorrow’s.
An account of German international law in the pre-Second World

War era comes to an abrupt halt in the middle of the 1930s. A dark
gap stands between that moment and the reconstruction of
internationalism at the universities of the Federal Republic after the
war.301 At that point, it is a serious temptation to engage in
speculation about the relationship of German public law – including
international law – doctrines and the rise of Nazism. Clearly, German
conservatism contained strands of thought and sentiment that
marched in parallel with national socialism.302 Clearly, German
liberalism was both too divided and too fragile
– indeed in some ways an odd liberalism – to put up a strong

defense against the Nazi tide.303 That the legal profession so
meekly collapsed in the Gleichschaltung (“coordination”) of 1933 has
been explained as a result of the quick elimination of its Jewish
leadership (particularly important in international law) and the
financial and other difficulties 300 Cf. e.g. Karl Josef Partsch, “Der
Rechtsberater Auswärtigen Amtes 1950–1958.
Erinnerungsblatt zum 90. Geburtstag von Erich Kaufmann” (1970),

30 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (
ZaöRV ), pp. 227–228.
301 In 1933, there were over eighty experts on international law in

Germany, of whom thirty-five taught at universities. Fifteen of them
were targeted by Nazi measures by 1939, usually replaced by
younger lawyers eager to develop a national-socialist international
law doctrine. The Kiel Institute was taken over by the Nazi
Ritterbusch in 1935, the Hamburg Institute was united with
Ribbentrop’s diplomatic academy in Berlin in 1936. Only the Kaiser
Wilhelm Institut in Berlin could continue in relative independence
under the opportunist Bruns and then the party member Carl
Bilfinger (1879–1958), under whom it resettled in Heidelberg in
1948–1949. Cf.
Vagts, “Third Reich,” pp. 661–704; Hueck,

“Völkerrechtswissenschaft.” For the German journals, cf. Hueck
“Gründung völkerrechtlicher Zeitschriften,” pp.
403–416.
302 Cf. e.g. Jeffrey Herf, Reactionary Modernism. Technology,

Culture, and Politics in Weimar and the Third Reich (Cambridge
University Press, 1984).
303 Cf. e.g. James J. Sheehan, German Liberalism in the Nineteenth

Century (Chicago University Press, 1978), esp. pp. 272–283.
261
into which it had entered.304 The narrative of the coming into

predominance of Nazi law has been told in terms of a radical break
as well as a logical continuation of tradition and most histories
contain elements of both. Naturalism and positivism, formalism, and
sociological theories have each been indicted in the process. Such
interpretations hinge on larger assumptions about the nature of
fascism in general: dark irrationalism or the “banality of evil?” What
in general is the relationship between (legal) ideas, ideologies, and
political practices?
But whatever the causes, one tradition of thinking about

international law came to an end. This was the tradition that dealt
with international politics as a problem of philosophy, more
particularly of a philosophy that was to give expression to human
freedom while also being respectful of the nature of societies in
which freedom could become a reality.
The dialectics of that attempt is epitomized in the opposition

between Kant and Hegel or, as I intimated in the last two sections,
between Kelsen and Kaufmann, and every aspect of German legal
thought in the period links to it in one way or another.
The Copernican revolution inaugurated by Kant in German

metaphysics posited autonomy as the social ideal: the self-legislating
subject was grounded in the transcendental architecture of pure
reason. For Hegel, however, the particular reason advocated by
Kant, and the subject that accompanied it, were not free from
“dogmatism” – they were products of a way of life that had the
(ideological) tendency of thinking of its own experience as universal.
The kind of freedom that Kant and his followers advocated –
individual autonomy of fully rational agents, attempting to
coordinate their behavior through universal-iseable maxims – was a
product of an agnostic liberalism that fitted remarkably well with the
social conditions of post-feudal society. The autonomous individual
could never reach pure reason; reason realized itself only in world-
history in which individuals were always located as already
participants in some concrete reality that they could never shrug off.
Such a debate lay behind the division of German philosophy and

public law in the nineteenth century into more or less individualist
and communitarian streams, rationalist and historicist theories.
According to the standard narrative, Savigny had reacted against the
abstract rationalism of enlightenment thought and mainstream
internationalism 304 Kenneth F. Ledford, “Lawyers and the Limits of
Liberalism: The German Bar in the Weimar Republic,” in Terence C.
Halliday and Lucien Karpik (eds.), Lawyers and the Rise of Western
Political Liberalism (Oxford, Clarendon, 1997), pp. 231–233.
262
(Holtzendorff, Ullmann) against the historicism of suspected

“deniers”
such as Savigny and Lasson. The two cannot, however, be separated

so schematically but continued life within each attempt at novel
grounding: of this, Jellinek and the doctrine of the rational will
provide good examples. Yet the syntheses were again torn apart by
the relentless rationalism and individualism of Kelsen in one
direction, and the equally relentless historicism and collectivism of
Kaufmann in another.
The synthesis of Kant and Hegel in German international law takes

this form: The autonomous State is the social ideal. The view of
autonomy as rational self-legislation makes the ideal compatible with
international order. Through self-legislation, the State takes its place
in the concrete reality of the international world: free to legislate in
accordance with the intrinsic rationality of its social laws. In such an
argument, the State appears alternatively as history’s subject and
object, its freedom both negative and positive. Accordingly, the
argument is vulnerable to criticisms from both perspectives: It does
not provide real freedom as the (egoistic) State will inevitably create
a bellum omnium: a sphere of fear, not autonomy. Or, it does not
provide real freedom as the State is not entitled to legislate in
accordance with its own interests or needs but is completely
constrained by the (economic, military, etc.) structures of power in
which it lives.
What made the failure of this philosophical discourse particularly

dangerous in Germany was the weakness of its political structures.
Where in Britain and France statehood had become second nature,

an unproblematic “concrete reality” within which social ideals could
compete, in Germany, the debate constantly shook the limits of the
political order. Far from taken for granted, Germany’s statehood was
the very problem: was it real or artificial – organ or aggregate –
freedom or authority? What ideals did it embed – or was it neutral?
In Germany, every political debate took on a philosophical
significance: and when philosophy failed to provide a resolution, no
political structure proved strong enough to fall back on. There is a
tragic aspect in the Kant/Hegel dichotomy, as manifested in the
opposition between Kelsen’s pacifism and Kaufmann’s view of war as
the social ideal. In Kelsen, pacifism followed from an extreme
relativism: all ideals were equally subjective, and as long as the
formal principle of legality was honored, the law had nothing to say
about them. This implied a society of unconnected individuals,
unable to produce a justification for any social ideals apart from that
of the abstract market-place. In Kaufmann, the State overrode the
particularity of individuals and provided a focus for collective ethical
263
life. Hence war as the social ideal: only war constituted proof of the
presence of a realm of objective value over the subjective wants of
individuals. Where the Kantian–Kelsenian perspective led to an
alienated moral agnosticism that was vulnerable to the critique of
technical reason, the Hegel–Kaufmann outlook prepared the ground
for a totalitarian State.
The Kant–Hegel debate and the various reconciliations define

German modernity as insistence on the enlightenment heritage on
the one hand (individual autonomy, political and economic liberty,
technical and scientific progress) and profound suspicion of
enlightenment on the other (alienation, economic exploitation and
class rule, herd morality).305 With Heidegger in the 1930s, a
completely new set of questions was posed for philosophy that
pointed beyond modernity itself.
Whatever consequences his “fundamental” questions may have had

for politics or philosophy, they were not questions through which
international lawyers could think themselves able to understand or
resolve their dogmatic or practical problems. Whether there was an
international law down that road in the first place – and Heidegger
himself became increasingly skeptical about the political application
of his Seinsfrage after 1935306 – may be doubtful. With Heidegger
(and with postmodernity) the suggestion of using philosophy to
resolve problems of international law and politics came to an end.
The end of philosophy also brought to an end the German project of

the Rechtsstaat that presented itself as representative of both
freedom and authority, as articulated in Kant’s conception of the
rational will and in Hegel’s concept of the State.307 German liberals
such as Jellinek grasped at it as a defense of bourgeois freedoms
and a guarantee of social order.
The effort to explain freedom and order not only as compatible but
defined by reference to each other lay at the heart of legal
formalism of the public law tradition. Among liberals, it articulated a
moderate concept of statehood directed to protection of individual
rights. Among conservatives it explained individual rights as an
acceptable ingredient of an authoritarian State. But the idea of
positive freedom involved was inherently unstable. If freedom is
nothing but the realization of and if 305 In this sense, e.g. Robert
Pippin, Modernity as a Philosophical Problem. On the Dissatisfactions
of European High Culture (2nd edn., Oxford, Blackwell, 1999), pp.
160–179.
306 Cf. e.g. Hans Sluga, Heidegger’s Crisis. Philosophy and Politics in
Nazi Germany (Cambridge, Harvard University Press, 1993), pp.
214–219.
307 Cf. also Krieger, The German Idea of Freedom, pp. 458–470.
264
need be imposition of order, then its point is lost. Dialectics easily

collapses into reductionism. After the war, German internationalists
no longer hazarded the dangers of dialectics: the search for a social
ideal that would be respectful of concrete reality was replaced by
Western abstract humanitarianism.
This was already anticipated in the moving last chapter of the 1934
Hague lectures by Karl Strupp who had been dismissed from his
position in Frankfurt in 1933, and had moved first to Istanbul and
then to France where he committed suicide on the eve of the
German occupation. For the positivist Strupp, the complete failure of
the Codification Conference of 1930 had been a grave
disappointment that left him only the avenue of natural law on which
to argue – and yet, he lamented, a natural law without the real,
substantive agreement of States would fall apart the moment it was
needed. Between non-existent positive law and an ineffective natural
law, all that was left was a hope that the ideals of natural law would
become the ideal of States, their own (positive) natural law. Such
oscillation between professionalism and faith by a lawyer deeply
aware that “the very foundations of the law of nations were shaking
by the force of attacks from outside” was vivid testimony of the
dead-end into which the divided tradition of German public law had
come.308 To hope for harmony was already to have given up hope.
308 Karl Strupp, “Les règles générales du droit de la paix” (1934/I),

47 RdC , pp.
581–586.
265
International law as sociology: French
“solidarism” 1871–1950
“Here is a tranquil and charming village in a small peaceful State: its

canals slumber in the calm of justice, interrupted only by a horizon
of mountains whose snowy peaks inspire properly elevated thoughts.
This is the chosen seat for elected international public power.” In this
setting (which is not difficult to recognize as Rousseau’s imaginary
Geneva) we see the Parliament of Nations, “this immense and
luxurious building, with spacious galleries, rich bibliographies,
numerous bureaux of commissions,” together with a “smaller, though
still imposing palace of the International Governmental Commission,
or, more properly, of the Administrative Commission.” On both sides
of a large boulevard there arise the offices of the ministries: an
International Administration of Finances, a Customs Commission, a
Monetary and Finances Commission, the headquarters of
international postal administration, railways, straits, the great
international rivers . . . There is also the building of the Ministry of
Colonies “for care over races under trusteeship has been confided to
the Society of Nations itself.” Still other facades appear: “at the end
of the avenue, perpendicular to other buildings, very visible and in a
much more sombre style lies that of the Directorate of International
Armed Forces.” “But the veritable engine of the international society
is the administration of justice. Here it finds the prepon-derant place
which it has lost in so many States . . . The International Court of
Justice, chosen initially from lists of candidates proposed by States,
has become thereafter completely independent. It now recruits its
own personnel, as vacancies become available, from lists composed
in consultation by the supreme courts of member States.”1
1 Georges Scelle, Le Pacte des Nations et sa liaison avec Le Traité de

Paix (Paris, Sirey, 1919), pp. 101–102, 105–106.
266
International law as sociology: France 1871–1950
This romantic imagery interrupts Georges Scelle’s (1878–1961) 400-

page commentary on the Covenant of the League of Nations of 1919
and provides the true source of inspiration not only for that
commentary but for the whole of the oeuvre of this late follower of
solidarist radicalism. Not only do we find an international legislator,
administration, adjudication and police force, situated in this local,
yet cosmopolitan setting, the structure of the international society it
administers has been completely transformed. Its legislative body is
not composed of representatives of States, not even of geographical
constituencies, but of the professions – such professions having
become the centers around which members of the global electorate
now construct their identities. “The representation of peoples thus
became a representation by professionals, competent because
chosen from among technical experts, exempt from all tyranny
because the majority that would be formed over particular questions
would always vary; such majority uniting the representatives of
different professions in accordance with particular professional
interests.”2
In Scelle’s utopia, the world is ruled by professional corporations:

States – and indeed politics – have become extinct. The corporations
would be represented in relation to the volume of their economic
activity so as to guarantee that their relative input corresponds to
their “utilité sociale.” Questions that interest particular nationalities
may still occasionally arise, and are dealt with through cooperation
between the national sections of inter-professional alliances. As the
direction of this majority-formation, too, is controlled by the
allocation of seats to different corporations, decision-making
continues to reflect social utility.3 To be sure, this would not have
been a rapid development – the evolution to this point would have
taken “centuries.”4 But there was no doubt it constituted modernity’s
direction, the goal of a fully rational, cosmopolitan administration of
things that were by their nature economic or technical.
This global syndicalism links Scelle firmly in the stream of French

radical–liberal thought, from Auguste Comte (1798–1857) and Emile
Durkheim (1858–1917) to the lawyer–politician Léon Bourgeois
(1851–1925) and Léon Duguit (1859–1928), the doyen of French
public law, each of whom looked for the direction of policy from
scientific and technical expertise. When discussing French interwar
internationalism, it is necessary to bear in mind its teleological bent,
the vision of a federally organized and professionally administered
global polity.
2 Scelle, Le Pacte des Nations, p. 110.
267
This vision separates French thought about international affairs – or

politics generally – from the German tradition surveyed in chapter 3.
From philosophical premises, assumptions that highlighted the

existential freedom of the individual, German public lawyers came to
see the State as the center of domestic and international law.
Following Kant, they held that the autonomy of human will was the
source of all secular normativity and, following Hegel, that rational
will was concentrated in the State. Their liberal Rechtsstaat aimed to
reconcile competing political wills by becoming thoroughly formal
and bureaucratic. This created an existential void, however, in which
there was constant need to buttress the State (its “legitimacy”) from
additional arguments about its organic nature or from public law’s
connection to the German Geist. Yet such arguments were old-
fashioned: “Combine liberalism with modernism and we are left with
the overthrow of authority and an endless search for its substitute,”
writes Max Weber’s most recent biographer.5 Weber himself feared
that in Germany’s atrophied political culture democracy only
strengthened the bureaucracy’s hand and he advocated world power
and a strong and responsible plebiscitary leader as sources for the
legitimacy of the German State.6 In the course of the development
of public law doctrine and practice in the Weimar period, the
argument from existential autonomy (and solitude) was finally
transformed into extreme authoritarianism as the German escape
from freedom was completed by the spring of 1933.
It is an unexpected paradox that as we now turn to the French
doctrines of public and international law in the late nineteenth and
early twentieth centuries, the relationship between freedom and
constraint, subjective and objective law, appears overturned. The
new French doctrines assume the essential determination of
individuals – what they will, the power they possess – by the moral
or social laws of their collectivities.7 For them, the State becomes an
ephemeral, almost transparent form, at best an instrument or a
“function” – sometimes a metaphor –
for the actions of the social collectivity that encompass all aspects of
the 5 John Patrick Diggins, Max Weber. Politics and the Spirit of
Tragedy (New York, Basic Books, 1996), p. 67.
6 Cf. Wolfgang J. Mommsen, Max Weber and German Politics 1890–

1920 (trans. Michael S. Steinberg, University of Chicago Press,
1984), pp. 390–414 and passim.
7 For an unequivocal statement of this, cf. Emile Durkheim, The

Division of Labor in Society, trans. W. D. Halls, introd. Lewis Coser
(New York, London, Free Press, 1997
[1893]), pp. 329–340. For Durkheim’s polemical and pervasive

preference for collective determination, cf. Steven Lukes, Emile
Durkheim. His Life and Work. A Historical and Critical Study
(Stanford University Press, 1973), pp. 19–22, 34–36, 79–85.
268
lives of individuals. To be sure, classical and revolutionary political

theory in France had always had an individualist bias. The State was
seen as an effect of the social contract, the product or aggregate of
the activities of citoyens: a purely utilitarian, not an ethical idea . 8
Still in 1920
Carré de Malberg (1861–1935) held it established that the State had
no interests or will of its own but that, from a realistic point of view,
its interests were the interests of individuals and its will the will of
those who govern.9 But where classical political theory and the
privatisme of the Code Civil had portrayed individuals as
undetermined and autonomous, an increasing number of politicians
and social scientists, including lawyers and legal theorists, were
arguing from the 1880s and 1890s onwards –
against laissez-faire liberalism but also to pre-empt the advance of

socialism – that an irreducible social solidarity bound individuals to
positions and communities that dictated to them what they should
will and what their true interests were.10
From a traditionalist communitarianism and a sociological naturalism

arguments were made that reduced formal States to instruments for
external purposes and led inexorably to one kind of federalism or
other.
The result was – another paradox – a cosmopolitan monism that

seemed liberal to the extent that it saw human collectivities as
aggregates of their constituent individuals but authoritarian as it
sought to reconcile the conflicting wills and interests of individuals
by reference to the essential solidarity it derived from a natural
morality or a more or less mechanistic theory of social
determination.
The background of such ideas lay in the properly French terrain of

Saint-Simonian optimism about economic and social progress, in the
positivism of Comte and Durkheim, in the liberal or
Catholicnationalisms of Renan or (the later) Barrès and in the civic
republicanism that in France turned away from the exaggerated
individualism and rationalism of the eighteenth century.11 What
united such diverse intellectual strands was their view of the State
and of positive law as indicators or functions of the objective laws of
the social realm, of economic or industrial development, 18 Cf.
Robert Redslob, “La doctrine idéaliste du droit des gens. Proclamée
par la révolution française et par le philosophe Emmanuel Kant”
(1921), 28 RGDIP, pp.
448–489.
19 R. Carré de Malberg, Contribution à la théorie générale de l’Etat

(2 vols., Paris, Sirey, 1920), I, pp. 25–27.
10 For one account of the via media character of French

“solidarism,” cf. James T.
Kloppenberg, Uncertain Victory. Social Democracy and Progressivism

in European and American Thought 1870–1920 (Oxford University
Press, 1986), pp. 212–216, 301–305.
11 Kloppenberg, Uncertain Victory, pp. 175–176.
269
division of labor, intellectual cultivation, the common good, and

social solidarity. By itself, such a combination of ideas could have led
to many types of international politics and law. With the French
lawyers in the 1920s and 1930s it led to federalism – emphasis on
increasing integration, economic interdependence, the League of
Nations, blueprints for a European Union. That it did so was strongly
supported by the Franco-German adversity, transfigured in the minds
of the protagonists as an opposition between internationalism and
nationalism.
French international lawyers had always stressed the indissociability

of French interests from those of the world at large. After 1918, they
argued for a firm European order that would guarantee French
security against German aggression. But there was, as we saw in
chapter 2, a larger assumption about France as the champion of
universal humanitarianism. When Scelle in 1920 reflected upon the
fate of the German colonies, he had no hesitation in assuming that
“for cultural and social reasons” the peoples of those territories
would naturally hope to be ruled by the French.12 The League of
Nations, René Brunet (1882–1951) wrote in 1921, was a product of
the French political idea. Supporting it France was only being faithful
to its own humanisticideals.13 Not all Germans conceived the
international as a sphere for Machtpolitik – but those who did not
were quite constrained in their politics. By contrast, French lawyers
were inclined to see it in terms of a gradually increasing economic
and cultural solidarity, and were applauded. Each spoke from the
perspective of national tradition. If the strength of the Wilhelminian
empire lay in the economic and military might of the German State,
the gloire of France hardly resided in the fragile structures of the
Third Republic.
Internationalism as nationalism: the idea of France Thank

God French science has not been in the habit of mixing with the
courte-sans of success. In many occasions, and until quite recently,
it has without hesitation taken the side of the oppressed, without
attention to the number or force of the oppressors.14
One striking aspect of French international law towards the end of

the nineteenth century was its ability to connect a cosmopolitan
outlook with an impeccably patriotic alignment behind French
interests. This is not to 12 Georges Scelle, La morale des traités de
paix (Paris, Cadet, 1920), pp. 164–165.
13 René Brunet, La société des nations et la France (Paris, Sirey,

1921), pp. 244–256, 266.
14 A. Pillet and J. Delpech, “La question finlandaise. Le manifeste du

Tsar examiné au point de vue de droit international” (1900), VII
RGDIP, p. 405.
270
say that its internationalism would have been less than honest. On
the contrary, since the early nineteenth century French republicans
had identified the French nation through the universal principles of
the Revolution
– non-intervention, national autonomy, and self-determination.15 To

be sure, as pointed out by Robert Redslob (born 1882) from the
University of Strasbourg, that the French themselves did not always
live up to those ideals followed from their profound ambivalence:
Was a people entitled to intervene in support of another people’s
self-determination? How come the National Assembly of 1792 made
no exception to the death penalty where the entity seeking
autonomy was part of the French Republic?16 Such paradoxes – or
apparent paradoxes – allow a glimpse of the cunning of the national
spirit that can sometimes construct a particularist identity out of
universalist principles, challenging our commonplace assumption of
the fundamental character of the dichotomy between matters
“national” and matters “universal.”
The quote at the head of this section is from a 1900 article by

Antoine Pillet (1857–1926) and Joseph Delpech (born 1872), two
representatives of a first generation of international lawyers in
France, defending Finland’s autonomy against the Russification that
had commenced a year earlier. Most of the French international law
community took a firm stand in Finland’s favor, defending Finnish
legal institutions and culture against what was perceived as an illegal
Russian policy. Finnish nationalism was constructed by French
lawyers out of the universalist principles of Western enlightenment
(but also its cultural self-understanding in a larger sense) against the
Eastern mysticism that Russia was thought to represent.17 In French
eyes, Finland appeared special as it identified itself on the basis of
the same principles as the French did.
As we saw in chapter 2, French international lawyers employed a
consistently humanitarian rhetoric to defend French colonial
expansion.
Their positions fell in line with the general transformation of French

attitudes towards expansion in the 1880s, after the first years of
mourn-ing over the defeat at Sedan. Even the great socialist Jean
Jaurès (1859–1914) became an enthusiast of the French mission to
“spread the Gospel of French culture, liberalism, and egalitarianism,
the principles 15 Michel Winock distinguishes helpfully between an
“open” and a “closed” French nationalism, of which the former
carried the idea of the civilizing mission, the latter demanding
“France to the French,” in Nationalism, AntiSemitism and Fascism in
France (trans. J. M. Todd, Stanford University Press, 1998), pp. 24–
26.
16 Redslob, “La doctrine idéaliste,” pp. 445, 448.
17 Cf. further Outi Korhonen, International Law Situated: Culture,

History and Ethics (The Hague, Boston, and Dordrecht, Kluwer,
2000).
271
of 1789.”18 A real masterpiece in this genre is, however, the 800-

page monograph of 1904 on French diplomacy under the Third
Republic and international law by Frantz Despagnet from the
University of Bordeaux.19 The book consisted of a detailed
commentary on all major international developments between 1873
and 1899 from the perspective of French interests and international
law. It was not an apology for French diplomacy: though Despagnet
commended many aspects of French policy, he had also many critical
things to say about it. The reader was left in no doubt, however, that
whenever France was acting reprehensibly, its failure lay in its
departure from the essence of its own identity. Where British
violations were a natural result of its arrogance, and German
violations of its general nonchalance about law, a French violation
(such as the declaration of rice as contraband during the Franco-
Chinese war of 1885) was a special scandal as it was a denial by
France of its own idea.20
The assimilation of French and international interests was facilitated

by France’s international position. As Despagnet repeatedly
emphasized, the defeat of 1871 had made France “morally
convinced of the need to protect the weak” (by way of arbitration,
for instance),21 and turned its ambition from the continent to the
colonies. In the odd position of challenger in regard to Britain and an
old colonial power in regard to Germany, its own policy turned
almost automatically to seek support from internationalism. This was
most evident in the Balkans and Africa. In the former case, the main
conflict was between Russia and Britain. It thus fell upon French
diplomacy to achieve the Entente that led to the 1878 Berlin
Congress, the French thinking of themselves as only following their
traditions as the representatives of Christian populations in the
Orient. While Russia was looking for aggrandisement and Britain
protected its route to India, and both violated the 1856 guarantee of
Turkey’s integrity, France’s only wish, Despagnet wrote, was to have
a stable system of territorial and minority rights that would
guarantee respect for commitments towards Turkey.22
Like other French commentators, Despagnet held Brazza’s African

activity to be “un des examples les plus consolants pour la
civilisation”
18 Quoted in James J. Cooke, New French Imperialism 1880–1910.

The Third Republic and Colonial Expansion (Paris, IN, 1973), p. 20.
19 For a brief biography, cf. the obituary in (1906), 21 Annuaire IDI,

pp. 480–485.
20 Frantz Despagnet, La diplomatie de la troisième république et le
droit des gens (Paris, Sirey, 1904), pp. 393–395.
21 Despagnet, La diplomatie de la troisième république, pp. 117–

119.
22 Despagnet, La diplomatie de la troisième république, pp. 22–70.
272
and emphasized French recognition of the rights of the indigenous

populations.23 It was France that had prevented Britain and
Germany from using their colonial protectorates as veiled
annexations at Berlin 1884–1885. Despagnet fully endorsed the
explanation that the establishment of the French protectorate over
Tunisia in 1881 was carried out in self-defense to prevent hostile
incursions into Algerian territory.24 In Egypt, the problem was
Britain’s predominance and inconsistency: France had nothing but a
wish to see the Ottoman Empire’s (of which Egypt was a formal part)
integrity respected. In the French Sudan, expansion was a natural
necessity; resisting chiefs such as the formidable Samori were
characterised as aggressors, “ambitious, cruel and treach-erous.”25
In Madagascar, the Radical Government’s war against the
“rebel” Hovas was carried out in 1895–1896: “with a remarkable

moderation by General Duchesne whose humanitarian orders were
fully carried out by his troops; . . . the most flattering testimony of
their humanitarian spirit and discipline was given spontaneously by
foreign correspondents.”26 If the war in Madagascar – like that in
Annam a few years earlier – was conducted against a protected
power, these were wars of necessity, Despagnet argued, brought
about by the protected power on itself. Only when it turned into de
facto annexation in breach of the confidence of the Hovas, did
Despagnet find reason for criticism.27
Despagnet’s France was a politically vulnerable nation, striving to
enhance its position with morally and legally justifiable action against
a Britain envious of its victories in the colonies and a Germany
fearful of its desire of revanche in Europe. If France lost – as it did in
Egypt in 1882
– this was not only a tragedy for France but a blow to world
peace.28 The ambivalence of Despagnet’s characterization of French
policy at the Berlin Conference could be applied generally to the way
French internationalists saw the relations between France and the
world: “it is by advocating moral considerations at diplomatic
assemblies that the vanquished France could first reconquer the
position in the world that belongs to it.”29 This is to repeat the
Revolutionary ethos of 1789: 23 Despagnet, La diplomatie de la
troisième république, p. 128.
24 Had not France received a free hand from Salisbury three years
earlier but held back from taking action as Tunisia was, after all, an
independent country? Despagnet, La diplomatie de la troisième
république, p. 77.
25 Despagnet, La diplomatie de la troisième république, p. 403.

711.

716.
273

natural liberty and the general will come together in an idea that is
France itself. A few years later, in reconquered Strasbourg Redslob
contemplated the effect of la Grande Guerre on this idea. It had
broken Europe in two. It had interrupted the slow recognition of the
revolutionary principles. Nevertheless:
French soldiers have carried the Gospel of human rights to the

frontiers of civilized Europe. After Leipzig and Waterloo, their flags
were torn from conquered monuments. But the monuments of
justice and truth that they have built among peoples have stood.
The France of the Revolution conquered Europe by the arms of the
spirit. What the France of 1789 did for the people, the France of
1914 did for nations. The France of Valmy, of Jammapes and Fleurys
fought for individual liberty, the France of Marne fought for the
liberty of the Universe. She will achieve her brilliant aim. The
uncertainties and detours in which today’s diplomacy confounds are
but a passing mist through which the people will climb to the light of
summits. The idea will always triumph. And the idea, it is France.30
From civilists to functionalists 1874–1918: Renault to Pillet
“The idea of France” – in legal terms, this was certainly the Code
Civil.
No wonder that the study of law in France was dominated by the

exegetic school through most of the nineteenth century. Legal
doctrine consisted of textual commentary on the Code and even
discussion of court practice was viewed with suspicion. Indeed,
“[r]arely in history has a single movement been predominant for so
long and so totally as was this school in nineteenth-century France
and Belgium.”31 Not amenable to the methodological strictures of
exegesis, and sidelined by the Napoleonic system that transformed
the Ecoles de droit principally into training schools for judges and
avocats,32 international law remained a rather marginal academic
topic in France until late in the century – a kind of a specialized part
of natural law. When Charles Giraud retired from the chair in Paris
(the only international law professorship in France at the time) in
1874 the post was temporarily and without enthusiasm filled by
Louis Renault (1843–1918) from Dijon, whose previous writing and
experience had been exclusively in the fields of Roman and 30
Redslob, “La doctrine idéaliste,” p. 456, italics in original.
31 R. C. Van Caenegem, An Historical Introduction to Private Law

(Cambridge University Press, 1988), p. 148. For the variants of the
exegetic school, cf. also André-Jean Arnaud, Les juristes face à la
société du XIXe siècle à nos jours (Paris, PUF, 1975), pp. 45–74.
32 “Les études de droit international dans les facultés de droit

françaises” (1962), VIII Annuaire français de droit international (
AFDI ), p. 1233.
274
commercial law.33 Having been permanently appointed to the chair

in 1881, Renault held the position for 36 years, becoming “the
personification of the French conception of international law for
almost a half-century.”34 Much of his career and certainly much of
his fame was based on activities outside the university. In 1890
Renault was appointed jurisconsulte-conseil at the Quai d’Orsay in
which capacity he wrote legal briefs for the minister and represented
France at much of the diplomacy of the time, including both Hague
Peace Conferences.35 He was the most frequently used member of
the Permanent Court of Arbitration, participating in seven of the
fourteen cases that were brought to it during his lifetime.36 His
bearded figure towers over the development of French international
law until the First World War. For those for whom the war did away
with the respectability of the old diplomatic system, it was his brand
of pragmatism that seemed in need of reform.
Renault’s appointment came at a time when the “privatism” of the

Code Civil had come under increasing strain. The view that the law’s
principal mission was to regulate relations between private
individuals provided a poor basis for the development of public law
and failed to account for new legislation dealing with the social
problems of an emerging industrialized economy. Until the 1870s,
even public law had been based on the voluntarist principles of the
Napoleonic code that saw the State as a compact between mature
citizens.37 The same construction had been projected onto
international law as well. The 1862 prize essay of Eugène Cauchy
(1802–1877) on the law of the sea submitted to the Académie des
sciences politiques et morales, for example, examined its subject on
a purely rationalist basis. It projected States as persons who, like
individuals, had rights that belonged to them by virtue of their per-
sonhood: the right to defend oneself and to work for one’s
perfectioning.
Each State was free – just like each individual – to the extent that its
freedom did not violate that of other States. The rights of States at
sea were derived from natural law: the freedom of the seas, the
concept of 33 Cf. Paul Fauchille, “Nécrologie Louis Renault (1843–
1918)” (1918), XXV RGDIP, pp.
8–14; Albert de Lapradelle, Maîtres et doctrines du droit des gens

(2nd edn., Paris, Editions internationales, 1950), pp. 249–261.
34 J. Bonnecase, La pensée juridique française. De 1804 à l’heure

présent (2 vols., Bordeaux, Delmas, 1933), I, p. 417.
35 For an extremely detailed review of his work at diplomatic

conferences, cf. Fauchille,
“Nécrologie Louis Renault,” pp. 36–104.
36 Fauchille, “Nécrologie Louis Renault,” pp. 104–107.
37 On the “privatist”–“publicist” battle in France in 1840–1880, cf.

Arnaud, Les juristes, pp. 37–45.
275
the territorial sea, right of passage, and other norms were

consequences of the nature of those areas, their non-appropriability
and their character as ways of access to resources or other sea
areas. Within this rationalist framework, Cauchy described the
development of maritime history in five periods that peaked in the
contemporaneous ideas of freedom of the seas, contraband, and
maritime neutrality, marvellously underwrit-ing everything the French
had always argued against the British.38
By contrast, in 1877 Théophile Funck-Brentano (1830–1906) of the

Ecole libre des sciences sociales and Albert Sorel (1842–1906), a
diplomatic historian with the Académie Française, published an
overview of the field without a word about natural rights or indeed
about theory or method, describing international law as the practices
of nineteenth-century diplomacy: formal relations between
sovereigns, treaties, intervention, recognition, responsibility, war, and
neutrality. Theirs was a practitioner’s handbook: it discussed the
advantages of protocol, the political consequences of treaty relations
and excluded from the law everything that did come under reciprocal
obligation or common interest. That the book came from outside the
law faculties, and paid no attention to how the matter was dealt with
in standard British, Italian, or German textbooks was strikingly
visible in its awkward theory of political causality as international
law’s sanction: history, the authors suggested, will revenge
illegality.39
So when Renault reviewed the field in 1879 , he concluded that little

had been written in France that was up to date. Appreciating the
“often profound” reflections in Funck-Brentano and Sorel, he felt
their spirit
“more philosophical or political than juridical,” and noted their
relative ignorance of legal doctrine which they sometimes
assimilated to that of the “dreamers and utopians” of the Sociétés de
la paix. 40 Renault’s writing established the subject in France in the
spirit of the European mainstream as represented by the work of the
Institut de droit international. The law was still justified by rationalist
arguments and the organization of the materials was received from
Justinian’s Institutes: persons, things, obligations, and forms of
action (including war!). Like civil law, the law of nations had to do
with guaranteeing the widest possible liberty for States compatible
with the equal liberty of others.41 “From the simultaneous existence
of equally independent nations it is possible to derive rationally 38
Eugène Cauchy, Le droit maritime international considéré dans ses
origines et dans ses rapports avec les progrès de la civilisation
(Paris, Guillaumin, 1862).
39 Th. Funck-Brentano and A. Sorel, Précis du droit des gens (3rd

edn., Paris, Plon, 1900).
40 Louis Renault, Introduction à l’étude de droit international (Paris,

Larose, 1879), pp. 48–49.
41 Renault, Introduction, p. 6.
276
rules.”42 To this extent, international law was “not a creation of will,

it
[was] anterior to the constitution of States and the organization of

different social powers.”43 These points were accompanied,
however, by sociological and economic arguments: France sent its
wine and its art everywhere to receive cotton and coffee, gold, and
silver in exchange.
Division of labor, as well as the development of science and
technology, were creating a common patrimony of humanity,
expressed in increasing numbers of treaties and converging forms of
State behavior.
This is why it was unnecessary to continue the dispute between the

rational and historical schools, debates “aussi confuses et aussi
ennuy-euses qu’inutiles.”44 For Renault, international law was an
eminently practical part of the diplomatic sciences, the professional
technique of men of international affairs – not an abstract derivation
from the nature of the State or an instrument towards world
government. Renault was completely against intervention in the
internal affairs of States for humanitarian reasons, defining war as a
pure fact and the laws of war a consequence of the prohibition of
purposeless violence.45 On the other hand, he lamented the lack of
interest in France in international affairs: for those planning a
diplomatic career, it was imperative to know the point of view of
other peoples, he argued. Hence most of his 1879
Introduction is taken by lists of recueils and manuals of treaties and

official acts, with comments on their usefulness, as well as
instructions on how to infer general rules from them.
Although Renault did commend Bergbohm’s ultrapositivistic writings

to his readers,46 there is no evidence that he would have been
deeply influenced by German Staatsrechtslehre. His narrow doctrinal
production arose from a civilist background and the domestic–
rationalist analogy while the substance of his work never dwelt on
the problems of such old-fashioned theory: for him, international law
was not philosophy but a professional technique.47 Renault never
published a larger monograph.

45 Renault, Introduction, pp. 18–19; Louis Renault “Préface,” in
Robert Jacomet, Les lois de la guerre continentale (Paris, Fournier,
1913), p. 9.
46 Renault, Introduction, p. 25n1.
47 During more than thirty years of teaching in Paris, his general

course underwent only minor modifications, the most important of
which was, perhaps, the replacement of a separate treatment of the
position of individuals by an examination of the law of territory. For
the programs of his courses at the University of Paris, at the Ecole
libre des sciences politiques and the Ecole supérieure de la marine,
cf. the annexes to Fauchille,
“Nécrologie Louis Renault,” pp. 148–229. This change may have

been occasioned by the separation of matters of private international
law as their own topic, and the emergence, towards the end of the
century, of something like a coherent body of case-law to teach.
277
Practically all of his teaching and writing took the form of

commentary on contemporary events, conferences, and disputes of
which he often had first-hand experience.48 In writing about
international unions, unlike most jurists of the period, he refrained
from speculating about whether they could be interpreted as an
emerging international administration or the first steps towards
federalism. He understood them as forms of technical assistance to
European diplomacy whose functions were limited to coordination of
sovereign politics.49 Like Rolin, Westlake, and the other members of
the Institut (whom he joined in 1878
as an associate and in 1882 as a full member), he wished to

contribute to a rational diplomatic system between existing
(European) States, not in undermining it. Although he was awarded
the Nobel Peace Prize in 1907 for his role in the two Hague Peace
Conferences, he never participated in the peace movement – indeed
he would probably have seen such activities as mutually exclusive.
By the 1890s additional chairs of international law were set up in

such provincial universities as Bordeaux, Grenoble, and Toulouse.50
A significant event was the establishment of the Revue générale de
droit international public ( RGDIP ) at Renault’s initiative in 1894 that
from the outset adopted a profile indicative of the extent of its
mentor’s influence.
Where Germans continued to agonize over the existence or binding

force of international law, and particularly its relationship to
domestic (public) law, the Revue focused on ongoing disputes,
conferences, and conventions with large recent events and
documentary sections. Its outlook was professional–technical and
avowedly nationalist: that international law was a beneficial part of
the conventions of diplomacy was as much a forgone conclusion as
the fact that among European States 48 His most important
publication, however, is the two-volume Précis de droit commercial,
published together with Charles Lyon-Caen in 1884–1885 plus a
Manuel and a Traité on the same subject, each of which went into
several editions in the early twentieth century. These works stressed
the need to focus on practice instead of continuing commentary on
the increasingly obsolete provisions of the Code Civil or the 1807
Commercial Code. To examine practice instead of old texts was

particularly necessary in order to capture the international conditions
of an enormously expanded commerce. Traité de droit commercial
(2nd edn., 2 vols., Paris, Pichon, 1889), I, pp. vi–x, 38–63.
49 Cf. Louis Renault, “Les unions internationales. Leurs avantages et

leurs inconvéni-ents” (1896), III RGDIP, pp. 14–26.
50 A discussion of the reform of law teaching had been underway

since the 1860s but only with the reforms of 1878, 1880 and 1889
did all faculties start teaching constitutional, administrative and
international law as well as political economy and finance. Cf. Henri
Berthélemy, L’Ecole de droit (Paris, LGDJ, 1932), pp. 8–11.
278
only France was sincerely committed to the advancement of an

international rule of law. Politics entered the journal normally in
connection with commentary on recent events such as the Fashoda
crisis, the Egyptian debt question or events in the Far East. To the
extent that the foreign policy of the Third Republic was largely a
colonial policy, the Revue followed closely national priorities. Leafing
through the first twenty volumes of the Revue, it almost seems as if
international law’s field of application was between European powers
acting outside Europe – as if intra-European questions concerned
policy and commerce, but not of law.51 The question of Alsace–
Lorraine emerged regularly but it was still a rare exception when in
1899 – the year of Fashoda – Paul Fauchille drew attention to the
“Anglo-Saxon peril” he observed alongside the
“yellow” one and called upon continental Europe to form a customs

union with prohibitive external tariffs as well as a political–military
alliance against British and American predominance.52
Paul Fauchille (1858–1926) was one of his two students that Renault
chose as editors of the Revue. He was a real flâneur who never
occupied a university or administrative position but worked at home
with a wide array of publishing projects in history and international
law as well as initiatives with the Institut. In 1919 Fauchille became
one of the founders and the first Secretary-General of the Institut
des hautes études internationales with the University of Paris. It was
Fauchille who declared that the purpose of the Revue was to defend
the rights and interests of France
– a declaration that has been benevolently but not incorrectly
interpreted as meaning that he associated French interest with the
universal interest.53 It was not by coincidence that Fauchille began
his 1911 report to the Institut de droit international on the
customary laws of naval warfare by the observation that the very
idea of drafting such rules on the basis of humanitarian ideas could
be traced back to Napoleon.54 Fauchille was a man of facts and
details and thus well suited to edit the Revue’s 51 The recurrent
anarchist attacks in Europe in the 1890s gave impetus for scholars to
publicize their views on the principles of extradition for politically
motivated crimes.
This, too, was law in the service of the sovereign: the domestic
anarchist was analogous to the colonial people – an outsider to the
established order, an object of discipline.
52 Paul Fauchille, “L’Europe nouvelle” (1899), VI RGDIP, pp. 1–8.
53 De Lapradelle, Maîtres et doctrines, pp. 302–303 and generally

pp. 263–306. Fauchille did his doctorate for Renault in Paris on the
question of maritime blockade: Du blocus maritime, étude de droit
international et de droit comparé (Paris, Rousseau, 1882). His two
historical works are Question juive en France sous le premier empire
(Paris, Rousseau, 1884) and La diplomatie française et la ligue des
neutres 1887–83 (Paris, Pedone-Lauriel 1913 [1892]).
54 Paul Fauchille, “Rapport préliminaire et questionnaire; manuel des

lois de la guerre maritime” (1912), 25 Annuaire IDI, p. 42.
279
chronique section. His articles, too, were often commentaries on

recent events while his activity at the Institut focused on the effects
of new technology, especially aviation, on international law.
In 1898 Renault chose Fauchille to compile a second edition to Henri
Bonfils’ (1835–1897) Manuel de droit international public which
became perhaps the most widely used French textbook. It came out
in six editions before 1914 and the eighth edition (under Fauchille’s
name) was published in 1926 with more than 4,000 pages. This
book was an eclec-ticsurvey of all fields of international law following
the initial author’s civiliste method – in order not to disturb the
habits of French students, he had once remarked. There were five
sections: persons, things, peaceful relations, settlement of disputes,
and redress (i.e. war). Where German lawyers examined statehood
and treaties usually with the ambition of proposing a “system,”
Fauchille adopted civil law divisions without comment. A short
introduction explained that (public) international law was the least
developed of the branches of the general science of law. Its object
was the study and exposition of the laws governing the coexistence
and reciprocal actions of the States that formed a juridical
community.55 There was a sociological and a historical perspective:
the reality of international law lay in the fact that States needed
rules – to which they consented either expressly or tacitly – in
accordance with the “law of sociability – a natural and necessary
law, not only for individuals but also for States.”56 On the other
hand, its basis lay in the shared habits and common culture of
civilized nations.
There was no antagonism between law and politics: compliance with

the law was, in the long run, also in the interests of individual
States.57
In the great conferences of the nineteenth century the European

nations had “recognized the solidarity that united them as members
of an international community.”58
Bonfils–Fauchille was throughout a practical, non-formalist book that

summarized much of the teaching of other books – those of
Bluntschli, Holtzendorff, and Twiss – and the diplomacy of the
nineteenth century.
The only full subjects of international law were States – though both
individuals and the Pope had certain functional rights. Statehood
depended on the social fact of the existence de facto of States – but
the enjoyment of sovereign rights depended on recognition, that is,
on politics. If non-Christian entities could not be treated as States,
this was 55 Henri Bonfils and Paul Fauchille, Manuel de droit
international public (2nd edn., Paris, Rousseau, 1898), p. 27.
280
simply a reflection of the fact that they did not possess “un système
commun de morale, qui assure entre elles la réprocité des droits et
des devoirs.”59 There was only one fundamental right – the right to
existence. Every other right followed as a conceptual derivation from
it. If in some cases such rights were violated – the right of non-
intervention, for example, was constantly breached by the United
States and Britain
– Bonfils–Fauchille simply noted this as part of international law’s

weakness but not as a theoretical challenge.60
By the 1880s French lawyers had generally begun to depart from the
canons of exegesis. Absolute freedom of contract or unchallenged
right of property were unable to deal with the social ills of the Third
Republic and to check the advance of socialist ideals.61 The
emergence of a collectivist radical–liberalism in French politics was
paralleled in law schools by new anti-literalist, sociologically oriented
civil and public law teaching such as François Gény’s (1861–1959)
influential distinction between the juridical “donné” and “construit,” a
theory of the juridical science as a method for finding the law
embedded in actual social relations (“donné”) and a technique for
constructing normative principles out of the purposes of positive
law.62 But neither Gény’s hermeneutics nor the sociological or
institutionalist public law doctrines by Saleilles, Hauriou, or Duguit
produced an immediate effect on French international law. On the
other hand, the very emergence of international law in the facultés
in the 1880s had to do with the expansion of legal culture.63
To counter the skeptics, sociology seemed needed: ubi societas, ibi

jus. This was Renault’s strategy and followed in Bonfils–Fauchille as
well.
Nonetheless, it seems as if Renault and Fauchille exhausted their

innovative resources by moving to international law from the legal
mainstream. Speaking already from the margin, they wished to
prove international law’s seriousness by demonstrating that it could
be practiced as technically as any other law, with as much attention
to detail as in civil or criminal law – as if justifying their profession
could be achieved only by a condescending nod from the legal
center.
By contrast, two articles that did seek to advance the theory of

international law in the first decade of the Revue were both written
by Fauchille’s co-editor Antoine Pillet, a civilist from Grenoble who 59
Bonfils–Fauchille, Manuel, p. 106.
61 Van Caenegem, An Historical Introduction, pp. 150–151; Arnaud,

Les juristes, pp. 75–86.
62 François Gény, Méthode d’interprétation et sources en droit privé

positif (Paris, Bibliothèque de jurisprudence civile contemporaine,
1889).
63 Arnaud, Les juristes, pp. 112–113.

281
became Renault’s adjunct in Paris in 1896. In a paper on the

constitutive elements, domain, and object of international law that
opened the first issue of the Revue Pillet foreshadowed the direction
of later sociological jurisprudence.64 Five years later he expanded
on his views in a much-quoted article on the role of fundamental
rights of States which both grounded international law analogously
to liberal law but also defined and delimited these rights from the
perspective of the society in which they were to operate.65 Pillet –
the “philosopher” among early French internationalists66 – applied
to international law precisely those criticisms that had been used to
attack the individualism of the Code Civil.
In the former article, Pillet distinguished between “human law” that

was universal but on whose practical application there was much
controversy and international law proper that was a law between
States – or, more accurately, between (European) States that shared
similar ideas about statehood and its social functions.67 Because the
convention of the profession was then (as it has remained since) not
to refer to extraneous sources for one’s arguments, Pillet apologized
to his readers for his brief entry into “social philosophy.”
International law was premised upon the existence of an
international society. That such society existed followed from
“interdependence, the social law of our era.”68 It was a sociological
mistake to think of States as independent and to conceive this in the
language of fundamental rights. Pillet dissociated himself, however,
from German Interessenjurisprudenz. Interests were irreducibly
heterogeneous and without a standpoint from which their conflict
could be settled.69
Moreover, States were no autonomous beings having independent

64 Antoine Pillet, “Le droit international public, ses éléments
constitutifs, son domaine, son objet” (1894), I RGDIP, pp. 1–32.
65 Antoine Pillet, “Recherches sur les droits fondamentaux des Etats
dans l’ordre des rapports internationaux et sur la solution des
conflits qu’ils font naître” (1898), V
RGDIP, pp. 66–89 (Part 1), 236–264 (Part 2), and (1899), VI RGDIP,
pp. 503–532
(Part 3).
66 De Lapradelle, Maîtres et doctrines, pp. 308–310.
67 Pillet, “Le droit international public,” pp. 13–18. For Pillet as for
others, non-European entities could not be treated in the same way
as European States because they did not possess this idea of State
functions, Pillet, “Le droit international public,”
p. 25. To be sure, the European ideas were a reflection of the

advanced degree of European civilization and “le degré de civilisation
de chaque peuple est la mesure de ses droits,” Pillet, “Le droit
international public,” p. 24.
68 Pillet, “Recherches sur les droits fondamentaux,” 1, p. 89. No-one

can live alone and for a State to try to do this was to commit suicide,
Pillet wrote, with disguised reference to Durkheim whose Suicide:
Etude de sociologie, that made precisely the point of loneliness
(anomie) as a cause of suicide in modern industrial society had come
out in the previous year.
69 Pillet “Recherches sur les droits fondamentaux,” 2, pp. 242 et

seq.
282
interests of their own but rather instruments or functions of their

communities and the conflicts between them were conflicts between
such functions: “the State has no other raison d’être than the
functions it exercises towards the subjects which are under its
authority.”70 International law neither emerged from, nor reflected
State interests. It arose from activities whereby States in their
external relations sought to realize the objectives of their national
communities. Its basis was not mere consent (though consent was
one of its sources) but the necessity that States coordinate their
activities to fulfill their functions.71
What was special about international conflicts, Pillet argued further,

was that in them one public interest clashed with another public
interest – the realization of the functions of one State were
prevented by the pursuit of its functions by another.72 To resolve
such conflicts, a theory was needed that would establish a hierarchy
of functions. It was remarkable that no such theory had been so far
created, Pillet wrote, and saw his own work as path-breaking in this
respect.73 In his view, the significance of functions could be
assessed only in reference to their importance to the relevant
national communities. The less important function should then give
way to the more important one in accordance with the
“law of the least sacrifice.”74
Pillet also applied his functionalist theses in his prolific work on

private international law, arguing that conflicts of law should be
resolved by reference to the social purposes of the laws, by especial
attention to whether they were meant as permanent or general.75
The theses did not 70 Pillet “Recherches sur les droits
fondamentaux,” 3, p. 505. Likewise, Pillet “Le droit international
public,” pp. 4–5.
71 Pillet, “Le droit international public,” pp. 10–11.
72 Pillet, “Recherches sur les droits fondamentaux,” 3, p. 503.
73 Pillet, “Recherches sur les droits fondamentaux,” 2, pp. 244–256.

A State had three functions towards the national community:
conservation of the community, the administration of its affairs and
seeing to its progress, responding to the need of provision for
internal order, freedom and justice. “Recherches sur les droits
fondamentaux,” 3, pp. 510–521.
74 Pillet, “Recherches sur les droits fondamentaux,” 2, p. 244. Such

a view did not hold States to be subjects of rights but instruments
for the fulfillment of the purposes of national communities. State
sovereignty, Pillet argued, was not to be respected because it
encompassed the existential freedom of the State but because it
denoted respect for the State’s duties towards its citizens. Thus, for
example, if what was important was “function” and not formal
sovereignty, then it could be explained how private individuals or
companies could sometimes carry out public administration or
undertake actions in the colonies that amounted to acquisition of
territory. Pillet, “Le droit international public,” pp. 31–32.
75 A law intended as permanent would then overrule a territorially

limited law and a law intended as general would overrule a personal
status conferred by foreign law. Cf.
Antoine Pillet, Principes de droit international privé (Paris, Pedone,

1903).
283
initially provoke a methodological debate in the Revue or elsewhere,

perhaps because they reflected ideas about interdependence and
solidarity that had become a commonplace in French legal and
political debate in the 1890s and were anyway far from suggesting
revolutionary changes to legal practice. A sort of functionalism
avant-la-lettre had been part of the profession’s cosmopolitanism
from the beginning; dressing it in sociological language became
necessary only when cosmopolitanism seemed endangered – that is
to say, after the war.76
In a series of commentaries on the First Hague Peace Conference of

1899 professors Despagnet and Aléxandre Mérignhac (1857–1927)
from Toulouse proudly highlighted the central role that the French
delegation had had in trying to get the best possible result out of the
Russian proposals on disarmament and directing the debate to the
more fruitful avenue of the setting up of a permanent body for
dispute settlement.
Britain, Germany, Austria, and Italy had been impossible, egoistic

trouble-makers: was France not the only State that joined Russia in
signing all the conventions adopted at the Hague?77 Two members
of the French delegation were accredited for having played a
decisive role in preventing the Conference from failure. One of them
was Louis Renault, who participated in the modest capacity as a
technical delegate but became the rapporteur of the Second
Commission that prepared the draft Convention on the laws and
customs of war and headed the difficult negotiations of the drafting
committee for the Final Act of the Conference. In fact, Renault
seemed to have been everywhere during the Conference and
gradually came to be considered its unofficial legal adviser.
Contemporaries praised Renault’s drafting technique, his legal mind
and his diplomatic courtesy. This was where he made his
international reputation: “Il vint à la Conférence en Français, il la
quitta en citoyen du monde.”78
But if Renault was the indefatigable drafter, the Maître of legal

technique, Léon Bourgeois (1851–1925) was not only the chairman
but also 76 At that time, Pillet’s views were cited as representative
for a relativist or objectivist theory on sovereignty, cf. Georges
Scelle, “La guerre civile espagnole et le droit des gens” (1938), XLV
RGDIP, pp. 292–293.
77 F. Despagnet and A. Mérignhac, “Opinion sur la Conférence de la

Haye et ses résultats” (1900), VI RGDIP, pp. 879, 881.
78 J. B. Scott, Les Conférences de la paix de la Haye de 1899 et
1907 (Carnegie Endowment for International Peace (3 vols., Oxford,
Clarendon, 1927), I, pp. 151–152.
284
the ideologist of the French delegation which he had chosen to head

in 1899 instead of accepting the offer from the President of the
Republic to form a new government. Bourgeois was a lawyer, active
freemason, former (and future) minister, and former Prime Minister
(1895–1896), one of the most influential men in turn-of-the-century
France. Since Clemenceau’s temporary withdrawal from the
leadership of the Radical (liberal) party in 1893 Bourgeois had been
its ideological leader. After the resignation of his government in 1896
he published a small pamphlet, Solidarité, that advocated a third
way between retreating laissez-faire liberalism and ascendant
socialism, emphasizing the duties that citizens owed to each other
and suggested far-reaching social legislation to deal with the
consequences of the great depression of 1873–1895. The book
became an enormous success and the policy of “solidarism” it
promoted
“the official social philosophy of the Third Republic.”79
At the Hague Bourgeois chose to sit in the First Commission that

dealt with the Russian disarmament proposals. As is well known, the
proposals came to naught. Being the politician he was, Bourgeois
could not accept that no report or proposal could be adopted.
Perhaps a generally worded statement might be acceptable so as to
show the world that the delegations had at least tried their best. In
a characteristic argument, Bourgeois pointed out to his colleagues
that they were in the Conference not only to cast private votes but
to give expression to general ideas. One of these was the burden
that armaments put on the European national economies. And he
proposed that the Conference express its opinion:
“that the restriction of military charges, which are at present a heavy

burden on the world, is extremely desirable for the increase of the
material and moral welfare of mankind.”80 The economic argument
for pacifism had been part of French liberal radicalism and socialism
since Constant and Proudhon early in the century. With Bourgeois,
the technique of dealing with a political difficulty by a recital of an
apparently incontrovertible socio-economic fact was introduced into
the conventions of multilateral diplomacy. The Conference not only
agreed to express this voeu but repeated its gist eight years later to
get away from 79 J. E. S. Hayward, “The Official Social Philosophy of
the French Third Republic: Léon Bourgeois and Solidarism,” VI
International Review of Social History (1961), p. 21.
Cf. also Theodore Zeldin, France 1848–1945 (2 vols., Oxford,

Clarendon, 1973–1977), 1, pp. 656–658 and for a colorful
description of Bourgeois, R. E. Kaplan, Forgotten Crisis. The Fin-de-
siècle Crisis of Democracy in France (Oxford, Berg, 1995), pp. 41–
43.
80 The Proceedings of the Hague Peace Conferences: The

Conference of 1899 (Carnegie Endowment of International Peace,
under the supervision of J. B. Scott, Oxford University Press, 1920),
p. 319.
285
the analogous difficulty that arose in connection with the Second

Peace Conference.81
Bourgeois chaired the Third Commission as well as the smaller

comité d’examen that discussed pacific settlement and ended up
proposing the establishment of the Permanent Court of Arbitration.
France supported the surprise British move to set up a permanent
tribunal and Bourgeois even suggested that its bureau should be
given right of initiative. If commentators have credited the success
of the Third Commission to Bourgeois (together with the Belgian
Descamps), it is not difficult to see to what extent this must have
followed from his technique of insisting on the neutrality of the
provisions. Bourgeois – and French commentators
– were especially proud of the success the delegation had in

inserting into the draft a provision on the duty of every State to
remind parties to a conflict of their obligations of peaceful
settlement. To a Serbian delegate who was concerned that such a
provision could be used as a means to exert pressure on weak
States, Bourgeois responded: “there are neither great nor small
Powers here; all are equal before the work to be accomplished . . .
when it is a question of weighing rights, there is no longer any
inequality, and the rights of the smaller and weakest weigh just as
much on the scales as the rights of the greatest.”82
Bourgeois was appointed to the French Senate in 1905 and became

Minister of Foreign Affairs the following year. He defended the results
of the Hague with great energy, interpreting them as an emanation
of solidarity between civilized nations.83 Somewhat like Schücking
(though without reference to him) Bourgeois felt that the
Conferences had organized the common will of participating States:
“It is possible to recognize there the first features of a Society of
Nations.”84 In addresses to the National Assembly and learned
societies Bourgeois explained that the Conferences were a tangible
illustration of solidarism in action: peace through law had become
one of the “idée-forces” of which the solidarist philosopher Fouillée
had written.85 There now existed a large 81 The Proceedings of the
Hague Peace Conferences: The Conference of 1907 (Carnegie
Endowment of International Peace, under the supervision of J. B.
Scott, Oxford University Press, 1920), p. 90.
82 Third Commission, Seventh Meeting, July 20, 1889, Proceedings
1899, pp. 663–664.
83 Léon Bourgeois, “Préface,” in A. Mérignhac, La Conférence

internationale de la paix (Paris, Rousseau, 1900), p. vii.
84 Léon Bourgeois, Pour la société des nations (Paris, Fasquelle,

1910), pp. 214–216, 272–286.
85 Bourgeois, Pour la société des nations, pp. 23–26, 167. Cf. also
Bourgeois, “Discours à l’Institut de droit international” (1910), 23
Annuaire IDI, pp. 365–373 and e.g. Alfred Fouillée, L’Evolutionnisme
des idées-forces (Paris, Alcan, 1890).
286
number of conventional obligations, an arbitral court and a Prize

Court as well as isolated provisions on sanctions. The new system
had been seen in successful action in the dangerous Franco-German
Casablanca affair in 1908–1909. Above all, the new provision that
recognized the duty ( devoir) of parties to remind any State in
conflict of its peaceful settlement obligations was, Bourgeois opined,
a manifestation of a new relationship between States “that are no
longer the passive neutrals but neighbors in solidarity with the
obligation to maintain general peace.”86
Unlike his German colleagues, Bourgeois had no hesitation in

referring to the increasing visibility of peace societies as evidence of
the new spirit. Where classical diplomacy had sought peace in the
balance of power, the work of the Hague aimed at peace through
law and the creation of a “universal conscience.”87 To be sure, no
progress had been made in disarmament – although the voeu
expressed in 1899 and 1907 was not meaningless, either.88
Compulsory arbitration and a permanent court still remained
unachieved – but Bourgeois remained hopeful about the diplomatic
compromise of 1907 that accepted compulsory arbitration
“in principle.”89 In this he was not alone. Mérignhac’s detailed study

of the 1899 Conference concluded that the failures were outweighed
by the fact that so many States, large and small, continental and
maritime, had come together in a common effort. What had
produced this, he felt, was
“quite simply the sentiment of international solidarity that could be

felt in all of this cooperation and that soon united those that had
been previously separated by so many elements.”90
It is hard to say how much of this enthusiasm was genuine. During

the Boer War Bourgeois defended the work of the Hague by the
strategy of small steps: peace could not be created overnight, the
conventions were also to educate governments and peoples,
cautioning against skepticism and impatience.91 There is no doubt
that the Conference atmosphere –
the friendly collegiality among the delegations, a sense of historical

mission – made an impression on him. Although he was sorry that
little could be attained in disarmament and compulsory arbitration,
he stressed the importance of the laws of war and peaceful
settlement.
Perhaps he was truly thinking that a sense of solidarity and good will
was 86 Quoted in Mérignhac, La Conférence internationale, p. 393.
87 Bourgeois, Pour la société des nations, pp. 12–18, 166–173.
88 Bourgeois, Pour la société des nations, pp. 132–133.
89 Cf. “Rapport sur la deuxième Conference de la Paix (1907),

addressé au Ministère des Affaires Etrangères,” in Bourgeois, Pour la
société des nations, pp. 193–194.
90 Mérignhac, La Conférence internationale, p. 369.
91 Bourgeois, Pour la société des nations, pp. 166–173.
287
spreading in Europe – but it is hard to understand how he failed to

see the skies darkening.
After the Hague Conferences Bourgeois was hailed as “the apostle of
global harmony based upon disarmament and arbitration.”92
However, his solidarism was initially conceived for the French political
environment. It is frequently overlooked that although the French
Third Republic suffered from endemic governmental discontinuity
(there were altogether fifty-four cabinets between 1875 and 1914)
the same persons tended to re-emerge as ministers and that while
elsewhere in Western Europe the electoral base of liberalism was
narrowing, in France centrist (liberal–Radical) governments
continued to rule on their own or with support from the socialists.
This state of affairs was largely owing to the appeal enjoyed by a
solidarist theory that suggested putting into effect the social reforms
implied in the political program of 1789 – and to forestall the left
from initiating a new political revolution.93
Bourgeois and his liberal radicals were steadfast opponents of

privatisme and laissez-faire, arguing for increased State intervention
through social legislation and support for voluntary association: from
the early 1890s they had initiated various social insurance and
pensions schemes, the limitation of the working day, and educational
reforms, all of which were to be financed by progressive income and
inheritance taxation.94 Although governmental weakness or simple
lack of nerve sometimes prevented the full realization of the Radical–
left program, solidarism emerged as the title for a kind of social-
democratic modernization of “liberty, equality, and fraternity” – with
Bourgeois sometimes arguing all three as applications of solidarity,
sometimes describing solidarity as the legal–political form for the
emotionally loaded but somewhat disreputable revolutionary idea of
“fraternity.”95 Solidarist vocabulary united many kinds of 92 J. E. S.
Hayward, “The Official Social Philosophy of the French Third
Republic: Léon Bourgeois and Solidarism” (1961), VI International
Review of Social History, p. 24.
93 Therefore, socialist cooption was violently opposed by
revolutionary syndicalists such as Georges Sorel. Cf., e.g., Norman
Stone, Europe Transformed 1878–1919 (2nd edn., Oxford, Blackwell,
1999), pp. 203–206, 220–226.
94 On solidarism and French radicalism, cf. Zeldin, France, pp. 641–

724; Hayward, “The Official Social Philosophy,” pp. 34–41; and
especially Michel Borgetto, La notion de fraternité en droit public
français. Le passé, le présent et l’avenir de la solidarité (Paris, LGDJ,
1991), pp. 380–382 and the analysis of “solidarist” legislation 1890–
1914, pp. 420–507.
95 Léon Bourgeois, Solidarité (7th edn., Paris, Colin, 1912), pp. 105–
106. Cf. also Borgetto, La notion de fraternité, pp. 345–350.
288
political movements.96 Catholic conservatives, for instance, used it

to oppose the liberalism that “exalts the individual” and the socialism
which
“crushes the individual,” and sought from it a communitarian

principle that could be associated with moral and religious revival.97
Solidarism was characterized less by a definitive agenda than by a

general aversion to the absolutism of individual rights and an
emotional preference for social responsibility. In the facultés de droit
many jurists were developing sociologically oriented, collectivist, or
even socialist theories to support an interventionist public realm. In
this process they were often transformed, to use Arnaud’s language,
from the “pontiffs” of a self-confident bourgeois society into social
“vigilantes” – assistants of a public power keen to reconstruct its
legitimacy in the conditions of mass politics and industrialism.98
Nonetheless, for Bourgeois the juridical sense of solidarité (drawn
from the Code Civil) remained its key sense.99
Three aspects of it were particularly significant. First, he wrote, it
was:
“the result of two forces that were for a long time hostile to each
other but have recently approached each other and been united in
all nations that have reached a superior level of evolution: the
scientific method and the moral idea.”100 Bourgeois now theorized
solidarism as simultaneously factual and normative in the way of
much natural law.101 Its factual side 196 J. E. S. Hayward describes
the history of the concept in three periods. Between 1792
and 1848 it was used as a mystical idea, a “reactionary and

irrationalist longing for a lost social stability and unity.” In 1848 it
became politicized and denoted an agenda of social reform first of a
far-reaching but after 1870 of a conciliatory nature. After 1896 it
became attached to the electoral program of the radicals – “a
dogmatic credo, supported by detailed schemes of social reform,”
“Solidarity: The Social History of an Idea in Nineteenth-Century
France” (1959), IV International Review of Social History, pp. 273,
261–284. Cf also Borgetto, La notion de fraternité, pp.
344 et seq.
197 Cf. e.g. A. Mazel, Solidarisme, individualisme & socialisme (Paris,

Bonhoure, 1882).
198 Cf. Arnaud, Les juristes, pp. 86–125. On the activist role of
French jurists, largely committed to liberalism in nineteenth-century
France, cf. also L. Karpik, “Builders of Liberal Society: French
Lawyers and Politics,” in T. C. Halliday and L. Karpik (eds.), Lawyers
and the Rise of Western Political Liberalism (Oxford, Clarendon,
1997), esp. pp.
108–123.
199 André-Jean Arnaud, “Une doctrine de l’Etat tranquillisante: le

solidarisme juridique”
(1976), 21 Archives de philosophie de droit, p. 133.
100 Bourgeois, Solidarité, p. 6.
101 It was criticized by many contemporaries precisely for making

the illegitimate inference from empirical assertions about factual
solidarity to normative ones about social justice. Bourgeois tried to
deal with this problem by invoking a psychological “sense of justice”
as one part of the natural drive towards association that enabled
making the distinction between “solidarité de fait” and normative
solidarity, “solidarité-devoir.” Cf. Bourgeois, Solidarité, pp. 129–130,
159–176; Léon Bourgeois, “L’idée de solidarité et ses conséquences
sociales,” in Essai d’une philosophie de solidarité. Conférences et
discussions (Paris, Alcan, 1902), pp. 9–17.
289
– its rootedness in the verifiable conditions of society – was

emphasized whenever stress on its scientific basis was needed. Its
normative side served as a basis of political and legal reform, for
delimiting the proper scope of legislation. It thus participated in a
general project of sociological thought to give an objective
foundation for ethics.102 Second, solidarism preached that humans
were not born free but as debtors to society.103 Every citizen owed
something to every other citizen, including previous and future
generations. This debt was not freely contracted but arose from the
fact of membership in human society, and was the price everyone
needed to pay for services received.104 In fact “la Révolution a fait
la Déclaration des droits. Il s’agit d’y ajouter la Déclaration des
devoirs.”105 Third, Bourgeois invoked the legal concept of the quasi-
contract. It was pointless to ask individuals to consent to society:
no-one ever existed in an authentic pre-social state. Nonetheless,
political obligation could still be linked to consent, namely rational
consent to objective law that was “an interpretation and a
representation of an agreement that would have been concluded
between persons had it been possible to consult them under
conditions of equality and freedom.”106 The State, too, was a
“quasi-contrat d’association”: both contractual and non-contractual,
voluntary and compulsory at the same time. Although solidarist
lawyers later rejected this construction that derived in part from
Kant, in part from a jurisprudence (such as Gény’s) that sought to
justify judge-made law under the strict literalism of the Code Civil,
such a dichotomous construction seemed – and still appears for
political philosophers such as John Rawls, for instance – the only
way to avoid immediate objections that a purely consensual or a
purely non-consensual legal theory would encounter. If the language
of the “quasi-contrat” no longer seems plausible, the ideas of
rational, presumed, hypothetical or tacit consent lay at the heart of
twentieth-century political theory.
It was not difficult for international lawyers to associate themselves

with solidarism. Arguments about interdependence and rational 102
Hayward, “Official Social Philosophy,” p. 25.
103 Bourgeois, “L’idée de solidarité,” p. 54.
104 “L’obligation de chacun envers tous ne résulte pas d’une

décision arbitraire extérieur aux choses; elle est simplement la
contre-partie des avantages que chaqu’un retire de l’état de société,
le prix des services que l’association rend à chacun,” Bourgeois,
“L’idée de solidarité,” p. 46.
105 Bourgeois, Solidarité, p. 120.
106 Bourgeois, “L’idée de solidarité,” p. 61. For the background of

this idea in the views of social obligation of Alfred Fouillée, cf.
Kloppenberg, Uncertain Victory, pp.
191–192.
290
consent had been routinely made by the profession to argue why

rational States had good reason to feel bound by international law.
Much of what little theory Renault had written as well as the
introduction to the 1898 edition of Bonfils–Fauchille, for example, set
the foundations of international law on interdependence. “Cette belle
loi de l’humanité”
was factual and normative, voluntary and non-voluntary in precisely

the way that had made solidarism such an invaluable political asset
in France.107 Such a view was always only a step away from
imagining States as transparent instruments for the advancement of
social objectives that were shared perhaps not only by the citizens of
the relevant State as Pillet had argued but between individuals
everywhere – a conclusion later drawn by federalists such as
Georges Scelle.
Yet solidarism was an open-ended term whose very generality

explained its usefulness and set limits to what it could attain. Like
Bourgeois himself, it was “of great charm, animated by a constant
desire to please” – yet also reluctant to assume a firm course.108
Bourgeois became one of the few anti-Dreyfusards among the
Radicals, less out of antisemitism than fear of the consequences of
the affair on republicanism generally. In French foreign policy,
solidarism had little to say by way of innovation – apart from
explaining France’s actions as motivated by both national and
international concerns. Despite the Radicals’ anti-colonial rhetoric,
the Bourgeois cabinet of 1895–1896 found itself involved in the
awkward colonial war in Madagascar that led from the original aim
of enforcing a protectorate to full annexation, behaving in the
business, as Despagnet pointed out, with less than good faith
towards the indigenous.109
The shock of the First World War – more than 1.5 million French
soldiers dead – destroyed many Frenchmen’s belief in traditional
diplomacy. The violation of Belgium’s neutrality as an automatic part
of the Schlieffen Plan and the widely publicized violations of the
Hague rules committed by German troops in occupied territory –
duly enumerated in Renault’s study of war crimes at an early stage
of the war110 – also 107 Bonfils–Fauchille, Manuel, pp. 4, 3–13.
108 Zeldin, France, pp. 656–657.

724 and e.g. Guillemin, L’expansion, pp. 389–392.
110 Louis Renault, Les premières violations du droit des gens par
l’Allemagne. Luxembourg et Belgique (Paris, Tenin, 1917).
291
eroded much of the plausibility of international law. As the news of

the attack on Belgium and of the real and imagined atrocities against
civilian populations spread in France, Pillet was among the first to
conclude that this showed the illusory character of the conventional
legal framework. The Hague Conventions had been a sham, a
dangerous façade that created a mirage of security. People –
Germans in particular – were not the fundamentally rational beings
the Hague system presumed: war had been launched out of private
caprice and waged without restraint.
The lesson drawn by Pillet was that international law could not be
created by agreement between diplomats and statesmen or through
abstract discussions at conferences. It could emerge only when
people and nations had grown to accept it: a civilized people
behaved in a civilized way. In the absence of such – “civilized” –
culture treaties would remain a hypocrisy:111 “only the awareness
and practice of Christian morality may provide the laws of war the
support they need, and it is because they had forgotten this
elementary fact that nations are now witnessing with stupor the
unforeseen re-emergence of barbarism.”112 The Hague Conferences
failed because they worked on the conditions of peace in the
abstract, and not on the actual causes of war: the constitution of
Poland, the Finnish question, the extermination of the Armenians, or
the Balkan situation. Having avoided such “real” issues, the Hague
Conferences could end only in failure.
The Versailles Treaty, Pillet wrote in 1919, was a continuation of the

same hypocrisy. Instead of making future wars impossible by doing
away with the German Empire (through non-recognition) and
limiting Prussia’s territorial ambitions it was burdened with irrelevant
details and utopian aspirations. By not allowing France to occupy the
left bank of the Rhine, the door to future German aggression was
left open. The treaty was unjust: it should have included provision
for immediate reparation, including direction to use German
prisoners of war to repair French monuments and villages. Above all,
he argued, the League was nonsense. If ever it did emerge it was
destined to collapse: “of all the errors that have been committed,
this was the worst of all as it penetrated all sections of the treaty
and as it now constitutes the largest obstacle for a durable
peace.”113 From all this Pillet drew a personal conclusion: apart
from a few articles attacking the timidity of the peace 111 Antoine
Pillet, Les leçons de la guerre présent au point de vue de science
politique et du droit des gens (Paris, Plon, 1915); Pillet, “La guerre
actuelle et le droit des gens” (1915), XXIII RGDIP, pp. 5, 203, 462–
471.
112 Pillet, “La guerre actuelle,” p. 471.
113 Antoine Pillet, Le traité de Versailles (Paris, Rivière, 1920), p. 37.
292
and the weakness of the League, he turned away from public to

private international law in which he was to spend the rest of his
professional life.114
While many lawyers pointed at the technical deficiencies of the

Hague law,115 they refrained from seeing that as the main problem.
Most internationalists, and certainly the French elite, were convinced
that war had arisen out of a German grasp at world hegemony, and
its conduct had reflected German concepts of sovereignty, raison
d’Etat ( Kriegsräson) and Notrecht. The German violations had been
so blatant, and the law had been so defenseless, that most French
politicians felt uneasy speaking of German guilt in positive–legal
terms at all; it was an almost metaphysical guilt that was thrust
upon Germany, a guilt inadequately encompassed in terms of
violations of the Hague treaties. This attitude
– that Germany bore more than just a banal legal responsibility –

was dramatically reflected in Clemenceau’s brief, brutal invitation to
the German delegation at Versailles on May 7, 1919 to give its
(written, not oral; a discussion was out of place) comments on the
draft peace Treaty in fourteen days. Now, paradoxically, it was
Germany’s Brockdorff-Rantzau who spoke of law and self-
determination and who suggested that all powers’ responsibility was
to be subjected to examination by an impartial commission. Of this,
nothing was heard from Clemenceau.
No attention was given by the Allies to the German proposals.116
Clearly, a much more fundamental spiritual and political

reconstruction than a mere technical adjustment of the Hague
Treaties was needed. For those who could not join Pillet, the
situation called for action. On the following day, as the Germans
withdrew to examine the Allied draft, the legal adviser of the French
delegation, the dean of the Paris law school, Ferdinand Larnaude
(born 1853) invited the members of the Institut de droit
international (apart, of course, from the German members, most of
whom had anyway already resigned), present in Paris or otherwise
available to a meeting to discuss the recommencing of the Institute’s
activities. In his welcome speech, he made no secret as to how he
saw the war: “France has been the defender of law in this war, as it
always has been in the course of its glorious history.”117 Already in
1917
114 De Lapradelle, Maîtres et doctrines, pp. 319–321.
115 Cf. especially James W. Garner, “La reconstitution du droit

international” (1921), XXVIII RGDIP, pp. 413–440, 438.
116 For the speeches of Clemenceau and Brockdorff-Ratzau, cf. e.g.

Der Kampf um den Rechtsfrieden (Berlin, Engelmann, 1919), pp. 23–
29.
117 Discours de M. Larnaude (1919), 27 Annuaire IDI, p. 294.
293
the French Prime Minister and Foreign Minister Ribot had appointed
Bourgeois to head the French committee to consider the setting up
of a Société des Nations.118 By this move, the direction of French
interwar international law was set. It was only natural that he and
Larnaude became the French representatives on President Wilson’s
Committee on the League of Nations (“Crillon Committee”) within
which they advocated a standing military force (or at least a military
planning committee) in the service of the League.119 Later, as the
first French representative in the League Council and the Council’s
first President Bourgeois continued to defend collective security and
international sanctions and fully associated himself with the effort to
interpret the League as a first step towards universal federation.
The draft Covenant prepared by the French and submitted to Wilson
in June 1918 contained provisions for effective sanctions, supported
by an international army. It also provided for a Council of Great
Powers, mandated to make binding decisions e.g. on disarmament.
Legal disputes were directed to a tribunal and political ones to the
Council. The French had unshakeable faith that they would always
be on the side of peace-loving nations and that their predominance
coincided with the general interest.120 However, Wilson’s choice of
the Hurst–Miller draft as the basis for discussion made the result
inevitably “a triumph of Anglo-American diplomacy.”121 The British
had aimed at an organization for cooperation, the Americans
emphasized the territorial guarantee. The outcome was a
compromise negotiated in ten three-hour sessions during February
3–13, 1919. The French were almost methodologically sidelined and
their suggestion of the international army was rejected for political
and constitutional reasons. Accordingly, when the League came into
existence, on January 10, 1920, few Frenchmen had faith in its
capacity to deter aggression. Bourgeois attributed responsibility for
this state of affairs squarely to Wilson and took upon himself as the
first President of the Council to examine alternatives to fill the 118
The other two members of the committee were Admiral Lacaze and
Jules Cambon, former ambassador to Berlin.
119 Cf. Scelle, La Pacte des Nations, pp. 326–328; Léon Bourgeois,
L’oeuvre de la Société des nations, 1920–1923 (Paris, Payot, 1923),
pp. 52–53. On Bourgeois’ international activities, cf. Hayward, “The
Official Social Philosophy,” pp. 41–46.
120 Arnold Wolfers, Britain and France between Two Wars:

Conflicting Strategies of Peace from Versailles to World War II (New
York, Norton, 1966), pp. 161–162.
121 F. S. Northedge, The League of Nations. Its Life and Times (New
York and London, Holmes & Meier, 1986), p. 41.
294
gaps.122 Time for such proposals was, however, over. During its first
years the League saw itself frequently by-passed by Great Power
diplomacy carried out by the Inter-Allied Conference of
Ambassadors, a left-over from wartime coordination. Nonetheless,
the supporters did not lose faith. Bourgeois was involved in
practically all of the early activities of the League: “The edifice of
peace can be built on law, and law alone.”123
One of his early reports organized the Committee of Jurists that was
to set up the Statute of the Permanent Court of International
Justice.124
Another worked as the basis for setting up a provisional committee

of commercial and financial experts, perhaps the first universally
based body to manifest the belief that international problems were
best dealt with if left to technical experts.125 In 1923, the
Commission dropped the word “provisional” from its title. All of this
was justified through international solidarity – a solidarity, as
Bourgeois assured the skeptics at home, which proved the
indissociability of France’s interests from those of the international
community.126
Bourgeois was awarded the Nobel Prize in 1920, largely for his
activism at the Peace Conferences. He and Larnaude (who set up
the Union juridique internationale for this purpose) became active
propagandists for the League, interpreting it as a tangible
manifestation of the union between universal humanitarianism and
the French idea. They saw it as not just a League of governments
but of peoples who were to be educated into internationalism
through it. For the essence of the French spirit – in contrast to
German – lay in:
the vocation of sacrifice for an ideal at the same time national and
human that had inspired the great movements of the French people,
from the crusades at the moment when Christianity fixed its eyes on
the whole of humanity to the immor-tal campaigns of the sons of
Revolution who ran to the frontiers to save the endangered Patrie
and carry far the flag to announce human rights to peoples.
As Heidegger was later to argue about the German language,

Bourgeois highlighted the exceptional qualities of the French, the
unity between the “genius of our race and the genius of Humanity –
had not 122 Bourgeois blamed above all Wilson’s unwillingness to
allow full discussion on all the proposals and his insistence to deal
with the Covenant first, and only thereafter with the Peace Treaty.
Bourgeois, L’oeuvre, p. 36.
123 Bourgeois, L’oeuvre, pp. 112, 114–118.
124 For the report and commentary, cf. Bourgeois, L’oeuvre, pp.
159–208.
125 Bourgeois, L’oeuvre, pp. 363–394.
126 Bourgeois, L’oeuvre, pp. 130–133.
295
Humanity found in the works of our great writers the sovereign

expression that has made our language the language of all those
who think and of our philosophers and orators and poets the classics
of Humanity?”127
The difficulty with solidarism, as with the radicalism that

characterized the Third Republic lay in the contradiction, no secret to
contemporaries, between its extravagant claims and its absence of
political direction.
Like the doctrines of its spiritual leader, the philosopher Alain (Emile
Chartier – one central influence in the work of Georges Scelle), it
was a non-doctrine for which the attribute “opportunism” fitted
perfectly.128
By the 1920s the renewalist force of solidarism had been largely

expended. In a talk in 1921 before an audience of lawyers and
diplomats in Paris, Bourgeois reformulated his ideas in a series of
moral commonplaces. He sketched a view of Western history as the
gradual development of an international ethics, partly as a result of
material interdependence, partly through the emergence of a
common conscience among civilized nations. The peaceful heritage
of the revolution and of the nineteenth century had been corrupted
by the barbaric violence of the war for which Bourgeois saw no other
explanation than
“Machiavellian” German attitudes. Reconstruction meant having the

law penetrated by the moral ideas of civilized society: “real peace, in
a State, can only be a peace between honest people. It is necessary
therefore that States, too, in their relations with each other, become
honest people.”129 By 1921, however, such an analogy must have
sounded hollow: an appeal to return to nineteenth-century ideas
about virtue. The reference to “honesty” does, however, direct
attention to France’s famous obsession with guarantees against
Germany. Though the Peace Treaty was felt as a disappointment
French politicians from all sides insisted on strict compliance –
“honesty” – with its terms. Hence, they were often criticized by
friends for being “over-pedantic about the legal aspects of
international affairs.”130 France was waging a losing battle.
Formalism did not work. Prime Minister Poincaré’s attempt to give
teeth to Germany’s obligations by the occupation of the Ruhr in 1923
led to electoral defeat and withdrawal. Insistence on the sanctity of
treaties, buttressed by military sanctions, lost its public appeal. The
world gradually turned against demanding strict German compliance
with a settlement widely held to have been unrealistic in some parts
and unjust in 127 Bourgeois, L’oeuvre, pp. 18–19.
128 Cf. Bernard Halda, Alain (Paris, Editions universitaires, 1965),
pp. 18–19.
129 Léon Bourgeois, “La morale internationale” (1922), XXIX RGDIP,

pp. 21, 5–22.
130 Wolfers, Britain and France, p. 26.
296
others. As German rearmament began in earnest in 1935 there was

no longer a realistic prospect that France or its allies could have
effectively relied on the Peace Treaties.
Scientific solidarism: Durkheim and Duguit
If treaties and formal diplomacy seemed only a thin façade over the
reality of Europe, many lawyers now turned to science, particularly
sociology, to reimagine an international order less amenable to the
kind of catastrophe the First World War had been. Particularly
promising seemed Durkheimian sociology, with its relentlessly anti-
individualist outlook and its emphasis on the conscience collective as
the fundamental social fact. To answer the question about what held
modern industrial society together, Durkheim had in 1893 provided a
theory of “organicsolidarity” that accounted for integration even in a
society where there was no universal resemblance between the
tasks or positions of individuals. The fact of division of labor was
only superficially disintegrating: the shoemaker, the civil servant, and
the factory owner might lead completely different lives; but that did
not mean they were not reciprocally dependent on the distinct
contribution each had to give. Even as individuals might experience
modernity differently, and pathological cases (such as anomie)
emerged, modern societies still cohered as functional wholes.
Organic solidarity depicted the paradox that the increase of the
autonomy of individuals carrying out diversified tasks deepened their
dependence on each other.
Organic solidarity did not involve moral choice. Although collective

consciousness existed only in the psyche of individuals, individuals
could not “choose” to share or not to share it. It was a social fact
and could be studied as one. The “normal method of the moralists,”
Durkheim wrote dismissively, had been to put forward a “general
formula for morality”
and to examine society through it: “Nowadays we know how little

value may be attached to such summary generalizations.”131
Instead of engaging in unending controversies about the good
society, scholars should focus on the laws of motion that determined
the direction and intensity of social development.132 Evidence of
such laws could be found in the 131 Durkheim, The Division of
Labor, p. 44.
132 For an excellent review of the emergence of comtist sociology in

France and especially Durkheim’s role in the 1880s, cf. Lukes, Emile
Durkheim, pp. 66–86. For reviews of the emergence of sociological
jurisprudence in the late nineteenth and early twentieth century
(especially Savigny, Maine, and Durkheim), cf. Julius Stone, Social
Dimensions of Law and Justice (London, Stevens, 1966), pp. 35–41,
86–163.
297
legal system. The mechanical solidarity of a pre-modern

consciousness was reflected in the predominance of repressive
sanctions and the penal law: deviation from the norm of
resemblance was punished by making the culprit suffer. By contrast,
organic solidarity was visible in the predominance of civil law and
restitutive sanctions. Instead of punishment, the aim was to restore
the situation ex ante (e.g. the contractual equilibrium).133
Durkheim’s image of domestic modernity – increasing autonomy and
diversification – seemed equally applicable to characterize the
international modernity of the States-system. If division of labor led
to increasing interdependence (organic solidarity) that produced a
particular type of law, then proof of international law’s reality and
necessity had been given in an apparently scientific way, without the
intervention of suspect moral generalizations. It was derived from
the laws of international modernity themselves.
Well before the war, French public law had already used such
arguments to create a conception of the State diametrically opposed
to the German one. Building directly upon Durkheim’s concept of
solidarité sociale, Léon Duguit (1859–1928), Durkheim’s friend and
colleague at the University of Bordeaux, the most important theorist
of public law of the period, argued that law was not an effect of the
State but a transformation of the objective needs of
interdependence. The State and the popular will were both
“metaphysical fictions.” Instead, (objective) law emerged directly
from the fact of mutual dependence in conditions of division of
labor.134 It was distinguishable from other norms (i.e. those of
morality and economics) by the recognition of the need of a social
sanction; not the actual application of such sanction but the
recognition that it would be desirable.135 This was a monistic
concept of law that did not recognize doctrinal distinctions between
private and public or national and international law. All law
expressed “ultimately,” as an empirical matter, normative relations
between individuals.136
Although Duguit never developed an express theory of international

133 Durkheim, The Division of Labor, pp. 44–52, 68–69, 77–83.
134 There is an ambivalence between a sociological and a

psychological concept of law (interdependence/solidarity) – although
Duguit is clear that the sense of solidarity is not dependent on
individual psychology. On the other hand, many have read the
argument from social solidarity as a neo-naturalist principle; a fact-
based normativity. Cf. e.g. Paul Guggenheim, “Léon Duguit et le droit
international” (1959), LXIII RGDIP, p. 636.
135 Albert Brimo, Les grands courants de la philosophie du droit et

de l’état (Paris, Pedone, 1978), p. 251.
136 Cf. Arnaud, Les juristes, p. 139.
298
law – he died just before he was supposed to lecture on the matter

at the Ecole des hautes études internationales in Paris – he did
argue that the principles applicable between individuals applied
likewise to relations between social groups – what he called
“intersocial law.” Here the international was neither separate nor
privileged: it was just another context of collective action that
competed with relations between professional or religious groups,
families, companies, and so on. The State was, as it were, wiped
away from reality by a conceptual fiat. What was real was always
already cosmopolitan: the complex (but single) network of
interdependencies into which individuals were born and lived their
lives.
Duguit took the starting-point for his polemically written magnum

opus of 1901 from the German public law concept of the State as a
sovereign juridical person and of public law as an effect of State will.
None of such concepts had any reality:
Here are the facts: Individuals with common needs and different
inclinations, who exchange services, who have always lived together
and have always exchanged services, who by virtue of physical
constitution cannot avoid living together and exchanging services,
individuals of whom some are stronger than others, and of whom
the strongest have always exercised constraint on the weaker ones,
individuals that act, and have consciousness of their actions. Here
are the facts. Beyond them, there is only fiction.137
Duguit’s ambition was to establish legal study firmly as an empirical

social science: laws emerged spontaneously from the objective facts
of interdependence and solidarity. “all individuals are obligated,
because they are social beings, to obey the social rule, and every
individual who violates this rule provokes necessarily a social
reaction.”138 Empiricism left no room for subjective (natural) rights
of individuals or the sovereignty of the State. The idea of such rights
implied the superiority of one will over that of others. This was pure
ideology. A will was a fact and had no antecedent superiority over
any other will.139 It could produce legal effect only if it was
determined by a social objective and was in conformity with the
social law of interdependence and solidarity.140
137 Léon Duguit, Etudes de droit public: L’Etat, le droit objectif et la

loi positive (2 vols., Paris, Fontemoing, 1901), I, p. 6.
138 Léon Duguit, Le droit social, le droit individuel et la

transformation de l’état (Paris, Alcan, 1908), p. 6.
139 Duguit, Le droit social, pp. 14–21.
140 Duguit, Le droit social, p. 71. The two notions were practically
interchangeable: “Dans la solidarité je ne vois que le fait
d’interdépendence unissant entre eux par la communauté des
besoins et la division du travail les membres de l’humanité et
particulièrement les membres d’un même groupe social.” Duguit, Le
droit social, p. 8.
299
Property, for instance, was a social function; its limits were not
determined by a given subjective right but by objective law, by what
kind of property regime the society needed. Administrative or
legislative acts, too, were facts. They were not binding because they
emanated from State will but to the extent that they provided a
faithful translation to what was socially necessary.141
Like Bourgeois and Pillet, Duguit saw the State as a kind of political
arm of social solidarity. Its functions were completely determined by
what solidarity required. The law binds only “if it formulates a rule of
[objective] law or puts it into effect, and only to the extent it does
so.”142
Legislation was not creative but declaratory. This is why laws were
binding on those who voted for them. There was no need to have
recourse to an ingenious (but false) theory of self-legislation.143
Both Bourgeois and Duguit resolved the potential conflict between

society and the individual by recourse to an a priori assumption of a
harmony of interests in compliance with objective laws. Freedom
meant the recognition of the necessity of solidarity with others – as
articulated in binding laws that received their legitimacy from the
rational objective of putting solidarity into effect.144 Although
Duguit avoided using the construction of the quasi-contract, his
notion of the State amounted to materially the same: the State
existed to guarantee the well-being of individuals (who thus had a
rational cause to assent to it) without needing anyone’s (actual)
consent.145 No wonder that critics attacked Duguit for retreating to
naturalist faith in social-scientificlan-guage!146 In a curious way,
individuals become both fully free and fully constrained. They were
free in their position as the ultimate social reality; Duguit expressly
dissociated himself from Durkheim’s notion of 141 They are binding
if they join the conditions of acte juridique: “une déclaration de
volonté émanant d’une personne capable, ayant pour objet une
chose qu’elle peut vouloir, déterminée par un but légal et faite dans
l’intention de créer une situation juridique,” Duguit, Le droit social,
pp. 70–71.
142 Duguit, Le droit social, p. 52.
143 Duguit, Le droit social, pp. 52–54. There is the objection that
this creates anarchy: everyone can decide whether or not to obey.
Duguit does not have a good response to this. First, he says, a
number of laws are self-evident. Second, those that are not, need
not necessarily be opposed by violence or anarchy. The solution is to
set up a tribunal that consists of members of all classes that would
judge the law’s lawfulness, Duguit, Le droit social, pp. 55–58.
144 Cf. Brimo, Les grands courants, pp. 250–253 and Michel Miaille,
Une introduction critique au droit (Paris, Maspero, 1982), p. 332.
145 Cf. Arnaud, Les juristes, pp. 139–140.
146 Cf. also Lucien Sfez, “Duguit et la théorie de l’Etat,” (1976), 21

Archives de philosophie de droit, p. 121. On the other hand,
naturalists such as Truyol, for instance, welcomed him warmly into
the company of Grotius and Aristotle, Antonio Truyol, “Doctrines
contemporaines du droit des gens” (1951), LV RGDIP, p. 38.
300
a conscience collective, independent from the conscience of

particular individuals.147 But they were also fully constrained by the
social laws that seemed to determine (although Duguit is not fully
clear) not only how individuals should go about realizing their
pursuits, but what those pursuits could be in the first place.148
Duguit shared the Comtean view of history as a movement from

theological to philosophical to positive (scientific) regulation.149 Like
Kelsen, he argued that to speak of sovereignty – whether of Kings or
the people
– was like a theology that used the concept of “spirit” in order to
explain psychological phenomena: “Ce ne sont là que des formules
scolastiques, qui s’évanouissent au simple examen de la réalité.”150
By contrast, objective law emerged directly, without metaphysical
conceptions to mediate between direct experience and action. Now it
is evident that there may be a conflict between formal law and the
objective conditions of society, or a conflict between political and
social power. This was the case in France in 1848 and perhaps in the
1890s as well: while social power lay in the hands of the
bourgeoisie, the workers held parliamentary superiority. This was the
endemic problem of unitary States: threat of revolution ensued from
the exercise of domination by one class over others.151 Duguit’s
cure – like Durkheim’s – was decentralization and syndicalism.152
Like Bourgeois, however, Duguit distanced himself from
revolutionary syndicalism and Marxism that he thought sought only
violence and were fixated on the conflict between capital and
labor.153 In Duguit’s view, Durkheim’s “brilliant” theory on the
division of labor had demonstrated how interdependence and
solidarity emerged between groups of workers that carried out
different types of work and provided for different types of need.154
In the long run, the allocation of public functions to the syndicats
would coincide with the dismantling of the 147 For Durkheim,
collective (or “common”) conscience was constituted of the “totality
of beliefs and sentiments common to the average members of a
society [that] forms a determinate system with a life of its own . . .
[with] specific characters that make it a distinct reality,” Durkheim,
The Division of Labor, p. 39.
148 It is hard to see how Duguit could fully accept Durkheim’s two
concepts of solidarity and still hold individuals as the fundamental
social fact. He seems to have rejected Durkheim’s view of the
collective as a real entity while perhaps thinking that the content of
individual conscience could be socially determined, Lukes, Emile
Durkheim, p. 103. For the oscillation in Duguit, cf. Sfez, “Duguit,” pp.
122–123.
149 Le droit social is full of references to Comte, cf. e.g. pp. 12, 17,
24, 149.
152 Cf. also Lukes, Emile Durkheim, pp. 536–541.
153 On Georges Sorel, cf. Duguit, Le droit social, pp. 106–108.
301
State and thus rid society of “the false and dangerous political
system based on sovereignty and the personality of the State.”155
International solidarity . . . almost: Alvarez and Politis It is

doubtful if Renault, Fauchille, and Pillet felt themselves inaugurating
a new school. Only the last of the three was conversant with
Durkheimian sociology. But this is how their work was characterized
in 1912 by Alexandre (Alejandro) Alvarez (1868–1960), a Chilean
diplomat and a Pan-Americanist who had studied under Renault in
1896–1900 and traveled back and forth between Europe and the
Americas until settling down in Paris in the 1920s. Alvarez came to
Europe to declare that international law was in a crisis and to preach
the message of a sociologically and politically oriented renewal. The
crisis concerned the way the teaching of international law had
departed from the reality of international relations and was
discussed through a narrow and formal conception that Alvarez
expressly associated with civil law.
Happily, during the last few years a new school had developed in
France that was no longer prisoner to civil law and which examined
international law closely “following its transformations, their causes
and their results.” He credited Renault as the leader of the new
school and cited Bonfils–Fauchille (oddly) as its leading product.156
Alvarez preached the reform of international law through codification

so as to make it reflect the “realities” of international life. He was
well aware of the teachings of Duguit and Durkheim and stressed
the need for precise articulation of what was required by the
solidarity that governed the conditions of modernity. He became
enormously influential in Europe and the Americas during a career
that reached into the late 1950s, a figurehead of a “new”
international law that spoke with a non-European voice, sought to
lower the boundary between international law and international
relations, and emphasized doctrine’s role in adapting the law to
social facts and justice. To the extent that he oper-ated with
“juridical conscience” and public opinion and was critical of an
excessive emphasis on sovereignty, his writing was well in line with
the views of the Institut. More than his future colleagues, however,
Alvarez received his views from general developments in
jurisprudence and was able to articulate them into a selfconscious
progressivism.
156 Alejandro Alvarez, La codification du droit international – ses

tendences, ses bases (Paris, Pedone, 1912), p. 9 n1.
302
Already in 1912 Alvarez claimed that international law had fallen into
disrepute by failing to take account of the economic, technological,
and cultural changes, including peoples’ increasing desire for peace.
Despite its avowed positivism, it reflected the ideas of a by-gone
international society, “metaphysical or a priori” doctrines of
fundamental rights, independence and sovereignty.157 Like modern
domesticsociety, however, the international world was no longer
ruled by individualism but by
“the principle of solidarity that also takes into account the interests
of the social group, because individuals live in society and in a
situation of mutual dependence.”158 As a result, an international
“regime of solidarity” was being constructed through international
unions, legislative conferences, and legal cooperation.159 Most
lawyers had failed to see this.
They worked with a narrow concept of international community,

restricted to Christian nations, limiting the law to formal rules. Or
they looked upon the changes from an individualist perspective
provided by the theory of “fundamental rights.” None of this took
account of the
“modern tendencies”: the subjects of law were no longer only the

European or civilized States – all States contributed to the formation
of the law. Also religious denominations, international organizations,
and individuals possessed rights under it. The law’s content no
longer arose from Great Power policy but from different and even
contrasting values that reflected the different histories of peoples
and were sometimes reflected in regional systems such as that in
force in the Americas.160 Most importantly, formal law always
contained gaps and obscurities. By reference to modern French
hermeneutic jurisprudence (Gény, Saleilles) Alvarez emphasized the
jurist’s constructive role: “[t]he role of the interpreter today ‘must
consist in assisting openly the development of institutions to the
direction of social phenomena by making new cases harmonious
with them’.”161 The main enemy was legal formalism. All law grew
from popular conscience and legal sources reflected only places
where that conscience would manifest itself. There was no a priori
reason to limit those manifestations by some formal criterion. There
was thus no great divide between law and justice, law and social
reality. If popular conscience was moving away from individualism,
the lawyer had to move there, too.162 “The idea of solidarity is thus
of crucial importance for 157 Alvarez, La codification, pp. 6–7.
158 Alvarez, La codification, p. 33.
159 Alvarez, La codification, pp. 47, 59–62
160 Alvarez, La codification, pp. 77–98.
161 Alvarez, La codification, p. 160. Alvarez quoted his own earlier

study on the new methods of law, Une nouvelle conception des
études juridiques (1904).
162 Alvarez, La codification, pp. 137–140.
303
international law. It must guide its future orientation and at the

same time provide objective elements of interpretation; correctly
understood, it will bring back international law’s lost prestige.”163
Despite his critic’s voice, Alvarez was close to the reform oriented
anti-formalism of the Institut members, which he read in light of
what he had learned from French legal theory. Using his non-
European voice and his interest in a regional American law, he could
pass as an innovator while ensuring ready acceptance by the
mainstream. For the claim to renew legal doctrine because it has
failed to reflect “social reality” is a deeply conservative technique
that deflects criticism away from “reality” and those responsible for
it. By directing his attack against an academic enemy that was
largely a straw man, Alvarez remained unthreatening for the legal
establishment and could be celebrated as a wonderful manifestation
of the profession’s liberality.164 After all, Alvarez’s strong view
against the possession of any legal personality by indigenous tribes
(“populations barbares”) was a conveniently colonialist attitude to
take by a Chilean jurist.165
It may seem odd that Alvarez was able to preach the message of
transformation and “new” international law in virtually unchanging
terms from 1912 to his last major work of 1959.166 This apparent
paradox is, however, quite an important aspect of Alvarez’s
acceptance by the profession. Even if not all lawyers shared his
terminology about “crisis” and
“transformation,” most of his substantive ideas were adopted by

Institut members from early on. The call for “realism” by taking
account of interdependence, a critical attitude towards formalism
and sovereignty, the integration of individual rights, orientation
towards international organizations, peaceful settlement, and
codification – all that had become quite central to liberal solidarism.
So it is no surprise that Alvarez succeeded in the 1930s in having

some of the principal professional organizations – the International
Law Association, the Académie diplomatique internationale and the
Union juridique internationale – pass a declaration on the Great
Principles of Modern International Law. In forty articles it laid down
the principal tenets of Alvarez’ solidarism: interdependence, the
predominance of general over special interests, and a tighter
organization of the international 163 Alvarez, La codification, p. 128.
164 Cf. further Martti Koskenniemi, From Apology to Utopia. The

Structure of International Legal Argument (Helsinki, Lakimiesliiton
kustannus, 1989), pp. 178–186.
165 Alvarez, La codification, p. 84.
166 Alejandro Alvarez, Le droit international nouveau dans ses

rapports avec la vie actuelle des peuples (Paris, Pedone, 1959).
304

community.167 It took up conventional points affirming sovereignty
and consent on the one hand and the duty of assistance and
cooperation on the other, highlighting the role of equity as a source
of law, recognizing the obligation to protect core individual rights,
and appealing for peaceful settlement and codification. The list of
the rights and duties of States was derived from a project carried
out within the American Institute of International Law after 1919.
In his exposé des motifs Alvarez repeated the arguments about

“crisis”
and “transformation” that had originated in the mid-nineteenth

century and had now evolved to a moment of the greatest
anxiety.168 Yet, there was little indication in what, precisely, the
crisis consisted – apart from the law’s general detachment from
“reality.” Even a close reading indicates only two rather
undramaticproblems: formalism and Eurocentrism. In particular,
Alvarez refrained from identifying his enemy. If law was based on
interdependence, why did it now (and since the mid-nineteenth
century) fail to reflect it? Was this a problem of politics or doctrine?
In the former case, Alvarez should have identified the political
causes (or actors) that prohibited “life” from receiving an authentic
expression in law. But the impression is that he always identified the
problem with an obsolete legal doctrine – thus either inflating the
importance of a marginal profession, or failing to indicate why one
should be concerned.
Alvarez saw the declaration of 1936 as an endorsement of his own

anti-formalism: it was based on the predominance of broad
“principles”
that both integrated political transformation and constrained it, a

step away from “strictly juridical” norms towards the taking account
of social law and international justice by norms that were “plus
suples, plus vivantes et en contact constant avec la réalité (l’aspect
politique).”169 The declaration looked towards international
organization that would go beyond the League and often take the
way of regional integration. It was an endorsement of a new,
scientific law that was not only a tool of lawyers but was to be
distributed everywhere so as to become an effective code for
international policy.
Like Alvarez, Nicolas Politis (1872–1943), another visible proponent

of full-scale reform of international law, was a foreigner (a Greek
later naturalized also as French), a student of Renault’s and a close
reader of Duguit and solidarist literature. He too combined a life as a
politician and a diplomat – as foreign minister during the war and
representative 167 Cf. Alejandro Alvarez, Exposé des motifs et
déclaration des grands principes du droit international moderne
(Paris, Editions internationales, 1936).
168 Alvarez, Exposé des motifs,
pp. 5–9 .
169 Alvarez, Exposé des motifs, p. 25.
305
of Greece in the League – with that of a scholar.170 Much of his

work, too, is written in the form of programmatic restatements of
the need to complete the ongoing international “transformation”
from a sovereignty-dominated law to a new system of solidarity. The
gist of his proposals is contained in his early Hague lectures about
the principle of
“abuse of rights” as a limitation of sovereignty and two books from

the 1920s and 1930s on the new tendencies of international law and
on the role of neutrality.
For Politis, international law, like all law, emerged from social facts.
From this he drew the three consequences of solidarist doctrine: that
legislation (or codification) had only declaratory, and not
constitutive, effect; that all law dealt ultimately with individual
behavior; and that States possessed rights only to the extent that
was functionally necessary.
The use by a State of its freedom was illegal if such use was “[only]
to the detriment of the collectivity’s general interest.”171 Sovereignty
was to be replaced by “the solidarity of human relations [which] is
the great social phenomenon of today.”172 States were artificial
fictions and the individual the only “real” subject of international law,
situated in a historical continuum from family to tribe; tribe to
nation; nation to region; region to universal community. Many
lawyers, Politis claimed, such as Kelsen and Verdross, Schücking,
Krabbe, and Westlake, had already understood this. And while
official diplomacy was still being obstructive, it was “powerless
against the realities of life.”173 In 1927 Politis reviewed four
diplomatic developments that manifested the new realities:
increasing acknowledgement of the position of the individual; the
emergence of an international criminal law; creation of a compulsory
system of international justice; and codification. To carry the
changes through required both activism and prudence; for the most
part, Politis believed that the League was being successful, despite
occasional setbacks (such as the failure of the Geneva Protocol in
the drafting of which he was personally involved) or timidity
(concerning the choice of topics of codification).174
By the same token, he argued in 1935, taking up a matter of great

concern for French internationalists, that neutrality had become
irrec-oncilable with “the modern conditions in the lives of
peoples.”175 First, in an interdependent economic system, all goods
could be viewed by a 170 For biography, cf. De Lapradelle, Maîtres et
doctrines, pp. 371–403.
171 Nicolas Politis, Les nouvelles tendences du droit international

(Paris, Hachette, 1927), p. 14.
172 Politis, Les nouvelles tendences, p. 76.
173 Politis, Les nouvelles tendences, p. 61.
174 Politis, Les nouvelles tendences, pp. 185–190, 215–220.
175 Nicolas Politis, La neutralité et la paix (Paris, Hachette, 1937), p.

8 and passim.
306
belligerent as aiding its adversary’s war effect. Second, solidarity

compelled assistance to the victim. In the absence of a duty of
assistance, no deterrence will work. Third, the principle of the just
war implied by the Kellogg–Briand Pact was morally incompatible
with the egoism of the neutral.176 If violence takes on the character
of community sanction, no room is left for neutrality. But although
the Covenant had profoundly transformed the conditions of
neutrality, it had not yet fully done away with it. That after 1928 the
law no longer contained a place for it meant that it was “in advance
of the facts.” The task was to proceed step by step to make
neutrality unnecessary.177
The argument about “transformation” was delicately poised between

utopia and reality – a doctrine of the “in-between.” The world was
enveloped within an objective historical process – called “reality” or
sometimes simply “life” – that could not be hindered by the
conservative forces (that were never really identified) holding on to a
political system that was, in fact, already in the past. There were
difficulties in such a position. Why, for instance, lay so much
emphasis on the need of codification when treaties even at best
remained only declaratory of the objective law and invalid to the
extent that they conflicted with it? Why did Politis need to say that in
addition to the law being embedded in
“life,” its source was “the juridical conscience of peoples” – thereby
subscribing to the dubious assumption that popular conscience was
always capable of grasping “life” in its authenticity?178
But Politis was more interested in the diplomatic efforts in which he

took an active part in the League and elsewhere than in the
theoretical problems of his “in-between” doctrine. In some ways, the
sense of change, of leaving some things behind while not quite
attaining one’s goals must have seemed a psychologically credible
description of his experience in trying to close the gaps of the
Covenant. Perhaps, one could say, Politis’ writing came together by
the assumption that while the pace and direction of legal change
were determined on the grand scale, this left some room for
diplomatic alternatives. The lawyer’s task became the careful
balancing of requirements of stability and change, the adaptation
rather than full-scale transformation of tradition – such as his step-
by-step strategy for the elimination of neutrality – so as to work
towards the ultimate goal of universal federation.179
176 Politis, La neutralité, pp. 96–99.
177 Politis, La neutralité, pp. 179 et seq, 205–209, 210.
178 Cf. e.g. Politis, Les nouvelles tendences, pp. 49, 62.
179 This seems suggested e.g. by Politis’ discussion of the

development of international criminal law and codification, Les
nouvelles tendences, pp. 95–137, 193–229.
307
In 1943, shortly before his death, Politis published his last book on
“the international morality” – an analysis of the prevailing crisis in

terms of Europe’s (and the League’s) moral breakdown. Many of the
ambiguities of solidarist doctrine were in evidence: oscillation
between economic determinism and moral pathos, faith in
rationality, and analysis of the crisis in terms of unreason, laying the
foundation of moral rules alternatively on “usage” and the gospel –
with the idea that all this was somehow expressed by “science” as
represented, for instance, through Spencerian evolutionism. Politis
saw the war as an incident of the economic decline that had resulted
from a division of Europe in two – a developed, industrial West and
the large agrarian East and South.180 Yet, apart from the
suggestion for European economic reorganization, most of the book
came out as a smörgåsbord of moral commonplaces – an appeal for
the strengthening of five moral rules: loyalty, moderation, mutual
assistance, respect, and the spirit of justice. The discussion appealed
for an enlightened but empty altruism – with passing critical remarks
on the nationalist right (represented by Maurice Barrès) in France,
and, perhaps oddly, admiration for the morality of the Salazar
Government in Portugal.181 As moral theory, the book’s greatest
problems lay in its emptiness, and the ambivalence about whether
the meaning of morality was defined by convention or revelation.182
As a political blueprint, it left completely open why the European
federalism suggested in its last chapter would be any more available
after the war than it had been before – unless the reference to the
war as moral purification in the opening pages was more than a
mere slip of the pen.183
The strength and weakness of the solidarity advocated by Alvarez

and Politis was based on its character as a hybrid, uneasily balanced
between sociology and natural law. On the one hand, it grew directly
from social
“reality” – as such, it could be opposed against the “metaphysical”

orientation of earlier doctrines, their ignorance of the
interdependence and solidarity of international “life.” But neither
wanted to suggest that this meant full-scale acceptance of the
present political or economic structures. Alvarez carefully distanced
himself from the historical school that (as he thought) possessed no
perspective from which to criticize present law. There had to be an
element of justice as well, he wrote: “This ideal 180 Nicolas Politis,
La morale internationale (Neuchâtel, Baconnière, 1943), pp. 11–18.
181 Politis, La morale, pp. 66, 79, 82.
182 Politis, La morale, pp. 45–47, 81.
183 Politis, La morale, pp. 24–27.
308
of justice consists, in summary, of the substitution of the old

individualist concept with the idea of solidarity.”184 Politis agreed in
the critique of individualism and his “five rules of morality”
constituted an outline of a theory of social justice on partly
historicist, partly religious assumptions. His writing combined fact-
description with normative requirements whose fulfillment was
always in the society’s self-interest.185 Hence its distinctly
paternalistic tone. It became a technique to demonstrate both the
positivist merits of one’s science – it was a “fait social ” – as well as
its political virtue – it respected the “conscience of peoples” and
enshrined an “ideal of justice.” When Politis contemplated the
possibility of eradicating war in 1935, his ultimate argument was
about faith in reason, “bonne entente, respect mutuel ” – an
affirmation of a solidarist faith, with the arrogant implication that the
varying meanings that such expressions received in social life were
to be seen as “errors” to the scientific truth of one’s own view.186
Meanwhile in Paris . . .
Alvarez and Politis were smoothly integrated into the French

international law community that did not feel the least threatened by
their call for transformation and renewal. After all, solidarism was a
language of French origin and internationalism well in accord with
the spirit of a France where, after 1919, there may still have been
patriots “but somehow patriotism was dead.”187 If it was difficult for
a Frenchman not to think obsessively in terms of “guarantees,” one
look at the League as it emerged from the Treaties seemed to
underwrite the conception that a much more fundamental
international transformation was needed than Versailles had even
tried to effect.
So it is no wonder Fauchille and Alvarez, together with their friend

professor Albert Geouffre de Lapradelle (1871–1955), Renault’s
successor at the Paris faculty, were able to align every French
internationalist and a large number of French and international
politicians from Balfour to Benesˇ, Hanotaux to Hymans, Poincaré to
Venizelos behind the proposal for setting up the Institut ( later
Ecole) des hautes études internationales as a school for foreign and
domestic lawyers and diplomats in Paris in 1919, an initiative that
had been temporarily postponed because of the war.
Funds for the Institute were received from the French government
and 184 Alvarez, La codification, p. 140.
185 Cf. also Politis, La morale, p. 74.
186 E.g. Politis, La neutralité, pp. 220–221; La morale, pp. 133–137.
187 Eugene Weber, The Hollow Years. France in the 1930’s (London,
Sinclair, 1995), p. 17.
309
the Carnegie foundation while a donation by Alvarez constituted the

basis for a professional library. That the purpose of the Institut was
to
“contribute to the reconstruction of international law in conformity
with the contemporary requirements of the life of States” and to
“develop the influence of ideas about justice and morality on the

formation of international law” clearly shows the influence of Alvarez
and it was hardly a coincidence that the first lecture given at the
new school as it opened in 1921 was the one by Léon Bourgeois on
international morality referred to above.188
In the course of 1919–1939, the Paris Institut became one of the

most important institutions of teaching international law and politics
in annual courses directed at a multinational audience of students,
diplomats, and young professionals. The founders insisted that
international law be taught in connection with history, diplomacy,
and economics and they combined law teaching with regular courses
in such subjects. The number of enrolled students had by 1932 risen
from twelve to 130, with annual attendance reaching 150 in peak
years.189 Reflecting upon the early years of the Institut, Alvarez and
de Lapradelle emphasized their intention to have the students learn
“the profound basis of international life,” including the point of view
of the new world. They felt that international law
had to be separated from its old image as a dry juridical discipline

which had rightly made it fall into disgrace, that it had to be
connected with the realities of contemporary life, especially the
policies of States and the sentiments of nations and that it had to
take into account the great transformations that had taken place.190
Practically every French internationalist of some renown, and a large

number of foreign professors (though few Germans) gave courses at
the Institut. On the basis of a list of those courses it cannot be said
that their substance had been geared towards any particular
direction: even if ideas about “transformation,” interdependence, and
the demise of sovereignty were much on the surface, the overall
impression was that of an eclecticism whose limits were effectively
set by the fact that the teachers were established professors in a
period where the possession of a university chair could rarely be
connected with avant-garde politics. That the 188 Cf. “L’Ecole
internationale de droit international” (1920), XXVII RGDIP, pp.
145–152.
189 “Discours de M. A. de La Pradelle, Institut des hautes études

internationales (Douzième anniversaire, jeudi 22 novembre 1932)”
(1933), 7 RDI (Paris), p. 13.
190 Alejandro Alvarez and Albert de La Pradelle, “L’Institut des

hautes études internationales et l’enseignement du droit des gens”
(1939), XLVI RGDIP, p. 666.
310
anniversaries of the Institut were attended by the French President

and other high officials while Alvarez participated continuously in its
direction and he and Politis were regular lecturers there speaks
something of the special link that emerged between the rhetoric of
solidarity and the self-understanding of French policy in those years.
De Lapradelle had all reason to note that the spirit of teaching at the
Institut would not cease to be French by the fact that it was
international – “bien au contraire.”191
Yet it would be too much to say that the French international

lawyers would have felt equally comfortable with the language of
solidarism.
There were those like the diplomatic historian and lawyer, professor
at the Ecole libre des sciences politiques, Charles Dupuis (1863–
1939) who ridiculed the attempt to get rid of sovereignty by Duguit
and Politis – this would be to attempt to get rid of police,
administration, taxation, and welfare. Nobody wanted it. Instead,
internationalism and nationalism should be balanced against each
other. In the realist fashion, he criticized the Kellogg–Briand Pact as
being both indeterminate in content and based on a presumption
about the binding force of promises which, if it were true, would
make the pact unnecessary.192 He specifically attacked Politis’
concept of the abuse of right which to him smacked of an “abuse of
words.” Either one acted within one’s right or one did not. To say
that one was using rights in an “anti-social” and thus abusive fashion
injected a moral evaluation into what should be a legal
assessment.193 Dupuis shared the disappointment of Pillet and the
French right about the conditions of Versailles: The League, he
argued in 1920, had come about without taking account of the
lessons of history. Of the three conditions for international order –
renouncing absolute sovereignty, presence of international
organization, and a spirit of internationalism – the third (which he
seemed to equate with an internationalist public opinion) was a
precondition for the others and remained to be created. The Pact
was too abstract and unclear in a way that would not matter if the
League could rely on an esprit international. But there was no such
spirit, Dupuis argued.194 A real law needs to be backed up by force:
in the ideal world, the use of force would rely on public opinion. In
its absence, the drafters of the Covenant should have taken their
lesson from nineteenth-century diplomacy that showed that even if
the balance of power was eminently not a legal principle, it could still
be used to support law and 191 “Discours de M. de La Pradelle,” p.
12.
192 Charles Dupuis, “Règles générales du droit de la paix” (1930/I),

32, RdC, pp. 27–31, 215–224.
193 Dupuis, “Règles générales,” pp. 88–95.
194 Charles Dupuis, Le droit des gens et les rapports des grandes
puissances avec les autres états avant la pacte de Société des
Nations (Paris, Plon, 1921), pp. 7–11, 477–532.
311
whether it was so used was a function of the intelligence of the

diplomats.195 Under the League this truth had become shrouded
under vacuous generalities.
And there were formalists like Jules Basdevant (1877–1968), one of

the holders of the two chairs in international law at the Paris faculty
(with Albert de Lapradelle) in the 1920s and 1930s, Renault’s
successor at the Quai d’Orsay, later a long-time judge at the
International Court of Justice.196 Basdevant was an expert in the
law of treaties whose teaching consisted of textual commentaries
undertaken in light of the jurisprudence of arbitral tribunals and the
Permanent Court at which he performed regularly as counsel. Like
everyone else, he paid homage in his 1936 course at the Hague to
the old naturalists whose teaching he equated with international law
“theory.” Today, however, natural law had become an “aspect of
psychology.” Its usefulness was limited to an element in the
interpretation of obscure treaty and customary rules.197
Law was based on recognition; general rules existed only to the

extent that States had accepted the jurisdiction of tribunals that
applied general principles. Like Dupuis, Basdevant had little
tolerance for arguments about the withering away of sovereignty. As
a practitioner and a representative of his government, he defended
the virtues of the diplomatic system. Individuals, for instance, were
subjects of international law only indirectly while the sovereignty of
the State was sovereignty under the law.198
Where men like Dupuis or Basdevant – a realist and a formalist –
differed from the solidarists was in their lack of optimism about or at

least their reluctance to speculate over international transformations.
They were equally concerned over the weaknesses of the League

and highlighted the limitations of law; but they did not advocate
programs of far-reaching reform. Dupuis interpreted the League in
terms of the unchanging laws of Great Power policies, and
Basdevant analyzed the limited materials that codification and
expanding case-law offered to 195 Charles Dupuis, Le principe de
l’équilibre et le concert européen de la paix de Westphalie à l’acte
d’Algéciras (Paris, Perrin, 1909), esp. pp. 104–108 and 504–513.
196 The second chair was set up after the war. Other
internationalists taught at Paris as well. But Louis Le Fur had a
professorship “without a chair” and Gilbert Gidel’s position was in
constitutional law. Politis had been appointed “honorary professor”
at the faculty and teaching in international law (for instance, courses
at the Hague Academy) was given by the public and constitutional
lawyers Gaston Jèze and Joseph-Barthélemy. For the faculty in 1932,
cf. Berthélemy, L’école de droit, pp. 66–69.
197 Jules Basdevant, “Règles générales du droit de la paix”

(1936/IV), 58 RdC, pp. 481, 488–491.
198 Basdevant, “Règles générales,” pp. 525–529, 577–582.
312
him without the ambition to blow them up into a full legal system.
Dupuis was a university man who preferred observation and analysis

to activism (though he, too, was a member of the Institut de droit
international and an energetic writer of legal opinions). Basdevant
was a governmental jurist who recognized the useful but limited role
law could play in diplomatic affairs.199 Neither made a secret of his
distaste of the solidarists’
sweeping generalizations.
Much closer in spirit to Alvarez and Politis was professor Joseph-

Barthélemy (1874–1945), colleague to both Dupuis and Basdevant,
“the incontestably leading constitutional lawyer in the 1930s,”200
who received fame through his analyses of the “crisis of democracy”
in Europe but glided from an idiosyncratic liberalism into the position
of garde des Sceaux in the Vichy Government in 1941–1943.201 In
his course at the Hague in 1937 Barthélemy examined the effect of
the internal politics of States on international law. With the
background of the Italian attack on Abyssinia and the Spanish Civil
War, he sought to tear apart “slogans” and ideologies about the
international behavior of different types of government. Adopting the
language of “facts,” but stressing their complexity and manipulability,
Barthélemy relativized the distinction between democracy and
autocracy – “deconstructed” that opposition – and showed that
neither was essentially peaceful or belligerent. However one defined
one’s terms, it was impossible to avoid the conclusion that
sometimes it was autocracies, sometimes democracies that
intervened. Léon Blum’s famous oscillation between proletarian
solidarism and a defense of non-intervention in the Spanish Civil War
was only one (though perhaps particularly tragic) illustration of the
opportunism of ideologies.202 Political regimes were naturally drawn
to cooperation with similar regimes over national frontiers; yet
sometimes this led from conflict between States to an intensification
of social conflict within them. Moscow’s revolutionary exports were
one example; another was 199 Basdevant stayed as legal adviser to
the Foreign Ministry at the beginning of the occupation, hoping to be
able to influence the relations to the occupying power through legal
argument. As the German demands for the Vichy government
became excessive (as French airports were requisitioned for the
German war effort), he resigned. Cf. Bohdan Winiarski, “Jules
Basdevant (1877–1968)” (1969), 53/2
Annuaire IDI, p. 489.
200 Dominique Gros, “Peut-on parler d’un droit antisémite?,” in Le

droit antisémite de Vichy (Paris, Seuil, 1996), p. 17.
201 Joseph-Barthélemy, La crise de la démocratie contemporaine
(Paris, Sirey, 1931).
202 Joseph-Barthélemy, “Politique intérieure et droit international”

(1937/I), 59 RdC, pp.
448, 462–486.
313
the International Labour Organization’s (ILO) attempt to resolve

issues of national social policy by an internationalist fiat.203 The
elegant complexity of Barthélemy’s Hague talk, its critique of
ideology and his defense of democracy as an “attitude or spirit . . . a
form of behavior towards the individual” failed, however, to provide a
justification for the optimism he expounded at its conclusion.204
Basically a defense of non-intervention, and a criticism of attempts
to measure legal attitudes by reference to the character of the
regime of a country with which one was dealing, the article
professed no faith in the League nor in diplomacy or politics
generally; it looked for spiritual renewal but failed to indicate the
direction from which it might be expected to arrive.
The divergence between Dupuis, Basdevant, and Joseph-Barthélemy

on the one hand, and the solidarists on the other, failed to produce
real controversy. The reasons must in part come from the rules of
professo-rial politesse; open controversy was not encouraged. But in
part, also, controversy must have seemed pointless as the language
of solidarism was not in sharp political conflict with what was being
preached by legal realists (with whom Barthélemy had much in
common) and formalists.
The teachings by Bourgeois, Alvarez, and Politis faithfully ratified

French concerns about the international order. Moreover, as we have
seen, solidarism did not come with a tight package of political ideas.
Aside a forward-looking technologically and scientifically oriented
optimism, there was an anti-individualism that sometimes – in
Bourgeois’
lecture of 1921, in Politis’ book of 1943 – interpreted European crisis

in distinctly conservative ways: as a breakdown of tradition that
implied an appeal for a return to nineteenth-century religious or
bourgeois values. Although the origins of solidarism might have been
left of the political centre, that did not prevent Alvarez from
collaborating closely with the conservative Albert de Lapradelle at
the Paris Institut and elsewhere.205
203 Barthélemy, “Politique intérieure,” pp. 464–467.
204 Barthélemy, “Politique intérieure,” pp. 492, 519.
205 For example, in his commentary to the jurisprudence of the

mixed arbitral tribunals set up by the Treaty of Sèvres, and dealing
with disputes between Romania and Hungary, de Lapradelle
highlighted the fundamental role of international law in the
protection of private property: “In the defense against attacking
property international law occupies an exceptional position that
makes it one of the bastions of civilisation,” A. de Lapradelle, Recueil
de la jurisprudence des tribunaux arbitraux mixtes créées par les
traités de paix (5 vols., Paris, Documentation internationale, 1927),
IV, p. 559. In 1942 he wrote polemically against Soviet diplomacy,
almost portraying Hitler as Christianity’s last refuge against
Bolshevism: “combattre le bolchewisme, c’est défendre la civilisation
chrétienne.” The book labeled Stalin as the principal aggres-314
In the curriculum of the first year of the new Institut, there was also
a series of lectures by the new Professor of International Law at the
University of Strasbourg, Louis Le Fur (1870–1943), on the
“philosophy of international law,” which condemned materialism and
voluntarism as parts of the breakdown of tradition that Germany had
sought to accomplish. What was needed was a return to the “first
foundations of a universal morality and law; to what had been called
a philosophia perennis”
that reached from Greek Antiquity to seventeenth- (but not

eighteenth)-
century natural law.206 Like “solidarity,” “transformation” meant

different things for different people. Like many Frenchmen, Le Fur
understood the war of 1914 as an externally introduced break in the
natural development of European societies, produced by an
intellectual attack against tradition by German Lebensphilosophie as
realized in the policies of the Wilhelminian Empire. From this
perspective, reconstruction meant the spiritual regeneration of
European tradition and in particular of Christian natural law.
The French right and left agreed that the kind of diplomacy that had
prevailed in 1914 had been a major cause of the war. Both held that
a reformed international law was to give expression to forms of more
authentic community. But where the former preached moral and
religious revival, and obedience to authority, the latter sought
renewal from science, technology, and institutional cosmopolitanism.
Both used solidarist language to advance federalist ideas. The
federalism of tradition constituted a hierarchical structure of
communities whose purpose was to facilitate the renewal of Europe’s
spiritual energies. Modernist federalism sought to liberate the
professional classes to realize the progressive laws of social
interdependence. It is conventional to speak of the return of natural
law in juristic thinking after the First World War. This undermines the
degree to which at least French lawyers were looking both
backwards and sideways: into tradition and history – the Spanish
Scholastics, Grotius, and the teachings of the Catholic Church207 –
but also towards Rousseau and Durkheim and recent theories of
public law, sor on Poland and speculated about the need for a
coming Finnish–German alliance in the North, A. de Lapradelle, Le
marxisme tentaculaire. La formation, la tactique et l’action de la
diplomatie soviétique (Issidou, Editions internationales, 1942), pp.
310, 202–204, 229.
206 Louis Le Fur, “Philosophie du droit international” (1921), XXVIII

RGDIP, p. 577.
207 Cf. in this respect among the writings by the Révérend Père
Yves Leroy de la Brière (1877–1941), e.g. “Evolution de la doctrine
et de la pratique en matière de représsailles” (1928/II), 22 RdC, pp.
237–294; Le droit de juste guerre: Tradition théologique et
adaptations contemporaines (Paris, Pedone, 1938).
315
to answer the question about how to provide for the coherence of an

international system – a question that automatically translated itself
into what would protect France from Germany. If French lawyers
were keen to see in the League more than just a treaty (although
they disagreed on just how much more) and frequently speculated
about federalism and a European Union, solidarist vocabulary
provided an effective means to do this; to move in ideas from
diversity and antagonism to cooperation and harmony at some
concrete level of reality. But one’s solidarity is another’s oppression;
and there are many kinds of solidarity, including that of the master
and the slave. The traditional and modernist responses to the crisis
did not always lie well side by side.
L’affaire Scelle
On February 15, 1925 Georges Scelle, at the time the Professor of

International Law at the University of Dijon and head of the Cabinet
of the left coalition government’s ( cartel des gauches) Minister of
Labor was nominated by the Minister of Public Education to hold the
course of public international law at the University of Paris. This
decision contradicted the faculty council’s proposal that had put in
first place Louis Le Fur, a Catholic–conservative international lawyer
and legal philosopher who had moved from Strasbourg to Rennes in
1922. The faculty reacted strongly against such intrusion into
university autonomy: irrespective of political alignment, all but one
professor condemned the Minister’s action.208 Among the students
as well, criticism of the violation of the university’s independence –
the terms in which the matter was propagated by right-wing
students – was near-unanimous.209
On March 2 violent demonstrations and acts of “vandalism”

organized by students of the Action française, monarchist, and other
right-wing student groups took place in the course of Scelle’s first
lecture, with the result that the police had to be called in to secure
order. The University Council was called to an urgent meeting. The
demonstrations continued, however, during Scelle’s second lecture in
the following week with posters being distributed that attacked
François Albert, the Minister of Education, for his breach of
traditional norms of university–Ministry relations.
Disturbances continued, however, and on March 31, the Dean of the

208 Cf. 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), pp.
222–224.
209 Milet, La faculté de droit, pp. 29–31.
316
Law faculty – Professor Henri Berthélemy – was suspended from

office for having refused to call in the police anew. The students
were shocked and organized a new manifestation on April 2 in
support of the Dean, renewing the declaration that interference in
University’s affairs by the government was intolerable.210 The
Ministry reacted by deciding to close the Faculty. On the following
day the matter was raised in the National Assembly in which députés
from all sides criticized the government’s handling of the “affaire
Scelle.” On April 11, the Ministry gave in.
The faculty was reopened on April 20 and Scelle’s courses were

suspended. Less than a week thereafter, however, the government
fell on a budgetary vote – hostility towards it having been largely
fomented by its incoherent handling of the affair.211 Le Fur was
nominated to hold the course. Almost a year after these events
students still interrupted Scelle’s lecture in the Café Procope. By
contrast, Le Fur was appointed to the Paris faculty and held in his
inaugural lecture on March 3, 1926, according to the Action française
“in the midst of acclamations.”212
L’affaire Scelle was mainly about university politics, and the doctrinal
positions of the two protagonists did not play a visible part in it. On
the other hand, it did polarize the relationship between the rightist
majority in the Faculty of Law and the left-leaning jurists such as
Gaston Jèze, whom we met in chapter 2 criticizing commercial
colonization, the internationally well-known expert of the law of
public finance who had voted for Scelle and later himself became the
target of a similar series of protests for his involvement as
Abyssinia’s counsel against Italy in the League in 1935–1936. In
Paris, Scelle must have represented not only Herriot’s controversial
coalition but also a step towards the unknown –
novel theories about the law, interdisciplinary connections, and

unabashed journalistic activity in favor of political causes. Le Fur’s
qualifications were impeccable so that the result was clearly no
scandal even if Scelle’s name today completely overshadows Le
Fur’s.
In 1928 the Parisian essayist Julien Benda (1867–1956) published

his famous tract La trahison des clercs,213 attacking contemporary
intellectuals for having set aside universal idealism and having
turned into 210 Milet, La faculté de droit, p. 151.
211 Milet, La faculté de droit, pp. 155–156.
212 Milet, La faculté de droit, p. 161
213 Translated as The Treason of the Intellectuals, by Richard

Aldington (New York, Norton, 1969 [1928]).
317
enthusiastic supporters of national causes and racial or class

agitation.
What he saw around him was: “a humanity which has abandoned

itself to realism with a unanimity, an absence of reserve, a
sanctification of its passion unexampled in history.”214 For Benda,
war would be an imminent consequence. International institutions
and treaties had left intact the spirit of war that prevailed in France
and Germany.215 As if hoping against hope, Benda pleaded for a
“betterment of human morality,” a return to traditional idealism and
its standard tropes, “justice as such,”
“humanity as such,” “universal fraternity.”216
To react to the cultural modernism represented, for example, in

Bergson’s philosophical intuitionism or Gide’s heroic individualism on
the one hand, and to communism and nationalism on the other, by
an appeal to traditional values and universal justice was a common
reaction among conservative intellectuals everywhere. In France,
that reaction had a concrete object in Germany whose national
characteristics, history, and political ambitions were seen throughout
French society as responsible for the climate of subjectivism that
Benda sought to exorcize from the imagination of the clerks.217 For
some such as Joseph-Barthélemy, parliamentary democracy was
mortally threatened by the absence of political authority, the growing
influence of the mutualités, and problems of parliamentary method.
Without an effective reform of the State, democracy would lose out
to its competitors.218 A few years later, Julien Bonnecase from the
University of Bordeaux identified a similarly profound malaise in
French legal thought that seemed connected to the metaphysical
pessimism and celebration of subjectivism that he read as parts of
the Zeitgeist. Legal thought had become uncertain about its
premises and pessimistic about its meaningfulness, part of a world
“without a soul” – as manifested by the prevalence of utilitarianism

and conceptualism in legal doctrine.219
Like Benda, Louis Le Fur concentrated his energy on advocating a

return to universal tradition, represented by natural law,
indissociable from Christian morality. Le Fur had rejected the
solidarist theories of Bourgeois as early as 1909 “si en vogue
aujourd’hui.” Little natural solidarity was visible between States and
where it existed as a fact, it could 214 Benda, Treason of the
Intellectuals, p. 181.
215 Benda, Treason of the Intellectuals, p. 184.
216 Benda, Treason of the Intellectuals, p. 202.
217 For Benda’s anti-Germanism, cf. Winock, Le siècle des

intellectuels, pp. 244–245.
218 Joseph-Barthélemy, La crise de la démocratie contemporaine,

esp. pp. 133 et seq.
219 Bonnecase, La pensée juridique française, pp. 80–162.
318

not be used as a basis for normative conclusions. Only a superior
morality could explain why solidarity was a good thing, and what it
required.220 In his criticism of the legal theories of Duguit and
Scelle Le Fur stressed that instead of solidarity, moral character was
the fundamental fact about human beings. The defense of legal
obligation required more than reference to sociological or (in Scelle’s
case) biological facts. It needed a concept of the common good.
Accompanied by anti-metaphysical individualism, solidarism led to
anarchy. But, Le Fur held, Duguit and Scelle had both smuggled
naturalist assumptions into their theories. That their naturalism was
hidden, however, or sometimes expressed through reference to
public opinion or sentiment of justice, made it dangerously close to
the moral subjectivism against which both solidarism and traditional
naturalism were poised.221 Le Fur appreciated solidarism’s critique
of voluntarism and sovereignty but did not share its faith in
sociology, accompanied by a neglect of tradition. But when he wrote
about the crisis of majoritarian democracy and of the State, largely
approving Joseph-Barthélemy’s analyses, and suggested a return to
the common good, it remained far from clear where the difference
between that open-ended concept and the one advocated by
solidarists lay.222
Le Fur was no more an original thinker than Benda but, like the
latter, able to strike a responsive chord in his audience by finding the
main culprit for the destruction of the authority of tradition in
nineteenth-century German political and legal thought and Kultur.
He explained the shocking vulnerability of pre-war internationalism
as a story of sin and its wages, a loss of moral sense, and
uncontrolled fall into the abyss of violence. The message bore a
redemptive hope, of course, in the form of a moderate reform of the
international system towards a decentralized universal federation. It
is no surprise that Le Fur found himself a much-used speaker, a
three-time lecturer at the Hague Academy of International Law, a
member and vice-president of the Institut de droit international, and
in 1933 the President of the Institut international de philosophie du
droit et de sociologie juridique.
220 Louis Le Fur, “La paix perpetuelle et l’arbitrage international”
(1909), XVI RGDIP, pp. 447–448.
221 Louis Le Fur, “Le fondement du droit dans la doctrine de Léon

Duguit,” in Les grands problèmes du droit (Paris, Sirey, 1937), pp.
389, 414–423, 432–433. Cf. also Le Fur,
“Règles générales du droit de la paix” (1935/IV), 54 RdC, pp. 88–94,

101–103.
222 Louis Le Fur, “La démocratie et la crise de l’Etat,” in Les grands

problèmes, pp. 530, 572–583.
319
Two aspects of Le Fur’s writing manifest the conservative vision of

international legality: an idealist identification of the ills of the
Zeitgeist with subjectivism and positivism, and a moderate global
federalism in which each hierarchical level would receive its rightful
place in a
“pyramidical” structure of interlocking authorities. At the time, both

supported a political agenda for guarantees against Germany and
strengthening the League, understood as a (rather timid) system of
dispute-settlement.223
The critical program was outlined in a 1920 book on the just war
that was prefaced by the conservative nationalist Maurice Barrès
(1862–1923), describing the outcome of the war as a victory of the
“French idea of law” and equating justice with the return of Alsace–
Lorraine to France.224 The attack on tradition was a distinctly
German operation: “In the first rank of the systems destructive to
morality and law are those elaborated by Germans . . . Things have
come to the point where it is possible to say without exaggeration
that present Germany has lost the notion of law, at least law in the
traditional sense.”225 After Martin Luther, the largest part of the
responsibility for this state of affairs lay with Kant’s methodological
doubt about the human ability to know the good.226 This led to
subjective idealism – the world as a projection of human
consciousness – that romantic writers used for the adoration of
völkisch nationalism.227 The categorical imperative could only
appear as an irrational escape from skepticism. And it imposed too
great a demand for individuals. Breaking down under its own weight,
Kantian morality left its subjects in a void that was quickly filled
either by the Hegelian State as the Ersatz-center of moral lives or a
Nietzschean amoralism, the “paganism of passions.”228 “The idea of
liberty as a unique rule of action can only breed anarchy and in fact
consecrate the triumph of the strongest.”229 Under such conditions,
law was reduced to a contract to set up a sovereign to deter
individuals from destroying each other. Not differentiating between
good and bad laws, and seeing the State only as a system of
constraint, the Kantian view became “if not the theoretical
legitimation, at least the practical consolidation of despotism.”230 In
the 1930s Le Fur saw these dangers in the degeneration of
parliamentarism into a search for special advantages 223 Louis Le
Fur, Précis de droit international (3rd edn., Paris, Dalloz, 1937), pp.
308–309.
224 Louis Le Fur, Guerre juste et juste paix (Paris, Pedone, 1920),
Préface par Maurice Barrès, pp. v, vi.
225 Le Fur, Guerre juste, p. 11.
227 Le Fur, Guerre juste, pp. 31–33.

320
and support for particular interests. Without a morally informed

principle of the general good the political order was powerless in
face of modernity’s crisis.231
The same applied internationally. If there was no overriding sense of

the common good, States were cast in a perpetual condition of
potential war and there was no point from which to challenge their
decision to use force to defend themselves.232 Self-legislation was
the international equivalent of the liberal contract. To think of law in
terms of State will
“destroys all morality and with it, all civilization.”233 It was

regression to barbarism: “Either a law superior to human will, or
material force; there is no other alternative.”234
Autonomy led to nationalism and war. For authoritarian (German)

nationalism, nothing stood before the nation’s imperial ambitions.
But even a liberal nationalism (Mancini and Wilson) that conceived
the nation as voluntary association (“a plebiscite every day” in
Renan’s memorable phrase) led to endless demands for secession or
to the tyranny of the State that needed to combat it.235 Hence, self-
determination could be only “condemned by modern public law.”236
Even in a united nation it would so excite popular passion that it
would lead to imperialism.237
The second way of German errors lay with positivist historicism and
racism. The former taught that there was no universal moral order.
But if the Volksgeist was not limited by something outside itself, it
became a name for majority rule whose only limit was popular
aspiration.238 The organic theory mistook a biological metaphor for
reality and ended up in the complete submission of individuals to the
State.239 Moreover, positivist nationalism led inescapably to racism,
reducing human beings to their physical characteristics, neglecting
their moral nature and opening the door for reproductive
manipulation.240
Throughout the 1920s and 1930s Le Fur wrote with passion, and a
sense of acute danger against the errors of German philosophy –
231 Le Fur, “La démocratie,” pp. 530–583.
232 Cf. Immanuel Kant, “The Metaphysics of Morals” and “Perpetual

Peace: A Sketch,” in Political Writings (ed. Hans Reiss, Cambridge
University Press, 1991), pp.
98, 165. Le Fur, Guerre juste, pp. 23–24, 27–28.
235 Louis Le Fur, Races, nationalités, états (Paris, Alcan 1922), pp.
68–77.
236 Louis Le Fur, Nationalisme et internationalisme au regard de la

morale et du droit naturel (Paris, Chronique sociale, 1926), p. 15. His
reference here is to the Åland Island case.
237 Le Fur, Races, pp. 77–82.
239 Le Fur took delight in the fact that German racism was itself
drawn from the writings of non-Germanic scholars such as Lamarck,
Darwin, and Gobineau.
240 Le Fur, Guerre juste, pp. 39–47 and Races, pp. 40–60.
321
subjectivism, voluntarism, positivism, materialism, formalism,

historicism. Practically every deviation from tradition was guilty by
association with a German doctrine; and every German doctrine
ultimately an apology of force.241 Jhering, Jellinek, and Triepel were
branded as immoral defenders of State absolutism in theory, and
German Herrschaft in practice. Even Kelsen stood accused for
justifying the “oppression of the individual by the State.”242 Le Fur’s
description of the historical method reduced it to a caricature: every
normative conclusion was criticized as a lapse into rationalism.243
Apparently, a debate between two concepts of naturalism was
impossible. Hence the technique of drawing the enemy as a straw
man and indicting him for the sins of his nation.
But Le Fur had no sympathy for the writings of Alvarez, either, that
for him seemed to glorify arbitrary consensus.244 Even the theories
of Duguit and Scelle were more acceptable as they were really,
despite themselves, moral doctrines in the garb of sociological
language.
Le Fur’s international law was a set of doctrines by philosophically

minded lawyers and derivations or (unintended) effects of such
doctrines. Whatever difficulties and problems there were in
diplomacy or politics always followed in some way from philosophy.
Consequently, the remedy too had to be philosophical: “to return,
with traditional philosophy, to an objective criterion, the pursuit of
happiness or the search for order.”245 This meant a return to
Christian religion, the only system of thought that was built on
universality.246 However, despite tradition’s roots in Christian
dogma, its content could always be verified by “positive observation
and universal experience” – were not intelligence and morality
always regarded as values of higher order than power or riches!247
Despite his partiality to philosophy, Le Fur insisted that his natural
law could be demonstrated by reference to social necessity, “la loi
sociale des Etats.” Even proof of God’s existence was empirical, the
fact of belief in God being “almost universal.”248
Such a mixture of philosophical and empirical arguments usefully

expressed the various ambivalences that constituted the
conservative spirit. Le Fur condemned racism, for instance, at a
philosophical level.
241 Louis Le Fur, “Le droit et les doctrines allemandes,” in Les

grands problèmes, pp. 312, 378–388.
242 Le Fur, “Règles générales,” p. 44.
243 Cf. e.g. Le Fur, Précis, pp. 190–198 and “Règles générales,” pp.
147–152.
244 Le Fur, “Règles générales,” pp. 45–71, 124–144.
246 Louis Le Fur, “L’église et le droit des gens,” in Les grands

problèmes, pp. 502–529.
248 Louis Le Fur, Nécessité d’un droit international pour coordonner

les diverses activités nationales (Paris, Chronique sociale, n/d), pp.
5, 19.
322
As a defense of the German Vollkulturstaat, it was pure ideology.249

But racism’s unscientific character remained limited to its application
between European races that were completely mixed, and none
more so than the German.250 There was no doubt, he argued in
1935, that there existed “peoples that were really inferior, situated at
a different level of civilization” to whom international law could not
be applied.251 Nor was he a pacifist. On the contrary, the absence
of a judge between States meant that they sometimes had to go to
war to defend justice. But in so doing they had to comply with
natural law.252 In fact, Le Fur claimed, the view that war was not a
sovereign privilege but the enforcement of justice was shared
everywhere apart from Germany. Even old German theory (Klüber,
Heffter, Bluntschli) – to which the new sometimes gave hypocritical
acceptance – shared it.253 To the objection that the criteria for just
war were open to political misuse Le Fur responded that to reason
this way was to reason in a world of absolutes; man lives in a world
of relativity. That people may disagree is not an argument against
natural law but an incident of the weakness of human reason.254 It
was the very reason for which law and the State were needed and
for which suggestions “from some Catholic corners” that
international law could be replaced by Catholic doctrine could not be
accepted.255
Central to Le Fur’s writing was the transposition of the philosophical

argument to the reality of international politics. The struggle
between objectivism and subjectivism, morality and arbitrariness
was re-enacted in the opposition of France and Germany. The war
had been a struggle between two fundamentally opposed
conceptions: “the concept of civilized world which is nothing other
than the Christian concept . . . and
. . . the concept of pagan antiquity – its best elements apart –

adopted and aggravated by people that have used all the resources
of a cultivated dialectics to ensure the triumph of the passions over
the superior elements of humanity, law morality and reason.”256 Le
Fur associated himself with the disappointment of the French right
over the conditions of the peace: too much heed had been given to
manifestations in favor of Germany. The left and high finance had
united to protect their commercial interests by advocating minimal
obstacles to rapid German 249 Le Fur, Races, pp. 27, 28.
250 It was impossible to identify racial unity: language, ethnic
background, and cultural form were completely mixed between
European peoples, Le Fur, Races, pp. 25, 27–39.
252 Le Fur, Guerre juste, pp. 6–8, 75–79.
255 Le Fur, “L’église,” pp. 518–519.
323
recovery. Sovereignty went with responsibility and William II should

have been brought to justice in France. The claim for natural
frontiers at the Rhine having been discarded, even the military
occupation of the left bank was limited to a maximum of fifteen
years. With the weakness of the League, France was left
unprotected.257
Yet his naturalism failed to indicate ways of concrete renewal. In the

1930s he affirmed the absurdity of holding States bound by treaties
if conditions had fundamentally changed – a problem at the heart of
the German call for revision. True, “an obsolete law that is contrary
to the social order is a bad law.” However, unilateral repudiation was
unacceptable. It was best if the parties would agree but war could
not be overruled as ultima ratio. Art. 19 of the Covenant had
mandated the League Assembly to advise the reconsideration of
treaties that had become inapplicable. But the Assembly’s powers
were only recommen-datory and needed to include the votes of the
parties. Hence, today’s form prevailed over social or moral necessity
– but did so only as a result of prudential evaluation. Revision by
international decision would now be too dangerous.258
Le Fur defended the State against the extremes of individualism and

imperialism. The State was an indispensable instrument of the
common good, “le juste milieu, le moyen terme.”259 It could not be
reduced to a contract between free individuals or to an empty shell
over the free nation.260 It was a political synthesis of conflicting
wills which overcame this conflict by aiming towards the common
good. This was the State as Patria, the historical and empirical “will
to live together.”261 The supreme territorial authority was received
from and limited by the moral law: “The last word must always
belong to justice and reason.” 262 The State was the
“reason” for the “passion” that was the nation,263 a publiclaw

association whose coordinative functions were limited by the
coordination tasks of other associations, families, syndicats,
international organizations, and so on. It was not a formal (Kantian)
system of coordination as it aimed towards the common good that
looked for humans’ spiritual capacities and limited the search for
(economic) efficiency by moral principle.264
257 Le Fur, Guerre juste, pp. 117, 138, 139–162.
258 Le Fur, “Règles générales,” pp. 217–29, 233, 242–244.
259 Le Fur “La démocratie,” pp. 582–583.
260 Le Fur, Races, p. 91 and Le Fur, “Le fondement de droit,” in Les

grands problèmes, pp.
43–44.
261 Le Fur, Races, pp. 97–103.
262 Le Fur, Races, pp. 115, 110–132.

263 Le Fur, Nationalisme et internationalisme au regard de la morale
et du droit naturel (Paris, Chronique sociale, 1926), p. 8.
264 Le Fur, “Le fondement du droit,” pp. 38–65.
324
The nature of Le Fur’s authoritarian federalism can be gleaned in his

1926 argument about the harmony between “beneficial” forms of
nationalism and internationalism.265 “Reason” compelled one to
think in terms of an ascending way: from the family to the nation;
the nation to the State; from States to the international society.266
Every association at every level had its own purpose; each purpose
linked to the purpose of the whole, determined by objective law.
Everywhere the search was for the common good “which is the
same for all, for the society and its members, individuals and
intermediate groups . . . there is no opposition between the honest
and reasonable objectives of individuals and the State.”267 There
was a natural development to this structure, evolving to the fourth
and “final stage”: “internationalism is nothing but a continuation of
the expansion of human societies that dates back to the beginning
of history; it is the normal result of a development of many
thousands of years.”268 No conflict existed between science and
reason: disagreement was always proof of error, normally the error
of egoism, fed by individualist theory. The pyramidical structure –
“une synthèse harmonieuse . . . une construction hierarchisée”269 –
encapsulated the truth of the unity of the human race. In
articulating and protecting this structure international law “rests on
two great scientific facts: one ethical, the profound unity of the
human species; the other economic, the presence of a certain
international solidarity, the interdependence of nations.”270 Such
harmony reflects the normative unity that leads via natural law –
including the objective law of solidarity – ultimately to the one God.
As the errors of individualism, racism, and unhealthy nationalism
were set aside, the world would regain the unity it had lost in the
Reformation and the Enlightenment. Individuals are free; but as
such 265 A sane nationalism was a social necessity, not an absolute
but a relative (natural) preference for one’s nation and the well-
being of one’s compatriots. The two errors that led to its being
incompatible with internationalism were the doctrine of the
inequality of nations and absolute sovereignty, Le Fur, Nationalisme
et internationalisme, pp.
9–16. A sane internationalism, again, is based on the theory of

economic interdependence and moral unity of humankind.
266 Le Fur, Nationalisme et internationalisme, pp. 21, 23–24, 28

(“En réalité, la société – et la future société universelle des Etats
comme les autres – est une pyramide . . . cette pyramide à base
large dont le couronnement est la Société des Nations”).
267 Le Fur, Nationalisme et internationalisme, p. 26.
270 “[R]epose sur deux grands faits scientifiques: l’un d’ordre

ethique, l’unité profonde de l’éspèce humaine; l’autre d’ordre
économique, l’existence d’une certaine solidarité internationale,
d’une interdépendence économique des nations,” Le Fur,
Nationalisme et internationalisme, p. 5.
325
they are (“en un certain sens”) submitted to society: they must

consent to what is necessary for social peace, above all to an
effective authority.271
The key words are “reason” and “authority”: reason compels
submission to society, the pyramidical structure, the two rules of
international society: that no one may cause harm unjustifiably to
others, and that there must be sanction. This latter supposes a
juridical authority, legislative authority but also “a spiritual power, the
only guardian of morality, and with it, of the notions of order and
justice” – the independent Catholic church.272
Le Fur’s arguments gave expression to a widely felt sense in France

and elsewhere that the problems of industrial modernity, including
war, followed from a neglect of tradition – and associated the
challenge to tradition with German industrial, political, and
intellectual predominance, as well as the spread of electoral
democracy “that was leading certain States to ruin.”273 However,
there was no clear sense what “tradition”
meant, apart from a sense of moderation, of good will, kindness,

piety towards authority, even “love.”274 Le Fur did not propose legal
or institutional reforms that would have differed from standard
reforms of the League and guarantees against Germany. His
federalism was a moderate structure for which more important was
the sense of order and hierarchy than any particular arrangement in
which the elements would fall.
What was lacking now, he wrote in 1935, was proper authority: to

renew international politics was to do away with private justice
among States.275 That authority would determine the jurisdiction of
particular associations, and define what the “common good” meant
in particular contexts. Just as Le Fur’s worst fear was always
“anarchy,” the standard remedy was authority.276
Le Fur was decidedly anti-positivist but when called upon to defend

some particular view, always took care to produce a positivist
defense: natural law was right because . . . most lawyers now
seemed to think so; federalism was needed because . . . the world
had bec ome interdependent. Law was like other sciences, he said in
an argument against Kelsen, based on generalization from facts.277
He saw the economy as a funda-271 Le Fur, Nationalisme et
internationalisme, p. 20.
274 Le Fur, “Le fondement du droit,” pp. 65–71.
275 Le Fur, “Règles générales,” pp. 191–193.
276 Cf. e.g. Le Fur, “La démocratie,” pp. 536–537, 560–583.
277 Le Fur, “La démocratie,” p. 564.
326
mental social fact but refrained from advocating either free trade or
protectionism. In sum, “tradition” here was less a material doctrine
about the way the world should be governed or organized than an
attitude of human nature, about authority and community. Here lay
its weakness: it was an attempt to renew the nineteenth-century
concept of virtuous conscience – moral sense and honesty278 – at a
time when the very idea of virtue had been undermined by the
developments against which it was stated. It saw the world in terms
of philosophical doctrines confronting each other; as if how people
behaved were determined by them. Le Fur was eclectic because
tradition was so; because that was a tradition born in another age
and for other kinds of problématique; a tradition that was silent
about how to resolve the problems of a non-traditional age.

Where Le Fur looked for tradition in order to respond to modernity’s
crisis, Georges Scelle harnessed modernity in a battle against the
problems caused by tradition. From the 1919 commentary of the
League Covenant to the late 1950s, he never departed from his
idiosyncratic legal monism that held law a translation of sociological
and ultimately biological processes that led inexorably to federalism.
From the outset, Scelle’s writing followed a direction different from
that of the mainstream internationalists in France.279 His first
published work was on legal history – an exposé of the oeuvre of
Richard Zouche (1590–1660) –
and his 1906 dissertation in Paris dealt with the economic history of
Spanish imperialism.280 The social–historical method was
consciously 278 Cf. e.g. Le Fur, “Règles générales,” pp. 151–152,
159–160.
279 After his dissertation in 1906 Scelle for the first time took part in
the agrégation – unsuccessfully. Thereafter he attained practical
experience as the Secretary of the Brazilian delegation at the second
Hague Conference and to the US delegation in the Orinoco
Steamship Co. case. He was Professor of International Law at the
University of Sofia in Bulgaria in 1908–1910. After teaching in Lille
and Dijon, he passed his agrégation at the third try in 1912 and was
appointed to the University of Dijon. He was mobilized and ordered
to the front in August 1914, participating in combat duty and acting
as “officier jurisconsulte” to the French Eighth Army. He was
demobilized in November 1918, taking up again his appointment in
Dijon. During 1929–1933 he also taught at the University of Geneva
as well as the Graduate School of International Studies. In 1932
he was invited to a chair in Paris. Cf. Charles Rousseau, “Georges

Scelle (1878–1961)”
(1961), LXV RGDIP, pp. 5–8; Oliver Diggelmann, “Anfänge der

Völkerrechtssoziologie. Die Völkerrechtskonzeptionen von Max Huber
und Georges Scelle im Vergleich” (unpublished PhD thesis, on file
with author, Zürich, 1998), p. 120.
280 Georges Scelle, La traité négrière aux Indes de Castilles –

Contrats et traités d’assiento (2 vols., Paris, Larose & Tenin, 1906).
327
chosen by Scelle to depart from standard histories that focused on

kings, captains, and dramatic events. He wanted to express the
needs and interests of “anonymous crowds,” together with the
geographic, economic, and social conditions in which they lived, the
true causes, he wrote, of political events.281 The forms of de facto
colonial domination by the United States in Central America was the
subject of two early articles, while other brief works came out as
case studies on aspects of sovereignty, recognition, and arbitration,
with the main point lying in a political or otherwise anti-formalist
assessment – though still through conventional language.282
By 1928 Scelle had gained enough self-confidence to write a long

analysis on the basis of his solidarist method on the status of Vilna
after the Polish occupation had been accepted by the Allied
Conference of Ambassadors in March 1923. The article turns out to
be a defense of the decision of the Ambassadors and an indictment
of the obstruction of the (right-wing) Lithuanian Government in the
League-led negotiations. The relevant legal criterion was whether
the decision corresponded to the situation of fact and to what was
required by
“international solidarity.” On both scores, Lithuania’s unwillingness to

accept a decision on the basis of self-determination (it had refused
to accept a plebiscite in this largely Polish-inhabited region) and the
interests of European peace tilted the scales against it. In Scelle’s
eyes, Lithuania was invoking an anti-social concept of sovereignty
while the Poles had been ready to accept the Allied verdict (which of
course underwrote the main Polish claim). In fact, Scelle concluded,
it was doubtful if Lithuania merited to have been constructed as a
State in the first place; autonomy or internationalization might have
produced a result better in accord with the ethnic and historical
solidarities and requirements of equitable administration.283 Scelle’s
views in the matter went on all points contrary to those of Le Fur,
from whom Lithuania had requested an opinion. The Ambassadors,
Le Fur had argued, had no jurisdiction to effect a de facto transfer of
Vilna to Poland without 281 Scelle, La traité, p. vii.
282 Cf. Georges Scelle, “L’Affaire de la Orinoco Steamship Company”

(1911), XVIII RGDIP, p. 201; “Le contrôle financier américain au
Honduras et au Nicaragua”
(1912), XIX RGDIP, p. 128; “La ratification de la Convention du

Gothard du 13
octobre 1909” (1913), XX RGDIP, p. 497; and “Les Etats-Unis

d’Amérique et les révolutions méxicaines” (1914), XXI RGDIP, p.
128.
283 Georges Scelle, “La situation juridique de Vilna et de son

territoire. Etude sur le différend polono-lithuanien et la force
obligatoire de la décision de la Conférence des Ambassadeurs du 15
Mars 1923” (1928), XXV RGDIP, pp. 730–780.
328
Lithuania’s consent.284 It was not an insignificant part of Scelle’s

argument that he viewed the Lithuanian government a
dictatorship.285 If politics and law were both about putting solidarity
into effect, there was little point in insisting on a distinction. Even if
the acts of a government de facto might be credited with prima facie
legality, such legality could be set aside in favor of more pressing
considerations.
Scelle was a thoroughly political animal. As a social radical, he
followed Bourgeois and later solidarists in taking an active interest in
the development of labor legislation and syndicalist solutions to the
social problems of the day. In 1924 he wrote of labor legislation in
very advanced terms in a collective volume that contained articles by
radicals such as Charles Bouglé, Lucien Lévy-Bruhl, and Gaston
Jèze.286 In the same year, as we have seen, he entered the Cabinet
of Justin Godart, the Minister of Labor in Herriot’s left coalition in
which he participated in the drafting of the laws that set up the
Conseil Nationale de l’Economie that sought to coordinate French
economic policies by integrating representatives from labor,
employers, and government. In 1927 he published a book for the
licence en droit on French and international industrial legislation,
endorsing the progressive steps that had been taken in France in the
past few years.287 Though he supported the claims of labor unions
for progressive industrial and labor legislation – including female
suffrage – he opposed communism and was critical of Soviet
policy.288
From the 1920s onwards Scelle published regularly articles and

commentaries in the leftist Depêche de Toulouse, Quotidien, and in
other papers, often with a much more polemical tone than in his
scientific work . 289 He admired the writings of the radical
philosopher Alain (Emile Chartier) and received from him a skeptical
attitude towards political oligarchies and nationalist rhetoric. He was
an active member of the committee of the Paix par le droit and of
the French and international League of Nations Associations and,
after a brief period of hesitation, a staunch 284 Cf. Consultations de
M. A. de Lapradelle, Louis Le Fur et André Mandelstam de la décision
de la Conférence des Ambassadeurs du 15 mars 1923 (Paris,
Editions internationales, 1928), pp.
41–80.
285 Scelle, “La situation juridique de Vilna,” p. 777.

286 Georges Scelle, La politique républicaine (2 vols., Paris, Alcan,
1924).
287 Georges Scelle, Précis élémentaire de législation industrielle (2

vols., Paris, Sirey, 1927).
288 On Scelle’s political views, cf. also Diggelmann, “Anfänge der

Völkerrechtssoziologie,” pp. 122–125.
289 He argued, for instance, that instead of adopting a position of

cold neutrality, the International Labour Organization should defend
the claims of the working class.
Cf. Antoine-Jean Leonetti, “Georges Scelle; Etude d’une théorie

juridique” (unpublished Thèse de doctorat d’Etat, Université de Nice-
Sophia Antipolis, January 1992, on file with author), p. 294.
329
supporter of the idea (though not always the practice) of the League
of Nations.290
Like many others, Scelle was profoundly influenced by the war

experience in which he saw in part a distinctly German folly but to a
greater extent a consequence of the anti-social ideas of sovereignty.
In this, he was firmly in the camp of Alvarez and Politis at home and,
for instance, Kelsen in Germany and Hugo Krabbe (1857–1936) in
the Netherlands.
His developed views were for the first time clearly laid down in a
1923
course at Fauchille’s Institut in Paris at which Le Fur had expounded

his
“philosophy” of international law two years earlier.291 Scelle argued
that the First World War had broken sovereignty in favor of
methodological individualism. It was now realized that like all
societies the international society was composed of individuals and
nothing but them – to ignore this was to remain trapped in an anti-
scientific collectivism. However, Scelle agreed with Rousseau or
Bourgeois that individuals were not the independent atoms of
rationalist liberalism. They were linked by innumerable solidarities
that varied in intensity and extent. Such solidarities formed the
substratum of social life, thus marking a de facto regionalism that it
would be unscientific to ignore.292 If States held a predominant
place among human collectivities this was just a historical accident.
There was nothing particular about them: they, too, were only a
means to realize individuals’ solidarity.
The State and its government constituted the main international

administrative organs, increasingly accompanied by properly
international bodies. International commissions, unions, and
technical organizations were multiplying. Public international law was
to coordinate these developments. Its principles formed the
unwritten constitutional law of the international society. In this way,
international law reflected the international social milieu: individuals
and collectivities were given to it as social facts. The rest of its
substance was divided into constitutional principles (principles of
public authority, legislation, and sanctions), administrative law (the
administrators, their sphere of competence, public services), the law
of contracts, and international penal law.293
290 Rousseau, “Georges Scelle,” p. 9.
291 Georges Scelle, “Essai de systematique de droit international

(Plan d’un cours de droit international public)” (1923), XXX RGDIP,
pp. 116–142.
292 Scelle, “Essai de systematique,” p. 119.

293 Scelle, “Essai de systematique,” pp. 124–141. Constitutional law
was above all a sociological law – without it, society would dissolve.
It distributed personal and collective 330
Most of Scelle’s mature ideas were present in this early sketch and
further elaborated in his general course at the Hague Academy of
1933, in the two-volume Précis that came out in 1932 and 1934 and
in an extensive report to the Institut international de droit public of
1935.294 Many of those ideas – monism, the significance of traités-
lois, and the role of the dédoublement fonctionnel – are quite well
known but it may be convenient to summarize them in four points.
First, positive law was a (more or less successful) translation of the

objective laws of social solidarity. Scelle followed Durkheim in
explaining social cohesion as an effect of mechanical and organic
solidarity, grounded in the biology of human needs.295 From these
emerged an implicit constitution that organized the government of
common affairs through procedures for legislation, jurisdiction, and
enforcement. None of this was a matter of choice. It was impossible
to live in society without those functions being dealt with in some
way.296 Legislation involved an essentially scientific task:297
the legislator has no other mission than to translate the laws of

existence [“lois de l’être”] into normative laws. It is their coincidence
that is the intrinsic foundation of the law’s validity, its extrinsic
validity residing in the regularity through which possession and
exercise of legislative competences is carried out. As the legislator
wills the law, he cannot but will what the law wills.298
This led into monism: like social reality, law, too, was one.
Distinctions between State law and international law, private and
public law were perhaps useful for exposition but without normative
difference. The bonds of solidarity (solidarity as fact, not as a
“feeling” or a moral principle) formed innumerable groups or
societies, within and between which different needs give basis to
different laws. Such societies were hierarchically related so that the
more inclusive ones overrode the less inclusive ones. For example,
treaties automatically overrode conflicting national law (although
their reception had a practical value in that it status as well as
providing for a judicial function. For analysis and criticism, cf.
Leonetti, “Georges Scelle,” pp. 304–312. In addition, private

international law (the sphere of which, however, was determined by
public law) was divided into international civil, commercial and labor
laws, Scelle, “Essai de systematique,” pp. 141–142.
294 Georges Scelle, “Théorie du gouvernement international”

(1935), Annuaire de l’Institut international de droit public, pp. 41–
112.
295 Scelle, Précis, I, pp. 2–5.
296 Scelle “Théorie du gouvernement international,” pp. 50–52.
297 This did not mean that anyone who disapproved of particular
legislation could ignore it. Legislation enjoyed the presumption of
being in accordance with the objective law ( hypothèse de bien
légiféré), cf. Scelle, Précis, II, pp. 297–299.
298 Georges Scelle, Théorie juridique de la révision des traités

(Paris, Sirey, 1936), p. 47.
331
made it easier for national administrators to apply them).299 The

law of humanitarian intervention, being a law of the international
society, overrode national sovereignty, that is to say, the
constitutional competence of the administrators of national
societies.300 Local solidarity cannot be opposed to a global one.
This is the foundation of Scelle’s
“federal phenomenon,” the slow integration of smaller units into

larger ones (but also the break-up of empires). It was visible in the
development from national to international to supranational
administration, from governmental to international guarantee of
legality, from diplomatic protection to international intervention.
Though international bodies were still mostly composed of
governmental representatives, secretariats had increasingly
independent representation, and sometimes, as in the ILO, even
professional interests.301
Second, like Duguit’s, Scelle’s social world consisted (“ultimately”) of

relationships between individuals.302 The individual was the only
real legal subject, endowed by society with “essential competencies”
and a sphere of discretion that grounded her freedom,
conceptualized – somewhat oddly – as the right to life, liberty,
movement, trade, and economic establishment.303 To be sure,
individuals entered into different types of social relations of which
the State was only the most intensive one.
Alongside it, the international milieu organized individuals also into

supra-State societies (international organizations, particularly the
League of Nations) and extra-State societies (such as the Catholic
church or the Jewish Council).304 But like all social conglomerates
the State was in the end a mere fiction: at the level of reality, there
were only individuals, either as subjects of liberties, objects of
behavioral regulation, or as administrators ( gouvernants), nothing
more.
Third, law’s function was to distribute competencies to individuals

who appeared either as private individuals exercising subjective
rights (or liberties) or as agents or administrators of particular
societies.305 Every new obligation was, somewhat as in Kelsen, a
modification of some person’s competencies.306 In the exercise of
competencies, individuals were not normally expected to realize their
own will but to act in the pursuit of public functions: legislation,
adjudication, and enforcement –
299 Scelle, Précis, II, pp. 349–364.
301 Scelle, “Théorie du gouvernement international,” pp. 77–79. For

the social-scientific basis of Scelle’s federalism, cf. Leonetti, “Georges
Scelle,” pp. 268–301.
302 Cf. Scelle, “Théorie du gouvernement international,” pp. 42–44.
303 Scelle, “Théorie du gouvernement international,” p. 66.
306 Scelle, Précis, II, p. 347.
332
conceived not in terms of the exercise of “rights” but doing what

was necessary (in the contract, however, the law had delegated the
determination of what is necessary to individuals).307 Hence
followed the famous doctrine of the dédoublement fonctionnel – the
situation where an individual has been put in a position of agent or
administrator of two or more societies, e.g. where a national
Parliament in approving a treaty legislated both for the national and
the international society. In the same way – and controversially –
national governments are also put in a position to administer
international society.308
Fourth, legal technique used material and procedural regulation (
droit normatif/droit constructif ) to attain its objective ( but) – the
satisfaction of social need. This was not necessarily identical with the
legislator’s subjective aim ( motif ).309 Normative law had to do with
the content of the behavioral obligation, constructive law contained
the procedures whereby it was legislated and administered and
violations were reacted to. The core of constructive law was society’s
(implicit) constitution.310
While juridical stability and material security were in national society

guaranteed by the State’s monopoly of force, the corresponding
international procedure – collective intervention – was poorly
developed.
From Scelle’s perspective, for instance, Article 10 of the Covenant

constituted a mutual guarantee by governments of the territorial
extension of their competencies – yet, the Council had only limited
powers to enforce them.311 In the wake of the Manchurian crisis it
had become evident, however, that those competences had to be
regarded as binding, and not restrained absurdly by the requirement
of unanimity that would include the vote of the parties.312 Scelle
received this conclusion from a thoroughly functional interpretation
of the Covenant – in fact a constitutionalization of the objectives of
the foreign policy of French liberals; a continuation of the struggle
Bourgeois had waged in favor of the standing military force at the
Hôtel Crillon in 1919.
Scelle’s language was idiosyncratic and repetitive – as befits a

sociological monism that reduced politics to an expression of non-
political necessities. The redescription of society through
methodological 307 Scelle, Précis, I, pp. 18–20; “Théorie du
gouvernement international,” pp. 49–52, 60.
308 Cf. Scelle, “Théorie du gouvernement international,” pp. 54–57

as well as Leonetti,
“Georges Scelle,” pp. 340–385 and Antonio Cassese, “Remarks on
Scelle’s Theory of ‘Role Splitting’ ( dédoublement fonctionnel ) in
International Law” (1990), 1 EJIL, pp.
210–234.
309 Scelle, Précis, I, p. 16; II, pp. 336–368.
310 Scelle, “Théorie du gouvernement international,” pp. 49–50.
311 Scelle, “Théorie du gouvernement international,” pp. 57–59, 62–

65.
312 Scelle, “Théorie du gouvernement international,” pp. 87–90, 92.
333
individualism and social solidarity – speaking not of State

sovereignty, for instance, but of the competence of national
administrators – opened social reality to an apparently less
ideological analysis than traditional language. Under it, governments
did not have a “right” to govern nor States a “reserved domain.”313
These were distorted expressions for the duty of governments to
provide for the welfare of their communities.
There were no open references to moral or political value: Scelle

thought ideas about justice subjective and unverifiable.314 The
concept of just war, for instance, was always “too easy to criticize”
because it was based on subjective notions.315 War was not illegal
because it was “wrong” but because it was anti-social. Scelle
avoided “evaluation” that would have been independent from an
analysis of what solidarity required – an analysis that was never
mere exposition of facts or of the positive law (i.e. of the reaction of
international legislators).316 This was the language of a sociological
positivism that fell on the side of the modernist reaction to the
breakdown of nineteenth-century political systems – the project
(initiated by Durkheim) of replacing morality by sociology and
thinking of social problems from the perspective of their
scientificresolution. Where Le Fur had combated individualism by
seeking a revival of Christian tradition, Scelle accepted individualism
but moved away from it by the assumption that its effects could be
controlled by constraining arguments drawn from modern (social)
science.
Scelle had no sympathy for nationalism or other non-functional

principles of social association. Although it was necessary that the
law protect (racial or religious) minorities, this was ultimately
“artificial subjectivism”: objective law knew neither majorities not
minorities, and made no distinction between religious or ethnic
principles that did not possess
“objective social validity” and would transcend them on the way to

federalism.317 Scelle had little tolerance for claims of self-
determination by colonized peoples. Colonization was a method of
administration of backward territories whose inhabitants were unable
to put their resources to active use. No nation had a right to enclose
itself; the control of territory implied the obligation to use it to
further international solidarity. The developed nations had an
obligation of trusteeship over the 313 Scelle, “Théorie du
gouvernement international,” p. 60.
314 Scelle, Précis, I, p. 41.
315 Georges Scelle, “Quelques reflexions sur l’abolition de la

compétence de guerre”
(1955), LVIII RGDIP, p. 6.
316 Cf. especially Georges Scelle, “La situation juridique de Vilna,”

pp. 730–780.
317 Scelle, “Théorie du gouvernement international,” p. 70.

334
less developed ones, only partially recognized in the mandates

system.
As a form of public service, it should turn into direct international

governance.318
Scelle hoped to provide a resolution to problems of international

politics by applying the solidarist framework – which invariably
turned out to prefer a slightly left-leaning liberalism with little
distance from the preferences of
French diplomacy. Methodological individualism
entailed that freedom of trade, movement, and commercial

establishment became central principles of the international order. To
limit such freedoms a special justification was always needed.319
Intervention was recast as a normal feature of a system in which all
government by definition was intervention in somebody’s
competence. Its lawfulness could be determined only by reference to
whether some action (the establishment of customs duties, the
treatment of individuals, occupation of a territory) was in fact in that
person’s competence – this again being a function of social utility
with the proviso that de facto administration constituted only a
prima facie presumption of competence.320 The law of territory was
recast as the “law of the public domain.” Areas of non-exclusivity
were constantly expanding: the coastal State, for instance, might
have servitude over coastal waters but no sovereignty.321
For Scelle, international law was about learning the scientific truth
about how society was to be administered so as to best secure the
attainment of social utility. The view had no limit: the international
milieu was merely one and a rather arbitrarily limited aspect of a
monistic world.
Disagreement about the law appeared as truth and error about
(social and biological) facts; not as struggle over interests or values.
It is not difficult to see how such theory might seem appealing to
deal with international conflict. Already formulating the problem
provided a solution: there was no irreducible antagonism between
interests; every conflict demonstrated error on somebody’s part and
it was the point of juridical technique to find out on whose part. War,
for example, could only be lawful or not; neither a matter of
privilege nor of formal definition, war was either anti-social violence
or enforcement, tertium non datur.322 Law and politics turned into
sociology with a normative task, just as 318 Scelle, Précis, I, pp.
143–145. For Scelle’s arguments about the need to open China and
Japan for foreign trade – forcibly if necessary, cf. Leonetti, “Georges
Scelle,” pp.
314–315.
320 Scelle, “Théorie du gouvernement international,” pp. 71–77, 81–

85.
321 Cf. in more detail the discussion in Leonetti, “Georges Scelle,”

pp. 325–335.
322 Scelle, “Théorie du gouvernement international,” pp. 101–106.
335
Durkheim had thought it might. Comte’s prediction (and Weber’s

fear) of the vanishing of the political class would become a reality;
politics became administration by experts.
The central weakness of Scelle’s objectivism was manifested in the

intangibility of the “reality” it postulated – a problem that left it
balancing between an inconsequential positivism and revolution,
accompanied by the hope that federalism will one day make this
problem disappear.
This may be illustrated by his 1936 treatment of the revision of

treaties, a pressing question of League diplomacy at the time. A
contractual theory had been unable to develop a workable doctrine
of rebus sic stantibus, possessing neither a criterion for identifying a
relevant change nor a procedure to put it into effect. To argue that
the rebus was an implied clause in the treaty or an inference from
justice necessitated recourse to psychological studies or moral
principles on which anything could be proved. The theory of
contractual equilibrium failed to see that many treaties – peace
treaties, in particular – reflected no balance at all.
Lacking a criterion, traditional theory was compelled to relegate the

question of revision to politics, to be resolved by power.323
By contrast, for Scelle treaties did not create the law but only
declared it.324 This appeared to make the problem of revision
disappear: a change of necessity would automatically transform the
legal situation as well.
But what to do if a State was using the rebus doctrine so as to

escape from unwanted obligations or obstructing a much-needed
change in defense of the status quo? For such eventualities, Scelle
conceded that formal law did enjoy a presumption of validity (
hypothèse de bon légiféré) – as a court judgment enjoyed validity
until overturned by a superior court.325 After all, then, formal law
was constraining, and independently of disagreement about the
demands of social necessity.
Scelle denied that his 1936 book was intended as a contribution to

the struggle over Versailles. However, he did stress that territorial
and peace treaties were not exempt from effect by change of
circumstances, and his 323 Scelle, Théorie juridique de la révision,
pp. 14–29.
324 That the international legislature consists of national legislatures

was reflected in the way draft treaties were presented to
parliaments, voted and entered into force through national legislative
processes. Though some treaties resemble contracts, most lay down
general rules and establish competencies for administrators. Of
course, the rule concerning third States does not apply, inasmuch as
there are no third States in regard to objective situations! In
practice, too, treaties often express a wider solidarity and end up
affecting State behavior far beyond the limited circle of parties.
Scelle, Précis, II, pp. 367–368; Théorie juridique de la révision, pp.
44–45, 50–52.
325 Scelle, Théorie juridique de la révision, p. 47; Précis, II, pp.

336–368.
336
views had clear consequences for that debate.326 The political

dilemma was this: a credible opponent of Hitler’s unilateralism
needed to show that there was some mechanism whereby
Germany’s legitimate grievances could be dealt with. Otherwise the
wide recognition of the obsoleteness of Versailles might have
enabled Hitler to portray himself as an executor of solidarity. But
unilateral revision could not be allowed.
However, there was no specific mechanism for treaty-revision that

would have been independent from that provided in the treaty itself.
And it was absurd (and anti-social) to think that in the absence of
specific provision no revision was possible. So revision had to be
sometimes possible by way of acte contraire. If a discrepancy
existed and was widely recognized, it might ultimately lead to
revolution – the institution of a “government of fact” that would
carry out the necessary legislative change by force –
such as the Allied government over Germany in 1918.327
This was, Scelle admitted, weak. Although the international legislator

had to consider proposed changes in good faith, there was no
guarantee that a legislator enjoying benefits from the status quo
would be ready for modifications. Absent effective institutions for
legislative change, politics would remain a battle between opposing
forces. Proposals to transfer revision to courts or to mediation were
implausible. Legislative change involved the translation of natural
laws into human laws, “a task at the same time scientific and social
in which judgments of compromise, equity and utility are
harmoniously married.”328 Only the Assembly had, under Article 19,
such competence. This was not a competence to revise but to
declare with binding force that the fact of obsoleteness was present
and that the treaty had to be revised.329 For Scelle, it was
inconceivable 326 To exempt territorial treaties from the rebus rule is
to fall back on the old idea of State territory as property, inherent in
the sovereign – whereas as social function, it is properly analyzed as
a territorial delimitation of the competence of the national
government, understood as performing a dual role as a national and
an international administrator. If the peace treaty is analyzed by
voluntarist theory, its continued maintenance cannot be sustained: it
was concluded under duress. But duress for Scelle was a social fact
with legislative consequences. Owing to its primitive character, the
international system sometimes allows bullets to replace ballots,
Scelle, Théorie juridique de la révision, pp. 57–58.
327 In France, for instance, the revolution of 1848 had been needed
to start the development that led to the institution of labor law and
finally the act on accidents of 1898
that set aside the individualist principles that had governed the
subject under the Code Civil, and enacted the revolutionary principle
of responsibility for risk. It is the same internationally. If
governments persist in upholding obsolete law, the ultimate means
of change is unilateral repudiation that may involve war, Scelle,
Théorie juridique de la révision, p. 50.
328 Scelle, Théorie juridique de la révision, p. 67.
329 Scelle, Théorie juridique de la révision, pp. 79–80.
337
– that is, against the social meaning (“sens social nécessaire”) of the
Covenant – that the Assembly’s view could be lawfully overridden.
But only a future supranational legislation would do away with the
danger of war as a last recourse. The future international legislator
should be entitled to directly modify national law, thus spelling the
end of sovereignty.
In a social environment, nobody had the right to an individual

morality.
With a veiled reference to the Nazi regime Scelle concluded his 1936
book with the wish that tyranny and violence would be eradicated
from society by legislation. Today, however, everything still hung on
the presumption of the binding force of present, formally valid law –
a presumption that fatally weakened Scelle’s objectivism, making it
appear just another politics of reform, among others.
The imposing architecture of Scelle’s 1919 federal utopia was

invulnerable to experience: in 1950 Scelle described the international
system as he had done thirty years earlier, as an aggregate of
individuals, living through varying solidarities, administered through
the dédoublement fonctionnel, with a residual international
administration, the United Nations, compromised by the right of veto
but once again carrying the hope of global federation.330 By the
onset of the Cold War such a view had lost political force. Its
combination of realism and utopia seemed insufficient under both
headings, too abstract to ground a realistic program for renewal and
far from independent of the political struggles that it hoped to
overcome. Scelle’s international world remained the world of public
diplomacy, Locarno Treaties, League of Nations, and the
International Labour Organization. That he was sidelined from the
preparation of the Schuman Declaration of May 9, 1950, the
century’s most significant federalist move, betrays the sense in
which his Droit des gens must have seemed to the cultivators of the
new pragmatism as old wine in yester-day’s bottles.
Which solidarity? Whose tradition? The Spanish Civil War Le

Fur and Scelle described the law as a translation of social or moral
necessities, anterior to the political society. Their objectivisms were
responses from the right and the left to the inability of party politics
to deal with the deepening problems of the period.331 Finding a
field of 330 Georges Scelle, “Le droit public et la théorie de l’Etat,” in
Georges Scelle et al. , Introduction à l’étude de droit (2 vols., Paris,
Rousseau, 1951), I, pp. 96–106.
331 Cf. Le Fur, “La démocratie,” pp. 530–583.
338
normativity outside politics, both hoped to contribute to the creation

of social life that would rely on something stronger than the artificial
structures of the liberal State. Yet the languages of tradition and
solidarity deviated in ways that far from transcending political
conflict reproduced it in the language of legal theory. Both were
aware of the problem in their adversary’s position: As Le Fur argued
against Scelle, mere reference to “biology” hardly transformed
politics into science. Whose
“biology” was meant? At least in Dr. Spencer’s sense, biology led to
war, not solidarity: an anterior moral choice was needed.332 On the
other hand, as Scelle pointed out, such a choice was always
somehow arbitrary, moral preferences being “essentially subjective
and varying in every particular case.”333 The attempt to postulate
an objective–scientific legal order outside politics remains a
persistent trait in the internationalist imagination; irrespective of the
embarrassing ease with which it bent to support political positions.
The Spanish Civil War (1936–1939) divided European intelligentsias

for the first time in uniformly right–left positions. Correspondingly, Le
Fur characterized the Phalangist action in terms remarkably similar
to those he had used to describe the Franco-German adversity in the
Great War. It was a “struggle between the Christian civilization and
atheistic communism or, more briefly, as Unamuno has said,
between civilization and barbarism.”334 For Le Fur, Franco led a
popular uprising against an illegitimate government. Despite his
stress on order and authority, and his criticism of nationalist
agitation in the 1920s, he now turned the tables of the law against
the formal government: the left had forfeited its right to govern.
Although it had come to power through elections, the electoral
system itself had worked illegitimately by bringing a slight de facto
majority into the government. The Phalangists were no rebels but
exercised a right of resistance, as consecrated in Christian theology.
In any case, he added, they were in possession of more than two-
thirds of Spanish territory.335
Hence, foreign States and the League were duty-bound to recognize

the Phalangists as belligerents and to refrain from assisting the
government or from allowing their nationals to do so.336 On the
other hand, the German and Italian intervention on Franco’s side
constituted a lawful reaction to communist attacks on foreign ships
and a permissible 332 Le Fur, “Règles générales,” pp. 96–97.
333 Scelle, Précis, I, p. 35.

334 Louis Le Fur, “La guerre de l’Espagne et le droit,” 2 (1938), 21
RDI (Paris), p. 98.
335 Louis Le Fur, “La guerre de l’Espagne et le droit,” 1 (1937), 20

RDI (Paris), pp.
348–352.
336 Le Fur, “La guerre,” 2, pp. 61–67.
339
counter-measure against the “massive” Soviet assistance to the

government.337 The bombing of Guernica by white air forces was a
tragic but understandable reprisal against the government troops’
earlier attacks and the communist strategy to locate military targets
in the middle of civilian areas.338 In any case, he wrote, much of
Guernica had already been destroyed by communist and anarchist
bombings on the ground.
Proof of the justice of Franco’s cause was that wherever territories

were
“liberated,” people enthusiastically joined him.339
Pleading full objectivity and non-partisanship, Scelle came in each

point to an opposite conclusion. There was no equality between the
parties: one was a lawful, elected government, the other a rebel
force.
The numerous nationalizations and requisitions which the loyalists

had carried out were lawful exercises of governmental competencies,
bound to incur respect from other States.340 In principle,
intervention on the governmental side was perfectly legitimate.
Moreover, in this case, non-interference was strictly illegal because it
amounted to de facto intervention in favor of the rebels in view of
the “massive” clandestine involvement of Italy, Germany, and
Portugal already on Franco’s side.341
Le Fur argued that League members had a duty of non-intervention

inasmuch as the Covenant had created a system of solidarity
between States and Art. 10 spoke only of action against external
aggression.342
For Scelle, however, non-intervention was incompatible with any

legal order and particularly with the Covenant. First, it isolated
States and was thus in conflict with the needs of solidarity. Second,
the history of diplomacy was a history of constant interference.
There was nothing new in this; also non-intervention is intervention
on the side of the status quo power. Third, under Art. 11 of the
Covenant, the Council had a duty to intervene where the
domesticsituation constituted a threat to the peace. Intervention was
also allowed under Arts. 16 and 17 as the situation in Spain could be
analyzed as war of aggression against the lawful government.343
The contrasting analyses of the Spanish Civil War by Le Fur and

Scelle followed naturally from the way they understood the events in
opposite ways. For one, this was a struggle by the Spanish people
against 337 Le Fur, “La guerre,” 2, pp. 65, 70–73.
338 Le Fur, “La guerre,” 2, p. 95.
339 Le Fur, “La guerre,” 1, pp. 366, 363–364.
340 Georges Scelle, “La guerre civile espagnole et le droit des gens,”
1 (1938), XLV
RGDIP, pp. 272–279.
341 Georges Scelle, “La guerre civile espagnole et le droit des gens,”
3 (1939), XLVI RGDIP, p. 197.
342 Le Fur, “La guerre,” 2, pp. 62–63.
343 Scelle, “La guerre civile,” 3, pp. 201–228.
340
Eastern barbarism; for the other it manifested the lawful

government’s effort to put down a rebellion sustained by foreign
intervention. There was no objective or innocent realm of pure
description: the effective solidarities could not even be identified
irrespective of political positions, in this case, either in favor of
electoral democracy and a functional concept of government, or “a
Christian corporatism and nationalist syndicalism.”344 Already the
identification of what counted as “order” was politics-dependent.
Thus, for Le Fur, “everywhere where Marxist communism is
established, it brings with it disorder and general ruin.”345
Even where “communism” installed and consolidated, it failed to

qualify as “order” because of its intrinsic barbarism. Le Fur pushed
his material notion of order so far that it turned into its formal
opposite: even if the governmental “order” had not been the overt
barbarism it was, it would still have had to yield to “the dynamism of
the nation,” carried out by revolution if necessary.346 For Scelle,
again, “order” was constituted of the exercise by the elected
government of its lawful competencies under the constitution. His
formalism was substantively based: even if the new law of the
Covenant dealt with governmental legitimacy, this was only in
connection with international war. In civil war, the nécessité sociale
to provide for the protection of outside interests necessitated the
detachment of the de facto government’s position from assessments
of legitimacy.347
Le Fur and Scelle were both advocates of anti-formalist legal theory.

For Le Fur, this meant that only relative value should be given to the
government’s status as such. The “barbarism” of the government or
the
“dynamism of the nation” were the operative principles.348 For

Scelle, again, intervention on the government’s side was received
from the material principle of solidarity: Spain’s abstract sovereignty
constituted no bar against intervention.349 While emerging from
apparently anti-formalist premises, both positions enshrined one or
other type of formalism as well: either the formalism of non-
intervention by a denial of League competence and an affirmation of
sovereignty (Le Fur) or the formalism of the government and an
affirmation of League competence by reference to Covenant
provisions and the loyalist status (Scelle).
347 Scelle, “La guerre civile,” 1, pp. 271–274.
348 It was clear for Le Fur, for instance, that the Franco government
was more respectful of international obligations (it had showed its
willingness to restore foreign property that had been subjected to
nationalizations) and to carry out a policy of national and
international reconciliation, Le Fur, “La guerre,” 1, pp. 81, 84–87.
349 Scelle, “La guerre civile,” 1, pp. 266, 273.
341
In the end, both positions predictably reflected the positions of right

and left intellectuals. They did nothing to support the view that law
had to do with the expression of scientific or moral necessities. To
the contrary, the political nature of the arguments was revealed in
the way neither lawyer could simply have “found out” that the law in
fact supported his opponent. Both positions were overdetermined:
the preferred outcome was argued correct from every conceivable
standpoint, even contradicting standpoints, to the extent that it was
no longer credible.
Despite its objectivist and scientist pretensions, the international law

practiced by Le Fur and Scelle was an inextricable part of interwar
politics and not an overcoming thereof.
The European Union
In 1929 France’s foreign minister Aristide Briand (1862–1932)
proposed to the League Assembly the creation of a European Union
to deal with the economic crisis in Europe. This proposal was
reflected in a French Memorandum of May 1, 1930 that suggested
the establishment of a
“régime permanent de solidarité conventionnelle pour l’organisation

rationnelle de l’Europe.”350 According to the proposal, the Union
would seek to deal with economic problems through political
agreements (an approach that was reversed in the 1950s). It would
not seek to replace the League but to complement its activities. It
would consist of a general conference connected to the League
Assembly, an Executive Council, and a permanent Secretariat. Most
States agreed in principle but put forward a number of reservations
concerning its proposed institutional form as well as the
subordination of economy to politics. The League Assembly set up a
Commission to study the proposals which, however, ended its
activity after Briand’s death and German exit from the League in
1933.
The proposal, de Lapradelle later noted, had been inspired by an

idea by Alvarez.351 Both Scelle and Le Fur took a positive view on it,
pointing at the indisputable historical fact of European solidarity.
“Sociology teaches us that federalism is a constant law of evolution

in 350 Briand Memorandum, Georges Scelle, “Essai relatif à l’Union
européenne” (1931), XXXVIII RGDIP, p. 528 n7. See also B. Mirkine-
Guetzewitch and Georges Scelle (eds.), L’Union européenne (Paris,
Delagrave, 1931), pp. 59–70. This collection also contains, apart
from the memorandum, the responses of 25 European governments
to it and excerpts from the discussion in the League Assembly in
1929 and 1930.
351 A. de Lapradelle, La paix moderne (1899–1945). De la Haye à
San Francisco (Paris, Editions internationales, 1947), p. 89.
342
human communities,” Scelle had written.352 Though Le Fur

observed that the histories and interests of European nations
differed and that they lacked a common juridical framework, he
emphasized the
“common morality” that united European peoples.353 Scelle felt

such differences rather superficial in view of the sociologically based
European solidarity. He had no doubt that European federalism was
on the way and praised Briand’s intuitive genius in making the
proposal precisely at the right moment when the League had shown
its inefficiency in dealing with European problems and outside States
were increasingly using the League to intervene in Europe.354
Both Scelle and Le Fur held the federal phenomenon ultimately

universal, not regional. However, both recognized the many ways in
which the League fell short of that ideal: the obstructive linkage
between the Covenant and the Peace Treaties,355 the predominance
of the Great Powers and the unanimity requirement,356 loopholes in
the dispute settlement and sanctions provisions.357 Scelle and Le
Fur agreed that the League’s most promising achievements were in
functional integration.
Setting up the International Labour Conference had been an

“excellent” means to decentralize the powers of the League into
cooperation that slowly expanded to other fields.358 The territorial
and commercial provisions of the Peace Treaties and the
organization of traffic in international rivers further expanded
international administration. The 352 Scelle, Précis, I, p. 188.
353 Scelle, “Essai,” p. 522. Louis Le Fur, “Les conditions d’existence
d’une Union européenne” (1930), 6 RDI (Paris), pp. 78–82.
354 Scelle, “Essai,” pp. 528–529.
355 Neither Scelle nor Le Fur seriously believed that a universal

federation had been created at Versailles. Law being a translation of
the state of social forces, Scelle wrote, no more could be attained
than what those forces permitted. Universal solidarity was only
twenty years old and hardly ready for federation. He thus accepted
that the League was also a provisional de facto regime over
Germany, a Sainte Alliance Démocratique. But once the threat of
German aggression was removed, the provisions of the Covenant
would allow a progressive transformation. Scelle, Pacte des Nations,
pp. 85–88, 125–150, Scelle, La morale, p. 17.
356 In due course, Scelle thought, the League needed to be

thoroughly democratized and composed of representatives of
nations and professions, not of governments “too much inclined to
apply obsolete formulas and career diplomats’ doubtful political
maneuvers.” Scelle, Pacte des Nations, p. 376. Now it was for public
opinion to bring this work to conclusion in accordance with the
“principles of liberalism and science.”
Scelle, La morale, pp. 14, 273–275. Citing Jaurès, Scelle proposed a

system of decision-making that would allow each community to
participate in accordance with its social usefulness. However difficult
it was to determine this, it was the only means to lay a basis for the
development of the organization in accordance with the needs of
solidarity.
357 Le Fur, Précis, pp. 261–309.
358 Scelle, Pacte des Nations, pp. 268–276.
343
League’s activities for the protection of women and children and

preventing drug traffic, mandates, and the minorities treaties had
significantly strengthened its federal ethos and pointed in the
direction of future activism.359
However, these achievements had been outweighed by political

disappointments. The crisis over Germany’s entry in the League in
1926 that resulted in the withdrawal of Brazil and the creation of
semi-permanent seats in the Council for Poland and Spain, made
Scelle draw the conclusion that the League needed to be
regionalized. Members should participate in League organs as
representatives of their regions. He advocated a kind of subsidiarity:
those matters should be treated regionally for which this was the
most effective or natural context. But in the long run, he always saw
this decentralization taking place in a functional, not geographical
way.360 For Le Fur, regional integration fitted nicely with his
“pyramidical” federalism, the objective of a balanced, hierarchical

order in which intermediate levels would have distinct competencies
appropriate to each.361
Yet both also saw difficulties in the proposal. The relationship

between the Union and the League was left obscure: might the
Union empty the League of its substance? Both also thought the
proposal timid: it maintained the sovereignty of its members.362 Le
Fur emphasized an additional, fundamental problem in the proposal.
How should “Europe” be defined? Russia, for instance, was only half-
European and Turkey only one-tenth so. The Soviet Union had
nothing whatsoever in common with Western civilization.363
Nonetheless, despite such problems, Scelle stressed the historical
significance of the proposal as a strategy for peace.
For peace could not be attained only by diplomacy. An organization

was needed. The League had been created for this purpose.
Although it still 359 Scelle, Pacte des Nations, pp. 380–395; La
morale, p. 8; Le Fur, Précis, pp. 610, 278–282.
For Scelle the League’s technical bodies constituted an international

public service that formed the roots of his supranational corporatism.
Inasmuch as they – like the Permanent Court – sometimes involved
non-League members, they acted through the dédoublement
fonctionnel as organs of a world community, Scelle, Précis, I, pp.
267–270.
360 He agreed with the proposal of the French Union of League of

Nations Associations that had used solidarist language in order to
defend the creation of groups of nations inside the League and
suggested that one of them be a European Union. Cf. Georges
Scelle, Une crise de la Société des nations (Paris, PUF, 1927), pp.
227–231, 247–248.
361 Cf. Le Fur, Précis, pp. 308–309 and especially Le Fur, “Le
développement historique du droit international de l’anarchie
international à une communauté internationale organisée”
(1932/III), 41 RdC, pp. 548–556.
362 Scelle, “Essai,” p. 532; Le Fur, “Conditions d’existence,” pp. 76–

77.
363 Le Fur, “Conditions d’existence,” pp. 74–75.
344
remained a contact point for foreign offices, many of its minor

aspects manifested a supranational, federal ethos. But one of the
mistakes of its founders had been the neglect of regionalism: “the
League could not become universal in any other way than becoming
regional.”364
For Scelle, the main merit of the proposal for a European Union was
that it contained an organization. Through it, the sharpness of
interest conflicts would diminish and European solidarity would be
strengthened. Again, Le Fur was more skeptical and warned against
“Anglo-Saxon” faith in the enlightened power of public opinion. To
work, the Union needed not only common principles but effective
institutions and sanctions. Chauvinist propaganda should no longer
be allowed. There should be a tribunal ou jury d’honneur to watch
over European journalists and education and to suggest, or possibly
to command, the suppression of activities that insulted other States.
In addition to the setting up of a European Court and a legislative
assembly, he suggested the creation of a European air force,
situated at equal distance from main capitals and having the
capacity to reach, by way of reprisal, the industrial centers of
potential aggressors.365
In April 1950, Jean Monnet (1888–1979) was preparing the proposal

that was to become known as the Schuman Plan that led to pooling
of the heavy industries of France and Germany within the European
Coal and Steel Community (ECSC) and eventually, in 1957, to the
Rome Treaty that established the European Economic Community
(EEC).
Contemplating the details of the plan Monnet requested the young

Professor of International Law from the University of Aix-en-
Provence, Paul Reuter (1911–1990), whom he knew from Reuter’s
previous association with the French Government, to provide an
opinion on certain territorial issues relating to the delimitation of the
plan. Monnet noticed Reuter’s sharpness and enthusiasm and
involved him in the small group of advisers who then drafted the
proposal that the French Foreign Minister Robert Schuman made on
May 9, 1950 and among France’s negotiators for the Treaty that
resulted from it.366
Reuter’s involvement in this process was, it seems, purely accidental.

Monnet had not consulted Georges Scelle or the other interwar
lawyers 364 Scelle, “Essai,” p. 524.
365 Le Fur, “Conditions d’existence,” pp. 92–94.
366 Cf. Jean Monnet, Mémoires (trans. Richard Mayne, London,

Collins, 1978), pp.
294–295; Paul Reuter, “Aux origines du plan Schuman,” in Mélanges

Fernand Dehousse (2 vols., Paris, Nathan, 1979), II, La construction
européenne, pp. 65–68; François Duchêne, Jean Monnet. The First
Statesman of Interdependence (New York and London, Norton,
1994), p. 200.
345
despite (or because of ?) having himself been a Deputy Secretary-

General of the League under Eric Drummond in 1919–1923 and
having had much experience in dealing with international lawyers in
connection with the Upper Silesian and the Saar questions.
Politically, too, Monnet had been close to Léon Bourgeois with whom
he co-oper-ated during those early years and with whom he had
been antagonized by the rightist Poincaré’s inflexibility over the
German debt question.
Moreover, one of his collaborators testifies that he was constantly

surrounded by lawyers – though also that he kept them on the
sidelines, feeling that their subtle literalism was sometimes an
obstacle to creative policy: “To envisage the final form of the
European Community today, when we have wanted it to be a kind of
process of change is a contradiction in terms. Anticipating the result
blocks the spirit of invention.”367
That the interwar lawyers played no role in the initiation of European

unification constitutes an ironical gloss on the nature of their
federalism.
Wanting to do away with sovereignty they in fact wanted to do away

with the discipline in which they were professionals. Le Fur’s natural
law, just like Scelle’s sociological objectivism, were escapes from the
political dilemmas that daily diplomacy had to grapple with. To
believe that the problems of international policy could be thought of
in terms of moral correctness and error – this was also the way
Politis put it in 1943 – was counter-intuitive and unhelpful. It was to
assume that the problems of the day were always already solved in
some jurist’s heaven – although nobody had access to it – and that
the task was not so much to settle and compromise than to try to
get there. Scelle’s sociology and his Rousseauan idea of citizenship
were no different in this respect. The assumption was that freedom
and community were not only reconcilable but dependent on each
other; that free will and individual interest were in harmony with
general will and interest. This was the heritage of French
republicanism
– that legal problems were really resolved outside the law, namely in
sociology and in the various technical and functional disciplines
Scelle advocated. Like Comte, Scelle had no argument to explain
why lawyers might have something useful to do in the scientifically
administered bureaucracy that was the logical outcome of his views.
It would be wrong to think that as the European Union today

imagines itself as a new legal order, it only draws the conclusions
earlier 367 François Fontaine, “Forward with Jean Monnet,” in
Douglas Brinkley and Clifford Hackett (eds.), Jean Monnet: The Path
to European Unity (Basingstoke, Macmillan, 1991), p. 55.
346
preached by the critics of sovereignty.368 That critique was part of a

rationalist optimism that was impossible to sustain as a basis of
credible reform after the final demise of the interwar system. If
there was to be federalism, it could not be seen as a realization of a
blueprint conceived at some academic’s desk. Paul Reuter, for
instance, was constantly on guard against “general ideas and
abstract formulas through which one often seeks to deal with
situations that have nothing in common” and the assessment that he
was “extremely hostile, not to ‘theory’ in its veritable sense but to
the a priori of theorists” suggests that he might not have looked too
kindly upon the kinds of speculation with which interwar jurists such
as Scelle and Le Fur felt themselves at home.369 The new
generation had been profoundly influenced by the experience of the
1930s, described later by Raymond Aron (1905–1983) as the
experience of an oncoming storm, and a difficulty in doing anything
about it: “I am still marked by this experience which inclined towards
an active pessimism.
Once and for all, I ceased to believe that history automatically obeys
the dictates of reason and the desires of men of good will.”370 In an
ironic twist, the teaching of the “men of good will” and pessimists
converged in that neither was able to find much for international
lawyers to achieve.
The rationalists took their lesson from Comte and Durkheim and saw
federation as a scientific necessity: only technical administration
would remain – politicians, soldiers, and lawyers were recast as
survivals from feudal or theological ages. Pessimists such as Aron
would look towards Weber and the irreducibility of power and
interest and lay their stakes with a statesmanship of prudence –
such as Monnet’s – as the only alternative to tragedy.
In the 1950s, the movement towards a European Union turned

Briand’s strategy on its head: instead of dealing with economics
through politics, it chose to deal with a political problem – the
security of Europe
– through economic solutions.371 In so doing, it effectively set aside
federalist views that were based on political or moral axioms,
generalizations about human nature or the good society. It became a
thoroughly functional enterprise, somewhat like Scelle had in 1919
imagined the 368 Although the ideas of direct effect and supremacy
were of course central in Scelle’s federalism, cf. also Leonetti,
“Georges Scelle,” pp. 298–301.
369 The quote and characterization of Reuter are from Jean

Combacau, “Paul Reuter, Le Juriste” (1989), XXXV AFDI, pp. xvii,
xviii.
370 Raymond Aron, “On the Historical Condition of the Sociologist,”

in Politics and History (New Brunswick and London, Transaction,
1984), p. 65.
371 For the dynamism written into the plan, cf. Paul Reuter, “Le plan
Schuman”
(1952/II), 81 RdC, pp. 531–537.
347
host city of his federal utopia. It was not for nothing that René-Jean
Dupuy (1918–1997) characterized the High Authority of the Coal and
Steel Community in 1957 as “le premier exemple historique de
l’avène-ment internationale des technocrates” and linked its origins
to the suggestions by Saint-Simon and Proudhon to employ technical
experts to advance corporate interests overriding those of States.372
The twilight of the idea of France: between politics and

pragmatism
Charles Rousseau (1902–1993) explained in his 1944 textbook on

the general principles of international law that he had aimed to
follow a
“strictly positive” method purged of all naturalism – if not indeed of

all theory. For the vice of natural law lay in its being “all theory,”
which meant it had no practical application. By contrast, Rousseau
would concentrate on the law immediately given through the work of
legal sources and the practice of States, international organizations,
and tribunals. In a rhetorical gesture that became a standard trope
of post-war legal pragmatism Rousseau explained that the problem
of the basis of international law’s binding force – its “foundation” –
was an extralegal one and could therefore be safely dismissed from
positive legal study. For most purposes, the materials that
international lawyers were to deal with were sufficiently identified by
legal practice – a position whose circularity was scarcely hidden by
Rousseau’s statement of his conviction that this was not at all
“un point de vue théorique” but a fact confirmed by practice

itself.373
The new spirit was also visible in the establishment of the Annuaire
français de droit international in 1955 for the purpose of following
and commenting upon the events of international relations on an
annual basis with the stated purpose of “avoiding the construction of
useless and dangerous systems, detached from the realities of
international life.”
Affirming that the studies and chronicles that were to be published

in the Annuaire would not neglect the “social context,” its statement
of purpose reflected a modest idea about international law not as a
field for speculation about world government or eternal peace but a
technical instrument of the diplomacy of the day.374 This did not
mean that 372 René-Jean Dupuy, “L’organisation internationale et
l’expression de la volonté générale” (1957), LX ( sic! ) RGDIP, p. 564
and for his prescient analysis of the Community’s democratic deficit,
Dupuy, “L’organisation,” pp. 566–579.
373 Charles Rousseau, Principes généraux du droit international
public (Paris, Pedone, 1944), pp.
42, 52–53.
374 “Avant-propos,” (1955), I AFDI, p. xiii.
348
international law would become increasingly marginalized at the

universities. On the contrary, in 1954 a course of international
institutions was for the first time made compulsory for the first year
of law studies in Paris and courses in international law topics were
offered in increasing numbers, usually with a historical or
“international relations” orientation, so as to allow easy access to
non-lawyers, taking up a sizeable part of the audience. In the 1960s,
the institutional aspect of international law teaching increased with a
predominance on European organizations and, after 1968, with the
conscious effort to become “more sociological.”375 The profession
continued to be concerned about its practical relevance, however,
worrying about the up-to-date quality of its teaching materials and
seeking closer contacts with the Quai d’Orsay. It was for this reason
that the Société française pour le droit international was set up in
1967
and specialized centers on international human rights law and the

law of peace and development were inaugurated at the universities
of Strasbourg and Nice the following year.
A well-attended colloquium on the teaching of international law that

took place in Geneva in 1956 expressly repudiated interwar
approaches to the topic and called for a “more objective and realist
study of the international milieu.” Study of international law must
provide adequate room for the underlying realities of positive
law.376 Oddly enough, what those preceding doctrines were
charged with was “formalism” – when in fact much of the French
international legal tradition from Renault and Pillet to Le Fur and
Scelle had been decidedly anti-formalist, Alvarez even having made
a career out of preaching against formalism. Yet already at this time
concern was voiced about the proliferation of methods and
disciplines around international law and international relations and
that the increasing technical specialization of the field led to a loss of
“une vue synthétique et sainement équilibrée” in its education.377
This oscillation as well as the finding of the enemy in the formalist

camp (which was in fact empty) testified to a certain malaise about
the pragmatic turn. Surely international law had to be connected to
something grander than the day-to-day problems of diplomacy.
Although as 375 Cf. “L’enseignement du droit international publicen
France” (1956), II AFDI, pp.
981–985; “Les études de droit international dans les facultés de droit

françaises”
(1962), VIII AFDI, pp. 1233–1234; “L’enseignement et la recherche

en droit international en France face aux besoins de la pratique”
(1967), XIII AFDI, pp. 1157–1158;
“La société française pour le droit international” (1968), XIV AFDI, p.

1172.
376 Paul de Visscher, “Colloque sur l’enseignement du droit

international,” Rapport (1956), LX RGDIP, pp. 570, 572.
377 De Visscher, “Colloque,” p. 569.
349
René-Jean Dupuy pointed out in his early critique of the European

institutions, pragmatism in fact followed from strands of French
political thought, it failed to highlight what earlier lawyers had
expressed in terms of l’idée de France, active pursuit of universal
enlightenment, humanitarianism, and liberty. In 1945 Albert de
Lapradelle still addressed the French delegation that was preparing
to depart to the San Francisco Conference in the grand tradition,
observing that it belonged to France,
“before any other nation, to put to the service of humanity the

clarity of its thought, the generosity of its genius, and the memory
of its pains.”378
Such language was gravely undermined by the difficulties which the

delegation would have in obtaining a Security Council seat for
France, its most pressing concern. The age when universal
humanitarianism and the French self-image coalesced was over. Paul
Reuter saw this clearly as he confessed that the finding of the
solution to the problems of European politics from the construction
of a common market for large French and German steel companies –
that is to say, “taking Europe seriously” – would mean to give up un
certain idée de France.379
It would be wrong to say that no effort was made at French

universities after the war to recreate a “synthetic view” with the help
of theory
– only that those efforts had no success whatsoever. The two articles
in the 1950s Revue générale that engaged in doctrinal abstraction
both attacked sociology as the founding discipline of international
law, repeating the point about the impossibility of drawing norms out
of social facts. Truyol y Serra and Smyrniadis (was it a coincidence
that both were foreigners?) decried the spiritual poverty of
positivism and advocated a turn to metaphysics and morality – yet
failing to answer the pragmatist’s objection about the arbitrary or
non-consequential nature of what one came up with as one’s
fundamental principles.380 When the latter claimed that this
morality was “anchored in the conscience of human beings” he
seemed to be echoing Marcel Sibert’s (1884–1957) 1951 textbook
which based the necessity of international law on the fact that “[l]a
conscience des peuples honnêtes la proclame.” Sibert at least was
able to translate his moral generalizations into a theory of ordre
public that had some technical–professional meaning for lawyers;
whereas Smyrniadis’ “international morality” was left floating in a
conceptual 378 His originally anonymous analyses and appeals
having been collected in Lapradelle, La paix moderne, pp. 141, 136–
138.
379 Reuter, “Aux origines,” p. 66.
380 Antonio Truyol, “Doctrines contemporaines du droit des gens”

(1950), LIV RGDIP, pp. 415–416; Bion Smyrniadis, “Positivisme et
morale internationale en droit des gens” (1955), LIX RGDIP, pp.
110–120.
350
heaven that already accommodated the equally intangible

abstractions of Politis and Le Fur.381 The genuine difficulty about
doctrine is perhaps best illustrated in the fact that French
international lawyers did nothing to follow Roberto Ago’s (1907–
1995) quite brilliant distinction between
“positive law” that was actually legislated into existence and

“positive law” that was spontaneously followed irrespective of
whether it could be traced back to a legislative will or legal
procedure.382 Here would have been a sociologically based
articulation of something like a modern theory of natural law with a
concrete content. But it was one thing to declare it as part of an
academic debate about doctrines and traditions
– in which it fared quite well – and another to suggest that lawyers

could in their practical work dispense with formal sources or
arguments about State will. In the final analysis, perhaps it was
genuinely irrelevant what the “basis” of international law was;
perhaps there was neither need nor possibility for a theoretical
justification for the practices in which lawyers engaged; perhaps
they were best thought of as the kind of bricolage of which Lévi-
Strauss had written, the haphazard collection of bits and pieces from
available argumentative techniques so as to deal with practical
problems as they emerge in the routines in which international
lawyers participate.
Perhaps it was the imperative need to decide between Scelle and Le

Fur, and the impossibility of making that choice, that explained the
move to pragmatism. Both lawyers were critics of diplomacy who
advocated a central place for international law in the administration
of international society. Both rejected formalism and constructed
their law so as to express ideas, principles or facts outside the legal
system; either in a pre-existing social solidarity (Scelle) or the
tradition of Christian humanism (Le Fur). But how could one choose?
For, as innumerable critics of solidarism pointed out – and as Duguit
acknowledged in his later years
– one needed a conception of justice so as to give normative

direction to one’s sociological generalizations. Le Fur knew this, but
sought justice from a particular (and controversial) tradition.
Somehow, the door to the universalism of 1789 and the related idée
de France had been closed. Every justice had become either so
general as to be meaningless, or was revealed as ideology. The
choice between “solidarism” and “tradition”
revealed aspects of both. On the one hand, there was the ease with
which solidarity as an abstract doctrine could be turned to buttress
381 Marcel Sibert, Traité de droit international de la paix (2 vols.,
Paris, Dalloz, 1951), II, pp.
8, 14–18.
382 Roberto Ago, “Droit positif et droit international” (1957), III
AFDI, pp. 14–62.
351
Christian humanitarianism and tradition invoked to defend individual

rights. On the other hand, these apparently endlessly flexible terms
did have a concrete, culturally fixed meaning in the France of the
1920s and 1930s as signifiers for radical syndicalism and
conservative authoritarianism. What went on behind the academic
façade was a thoroughly political controversy. And it is at least to
some extent the utter helplessness of those doctrines on the eve of
the war that made it impossible for post-war lawyers to espouse
them anew. The new generation did not turn to pragmatism because
it was theoretically unsophisticated. On the contrary, as Peter
Sloterdijk has shown, it had learned all the critical lessons of the
Enlightenment, and that everything is relative, even its own idea:
and that the recognition of this fact has left it only the outlet of
lowering its expectations, of becoming profoundly, and unreflectively
“real.”383
383 Peter Sloterdijk, Critique of Cynical Reason (trans. M. Eldred,

foreword A. Huyssen, University of Minnesota Press, 1987).
352
Lauterpacht: the Victorian tradition in
international law
Less than two months after the capitulation at Munich, on November
16, 1938, Hersch Lauterpacht delivered an address to the League of
Nations Union of his new academic home, Cambridge University, on
the general subject of the League. He started the address by
confiding to his audience that this was a topic on which he felt so
strongly as to be unable to trust the “freely spoken word” and that in
order to maintain restraint and deliberation, he would read from a
manuscript, as was not his custom.1 Nonetheless, the address
departs from Lauterpacht’s customary, detached and complicated,
somewhat dry English at several points, most notably when, slightly
after the middle, he switches over to the first person plural. The
address opens with the argument that the events of the 1930s – the
Manchurian and Abyssinian Wars, the Munich accords – and the
attitudes taken by key League members have meant that the
Covenant’s collective security provisions, the territorial guarantee
(Art. 10) and the obligation of collective response (Arts 15 and 16),
have fallen into desuetude. In the fulfillment of its principal
objective, the League has failed. All that remains is the hope –
asserted without conviction – “that the true spirit of man will assert
itself in the long run.”
Then follows the abrupt and uncharacteristic jump into informality

and engagement:
1 “The League of Nations,” in International Law, being the Collected

Papers of Hersch Lauterpacht (4 vols., systematically arranged and
edited by Elihu Lauterpacht, Cambridge University Press, 1970–
1978), 3, p. 575.
353

But what have we to do in the meantime? Ought we to abandon the
League and start afresh as soon as the obstacles disappear? Ought
we to maintain it and to adapt it to the needs of a retrogressive
period? Ought we to pursue the ideal of universality by reforming
the League so as to make it acceptable for everyone? Ought we to
admit that if peace cannot be achieved by collective effort, there are
other good things that can be achieved through it?2
The questions are asked in a rhetorical, anxious mood, at least as

much to highlight the urgency of the situation as to indicate
alternative ways of response. Should the law be abandoned, or
modified, should its content or scope be adjusted in accordance with
political realities? The questions are familiar to international lawyers
continuously managing the distance between ought and is, law and
fact. Here the issues at stake seem to be exceptionally great,
however. They concern the intrinsic rationality of federalism and its
concomitant, law and order through collective security: “progress in
things essential has been arrested and the clock turned back.”
Lauterpacht’s address posits a cultural or political community that

feels estranged from the course of interwar politics – the politics of
national over common interests, of the reign of “short-sighted
benefits”
over stable and balanced growth, and the rise of dictatorships “on a
scale unprecedented in history.”3 There is little doubt about the
principles which identified Lauterpacht’s Cambridge audience as a
community. To invoke those principles Lauterpacht chooses to look
into the past – like Grotius once did in seeking authority from the
customs of the Romans,
“better peoples and better times.”4 Traveling beyond the immediate

past, the nationalisms and disorder of the fin-de-siècle, his gaze
stops at the words of the Prince Consort at the 1851 International
Exhibition in London: “Nobody who has paid any attention to the
peculiar features of our present era will doubt for a moment that we
are living a period of the most wonderful transition which tends
rapidly to accomplish that great end to which indeed all history
points – the realization of the unity of mankind.”5 And in a tone of
unmitigated Victorian nostalgia: “How 2 Lauterpacht, “The League of
Nations,” p. 583.
3 Lauterpacht, “The League of Nations,” pp. 580–582.
4 Hugo Grotius, De jure belli ac pacis. Libri tres (translation, F. W.

Kelsey, 3 vols., Carnegie Endowment for International Peace, 3,
Classics of International Law, 1925),
Prolegomena para. 46 (p. 25).
5 Lauterpacht, “The League of Nations,” p. 587. In his monumental

history of the nineteenth century, Peter Gay links this statement to
the Lord Mayor’s Banquet of 1850, predating the Exhibition. The
Bourgeois Experience. Victoria to Freud: The Education of the
Senses (5 vols., Oxford University Press, 1984–1999), I, p. 46 and
generally, pp. 45–56.
354
Lauterpacht: the Victorian tradition in international law

immeasurably far backwards do we seem to have travelled from
those days of unbounded optimism?”6
To find a place for law in a dangerous time, Lauterpacht looks back

into the middle of the nineteenth century and hopes to resuscitate
its liberal rationalism and its ideal of the rule of law, its belief in
progress, its certainty about the sense and direction of history –
Proust’s bon ange de la certitude. For him, Munich seemed deadly
because it was an un-Victorian, anti-traditionalist attack on the
political ideals – and the political system – that had become
entrenched during the heyday of the bourgeois century. The way to
combat it was to engage the public opinion for the defense of the
idea of the League of Nations as a world federation, the “culmination
of the political and philosophical systems of leading thinkers of all
ages . . . the final vision of prophets of religion.”7
This was no sudden turn in Lauterpacht’s thought. Throughout the

1920s and 1930s he had critiqued a “positivism” that had extolled
the virtues of statehood and sovereignty and, allying itself with
aggressive nationalism, been responsible for the catastrophe of the
First World War. This was to be replaced by a gapless and
professionally administered system of cosmopolitan law and order in
the image of the liberal State. Historians debate over the
“modernist” and “traditional” understandings of the effects of the
First World War on European consciousness.8 In this optic, I see
Lauterpacht as a traditionalist for whom the war 6 Lauterpacht, “The
League of Nations,” p. 587. Examples of nostalgia abound. For
example, Lauterpacht thinks that Westlake’s doctrines could be
accepted today with only “minor alterations” owing to supervening
political changes, “Westlake and Present Day International Law”
(1925), Collected Papers, 2, p. 400. Discussing in 1959
the 1871 London Protocol Lauterpacht notes that “[i]n comparison of

what was to follow, this was a law-abiding age,” “International Law
and the Colonial Question 1870–1914,” Collected Papers, 2, p. 99.
7 Lauterpacht, “The League of Nations,” pp. 583, 585. Lauterpacht’s

general lectures in the Lent Term of 1938 founded international law
under the Covenant on the peace schemes of Dubois (1305), Sully
(1603), and William Penn (1693), and invited students to read
interwar commentary on them. It then presented the “legal
organization of peace” in five parts: (1) The duty not to resort to
force; (2) the duty of peaceful settlement; (3) the duty to accept
arbitral or judicial settlement; (4) the duty to enforce collective
decisions; and (5) the duty to participate in the machinery of
peaceful change.
This was a complete constitutionalization of international affairs, a

system of Rule of Law writ large. Syllabus of Six Lectures by
Professor Lauterpacht on the Legal Organization of Peace in the Lent
Term, 1938 (unpub. syllabus, on file with author).
8 For the modernist view, cf. Paul Fussell, The Great War and
Modern Memory (Oxford University Press, 1975). For the
traditionalist interpretation, cf. Jay Winter, Sites of Memory, Sites of
Mourning. The Great War in European Cultural History (Cambridge
355
of 1914–1918, together with its causes in aggressive nationalism as

well as the twenty-year crisis that followed it, constituted an
irrational rupture in the peaceful and inherently beneficial
international developments associated with the nineteenth century.
Lauterpacht always characterized the interwar years as a period of
“retrogression.”9 It was retrogression from the cosmopolitanism that
had inspired Wilson in Paris in 1918–1919 but which owed its origin
to the high liberalism of half a century before.10 Lauterpacht never
gave up Victorian ideals, liberalism and progress. On the contrary, he
reasserted them in response to the experience of the Second World
War in a famous 1946 article on the
“Grotian Tradition in International Law” as well as in his post-war

writings on human rights, rooting them expressly in the rationalist
philosophy of the Enlightenment.11
Lauterpacht’s traditionalism sets him apart from his Viennese teacher

and contemporary Hans Kelsen, a legal modernist par excellence.
Although Lauterpacht did hold Kelsen in the greatest esteem (and is

reputed to have had a photo of Kelsen on the wall of his study,
together with the photo of his mentor Arnold McNair (1885–1975)
and an engraving of Grotius) and was impressed by the
constructivist imagination at play in the Pure Theory of Law, he
differed strongly in regard to the place of natural law for legal
construction. Where Kelsen, in a pure modernist fashion, sought
refuge from a politics gone wrong in pure form, Lauterpacht insisted
on the need to incorporate by reference fundamental (Victorian)
values as the only guarantee against the politics of irrationalism.12
19 Cf. e.g. Hersch Lauterpacht, “International Law after the

Covenant” (1936), Collected Papers, 2 (1936), p. 145.
10 For Lauterpacht’s early enthusiasm about Wilson and the League

of Nations, cf. “The Mandate under International Law in the
Covenant of the League of Nations” (1922), Collected Papers, 3, p.
40.
11 McNair remembers Lauterpacht telling him that the article on the

Grotian tradition
“contained more of his essential thinking and faith than anything

else he had written,” “Memorial Article” (1960), Annals of the British
Academy (hereafter McNair), p. 379. Cf. also International Law and
Human Rights (London, Stevens, 1950) and the discussion under
Nuremberg and Human Rights below.
12 Hersch Lauterpacht, “Kelsen’s Pure Science of Law” (1933),

Collected Papers, 2, pp.
404–430, especially pp. 424–429, where Lauterpacht argues that

Kelsen’s rejection of a natural law basis for his system was
“unnecessary.” My reading of Kelsen as a legal modernist is slightly
more elaborated in “The Wonderful Artificiality of States”
(1994), 88 American Society of International Law ( ASIL)

Proceedings, p. 22 et seq. In a survey Alfred Rub has, however, piled
Kelsen together with the other 1920s reconstructivists that aimed to
combine naturalist with positivist aims, Hans Kelsens
Völkerrechtslehre.
Versuch einer Würdigung (Zurich, Schultess, 1995), p. 19.
356
Lauterpacht: the Victorian tradition in international law However, had

Lauterpacht been simply a naturalist critic of nationalism and
sovereignty, there would be little reason to distinguish him from the
mainstream of the reconstructive scholarship that arose during the
1920s in Europe and elsewhere, was branded “Utopianism” in the
1940s and 1950s and is now practically forgotten. True, he does
confess to a utopian federalism, liberal humanism, and the
associated values of cosmopolitan individualism. Kant (together with
Grotius) is his acknowledged spiritual father. But the liberal legacy is
ambiguous and in his professional work Lauterpacht treads a more
complex path that could not have been taken by such traditionalist
interwar figures as, for instance, Politis in France or Schücking in
Germany – names that, unlike Lauterpacht, enter legal texts only to
mark the discipline’s historical continuity and pedigree, like ancestral
portraits in the house of legal pragmatism, irrelevant beyond
decorative purpose.13
Lauterpacht belongs to the modernist camp in that he, like Kelsen,

shares a non-essentialist epistemology. He is skeptical about the
ability of interpretative methods to safeguard against arbitrariness.
Hence, for example, his emphatic and repeated criticism of judicial
recourse to the doctrine of “normal meaning,” which assumes what
is to be proved and simplifies out of recognition the constructive
aspects of judging.14
Principles of interpretation “are not the determining cause of judicial

decision, but the form in which the judge cloaks a result arrived at
by other means.”15 Nor are pure facts impartial arbitrators of
normative disputes. Whether an entity is a State is not imposed on
the observer through an “automatic test” but the result of
construction, undertaken, of course, “in good faith and in pursuance
of legal principle.”16
Law is how it is interpreted. Lauterpacht’s modernity lies in his
constant stress on the primacy of interpretation to substance, of
process to rule in a fashion that leads him into an institutional
pragmatism that is ours, too. Such nominalism liberates lawyers to
create international 13 Unlike his ultra-traditionalist Viennese
contemporary, Alfred Verdross, Lauterpacht did not assume that the
unity of mankind could realize itself by an incessant repetition of its
intrinsic rationality. Where Verdross relied on the self-evidence of
natural law, Lauterpacht stressed the constructive role of judicial
practice in fixing its meaning, cf. e.g. Lauterpacht, International Law
and Human Rights, pp. 103–111.
14 Hersch Lauterpacht, “The Doctrine of Plain Meaning,” Collected

Papers, 4, pp.
393–403. Likewise The Development of International Law by the

International Court (2nd edn., New York, Praeger, 1958), pp. 49–60,
116–141.
15 Hersch Lauterpacht, “Restrictive Interpretation and the Principle

of Effectiveness in the Interpretation of Treaties,” Collected Papers,
4, p. 410.
16 Hersch Lauterpacht, Recognition in International Law (Cambridge

357
order by imagining that it already exists. However, it raises the

further question of power, about who it is that is vested with the
interpreting, meaning-giving authority? Thereby it creates what for
Lauterpacht became the single most important problem of the
existing international legal order, the problem of self-judging
obligations, the State’s ability to interpret for itself what its
obligations are.
Now Lauterpacht is able to dispose of this difficulty only by returning
to a liberal historicism that sees in public opinion, interdependence,
common interests, and the indivisibility of peace compelling causes
for a federalism that will dispose of self-judgment. As the
international community outgrows the temporary phase of State
sovereignty, a system of public administration will emerge that fulfills
the ideal of the Rule of Law. Interpreting the law becomes the task
of impartial and responsible public officials, in particular lawyers.
Even as the League was struggling with the Abyssinian fiasco, and
neutrality and alliances surfaced to replace collective security,
Lauterpacht continued to profess “faith in the ultimate assertion of
reason in the relations of man [from which] conceptions like the
League of Nations and collective security must be regarded as
manifestations of a permanent and ever recurring purpose, and their
eclipse must be regarded as temporary and transient.”17
Finally, Lauterpacht always saw, and frequently characterized himself

as, a challenger of orthodoxy, a “progressive.”18 His main works
open up as criticisms of doctrines and theories that marginalize
international law as a “primitive” law or seek to limit its application
by recourse to concepts such as “political” or “non-justiciable
disputes.” Situating international law within a historical trajectory of
European thought towards a Kantian, cosmopolitan law, he attacked
entrenched substantive doctrines about the nature of recognition of
States and governments, the position of the individual in
international law, the criminal responsibility of States, State
immunity, etc. that in one way or another appeared as obstacles to
the law’s great passage to universalism.
It is important to be clear about the sense of these critiques. The

“progressivism” from which they emanate is not in conflict but
perfectly compatible with nineteenth-century liberal sentiments – as,
indeed, the quote 17 Hersch Lauterpacht, “Neutrality and Collective
Security” (1936), Politica, p. 154.
18 He does this most frequently in an indirect way, by praising the
progressive spirit of scholars with whom he agrees. Cf. e.g. Hersch
Lauterpacht, “The Grotian Tradition in International Law” (1946),
Collected Papers, 2, pp. 359–363; “Westlake and Present Day
International Law,” p. 402; “Brierly’s Contribution to International
Law”
(1955), Collected Papers, 2, p. 431. Cf. also International Law and

Human Rights, pp.
103–111.
358
Lauterpacht: the Victorian tradition in international law from Prince

Albert’s speech makes clear. The target is not (European) tradition
per se, nor even the main current of that tradition, Enlightenment
thought. Lauterpacht’s critical posture is internal to its cosmopolitan
and rationalist mainstream and directed at the margins, against the
“metaphysical” or outright “mystical” doctrines of nationalism,
statehood, and sovereignty. Thus, for example, Lauterpacht criticizes
Spinoza’s doctrine of the reason of State and his separation of
individual and State morality as an illogical deviation from the
healthy rationalism of his general political philosophy. Somehow,
when dealing with international relations, “a fatalistic determinism
took the place of reliance upon the power of reason . . . the master’s
hand lost its cunning.”19
As I will argue more fully later on, Lauterpacht’s critique emanates

from, or at least can be understood against the background of, the
Austrian liberalism that had its heyday in the 1860s but disintegrated
under the pressure of the nationalist, antisemitic mass movements
of the fin-de-siècle years. For Lauterpacht, “Hegelian” philosophy as
well as the associated code names, “Hobbes” and “Machiavelli”
assume the role of respectable scholarly representatives for those
anti-liberal sentiments, the separation of law and statehood from the
rationally right.20 From such posturing, Lauterpacht’s critique
extends to “politics” in general, branded as irrational, egotistic,
short-sighted, and certainly “unscientific.” All of this follows from the
aim to liberate history’s intrinsic rationality by a legal ordering of
international affairs.
Lauterpacht’s ambivalence towards colonialism may illustrate the

direction and limits of his liberalism. On the one hand, Lauterpacht
regards the nationalist, exploitative face of imperialism as “the most
ruthless economic exploitation of native peoples, maintained by the
des-poticrule of military administration.”21 On the other hand, he
admires the “liberal tradition in British foreign policy” that abolished
slavery and the Independent State of the Congo and led to treaties
to protect the natives. Lauterpacht saw these activities marking a
progressive turn in 19 Hersch Lauterpacht, “Spinoza and
International Law” (1927), Collected Papers, 2, pp.
374, 375.
20 Lauterpacht, “Spinoza and International Law,” pp. 366–384. Thus

as “totalitarianism and its denial of fundamental human freedoms
drew their mystical inspiration from the philosophical revolt against
reason – one of the most characteristic manifestations of the
German National-Socialistic and Italian Fascistic doctrines – it was
inevitable that the drive to vindicate human rights should, once
more, ally itself with the rationalist foundations, truly laid by Locke,
Newton and Jefferson, of the philosophy of natural law,”
International Law and Human Rights, p. 112.
21 Hersch Lauterpacht, “The Mandate under International Law in the

Covenant of the League of Nations” (1922), Collected Papers, 3, p.
39.
359

the doctrine of the subjects of international law that became
concrete in the League’s Mandates system.22 The differentiation
works on the basis of humanitarian sentiments that were quite
central to the mid-Victorian liberal consciousness. Awareness of
complexity, ulterior motives, the powers of desire, and the effects of
its repression – essential to modern mentality and especially its
(tragic) realism – are non-existent. Where Kelsen, for instance, was
quite conversant with Le Bon’s theories of the irrational behavior of
the masses, it would have been unthinkable for Lauterpacht to
integrate such disturbing evidence into his ordered world. For
Lauterpacht, even at the worst of times, the world remains a whole,
united in the rational pursuit of liberal ideals.
Here he is in 1941, defending the “reality of the law of nations”

before the Royal Institute of International Affairs, Chatham House:
The disunity of the modern world is a fact; but so, in a truer sense,
is its unity.
Th[e] essential and manifold solidarity, coupled with the necessity of

securing the rule of law and the elimination of war, constitutes a
harmony of interests which has a basis more real and tangible than
the illusions of the sentimental-ist or the hypocrisy of those satisfied
with the existing status quo. The ultimate harmony of interests
which within the State finds expression in the elimination of private
violence is not a misleading invention of nineteenth century
liberalism.23
Today, international law remains one of the few bastions of Victorian

objectivism, liberalism, and optimism. After realism, however, we
may no longer feel comfortable in speaking the (paternalistic)
language of the
“harmony of interests.” When called upon to defend our nineteenth-

century doctrines, irony may remain our only weapon: “so what
better have you got?” Not so with Lauterpacht. His seriousness is
warranted by his faith and his faith by a temporal displacement.
Even if irrationality is here today, rationality prevails tomorrow. For
me, Lauterpacht’s main contribution to international law is to have
articulated the theoretical and historical assumptions on which the
practice of international law is based in a fashion of exceptional
clarity. If we want to continue those practices, but feel embarrassed
when we try to express their premises, I see only two ways out.
Either the practice must be changed (to reflect our
modern/postmodern theory) or we have to engage the theory. But it
is no longer possible to proclaim prophetic certainties in order to 22
Hersch Lauterpacht, “International Law and the Colonial Question
1870–1914,”
Collected Papers, 2, pp. 101–109.
23 Hersch Lauterpacht, “The Reality of the Law of Nations,”

Collected Papers, 2, p. 26.
360
Lauterpacht: the Victorian tradition in international law defend

having societies’ foundational questions squeezed into the form of
legal disputes, to be managed in bureaucratic routines by the only
remaining group of Victorian gentlemen, international lawyers.
This is why Lauterpacht’s work feels historical and contemporary

simultaneously. We have been able to add little to the analysis of the
relationship of law and politics after the debates between
Lauterpacht, E. H.
Carr (1892–1982), and Julius Stone (1907–1985).24 We still regard

as authoritative his writings on the Permanent Court or its successor
or on any substantive international law problem. Still after his
hundredth birthday, Lauterpacht remains interesting as he belongs
to the era of our fathers and grandfathers, bridging the gap between
the liberal rationalism of the nineteenth and the functional
pragmatism of the late twentieth century. Close and distant at the
same time, he is uniquely placed to provide an understanding of why
it is that we stand now where we do.
Whatever Oedipal urge may be satisfied by a recounting of his work

will, I hope, be excused by the fact that we, too, are historically
situated in a project that is not only an abstract ideational exercise
but a continuum of political, moral, and professional choices.
A complete system
That law is an effect of lawyers’ imagination is nowhere clearer than
in the development of international law from isolated diplomatic
practices of the nineteenth century into a legal order some time
early in the twentieth. Professional jurists took upon themselves to
explain international affairs in the image of the domestic State,
governed by the Rule of Law.
For that purpose, they interpreted diplomatic treaties as legislation,

developed a wide and elastic doctrine of customary law, and
described the State as an order of competences, allocated to the
State by a legal order.25 A culture of professional international law
was created through the setting up of the first international
associations of jurists (such as the Institut de droit international and
the International Law Association in 1873), doctrinal periodicals
(such as the Revue de droit international et de 24 Cf. E. H. Carr, The
Twenty-Years’ Crisis 1919–1939 (2nd edn., 1981 [1946], esp. chs.
10–13), and Julius Stone, Legal Controls of International Conflict

(New York, Rinehart, 1954), and from Lauterpacht, e.g. his “Some
Observations on the Prohibition of ‘Non Liquet’ and the
Completeness of the Law,” Symbolae Verzijl (1958), pp. 196–221 as
well as Stone’s response “Non Liquet and the Function of Law in the
International Community” (1959), XXXV BYIL, pp. 124–161.
25 Anthony Carty, The Decay of International Law? A Reappraisal of

the Limits of Legal Imagination in International Affairs (Manchester
University Press, 1986), esp. pp. 13–39.
361

législation comparée and the Revue générale de droit international
public) as well as the publication of many-volumed presentations of
State practice in the form of systematic legal treatises.26
It was not a simple task to imagine diplomatic correspondence and a

few arbitration cases as manifestations of an autonomous legal
order. In 1935 a skeptic still described the situation as follows:
“There is in fact, whatever the names used in the books, no system
of international law –
and still less, of course, a code. What is to be found in the treatises

is simply a collection of rules which, when looked at closely, appear
to have been thrown together, or to have accumulated, almost at
haphazard.”27
Two strategies seemed possible. Either one could take whatever

materials – treaties and cases – one could find that bore some
resemblance to domestic law and explain the inevitable gaps in the
system as a result of the “primitive” character of international law.28
Or one could try to expand the law’s scope by arguing as Grotius
had done, from Roman and domestic law, general principles, and
ideas about a common morality.29 Although in fact both avenues
were followed, the former seemed to realize better the statism and
the objective of the “scientification” of law that was the great aim of
late nineteenth-century jurisprudence.30
However, such a “primitive” law proved unable to prevent the First

World War, or even to regulate its conduct. Whereas in many aspects
of intellectual life the shock of the war was expressed by a turn
away from traditionalism, mainstream reconstructive thought in
international law sought to bring to a completion the project of
creating an international public order on the same principles that
had underlain the domestic, peaceful order of European States
during most of the preceding 26 Cf. generally Martti Koskenniemi,
Argument (Helsinki, Lakimiesliiton kustannus, 1989), pp. 98–100,
106–127; Antonio Truyol y Serra, Histoire de droit international
public (Paris, Economica, 1995), pp.
115–129.
27 Sir Alfred Zimmern, The League of Nations and the Rule of Law
1918–1935 (London, Macmillan, 1935), p. 98.
28 “International law does not conform to the most perfected type

of law. It is not wholly identical in character with the greater part of
the laws of fully developed societies, and it is even destitute of the
marks which strike the eye most readily of them.” W. E.
Hall, A Treatise on International Law (4th edn., Oxford, Clarendon,

1895), p. 15 and (comparing international law with primitive
Teutonic law of self-help), p. 16.
29 For arguments about international law’s basis in Roman law, cf.

H. S. Maine, International Law, The Whewell Lectures (London,
Murray, 1887), pp. 16–20.
30 Cf. Koskenniemi, From Apology to Utopia, ch. II. For this

interpretation of nineteenth-century jurisprudence, cf. also
Boaventura de Sousa Santos, Toward a New Common Sense. Law,
Science and Politics in the Paradigmatic Transition (New York,
Routledge, 1995), pp. 56 et seq. , 72–76.
362
Lauterpacht: the Victorian tradition in international law century.31

Hence, Lauterpacht’s early work is written in the form of a doctrinal
polemic against a voluntarist and State-centered “positivism,”
castigated as the main obstacle on the way to universal legal

organization.32 That the critique was doctrinal, and not directed
against diplomacy, follows from the view of politics (and diplomacy)
as the rational application of doctrines. In order to constrain politics
one had to develop better doctrines.33 The problem, Lauterpacht
held, was the low level of ambition in pre-war doctrine, its readiness
to compromise with aggressive nationalism and to leave a large field
of activity – such as the right to wage war – outside legal regulation.
Lauterpacht’s constructive work was directly aimed at such self-
amputation. This work begins by his 1925 dissertation in the London
School of Economics, Private Law Sources and Analogies in
International Law (1927), comes to fruition with his most important
doctrinal work The Function of Law in the International Community
(1933) and is conveniently summarized in his 1937 Hague lectures,
Règles générales de la droit de la paix.34
Lauterpacht’s thesis is that the law that regulates the affairs of

States is neither “special” nor “primitive,” but like any other branch
of the law.
He critiques the “tendency of international lawyers to treat

fundamental questions of international law apart from the
corresponding phenomena in other fields of law.”35 While
international law does have
“imperfections” (the absence of a doctrine on the vitiating effect of

duress, the wide scope left for the doctrine of rebus sic stantibus,
the voluntary character of third-party dispute solution) these are
merely transient difficulties that the inevitable development of
economic interdependence, democracy, and enlightened public
opinion will do away with.36
The form of Lauterpacht’s argument is important. It reconstructs the

31 This was, of course, the Wilsonian ideal, enthusiastically shared
by the international law establishment.
32 For him, “positivism” was a kind of pedestrian Hegelianism,

nationalism with a legal face, the doctrinal defense of the raison
d’état. It was divided into a seriously philosophical strand,
associated, for example, with the work of Kaufmann, Anzilotti, and
Jellinek, and a technically oriented pragmatism, building on the
primacy of sovereignty or State will to law and prevalent, for
example, in the writings of Hall.
33 As he points out in 1927: “the relationship between international

law and political theory is of a more pervading character than is
commonly assumed. It is the ultimate results of the theory of the
state which are resorted to by international lawyers in the
foundations of their systems,” “Spinoza and International Law,” p.
368.
34 (1937/IV), 62 RdC, pp. 99–419, published in English as “General

Rules of the Law of Peace,” Collected Papers, 1, pp. 179–444. The
references are to the translation.
35 Lauterpacht, Function of Law, p. 248.
36 Lauterpacht, Function of Law, pp. 403–407, 431–434.
363
law’s unity as a scientific postulate. Law no less than physics shares

a horror vacui: it detests a vacuum.37 For scientific evaluation, a
topic must be construed as a totality. This can be done by legal
analogy that is “an application to the domain of law of that
conception of analogy which logicians and scientists necessarily
apply in their respective disciplines.”38 Though more uncertain, and
prone to misuse for special pleading, analogy is the lawyer’s means
of supplementing fragmentary or contradictory materials so as to
ensure law’s systemic unity.
In the liberal fashion, Lauterpacht’s attack was conducted in the

name of the universal principles of science: logical consistency and
correspondence with facts. Positivism failed in both. It was logically
incoherent: State will cannot be the ultimate source of the law. From
where comes the rule that says that will binds? To avoid circularity,
the pacta sunt servanda or an equivalent metanorm must be
assumed to exist as a non-consensual norm.39
More importantly, positivism is at variance with “facts.” Private Law

Sources and Analogies shows that judges and arbitrators use
maxims of municipal jurisprudence and general principles of law
(equity, justice) to fill gaps between consensual norms.40 States
acquire and dispose of territory in a manner analogous to
transactions with private property.41
Domestic notions of occupation and possession structure

controversies in the law of the sea.42 Practice concerning state
servitudes, succession, and responsibility is based on the application
of private law concepts.43
Treaties are applied, interpreted, and terminated like private

contracts.44 Rules of evidence and procedure (such as estoppel or
the res judicata) have no special international sense.45 Positivists,
however, have 37 Hersch Lauterpacht, “Succession of States with
Respect to Private Law Obligations”
(1928), Collected Papers, 3, p. 126.
38 Lauterpacht, Private Law Sources, p. 83. It is not absolute but an

“inductive and experimental method subject to correction,” p. 84.
39 Lauterpacht, Private Law Sources, pp. 54–59; Function of Law,

pp. 416–420. In Lauterpacht’s own reformulation it becomes,
however: voluntas civitatis maximae est servanda, “Règles,”
Collected Papers, 1, p. 233.
40 Cf. especially the series of case analyses in Lauterpacht, Private

Law Sources, pp.
215–296.
41 Lauterpacht, Private Law Sources, pp. 91–104.
44 Lauterpacht, Private Law Sources, pp. 155–202. The admissibility

of duress (i.e. the validity of peace treaties) does not compel a
conceptual distinction between treaties and municipal contracts but
follows from the “shortcomings of international law as a system of
law,” pp. 156–167. However, the analogy concerns only general
principles of municipal contracts, not individual rules, pp. 176–180.
364
Lauterpacht: the Victorian tradition in international law failed to

notice these facts and use “ingenious reasoning” to protect their
“arbitrary dogma[s].”46 Lauterpacht uses expressions such as

“metaphysical” and “mystical” in their modern sense, as synonymous
for unreal or unscientific, to challenge the special position given by
positivists to statehood or sovereignty.47
Here as elsewhere, scientism is accompanied by methodological

individualism, a liberal political theory. Statehood cannot set up a
permanent veil between the international legal order and individual
human beings. Being “an artificial personification of the metaphysical
State,”48
sovereignty has no real essence: it is only a bundle of rights and

powers accorded to the State by the legal order. Therefore, it can
also be divided and limited.49 Nor is territory in any mystical
relationship to the State (as part of its identity) but an object of
powers analogous to ownership.50
Furthermore, “[t]reaties are contracts made by human beings acting
as representatives of groups of human beings called States.”51 All
law has to do with regulating human behavior; analogy is really but
an aspect of the law’s wholeness.52 Therefore, contrary to the
received view, States can also be punished and subjective fault
remains an element of their responsibility.53
By conducting his study in the form of an examination of practice,

Lauterpacht is able to attack voluntarist positivism on its own terrain
of scientific factuality without having to resort to the moralizing
rhetoric of naturalism or the formalism of the pure theory of law.
The same terrain enables him to set up a “progressive” political
program that puts the individual into the center and views the State
as a pure instrumentality.
Behind nationalism and diplomacy the world remains a community of

individuals and the rule of law is nothing else than the state of peace
among them: “Peace is pre-eminently a legal postulate. Juridically, it
is a metaphor for the postulate of the unity of the legal system.”54
This double program – scientism and individualism – was as central
to interwar cosmopolitanism as it had been to Victorian morality. It
was shared, 46 Lauterpacht, Private Law Sources, pp. 75, 74. The
ingenuity being the use of “principles of general jurisprudence,”
which in fact cloak natural law arguments or generalizations from
municipal laws, Lauterpacht, Private Law Sources, pp. 31–37.
47 Lauterpacht, Private Law Sources, pp. 74, 79, 299; Function of

Law, p. 431 (“the sanctity and supremacy which metaphysical
theories attach to the State must be rejected from any scientific
conception of international law”).
48 Lauterpacht, Private Law Sources, p. 299.
49 Lauterpacht, “Règles,” pp. 367–377.

51 Lauterpacht, “Règles,” p. 361.
53 Lauterpacht, “Règles,” pp. 391–397, 401–402.
365
among others, by the equally reconstructive doctrines of Verdross

and Kelsen. Like them, Lauterpacht accepts the postulate of a
community of human beings as a necessary consequence of the
existence of an international legal order.55 But unlike Verdross, he
refrains from deriving the latter from the former. The equation works
the other way: the community is not a condition but the effect of the
legal order.56 This sounds very Kelsenian and in fact Lauterpacht
shares much of Kelsen’s neo-Kantian constructivism. But instead of
relying on the Grundnorm, he emphasizes his independence from his
teacher by proving his point by means of empirical, rather than
logical, argument, labeling his a “critical and realistic monism.”57
Private Law Sources and Analogies set up international law as a

complete system on a par with domesticlaw. The Function of Law
argued that there is no valid reason to challenge this completeness
by the division of international disputes into two types – legal and
political – as expressed in the (positivist) doctrines of non-
justiciability.58 Such division “is, first and foremost, the work of
international lawyers anxious to give legal expression to the State’s
claim to be independent of law.”59 This is an argument about the
slippery slope: as the division between the political and the legal
cannot be carried out by a determinate rule, it leaves it always open
for the State to opt out from the law’s constraint by insisting on the
“political” nature of the case. Here we meet the problem of self-
judgment, Lauterpacht’s mala malaficiorum, for the first time. Non-
justiciability is merely another side of self-judgment and leads
international law beyond the vanishing point of jurisprudence. But
Lauterpacht challenges the distinction between two types of
disputes. For him “all international disputes are, irrespective of their
gravity, disputes of a legal character in the sense that, so long as the
rule of law is recognized, they are capable of an answer by the
application of legal rules.”60 The Function of Law goes through each
55 Cf. e.g. Lauterpacht, Function of Law, p. 421.
56 Lauterpacht, “Règles,” p. 263. There could hardly be a more

express statement of the importance of doctrine’s reconstructive
task!
57 Here Lauterpacht expressly formulates his cosmopolitanism:

international law as the law of a community of mankind, individuals
as its ultimate subjects, States as the instruments of the (overriding)
legal order, “Règles,” pp. 193–196. His self-portrait is of a challenger
to the “orthodox conception,” p. 197. The positioning in respect of
Verdross and Kelsen and the label “critical and realistic monism”
appears on p. 214.
58 Function of Law is structured to refute four versions of the non-

justiciability thesis, namely that disputes are political when: (1) legal
rules are absent; (2) important issues are at stake; (3) judicial
involvement would conflict with the needs of justice or peace, and
(4) at issue are conflicts of interest rather than disputes over rights.
366
Lauterpacht: the Victorian tradition in international law non-

justiciability doctrine showing how they become apologies for the
unlimited freedom of action of States. As in Private Law Sources and
Analogies, Lauterpacht shows that a view that there are “gaps” in
law fails to reflect international practice. Courts and tribunals
constantly decide cases by analogy, general principles of law,
balancing conflicting claims or having recourse to the needs of the
international community or the effectiveness of treaty obligations.61
The “political” nature of a dispute has never prevented a tribunal
from giving a legal answer to it.62
But he goes further, arguing that the completeness of the rule of law
“is an a priori assumption of every system of law, not a prescription

of positive law.”63 Though particular laws or particular parts of the
law may be insufficiently covered, “[t]here are no gaps in the legal
system as a whole.”64 This is not a result of a formal completeness
of the Kelsenian type, meaning that in the absence of law, the
plaintiff has no valid right and his claim must be rejected.65 The
very notion of “law’s absence” is suspect as it presumes that law
consists of isolated acts of State will. But if law is thought of in terms
of general principles, judicial balancing, and social purposes, then
“gaps” connote only primae impressionis difficul -
ties to decide cases. Legal argument is always able to fill the gap in
the end.66 Even “spurious gaps” may be filled: an unsatisfactory
single rule may be by-passed to give effect to a major principle of
law, the intention of the parties, or the purposes of the legal system
as a whole. In this way, even legal change is regulated by the law.67
That the legal order is unable to recognize the existence of gaps

results from its inability to limit their scope. In particular, there is no
method to distinguish between “essentially” important (political) and
non-important (legal) issues.68 Whether a matter touches on the
State’s
“vital interests” or “honor” cannot be decided in abstraction from the

State’s own view of it: “the non-justiciability of a dispute . . . is
nothing else than the expression of the wish of a State to substitute
its own will 61 Lauterpacht, Function of Law, pp. 110–135.
62 But I am not sure that the Alabama (1871), British Guiana
(1897), Alaska (1903), and North Atlantic Fisheries (1910) cases
suffice as proof of this, Lauterpacht, Function of Law, pp.
145–153.
65 Lauterpacht, Function of Law, pp. 77–78, 85–104.
66 Hence McNair’s apt characterization of Lauterpacht’s writing as

“constructive idealism,” McNair, “Memorial Article,” p. 378.
67 Lauterpacht, Function of Law, pp. 79–87, 254–257 and passim.

Cf. also “The Absence of an International Legislature and the
Compulsory Jurisdiction of International Tribunals” (1930), XI BYIL,
pp. 134, 144–154.
68 Lauterpacht, Function of Law, pp. 139–241.
367
for its legal obligations.”69 Nor is a distinction between “disputes as

to rights” and “conflicts of interest” any more successful. If the
determination is left to the State itself, then it becomes an unlimited
right to opt out from third-party settlement. If such determination is
left to the tribunal, then it is tantamount to calling for a decision on
the merits of the claim – and thus fails to serve the original purpose
of providing the cri -
terion through which the distinction could be made.70
Arguments about the clash between law, on the one hand, and
justice or peace, on the other, are equally vacuous.71 Critics mistake
complexity for conflict. Problems of the unjust rule may always be
tempered by reference to the larger purposes of the law, rebus sic
stantibus, abuse of rights or equity.72 The needs of realism are
incorporated in the State’s undoubted right to determine the
conditions of self-defense and in the exception to the vitiating effect
of duress in the law of treaties.73
The refutations of the distinction between legal and political disputes

in The Function of Law turn on what appears as a sophisticated
modern interpretativism: no international event is by its “essence”
legal or political, its character as such is the result of projection,
interpretation from some particular standpoint. If the distinction
were to be upheld, it would always allow a State to present its
unwillingness to submit to the legal process as a result of the
“application” of this distinction. The constraining force of obligations
would be left to the obligated. But: “An obligation whose scope is
left to the free appreciation of the obligee, so that his will constitutes
a legally recognized condition of the existence of the duty, does not
constitute a legal bond.”74 That the question of self-judging
obligations becomes the central problem of his later doctrinal work
follows from Lauterpacht’s nominalism, the view that the law is
always relative to interpretation. In The Function of Law, this view
leads him to focus on the impartiality of judges and arbitrators and
to examine their ability to interpret the law so that everybody’s vital
interests are secured.75 To us, such an enquiry into judicial honesty
and com-69 Lauterpacht, Function of Law, p. 159.
72 Lauterpacht, Function of Law, pp. 270 et seq.
73 “It is not sufficiently realized that fundamental rights of States

are safe under international judicial settlement, for the reason that
they are fundamental legal rights,”
Lauterpacht, Function of Law, p. 173, and generally pp. 177–182,
271.
74 Lauterpacht, Function of Law, p. 189. This is, paradoxically, the

very point E. H. Carr makes against Lauterpacht. Precisely because
there can be no distinction between law and politics, the latter will
always prevail, The Twenty-Years’ Crisis, p. 195.
368
Lauterpacht: the Victorian tradition in international law petence

seems a somewhat facile solution for world peace, naïve and old-
fashioned. But Lauterpacht’s nominalism is ours, too. Our own
pragmatism stands on the revelation that it is the legal profession
(and not the rules) that is important: “There is substance in the view
that the existence of a sufficient body of clear rules is not at all
essential to the existence of law, and that the decisive test is
whether there exists a judge competent to decide upon disputed
rights and to command peace.”76
The Function of Law puts forward the image of judges as

“Herculean”
gap-fillers by recourse to general principles and the law’s moral

purposes that is practically identical with today’s Anglo-American
jurisprudential orthodoxy.77 Moreover, it heralds the end of
jurisprudence and grand theory in the same way legal hermeneutics
does, by focusing on the interpretative practices of judges. This
ensures it a measure of “realism”
while its sophisticated interpretative approach avoids the pitfalls of

vol-untaristicpositivism. Simultaneously, however, it remains hostage
to and is limited by the conventions and ambitions of that
profession. In this sense, The Function of Law is the last book on
international theory – the theory of non-theory, the acceptable,
sophisticated face of legal pragmatism.
Lauterpacht was born in 1897 in the small Jewish village of Zolkiew
outside the town of Lwów in Galicia, at the time a part of the Austro-
Hungarian Empire. His parents had been “extremely orthodox” but
he himself was not very devout. He was, however, given full
instruction in the Torah, spoke Yiddish and Hebrew with ease and
could chant the Passover service in the Ashkenazi style.78 In Lwów
he had been active in the Zeirei Zion movement (a collection of
youth groups that, although not strictly socialist “expressed intense
social concern and advocated the nationalization of land”)79 and had
worked for the establishment of a Jewish Gymnasium. Antisemitism
and in particular the numerus clausus for Jewish students at the
University of Lwów compelled his move to Vienna in 1918 where he
became the first President of the newly established 76 Lauterpacht,
Function of Law, p. 424.
77 I have argued about the essential similarity of Lauterpacht’s

constructivism and Ronald Dworkin’s jurisprudence in my From
Apology to Utopia, pp. 35–38.
78 “Note by Eli Lauterpacht” (Lauterpacht Archives, Cambridge).
79 Howard M. Sachar, A History of Israel. From the Rise of Zionism

to our Time (2nd edn., New York, Knopf, 1996), p. 146.
369
World Federation of Jewish Students.80 According to his son,

Professor Elihu Lauterpacht, “He was neither ‘Austrian’ nor ‘Polish’.
His identification was ‘Jewish.’ ”81
The rise of Zionism as a political movement in the Habsburg realm at

the close of the nineteenth century was closely connected with the
pogroms and the unprecedented rise of overt, politically active
antisemitism. Taking a Zionist position was a natural and common
reaction among Jewish intellectuals against Czech and German
nationalisms and Christian-socialist politics and provided more
generally a shield for the Jewish population captured between the
Ukrainian–Polish antagonism in Galicia.82 Historically, however, this
constituted a departure from the traditional Jewish loyalty to the
Empire and its close association with Austrian liberalism whose
heyday had been from 1860 to 1895.83 When liberalism as well as
the Empire started their terminal decline and became unable to
answer the challenges of nationalism, socialism, and antisemitism,
Zionism must have seemed at least as tempting an alternative to
Jewish traditionalism as assimilation had previously.
During the war, Lauterpacht stayed at his father’s timber mill that
had been requisitioned by the Austrian Government as part of the
war effort.
Galicia was several times overrun by foreign – especially Russian –

military forces pillaging the countryside and sometimes armed with
orders for the “purification” of Jewish “subversives.” Although
antisemitism had been far from absent before the war, the grave
economic difficulties thereafter gave rise to a plague of persecution
in Galicia, resulting in an overall 20 percent decrease in the religious
Jewish population during 1910–1921. In many locations the Jewry
was effectively halved. “Poland was reborn in Galicia in 1918–1919
to pogrom music.”84
80 Of which Einstein in Berlin was the Honorary President. For some

of this biographical data cf. McNair, “Memorial Article,” pp. 371–373.
Lauterpacht was one of the Federation’s founding members. He had
drafted its statute and participated in its establishment Conference
on September 1–3, 1922. The Federation had several national
societies as members and Lauterpacht’s activity seems to have
required much diplomatic wrangling between their positions,
particularly in regard to the question of Zionism. He seems to have
advocated as wide a representation of the interests of Jewish
students as possible.
81 “Note by Eli Lauterpacht.”
82 Cf. Carl E. Schorske, Fin-de-Siècle Vienna. Politics and Culture

(New York, Vintage, 1989), pp. 5–7, 127–133, 163 et seq.
83 Apart from the classic by Schorske above, cf. Shmuel Almog,

Nationalism & Antisemitism in Modern Europe 1815–1945 (Oxford,
Pergamon, 1990), pp. 37–40; Steven Beller, Vienna and the Jews
1867–1938 (Cambridge University Press, 1989), pp. 122–143.
84 William O. McCagg, A History of the Habsburg Jews 1670–1918

(Bloomington, Indiana University Press, 1989), p. 203 and generally
pp. 182–187, 202–207.
370
Lauterpacht: the Victorian tradition in international law Although

moving to Vienna provided a much-used exit from the persecution
surrounding the shtetl, even the University was unable to maintain
its traditional policy of openness. As Kelsen recalls, Lauterpacht’s
Jewish background was “under the circumstances which actually
existed in Vienna at the time, a serious handicap” and may have
contributed to his receiving no more than a pass grade for his
Doctorate in the Faculty of Law.85
It may be conjectured that Lauterpacht wrote his Viennese

dissertation on the topic of Mandates in the Covenant as an offshoot
of his Zionist interests, although Palestine did not – perhaps for
reasons of prudence – figure prominently in it. Nonetheless, the
general argument of the thesis, namely that the Mandates system
did not constitute a camouflaged cession or annexation, clearly
supports the wish to develop it into a Jewish homeland – as indeed
he expressly argued.86
In 1923, Lauterpacht moved to Britain. Not much of his early Zionist
politics is visible in later years. He did give two lectures to the British
society of Jewish Students in 1924 on the character and policy of the
World Federation as there had been a division of opinion about
whether membership in the Federation necessitated taking a Zionist
political position: apparently, it did not. Lauterpacht also appealed
for a statement against the numerus clausus in Polish universities
and contemplated action in the League of Nations by the World
Federation on this matter.87 But soon he allowed his Zionism to
lapse and fell back on the more traditional Jewish association with
liberal rationalism and individualist – hence cosmopolitan – ethics.88
From now on, he assimilated with post-war liberal internationalism,
letting his Jewish background resurface only incidentally – in an
article on the persecution of Jews in Germany in 1933,89 in legal
opinions given to the Jewish Agency in 85 Hans Kelsen, “Note”
(1961), 10 International and Comparative Law Quarterly, pp. 2, 3–6.
The convert Kelsen himself was advised not to take up a university

career because of his Jewish background. On this and antisemitism
in Vienna at the time generally, cf.
Beller, Vienna and the Jews, pp. 188–206.
86 Lauterpacht, “The Mandate under International Law,” p. 84.
87 Texts of two lectures, Lauterpacht Archives.
88 On the individualist ethics of Austrian and Polish Jewry, cf. Beller,

Vienna and the Jews, pp. 106–121.
89 Copy of manuscript available with author. It is not clear where the

article was published if indeed it ever was. The manuscript will be
published in Collected Papers, 5.
This constituted an appeal for a condemnation by the Council of the

League of all racial persecution, arguing that the matter falls under
Council jurisdiction as it affects peace and good order among nations
(Art. 4 of the Covenant) and is connected with the League’s
humanitarian and legal objectives. Lauterpacht suggested that a
draft 371
Palestine or the Agency’s permanent UN mission in New York in the

late 1930s and 1940s,90 and in a small divertissement on some
Biblical problems of the laws of war.91
The argument for the completeness and unity of the law must have
seemed important enough to enable Lauterpacht to establish himself
in Britain and to overcome possible suspicions British lawyers might
have had against him. Hence in 1931, still working with The Function
of Law, he sought to refute the widely held British view that a
fundamental difference existed between the Anglo-American and
Continental schools of legal thought. Lauterpacht finds no such
fundamental divide.92 More importantly, assuming its existence
would be undesirable from a humanitarian point of view and
“question that ultimate uniformity of the sense of right and justice
which is the foundation of the legal ordering of the relations
between states.” It will hinder the (inevitable) development of
international law into a “common law of mankind.”93
Lauterpacht’s first article, published in 1925, on the contemporary

significance of John Westlake – the most prominent British
international Footnote 89 ( cont. )
resolution should avoid expressly mentioning Germany and should

be presented by the representatives of neutral countries (e.g. Spain
or Norway). It should have an Annex detailing the facts of
persecution from original German sources. Lauterpacht’s proposed
draft recognized that persecution is contrary to the “public law of
Europe”
(but apparently not of universal import!) and appealed to League

members for a scrupulous non-discrimination in their treatment of
minorities.
90 These concerned matters such as the application of differential

customs tariffs and the Imperial Preference under Art. 18 of the
Mandate for Palestine, Collected Papers, 3, pp. 85, 101.
91 This paper, dated in 1932, is a 21-page manuscript dealing, on

the one hand, with the apparent conflict between Israeli atrocities
during the conquest of Canaan and the restraints on warfare in the
Ten Commandments and, on the other, with the influence of Jewish
concepts on the distinction between just and unjust wars. The
manuscript bears no indication of whether it was published.
Lauterpacht Archives, copy on file with author.
92 Hersch Lauterpacht, “The So-Called Anglo-American and

Continental Schools of Thought in International Law” (1931),
Collected Papers, 2, p. 452. To do this, he analyzes substantive
doctrines of the law of peace or war, rules of procedure (evidence
and recourse to travaux préparatoires) and legal philosophy. He
claims that continental jurists are not so idealistic, philosophical or
system-bound as British prejudice believes. In fact, positivism and
the rigid separation of law/justice was developed as a continental
approach (Ross, Jhering, pp. 50–51). Also, the strongest criticisms of
formalism were developed there (Gény against the école d’exégèse;
Jhering against Begriffsjurisprudenz). The law/ Recht distinction, too,
is illusory: Law = subjective plus objective Recht. Where British
sense adds Equity to law, the continental Recht includes
equitableness within the law without the need for special jurisdiction
(p. 49n4).
93 Lauterpacht, “The So-Called Anglo-American,” p. 62.
372
Lauterpacht: the Victorian tradition in international law lawyer of the

nineteenth century – performed a double feat in this respect. On the
one hand, it enabled Lauterpacht to make the point that what was
needed was not the rejection of tradition by a full-scale acceptance
of either naturalism (“pious wish”) or skeptical realism. The best of
tradition, as in Westlake’s work, combined idealism and political fact
in a progressive historical vision that saw contemporary imperfection
in terms of progress towards an “organized government of States.”
Because Westlake’s teaching on the subjects and sources of

international law and State sovereignty carried this (Victorian) vision,
the supervening changes in international politics (“greater than
anyone could foresee”) required only “alterations of detail” in his
work to make it fully applicable in post-war conditions.94 On the
other hand, the argument enabled Lauterpacht to associate
“tradition” with the particular tradition of his new home, Britain. This
is an enduring feature of his work.95
Inasmuch as the challenge to the international order was a challenge

to Britain’s dominant position in it, Lauterpacht’s clear preference for
British international law against German (“Hegelian”) jurisprudence
aligned his assimilative strategy with the ongoing cultural battle of
tradition against revolution.96
Lauterpacht’s early self-positioning in Britain as a champion of a

legal 94 Lauterpacht, “Westlake and Present Day International Law,”
pp. 385–403; quotes are from p. 400.
95 It is nicely present not only in Lauterpacht’s early and extensive

use of Roman law in Private Law Sources but in his expressed view
that this accords with “British-American jurisprudence” that has
“never completely discarded the historical connection of international
law and the law of nature [and] regards Roman law as a subsidiary
source of international law,” p. 298. Later on, he supports British
policy in regard to colonies, the illegality of Iran’s nationalization of
its oil industries, and the jurisdiction of British courts in war crimes
and immunities cases. For him, humanitarian ideals and especially
human rights emerged from a specifically British tradition.
Lauterpacht, International Law and Human Rights, pp. 127–141.
96 Lauterpacht presented “positivism” – the principal object of his

criticism – as a particularly German tradition. Cf. e.g. Private Law
Sources, pp. 43–50. On the related German theory of international
law as a law of “coordination,” cf. The Function of Law, pp. 407–416
and “Spinoza and International Law,” pp. 379–383. The only (slight)
nostalgia that he seems to have felt for his Central European origins
appears in a preference for the wider scope of law studies and
especially of the philosophy of law as compared to legal studies and
“general jurisprudence” in Britain. Cf. Hersch Lauterpacht, “The
Teaching of Law in Vienna” (1923), Journal of the Society of Public
Teachers in Law, pp. 43–45 (on the other hand, he regards British
written exams as infinitely better than the Austrian viva voce
examination).
The interpretation of Germany as the modernist challenger to

British-dominated traditionalism is presented e.g. in Modris Eksteins,
Rites of Spring. The Great War and the Birth of the Modern Age
(New York, etc., Anchor, 1989), pp. 55 et seq, 80–94.
373
cosmopolitanism can also be understood as an assimilative strategy

97 in relation to a British academic elite that by 1933 in a famous
vote in Oxford had by a large majority declared its unwillingness to
die for King and Country.98 In his writings on statehood and
jurisdiction, the constant playing down of the significance of national
boundaries works to the same effect, as indeed does his 1928 article
on the duties of States in relation to revolutionary activities of
private individuals abroad.99 There being no obligation on States to
guarantee each other’s legal or political systems, there is no legal
justification for curtailing the political activities of émigrés either. The
argument creates space for politics on a cosmopolitan scale,
particularly important in an era of dictatorships, and supports the
widespread interwar phenomenon of revolutionary politics carried
out from abroad.
Lauterpacht’s newly found cosmopolitanism as an assimilation

strategy is also suggested by the fact that his Viennese dissertation
of 1922
had “reject[ed] private law analogy in any form.”100 A year before

dis-embarking in Britain he had argued that international law’s
development towards autonomy was undermined by a positivist
jurisprudence that had constant recourse to private law analogy
under the guise of
“general law concepts” to fill lacunae in positive law – a method that
“endangers the independence of international law and fails to

recognize its peculiarity.”101 The special meaning of the private law
concept distorts the interState relationship to which it is applied.
“The differences between legal systems are disregarded and the fact
forgotten that legal institutions must be construed within the context
of their own legal systems.”102 It is only when, in an exceptional
case, “[p]ositive international law itself adopts concepts and
institutions which have already 197 On the equivocal effects of
cosmopolitan distancing as a strategy of assimilation, cf.
Zygmunt Bauman, Modernity and Ambivalence (Cambridge, Polity,

1991), pp. 78–90
(discussing its use by Jewish intellectuals in the interwar period), pp.

102 et seq.
198 This is the vote of February 1933 taken among members of the
Oxford Union, the University’s prestigious debating society.
199 Hersch Lauterpacht, “Revolutionary Activities by Private Persons

Against Foreign States,” Collected Papers, 3, pp. 251–278 (short of
armed transboundary excursions, States have no duty to suppress
hostile private activity carried out by other States).
100 Lauterpacht, “The Mandate under International Law,” pp. 29–84,

p. 61 and generally pp. 51–61.

(“Rules governing interState relationships, which are in fact laid
down by treaty or custom are, for the sake of order and
categorization and for easier understanding and interpretation,
attributed ex post facto to an already existing and well-developed
private law concept.”)
374
Lauterpacht: the Victorian tradition in international law specific

implications in one or more legal system” that we can speak of
analogy – for instance, when Art. 22 of the Covenant adopts the
term
“Mandate.”103 The argument is not quite clear, however. At another

place Lauterpacht notes that even if international law appropriates
by treaty private law concepts, “its own special nature transforms
these concepts and even robs them of their content. In practical
terms, therefore, there is no analogy.”104
Three years later, his British dissertation makes precisely the

contrary point: “A critical examination shows that the use of private
law analogy exercised, in the great majority of cases, a beneficial
influence upon the development of international law.”105 True,
Lauterpacht’s argument here is different from the Viennese
dissertation to the extent that he now sees in Art. 38(3) of the
Statute of the Permanent Court of International Justice – “general
principles of law” – the vehicle through which private law concepts
may penetrate into international law. That provision had been
adopted only recently (in 1920) and was therefore not mentioned in
his dissertation.106 Nonetheless, one cannot fail to be struck by the
transformation of the outlook on international law implied by this
change of heart. Now the door was open definitively to lift
international law from its isolation as a marginal, or a special law, a
collection of fragmented pieces of State will, and to argue that it
constituted a whole system, a single, unified legal order.
Three practical activities to that same effect were Lauterpacht’s

editorship of the Annual Digest of Public International Law cases
(that became the International Law Reports in 1950) from 1929 to
1956, his editorship of four consecutive editions of Oppenheim’s
International Law from the fifth edition (1937) onwards, and the
editorship of the British Year Book of International Law between
1944 and 1954. Taken together, these activities demonstrate not
only the external success of Lauterpacht’s assimilative pursuit but
also the seriousness with which he took the argument in 103
Lauterpacht, “The Mandate under International Law,” pp. 58–59.
104 Lauterpacht, “The Mandate under International Law,” p. 55. The

impression is that Lauterpacht’s teachers in Vienna would not have
accepted a general argument from analogy and that because he
wanted to argue that in the case of Mandates (especially Palestine),
no covert annexation was involved, and that as this was in
conformity with the private law notion of “mandate,” the argument
had to be done by way of exception.
105 Lauterpacht, Private Law Analogies, p. viii.
106 For the drafting history, cf. Alfred Verdross, “Les principes
généraux du droit dans la jurisprudence internationale” (1935/II), 52
RdC, pp. 207 et seq; Géza Herzcegh, General Principles of Law and
the International Legal Order (Budapest, Akadémiai Kiadó, 1969),
pp. 11–33.
375
Private Law Sources and The Function of Law. Here there were now
all the materials from which international lawyers could construct a
working system to resemble the domestic legal order: cases,
commentary and a doctrinal forum, henceforth available in most
major libraries and (in the case of Oppenheim) even on the shelves
of Foreign Offices.
By 1927 Lauterpacht had settled in Britain. He was married (since
1923), his son was born and he had received a lectureship at the
London School of Economics (recommended by Harold Laski, Arnold
McNair, and N. C. Gutteridge). His relations with his early supervisor
McNair had developed into a friendship. In 1931 he was naturalized
as a British subject. The following year he became Reader in Public
International Law at the University of London and was called to the
Bar by Gray’s Inn in 1936. Lauterpacht was now relatively free to
express his view on various aspects of international and British
policy. And because, according to the argument in The Function of
Law, every event of international policy was amenable to legal
analysis, it seems logical that he should think it important to
undertake public analyses of contemporary international events from
a legal perspective.
Consistent with his domestic analogy, Lauterpacht saw the League

Covenant as a “fundamental charter of the international society.”107
Its character as a constitution was formally expressed in Art. 20 that
set up
“the absolute primacy of the Covenant over any other treaty

engagements of Members of the League inter se.”108 Conflicting
posterior treaties between Members were null and void, as were
those with third parties that “knew or ought to have known” of the
Member’s conflicting prior engagement.109
This view led Lauterpacht to deny that the League was merely a
coordinative body of diplomatic conciliation and to emphasize the
provisions on collective security whose importance both
contemporary critics and enthusiasts often belittled as a
consequence of their “realism” or in their effort to combat it by
focusing on the League’s functional activities.110
107 Hersch Lauterpacht, “Japan and the Covenant” (1932), 3
Political Quarterly, p. 175.
108 Hersch Lauterpacht, “The Covenant as the Higher Law” (1936),

XVII BYIL, p. 55.
109 Lauterpacht, “The Covenant as the Higher Law” pp. 63–64, 60.
110 Hersch Lauterpacht, “International Law after the Covenant”

(1936), Collected Papers, 2, pp. 156–157.
376
Lauterpacht: the Victorian tradition in international law For

Lauterpacht, however, “collective security is, upon analysis, nothing
else than the expression of the effective reign of law among States,
just as its absence is the measure of the deficiency of international
law as a system of law.”111 A series of writings in the 1930s and
1940s defend this view in face of the League’s successive failures to
influence the course of world events and to keep aggression at bay.
The problem in the Manchurian or Abyssinian crises concerned
neither the basic idea of the Covenant nor its substantive provisions
but the procedural framework that allocated to States themselves
the competence to interpret it. He was able to maintain faith in a
comprehensive order of legal substance by locating the problems of
world peace at the level of a jurisdictional difficulty that would be
overcome as the intrinsic rationality of federalism was revealed to
everyone.
What, for example, was the significance of the claim made by the
principal signatories to the 1928 Kellogg–Briand Pact that they
themselves remained the sole judges of the application of the right
of self-defense? In a language familiar from The Function of Law,
and later from his period at the Court, Lauterpacht wrote: “An
interpretation which leaves to the interested States the right to
decide finally and conclusively whether they have observed the
Treaty probably deprives the Pact of the essential vinculum juris and
renders it legally meaningless.”112 The
“principal weakness” was not one of substance but of interpretative

competence. Because lawyers were not entitled to assume that the
Pact was meaningless it had to follow, in the absence of provision for
third-party determination, that it was the legal profession’s collective
(if decentralized) duty to do this – for instance, by agreeing on a
definition of aggression.113
While opposing realist skepticism about collective security,

Lauterpacht was equally opposed to idealist attempts to explain
away interpretative problems by accepting as self-evident particular
understandings of the contested provisions and by holding States
bound by something they had clearly not accepted. The fact was
that the Covenant, the Locarno Treaties, and the Pact of Paris were
self-judging. If this might have rendered them under domestic law
legally non-existent, in the international society it had to be accepted
as the result of its (provisionally) insufficient 111 Hersch
Lauterpacht, “Neutrality and Collective Security” (1936), Politica, p.
133.
112 Hersch Lauterpacht, “The Pact of Paris and the Budapest Articles
of Interpretation” (1934), 20 Transactions of the Grotius Society, p.
198.
113 Lauterpacht, “The Pact of Paris,” pp. 199–201.
377
degree of integration.114 The attempt to constitutionalize politics

under these instruments did not, then, make politics disappear but
relocated it within the inevitable “discretion” that was available to
interpret the status of actions contested under their broad terms.
Lauterpacht’s discussion of the League’s inability to take effective
action to counter the Japanese aggression in China during January
1931–April 1933 follows this understanding. As is well known,
member States and the League Assembly refrained from qualifying
the Japanese invasion as “resort to war” under Art. 16 of the
Covenant – and thus maintained their freedom of action (while a
contrary determination would, under the strict terms of that Article,
have signified the presence of an “act of war” against all members).
Lauterpacht was concerned to avoid the interpretation that
Members’ reluctance to act had been in breach of the Covenant – a
view that would only have vindicated the realist point by
demonstrating the “illusory value of its fundamental aspect.”115
Whether a use of armed force constituted “resort to war”
called for interpretation on which opinion might legitimately be

divided:
“[T]he assembly’s failure to recognize that the action of Japan

constituted ‘resort to war’ was due to the way in which the members
of the League, availing themselves of their discretion, interpreted the
Covenant.”116 The Covenant was not being breached, it was being
interpreted. However, the self-judging character of the provision did
not preclude lawyers from taking a critical view on the way in which
interpretative discretion was being used.117 Lauterpacht’s
preference was to reject both of the extreme views – namely that
any use of armed force constituted “resort of war” or that only
hostilities which the belligerents themselves consider to bring about
a “state of war” qualified as 114 Lauterpacht held it clearly
undesirable “that the lawyer should endow such instruments with an
authority and content which they do not possess and which their
signatories never intended them to have . . . By doing that he may
contribute to the predominance of the atmosphere of befogging
unreality and artificiality created by such treaties.” “The Pact of
Paris,” p. 196.
115 Hersch Lauterpacht, “‘Resort to War’ and the Interpretation of
the Covenant During the Manchurian Crisis” (1933), 28 AJIL, p. 43.
116 Lauterpacht, “‘Resort to War,’” p. 55. By this means, Lauterpacht

candidly observed, “the matter of securing peace . . . was left to a
large extent to what is essentially a political decision,” p. 58.
117 Self-judgment followed the absence of compulsory third-party

settlement. It did not mean that everybody must accept as final and
conclusive the State’s own view. A completely self-judging obligation
would be no obligation at all. As the principle of effectiveness
excluded the interpretation of legal instruments as meaningless, it
must be assumed that the State’s view may be subjected to critical
scrutiny. “The Pact of Paris,” pp. 187–189.
378
Lauterpacht: the Victorian tradition in international law such. Literal

and purposive interpretations needed to be balanced against each
other. This allowed him to opt for the via media of a “constructive
state of war,” dependent on a contextual assessment of the scale
and intensity of actual fighting.118
By this argument, Lauterpacht was able to maintain the

constitutional character of the Covenant and the primacy of law over
politics, as the argument in Private Law Sources and The Function of
Law required, while at the same time “realistically” admitting that
what the Covenant required was a matter of interpretation in which
politics had a large though not an unlimited role to play. The legal
question focuses away from the substance to procedure. Discussing
the early phase of the Manchurian crisis, Lauterpacht felt that the
“crucial question” was “of course”119 the effect of Japan’s dissenting
vote in the adoption of the resolution by the Council of October 24,
1931 that required Japan to commence troop withdrawal as soon as
possible. While normal voting rules required unanimity, Lauterpacht
argued that the votes of the parties were to be discounted where
the matter had a “judicial nature.” In such case, nemo judex in sua
causa was to applied. As it was applicable to the determination of
Japan’s duties, Japan’s vote was not to be counted and the
resolution was legally binding on it.120
The tension between collective security and neutrality likewise

implicated self-judgment. In principle, a gapless collective security
system left no room for neutrality. 121 But the Covenant was not
such a system, not even if the obligations under the Pact of Paris of
1928 were added to it.122 This was owing to the absence of a
League competence to interpret the Covenant authoritatively. Art. 16
left it to the Members to determine if one of them had resorted to
war in breach of its obligations (or whether its actions constituted
“resort to war”) and thus triggered the sanctions mechanism. But
even if a Member made such a determination this still did not
automatically result in a state of war between it and the Covenant-
breaker – hence neutrality became applicable.123 True, Members
could not consistently charge each other with “resort to war”
and fail to take economic measures. Non-participation in military

action, however, and hence neutrality in a military sense, was always
118 Lauterpacht, “Resort to War,” p. 52.
119 Lauterpacht, “Japan and the Covenant,” p. 179.
120 Lauterpacht, “Japan and the Covenant,” pp. 179–185.
121 Lauterpacht, “Neutrality and Collective Security,” p. 149.
122 Lauterpacht, “The Pact of Paris,” pp. 191–194.
123 Lauterpacht, “Neutrality and Collective Security,” pp. 140–141.
379

available.124 “The vital part of the Covenant was thus made to
repose on the edge of a legal dialectics of a limited but destructive
subtlety.”125
Though in conflict with the substance of the Covenant, neutrality

continued to exist as a function of this self-judging competence,
qualified by the duty of non-recognition – “the ineffective apology of
guilty conscience.”126
This situation reflected the undeveloped state of the law which it

was the jurist’s duty to disclose (instead of hiding it under ingenious
but unrealistic interpretations).127 The rational solution, however,
was to propose
“the conferment of a power of decision upon a qualified majority of

the Council including all the Great Powers but excluding the
disputants.”128
In fact, Lauterpacht argued, inasmuch as the nemo judex principle is

accepted as governing the interpretation of the Covenant, no formal
amendment was necessary.129 By these arguments Lauterpacht was
able to keep collective security and the constitutional character of
the League intact. Neutrality becomes a de facto position derived
from a temporary procedural difficulty, not a principled right or
fundamental feature of the system itself.
Neutrality involves political choice and freedom of action. Hence the

difficulty of finding a place for it under a legally based international
order. At the outset of the Second World War Lauterpacht’s views
were strongly affected by the interest not to interpret the Lend
Lease and US
economic assistance to the Allies as a violation of neutrality. After

Pearl Harbor, however, he no longer felt constrained in this way. In a
1942 talk in the United States, Lauterpacht observed that there had
been no agreed law on the matter in the interwar era and that no
such law was visible then.130 The old law on neutrality was
“glaringly archaic,”131 a
“function of the legal admissibility of war.”132 In a total war – such

as world war – neutral trade with the enemy was an “incongruous
anachronism” and any rights of neutrality “precarious and
illusory.”133 This 124 Cf. e.g. Lauterpacht, “Japan and the
Covenant,” p. 187.
127 Lauterpacht, “Neutrality and Collective Security,” pp. 148 et seq;

“The Pact of Paris,”
pp. 191–197.
128 Lauterpacht, “Neutrality and Collective Security,” p. 138

(emphasis in original).
129 Lauterpacht, “Japan and the Covenant,” pp. 189–190.
130 Lauterpacht, “The Future of Neutrality” (unpublished

manuscript, Lauterpacht Archives, copy on file with author).
131 Lauterpacht, “The Future of Neutrality,” pp. 3, 8.
132 Lauterpacht, “The Future of Neutrality,” p. 7; “Neutrality and

Collective Security,”
p. 146.
133 Lauterpacht, “The Future of Neutrality,” pp. 4, 5.
380
Lauterpacht: the Victorian tradition in international law was not a
conflict where a State could remain neutral for it was fought for “the
purpose of vindicating the rule of law among nations.”134 Nor did
there exist any place for neutrality in the Allied-conceived future
legal order. To the contrary, there would be a legal duty on “all
mankind” to make war upon the aggressor.135 The principles of
collective security and the indivisibility of peace would be parts of
the new law.
Lauterpacht understood the problems of the 1930s as a measure of

the absence of legal constraint on the conduct of foreign policy. In
this, he was not alone. Since the First World War, the British public
had been particularly suspicious of diplomacy and the diplomatic
establishment.136 In July 1933 Arthur Henderson (1863–1935), the
former Foreign Secretary of the Labour Government and the
Chairman of the Disarmament Conference, published a pamphlet on
“Labour’s Foreign Policy” in which he proposed the incorporation of
Britain’s international obligations on the avoidance of war and
peaceful settlement into British law.137 In response to a request to
elaborate a proposal to this effect Lauterpacht drafted a Peace Act
which provided that the Covenant, the Pact of Paris, the 1928
General Act for the PacificSettlement of Disputes, as well as the
British acceptance of the compulsory jurisdiction of the Permanent
Court, “shall have the force of law.” Under the Act it was to be
unlawful for a British Government to terminate any of these
undertakings, to threaten or to declare war or resort to force, as well
as to “order the invasion or occupation of any part of the territory of
a foreign State.” Any contrary act or Order in Council was to be
considered null and void. No defense of superior orders would be
applicable for the servants of the Crown implementing such a
decision.138
134 Lauterpacht, “The Future of Neutrality,” p. 1.
135 Lauterpacht, “The Future of Neutrality,” p. 9.

136 Cf. Gordon A. Craig, “The British Foreign Office from Grey to
Austen Chamberlain,” in Gordon A. Craig and Felix Gilbert (eds.), The
Diplomats 1919–1939
(Princeton University Press, 1994 [1953]), pp. 22–25, 47.
137 Arthur Henderson, Labour’s Foreign Policy (London, The Labour

Party, 1933). The booklet reaffirmed the traditional Labour view that
“war in any circumstances should be made a crime in international
law” (p. 4) and argued that the only way to peace was to agree on
compulsory settlement of disputes.
138 Hersch Lauterpacht, “The Peace Act, a draft” (unpublished,

Lauterpacht Archives, copy on file with author). The Act goes further
than the instruments as it covers use of force short of “war” and
binds Britain not to withdraw its unilateral declaration of compulsory
jurisdiction. The duty to respect foreign territory was, however,
limited to the extent that there is “instant and grave danger to the
life and person of British subjects.” Such humanitarian intervention
could, however, continue beyond 21 days only by an authorization by
the League Council (para. 4).
381
Where Henderson’s original proposal was motivated by the will to
“make clear to all the world exactly where the Great Britain
stands”139
the Act could, according to Lauterpacht, in fact achieve “much

more.”
It could “secur[e] a substantial measure of unity of international and

municipal law in a matter of paramount importance” as well as,
more concretely, “subject . . . to the examination by English courts
the hitherto exclusive prerogative of the Crown in the domain of
foreign affairs.”140
The draft aimed at domesticenforcement of international obligations

in the absence of adequate international guarantees of observance.
It reflects the view of international and domestic affairs as a single
normative system and limits political discretion in foreign affairs by
judicial fiat.
The proposal was, of course, never adopted. Finally Lauterpacht

reacted to the events of the 1930s by the twin defense of the
wounded idealist, abstraction and displacement. In a discussion of
peaceful change, he observed that the problem was much more
significant than a mere revision of the Peace Treaties – the terms in
which it was usually discussed. It related to the establishment of a
true international legislature with compulsory membership, majority
voting, and effective enforcement. Whatever setbacks the League
had suffered, or might suffer, this objective – federalism – remained
intact and would one day be realized owing to its intrinsic rational
force.141
The constitutionalization of politics and the solution of problems of

peace by a temporal displacement is given a general form in
Recognition in International Law, Lauterpacht’s first major work after
the war (1947).
Ostensibly a book on a relatively minor technical topic, its argument

condenses the problématique of Lauterpacht’s interwar “political”
period and establishes the priority of law to political will and political
fact. In Lauterpacht’s own words, the aim was to “introduce an
essential element of order into what is a fundamental aspect of
international relations . . .
[and to] prevent it from being treated as a purely physical

phenomenon uncontrolled by legal rule and left entirely within the
precarious orbit of politics.”142 Far from a mere technical rule,
recognition is “a task whose implications and potential consequences
are of capital political signifi-139 Henderson, Labour’s Foreign Policy,
p. 19.
140 “Memorandum on the Draft of the Peace Act” (Lauterpacht

Archives, copy on file with author). Lauterpacht explains the basic
idea here as an attempt to overcome the
“dualism of moral standards which in modern times has been typical

of the conduct of the affairs of nations within and outside their
borders.”
141 Hersch Lauterpacht, “Peaceful Change. The Legal Aspect,” in C.

A. W. Manning, Peaceful Change (London, Macmillan, 1938), pp.
143–145.
142 Lauterpacht, Recognition, p. 73.
382
Lauterpacht: the Victorian tradition in international law cance.”143 It

is the vehicle for removing international status from the precarious
realm of politics: statehood, governmental authority, belligerency,
and insurgency. Recognition becomes the master technique for
establishing the connection between abstract rule and its concrete
manifestation. For example: “A lawful acquisition would be
meaningless unless it were accompanied by the right to have it
acknowledged and respected.”144 The shift of perspective from the
rule to its recognition, from the abstract formulation of status to the
duty to give effect to it, is a significant step towards making a reality
of the legal order. If the order is a complete whole (as was argued in
Private Law Sources and The Function of Law), and if each of its
rules is accompanied by the duty to recognize the rights which it
establishes (and not to recognize a status brought about by
violation) then indeed foreign policy can always be redescribed as
the administration of the law. Where politics used to be central and
law marginal, the relation of the two now becomes reversed.
Governmental freedom of action is reconceived as limited
“discretion” in the administration of the law. True, such decentralized
administration reflects the undeveloped character of international
law – a reflexion itself of the undeveloped integration of
international society. Pending the establishment of collective,
impartial organs to undertake this task, however, com-prehending
the process of recognition in terms of legal duty is “not a source of
weakness of international law but a substantial factor in its
development to a true system of law.”145
Recognition is a consistent and far-reaching attempt to imagine

international law as a complete and self-regulating normative
system. What first appears as an act of political will is revealed as an
exercise of interpretative discretion. Today, however, the
constitutivist view expounded in Recognition enjoys no more
adherence than it did fifty years ago. It seems too bold in suggesting
that legal statehood is dependent on whether the world of diplomacy
is prepared to grant it. It seems too weak in failing to explain why
rules about statehood could effectively constrain diplomacy in this
task. Lauterpacht’s redescription relocates policy but does not
diminish its centrality.
According to Lauterpacht, were the widespread (positivist) view that

the recognition of States and governments is a matter of policy, and
not of law, correct, it would constitute as glaring a gap “in the
effective validity of international law” as the admissibility of war did
prior to the 143 Lauterpacht, Recognition, p. 69.
383

1928 Pact of Paris.146 Such a situation would also be ethically
intolerable as it would fail to uphold the right of human communities
to constitute themselves as political entities: “the right of recognition
follows from the overriding principles of independence of States and
of prohibition of intervention.”147 Again, Lauterpacht’s target is a
mistaken doctrinal view. And again, the attack is conducted in terms
of scientific factuality: “the view that recognition is not a function
consisting in the fulfillment of an international duty but an act of
national policy . . . has the further result of divorcing recognition
from the scientificbases of fact on which all law must ultimately
rest.”148 Accordingly, the book is written as an extensive survey of
the diplomatic and recognition practice of the most important States
(Britain and the United States, in particular). In Lauterpacht’s view,
States have not regarded recognition as a matter of arbitrary
political will but have consistently argued that granting or
withholding it was a matter of duty, relative to the ascertainment of
facts. That this method entrenches the statism of an international
system which he elsewhere held as its main defect remains invisible
as factuality is here used to buttress a normativist view against
deviating “realisms.” But it does make it necessary for him to argue
in terms of a historical trajectory in which the present is only a
temporary stage to be superseded by a collectivization of recognition
through the integration of the international community “which, in the
long run, is the absolute condition for the development of the
potentialities of man and humanity in general.”149
The factual argument is weak. It is easy to believe that States do not

argue that when they grant or withhold recognition, they are doing it
as a matter of political will. It is in the nature of diplomacy to defend
one’s position by reference to external “objective necessities.” If
Canning argued that the British recognition of South American
colonies in 1823
followed from their actual fulfillment of the conditions of

statehood,150
is this not a typical diplomatic move to justify one’s political position
in as uncontroversial terms as possible in order to forestall the
counter-reaction of one’s adversary (Spain in this case)? Surely the
same is true of most situations where the grant of status is a matter
of political controversy. A “realist” has no difficulty in interpreting
Canning’s policy as a political maneuver against Spanish
predominance and an attempt to extend British influence in the
Western hemisphere.
146 Lauterpacht, Recognition, pp. 3–6.
147 Lauterpacht, Recognition, pp. 142, 158–165.
148 Lauterpacht, Recognition, p. 5, also p. 91.
384
Lauterpacht: the Victorian tradition in international law The book’s

factual claims comply with the expectations of the reading public but
fail to provide a conclusive demonstration of a historical thesis. Much
more important are arguments according to which the dec-larativist
view is epistemologically naïve while (pure) constitutivism is ethically
unacceptable. The modernity and consequence of Recognition lies
above all in Lauterpacht’s successful repudiation of the naïve realism
that clung to the “scientific” character of political facts and sought
respectability from an entrenchment of power. The epistemological
and the ethical are brought together in Recognition by insisting on
that which lies between, interpretation.
Declarativism is naïve as it assumes that the emergence of political

entities endowed with legal rights and duties, and in particular of
States (or governments, or belligerents), is a question of pure fact.
Recognition not only fails to create status, it is reduced to a formality
and we must remain in constant doubt about why it should have any
significance at all. But in fact statehood is not a physical fact that
would be able to disclose itself mechanically for all the world to see,
or whose presence or absence can be determined by some
“automatic” test, as shown by the extreme variety of actually
existing States.151 Statehood is a conceptual construct which refers
back to the presence (or absence) of a set of criteria for the
attainment of the relevant status. What those criteria are and
whether they are present depends on acts of human cognition. If
that act of cognition is not there, i.e. if nobody recognizes an entity
as a
“State,” then there is little point in insisting that the status still exists.
Only through recognition can a fact transform itself into a “juridical

fact.”152 A State or a government whose existence is acknowledged
by nobody cannot successfully claim to be treated as such. Its status
has reality only within its own solipsist universe.153
The constitutive view acknowledges the complexity of the social

world and the ensuing primacy of the interpretation of facts over
facts in their
“purity.” Inasmuch as it holds recognition to be an act of “pure

politics,”
however, it goes too far in the opposite direction. From the existence
of a gap between “facts” and their cognition it draws the
consequence that 151 Lauterpacht, Recognition, pp. 45–51.
153 This may seem obvious as regards statehood. Its significance is

highlighted in relation to the frequent assertions by States that they
do not recognize foreign governments. In normal cases no express
recognition is needed because the matter is clear.
Recognition asserts its constitutive significance, however, when there
are rival factions: in such cases a state wishing to maintain some
kind of relations with the State concerned is bound to give some
kind of recognition – implicit or de facto – to one such faction.
Lauterpacht, Recognition, pp. 156–157.
385
the two are wholly independent from each other, that recognition is
an act of pure, unconstrained political will. But in fact nobody treats
it as such. If statehood is a matter of fulfilling some antecedent
criteria, then surely recognition must comply with such criteria – and
that it is so regarded is evident, for example, in the generally
accepted view that holds premature recognition as a violation of the
law154 and that tests governmental authority by reference to its
effectiveness; to hold otherwise would allow intervention in the
internal affairs of the State.155
The only open question that remains is what the legal criteria of
attaining the relevant status are, and how they are to be interpreted.
Here there is, of course, much debate and discretion. On the one
hand, a legal view is incompatible with politically loaded criteria,
such as legitimacy of origin, religion, political orientation, or even the
willingness to abide by international law.156 On the other hand,
such criteria cannot be purely factual, without violating the principle
of ex injuria non jus oritur.
The effectiveness of government cannot be just a matter of power,

but must be accompanied by a degree of legitimacy.157 Non-
recognition of illegally attained title is not the consequence of a
specific doctrine to that effect but of the general principle that no
one may profit from his own wrong. True, there is always a “political
element” in appreciating such criteria.158 But discretion is not free,
at least it cannot be exercised for the advancement of one’s own
interests. In exercising it, States are fulfilling the function of
administering international law.
Lauterpacht’s modernist, neo-Kantian epistemology combines

constitutivism and declarativism. Recognition is “declaratory of facts
and constitutive of rights.”159 Such a construction takes a strong
view on interpretation. Facts do exist as the (absent) referents of the
criteria for recognition. But they appear only in interpretation. As
facts cannot interpret themselves “there must be someone to
perform that task.”160
That someone is each State. Interpretation is not a political act of

will, however. As its ultimate reference is a fact, it must be held an
act of cognition. We notice here the central paradox of modernist
epistemology: though knowledge (unlike will) is universal, it appears
(like will) only in partial truths. Lauterpacht accepts relativism, but
only as a temporary condition, a consequence of the present world’s
fragmented nature.
155 Lauterpacht, Recognition, pp. 98 et seq.
156 Lauterpacht, Recognition, pp. 31–32, 102–104.
157 Lauterpacht, Recognition, pp. 115 et seq.
160 Lauterpacht, Recognition, p. 55, italics in original.
386
Lauterpacht: the Victorian tradition in international law The problem

is not only that interpretation is difficult (indeed, the complexity of
international life is acknowledged in the intermediate doctrine of de
facto recognition)161 but also that we cannot be assured that it is
always undertaken in good faith. Lauterpacht believes that accepting
the legal character of recognition will to some extent diminish the
likelihood of divergent findings.162 To dispose finally of the
unacceptable situation of self-judgment, however, recognition must
be collectivized, allocated to an “impartial international organ.”163
This can, however, be undertaken only when international
integration arrives at its final form of universal organization with
compulsory membership.164
Recognition illustrates the problems of modern law. Facts are needed

to constrain (arbitrary) political will. However, facts need to be
interpreted.
In the act of interpretation political will reasserts itself. “Criteria” or
“methods” are needed to control interpretation – and we must

struggle about finding them a normative basis and a determinate
content.
Recognition, like post-formalist law in general, seeks an exit from the

circle of interpretative problems by a turn to process: focusing away
from facts and criteria to the qualities of (future) procedure. For
Lauterpacht, recognition – the meaning of facts and allocation of
status – must ultimately become the function of democratic debate:
(interpretative) wills must try to find each other in search of a
collective consensus. The relocation of the resolution in a future
process, however, seems undermined by the description of the
present. Why would such collectivization take place if, in fact,
recognition is important and States disagree on the meaning of
facts? Why would collectivization of a political decision any better
protect the rights of individual entities than its decentralization; why
would adding up more wills come to establish the cognitive
correctness of the conclusion?
In Recognition, too, Lauterpacht’s gaze looked into the nineteenth
century as an era when diplomacy was orderly and honored the
consent of the governed:165 Imperium et Libertas.166 It was his
last “political” work.
It offered a redescription of diplomacy as the administration of the

law which at the stroke of the pen wiped away the political
“retrogression”
of the interwar years. Its legal utopia relied not only on diplomats’
willingness to understand their job accordingly but – much more
crucially 161 Lauterpacht, Recognition, pp. 329 et seq.
163 Lauterpacht, Recognition, pp. 55 and generally 67–78, 165–174,

253–255.
166 Cf. Harold Temperley, The Victorian Age in Politics, War and
Diplomacy (Cambridge University Press, 1928), pp. 14–21.
387
– on their ability to clear the inevitable (interpretative)

disagreements through democratic debate which, if it were present,
would render the redescription unnecessary. Lauterpacht’s utopia
was not unworkable because diplomats were unwilling to imagine
themselves as judges but because, to judge wisely, they needed to
be good diplomats!
Whatever may have been the reaction of Lauterpacht’s Cambridge
audience in the autumn of 1938 to his plea for the revival of
Victorian tradition, international politics took a different course. The
absolute powerlessness of law in face of a political and military logic
completely discredited the idea of simply resuscitating the
League.167 Despite the infinitely greater horrors of the Second
World War compared to those of its predecessor, however, no great
movements of revival or rejection followed in its wake. The
establishment of the United Nations took place as a pragmatic
necessity, an outcome of technical realism and sense of duty rather
than political inspiration, as if no formal reaction could possibly have
matched the enormity of the sufferings caused by the war.
Lauterpacht’s whole family, his parents, his brother and sister and
their children, with the exception of one niece, were murdered in the
Holocaust, presumably as early as 1940. It is not clear when he
learned of the fate of his family. Nothing is visible of this tragedy in
his writings
– although it seems evident that the turn from “politics” to “human

rights” must have been influenced by it. Lauterpacht himself spent
the war years in Britain, teaching in Cambridge as Whewell Professor
of International Law after 1938, and making two lecturing trips to
the United States and providing services to the British Government.
In 1945–1946 he became a member of the British War Crimes
Executive, in which capacity he went to Nuremberg and wrote drafts
for Britain’s Chief Prosecutor, Sir Hartley Shawcross (born 1902).
Lauterpacht’s drafts for the opening and closing speeches of the

British prosecutor are characteristic in their absence of emotion and
167 This was what Lauterpacht had proposed as late as 1939–1940
in a talk that avoided taking a straightforward federalist stand and
that is among those rare writings in which he shows some
understanding of statehood as “an expression of actual diversity of
interest, economic and other, and of disparities of wealth, culture
and standards of life between States,” Hersch Lauterpacht,
“Sovereignty and Federation,”
Collected Papers, 3, pp. 13, 5, 14–25.
388
Lauterpacht: the Victorian tradition in international law concentration

on doctrinal detail.168 He keeps in check his Jewish background and
writes about the Shoah as the killing or extermination of
“civilians” and “non-combatants.” The closing draft begins with a

slightly defensive discussion of the competence of the Tribunal and
of the fairness of its procedures, its impartiality and independence.
Lauterpacht stressed the Tribunal’s function as an administrator of

general, not victors’, international law. The substantive part of the
draft defends the notions of a State’s as well as individuals’
international responsibility as parts of already existing law and draws
upon Lauterpacht’s earlier views.169 The discussion is technical – an
analysis of a 1935 arbitration between Canada and the United States
being strangely out of place in this connection. Sometimes
Lauterpacht gets carried away by his academic views, directing his
attacks not only against German policy but statehood as such: “[t]he
mystical sanctity of the sovereign State . . . is arraigned before the
judgment of the law.”
The extreme restraint and formality of Lauterpacht’s drafts is

understandable. Of all British international lawyers, he was most
vulnerable to the charge of special pleading. Only parts of his drafts
found their way into the passionate, even angry, speeches of the
British prosecutor. As Shawcross noted, “the sentiment in
Nuremberg” required concentration on the facts rather than on the
law.170 Nonetheless, the full story of Lauterpacht’s role in
Nuremberg remains untold and Shawcross expressed his gratitude
on several occasions, sometimes very generously, noting at the end
of the process, that “I hope you will always have the satisfaction in
having had this leading hand in something that may have a
[lasting?] influence on the future conduct of international
relations.”171
During the war Lauterpacht had already participated in the debates

concerning the future of world organization. Inspired by an American
debate in 1942–1943, he drafted a scheme for an international rule
of 168 Lauterpacht Archives, copies of parts of the draft for the
closing speech on file with the author. Shawcross had contacted
Lauterpacht in May-June 1946 asking for assistance in the
preparation of these statements and specifically directing him to
concentrate on the legal and historical aspects of the case.
169 These themes – the advocacy for a War Crimes tribunal, the
elaboration of the basis of its jurisdiction, as well as the law
applicable and a discussion of a neutral State’s duty to extradite
suspects – are also dealt with in “The Law of Nations and the
Punishment of War Crimes” (1944), XI BYIL, pp. 58–95 (an article
based on a Memorandum Lauterpacht prepared for a Committee set
up by the Department of Criminal Science at Cambridge University).
170 Shawcross to Lauterpacht, November 27 and November 30,

1945 (Lauterpacht Archives).
171 Shawcross to Lauterpacht, July 11, 1946 (Lauterpacht Archives).
389
law that reproduced in ten principles his liberal, cosmopolitan

credo.172
The organization was to be universal, its continuity with the League

should be recognized (thus symbolically recognizing continuity with
the
“greatest political advance made by the society of nations”173), and

it should be independent from the peace settlement. There were to
be a prohibition of war, a compulsory rule of law, systems of
collective security, peaceful change, majority voting, human rights
protection, and international adminstration. Courts were to be
allocated major tasks, e.g. the determination of the existence of
“war,” as well as setting the limits of international legislation.174
There would also be a system of effective enforcement of
judgments.175
In 1944, Lauterpacht also participated in a discussion initiated by the

American Society of International Law (ASIL) on the future of world
organization. He was critical of the text produced for this purpose by
Manley Hudson for the relevant ASIL Committee,176 regarding it a
“rather timid and uninspired document.”177 Its rhetoric was too

general, giving the “impression of somewhat pretentious
embellishment.” It failed to propose a binding system of international
legislation, contained no provision for the protection of human
rights, applied the unanimity principle in important matters, and
maintained the legal/political disputes distinction which, as
Lauterpacht had demonstrated in The Function of Law, allowed
States to opt out from legal procedures at will.
Writing to his British colleagues, Lauterpacht noted that “there is

room for a parallel and perhaps better effort in this country.”
The proposal led to an exchange of written drafts and comments

between members of a British International Law Committee, in
which in addition to Lauterpacht, at least Hurst, McNair, and Brierly
participated.178 In this correspondence Lauterpacht consistently
took a 172 Undated memorandum, 1942/43, Collected Papers, 3, pp.
462–503.
173 Undated memorandum, 1942/43, p. 474.

174 Undated memorandum, 1942/43, pp. 481, 483.
175 These ideas were not generally shared among the British
international law community. Professor Brierly, for instance, took a
very critical view of the proposals – especially of the implied aim of
forcing democracy as the internal form of government
– and remarked drily that the “proposals might be more effective if

they were less ambitious.” Brierly to Lauterpacht December 15, 1943
(Lauterpacht Archives).
176 Cf. 38 AJIL (Supplement), pp. 44–139.
177 Memorandum (undated, presumably spring or early summer

1944). From Lauterpacht to Sir Cecil Hurst, “Notes on the Postulates,
Principles and Proposals,”
Lauterpacht Archives, copy on file with author.
178 The full composition or general activities of the Committee are

not known, cf. note by Eli Lauterpacht in Collected Papers, 3, p. 461.
390
Lauterpacht: the Victorian tradition in international law federalist

position, advocating, as in his interwar writings, universal and
compulsory membership in the future organization (with temporary
non-admission of former “Axis Powers and their Allies”), binding
international legislation in matters of international concern (and
generally, though not without exception, through majority vote),
binding and compulsory settlement of disputes, collectivization of
recognition, and enforcement jurisdiction bestowed on the
organization, with special (but not sole) responsibility on the four
major Powers.179
Some of Lauterpacht’s proposals that were controversial or absent

from other drafts presented to the Committee (such as a unitary
budget for the various bodies, the non-use of force principle, the
trusteeship system, a provision on the protection of human rights,
and registration of treaties) ended up in the UN Charter.
Nonetheless, in an assessment of the state of international law given
at the Hebrew University in Jerusalem in May 1950,180 Lauterpacht
did not hide his dissatisfaction.
In his view, the situation was worse now than it had been in 1919.
The interwar years had been a period of regression to which the
peace of 1945 had brought no significant relief. Modernity had failed
him. He attributed this to four rather different causes: lawlessness in
the conduct of warfare, the suppression of normal conditions by the
Allies in occupied Italy and Germany, the prevailing atmosphere of
admiration of power, and the requirement of unanimity of the
permanent members of the Security Council.181 Even recent
progress in some areas (the growth of international organization, the
acceptance of the principles of enforcement and human rights) “has
been obscured by the tangible and menacing reality of the division
of the world into two opposing groups of States.”182
After the sombre assessment of the state of the post-war world,

Lauterpacht’s writing takes a new turn. Instead of trying to develop
better doctrines on traditional textbook subjects Lauterpacht now
focuses directly on individual human rights and advocates
institutional 179 Cf. International Law Committee: “The Nature of
International Law – Draft by Professor Brierly, Observations by
Professor Lauterpacht” ( June 12, 1944); International Law
Committee on the Hudson Document: “Sir Cecil Hurst’s Draft of a
Revised Covenant. Observations by Professor Lauterpacht” ( July 15,
1944), Mimeo, Lauterpacht Archives, copies on file with author.
180 Lauterpacht represented Cambridge University at the 25th

anniversary of the Hebrew University and gave two lectures there,
one in English, one in Hebrew.
181 “International Law after World War II,” Collected Papers, 2, pp.
159–170.
182 “International Law after World War II,” p. 167. Cf. also “The
Grotian Tradition in International Law,” p. 1 n 2.
391
means of protection at universal and regional levels. He explains that

there has been “widespread conviction” that the “major purpose of
the war” had been the creation of effective institutions to protect
human rights, in particular the establishment of an International Bill
of the Rights of Man.183 Much of his late 1940s work is written as a
polemic in favor of such an instrument, the subject of a pamphlet of
1945, of a number of public lectures, and of the main work of his
human rights period, International Law and Human Rights (1950).
However, although Lauterpacht’s subject-matter focus is now

different from his pre-war concerns, the traditionalist impulse seems
even more prevalent than before. Human Rights takes on a language
of grave formality. He now speaks of the “majestic stream of the law
of nature.”184 Words such as “fundamental,” “inalienable,” and
“sanctity”
abound, underlining the ahistorical, quasi-religious seriousness of

human rights. The book’s revivalist argument is this: natural rights
(that is, individual human rights) are rooted in (Western) legal and
political thought, from Greek philosophy to modern Western
constitutions.185
These rights are supported and “enforced” by natural and

international law, the two having developed together from Grotius
and Vattel to the doctrine of humanitarian intervention,186 and,
finally, the UN Charter which places human rights “on the enduring
foundations of the law of nature.”187 To make matters more
concrete and to make no mistake about where the tradition is to be
found, Lauterpacht identifies it with the “English sources,” the
“powerful tradition of freedom conceived, in the words of the Act of
Settlement, as the ‘birthright of the English people.’”188
This revivalist argument feels like Walter Benjamin’s famous image

of the “Angel of History.” Lauterpacht is propelled forwards with his
gaze fixed firmly in the receding past in which history’s pile of debris
seems always highest when nearest.189 The invocation of Greek
philosophy and Enlightenment thought seemed necessary in order to
re-establish the credibility of European liberal political culture – of
which many assimilated Jews had good reason to feel they were the
real bearers190 –
183 Lauterpacht, International Law and Human Rights, p. 79.
184 Lauterpacht, International Law and Human Rights, p. 79n15.
185 Lauterpacht, International Law and Human Rights, pp. 73–93.
189 Walter Benjamin, Illuminations (ed. and with an introd. Hannah

Arendt, New York, Schocken, 1968), pp. 257–258.
190 Beller, Vienna and the Jews, pp. 142–143.
392
Lauterpacht: the Victorian tradition in international law and to

explain the immediate past as an externally imposed distortion and
not a logical consequence of the tradition.191 Only an openly
philosophical stance could make the traditional project seem credible
in face of increasing popular cynicism about international law and
organization, reflected in the academic turn from international law to
international relations and in the journalistic predominance of a new,
dynamic realism.
Beyond the celebratory recounting of Western intellectual history,

Human Rights conveys no interpretation of the cultural or political
meaning of the interwar era, or of the causes and vicissitudes of the
Second World War. In particular, the book fails to examine the
relationship between the optimistic legalism of the League era and
the collapse of the political order. The only reference to the
Holocaust appears in a footnote that quotes Earl Russell from
1946!192 The book’s naturalist part (section II, chapters 5–8)
remains a separate, historico-moral treatise with little connection to
what went before (the description of the erosion of statehood as the
organizing principle of the law) and what comes after (a discussion
of the place of human rights in the Charter and the project for an
International Bill of Rights). The isolation of the book’s three parts
from each other suggests that Lauterpacht did not succeed in
attaining a satisfactory reconciliation of traditionalist morality with
modernist legality. The result is a work that either reproduces the
liberal canon and the primacy of individual rights over a potentially
hostile public power; or becomes a partisan plea for a particular
institutional arrangement (public power!) to support individual rights
as effectively as possible.
Human Rights explains itself again as a critique of “[t]he orthodox

positivist doctrine . . . that only States are subjects of international
law.”193 The curious impression is being conveyed that the problems
of world order depend on a mistake about the proper listing of legal
subjects. This somewhat absurd feeling is strengthened by the rest
of the book’s first part that counters this (academic) dogma by
reference to the emergence of international organizations as legal
subjects194 and the recognition of the position of the individual as
protected or rendered 191 “[T]he menacing shape of unbridled
sovereignty of the State in the international sphere [created the]
urge to find a spiritual counterpart to the growing power of the
modern State,” Lauterpacht, International Law and Human Rights, p.
112.
192 Lauterpacht, International Law and Human Rights, p. 71n 22.
393
responsible by international treaties.195 The result is an implicit

suggestion that the problems of post-war reconstruction do not lie in
diplomacy or politics but in legal doctrine’s inability to reflect the
(increasingly beneficial) facts of international life. The issue is (only)
“one of not permitting the dead hand of an obsolete theory to

continue to lie heavily upon the development of international
organisation.”196
Such doctrinal focus, however, deprives the work of critical force.

Who would be interested in adjusting the insights of a marginal
theoretical preoccupation if diplomatic facts (as well as the law) have
already been transformed to reflect the politically desirable?
The same problem emerges in the discussion of the place of human

rights in the UN Charter, the section that follows the philosophical
excursus into Western naturalism. Lauterpacht insists that Arts 1(3)
and 55(c) of the Charter, dealing with “promoting . . . respect for
human rights,” are not simply programmatory postulates but create
enforcible legal obligations. By recourse to the principle of
effectiveness, he interprets the reference to human rights in the
Charter in the broadest possible terms while the scope of “domestic
jurisdiction” in Art. 2 (7) is given the narrowest feasible
understanding.197 Lauterpacht reads the whole liberal agenda into
those provisions: they provide protection for individuals against the
government and its subdivisions as well as other intru-sions in the
private realm.
Just as in the “political” writings of the 1930s, it turns out that the
substance of the rights is less important than the procedures, the
key problem being “what shall be the international machinery for
securing the rights after they have been recognized.”198
Lauterpacht was disappointed by the early jurisdictional decision by
the Commission on Human Rights not to take action on individual
petitions and responded by the argument that human rights were
not merely an incidental decoration but an underlying theme of the
Charter. It would therefore have been possible for the Commission in
accordance with the principle of effectiveness to examine individual
complaints.199 He urged as the essential part of the future
International Bill of Rights – what became the two 195 Lauterpacht,
International Law and Human Rights, pp. 27–47.
198 Talk on the BBC in October 1949, Collected Papers, 3, p. 413.
199 “State Sovereignty and Human Rights” (1950), Collected Papers,

3, pp. 419–421; International Law and Human Rights, pp. 229–251.
394
Lauterpacht: the Victorian tradition in international law Covenants in

1966 – the inclusion of a mechanism of individual (and not only
State) complaints. To deny such right would be “tantamount to a
withdrawal, to a large extent, of the principal benefit conferred by
the Bill.”200
The most interesting part of Human Rights, however, is the criticism
of the “deceptive” or “concealing”201 character of the 1948
Universal Declaration on Human Rights. Even during the drafting of
the Declaration Lauterpacht had warned against not rushing ahead
so as not to end up in vacuous generalities.202 This had been to no
avail, however. The provisions of the Declaration became too general
and open-ended to be applicable. No institutional safeguards or
mechanisms for implementation were attached to it. States were
unanimous and emphatic in their denial of the legal character of the
Declaration.203
And they were right – any attempt to interpret it as a legal

instrument were bound to fail. Retreating to formalism Lauterpacht
stressed the
“duty resting upon the science of international law to abstain from

infusing an artificial legal existence into a document which was never
intended to have that character.”204 Lauterpacht viewed the
Declaration as mere decoration; not only unnecessary but counter-
productive, a substitute for effective action. Even attempts to endow
the Declaration with moral value were futile: what moral value has a
commitment that States are openly entitled to disavow? It thus
became legal doctrine’s task to create a living sense of the
Declaration’s insufficiency and to quicken the pace of negotiations
for an effective Bill of Human Rights.205
There is a tension between the invocation of the tradition of natural

rights in the second part of the book and the critique of the 1948
Declaration in the third. For if the tradition is correct, Lauterpacht

should not be too worried about the effects of the Universal
Declaration that seems, after all, to have rhetorically incorporated
much of its substance. On the other hand, surely the critique of the
Declaration as mere
“façade” or “substitute” is equally applicable to the human rights
tradition that Lauterpacht seeks to revive. The absence from
Lauterpacht’s 200 “State Sovereignty and Human Rights,” p. 423.
202 Letter to the Times, July 26, 1947, Collected Papers, 3, pp. 408–
409.
205 Cf. also Lauterpacht’s talk of 1949, Collected Papers, 3, p. 413.
395
revivalist argument of a serious account of the relationship between

the liberal tradition and diplomatic history makes it just as vulnerable
to a criticism of bad faith as the Declaration in its purely rhetorical
formulation.
The problem lies in Lauterpacht’s unwillingness to pinpoint the

politics he finds unacceptable. Instead, the focus of his criticism falls
always on the abstract and formal conception of statehood, viewed
in the standard liberal fashion as mere “administrative
convenience”206 that had degenerated into an “insurmountable
barrier between man and the law of mankind.”207 The critique of
statehood is the counterpart of Lauterpacht’s cosmopolitan
individualism. But whether that critique is the unequivocal
consequence of the tradition may be open to doubt.
Surely Lauterpacht would have conceded that at least in some cases

–
perhaps quite a few cases – statehood functions as a protective
device over the freedoms that tradition seeks to uphold.208 In 1947
Lauterpacht participated in the drafting of the Declaration of
Independence of the State of Israel. Surely he could not have
refused to take part in the creation of the Jewish State because of
his principled view about the malignant character of statehood!209
The point here is that the relationship between the tradition and the
institutional proposals is more complex than Lauterpacht is willing to
acknowledge. Tradition (natural law) and modernity (institutional
experience) refuse to lie comfortably in the same bed. A reliance on
the former may sometimes support statehood, sometimes
federalism.
Everything depends on the circumstances and the relevant question

becomes less whether to prefer statehood or integration but what
States, 206 Lauterpacht, International Law and Human Rights, p. 68
and generally pp. 67–72.
208 As indeed he does by recognizing “a certain duality” about

statehood: on the one hand its only justification is the protection of
individual rights, on the other, it appears also as “the absolute
condition of the civilized existence of man [sic],”
Lauterpacht, International Law and Human Rights, p. 80. This

duality disappears, however, as Lauterpacht moves to prophesy:
there is no regret for the loss of these benefits on the route to
federalism. Lauterpacht’s federalism has been strengthened from the
more careful realism of 1939–1940 in “Sovereignty and Federation,”
209 In fact, when defending British jurisdiction on the treasonable

activities of aliens abroad (through a wide formulation of the
“effects” doctrine) or on the scrutiny of the international lawfulness
of acts of other States, Lauterpacht has no difficulty in defending
British sovereignty to the extent that it can be used to attain his
preferred outcomes. Cf. “Allegiance, Diplomatic Protection and
Criminal Jurisdiction over Aliens” (1946), Collected Papers, 3, esp.
pp. 234–239 and “Testing the Legality of Persian Policy” (1952),
396
Lauterpacht: the Victorian tradition in international law or integration

on which terms to prefer.210 But these are issues of substantive
politics that Lauterpacht is not willing to face directly.
The tension between ethics and institutions (or tradition and

modernity) is visible in post-war internationalism more generally. On
the one hand, there is the need to be able to relate contemporary
law to a tradition of progressive thought so as to demonstrate its
critical distance from an unacceptable political present: “better times
and better peoples.” The rhetorical formulation of the tradition,
however, remains indeterminate to the degree that the accusation of
façade legitimation is always applicable and can be dealt with only
by reference to the effects, actual or expected, of the advocated
norms in social reality. This leads to the demand for and discussion
of institutional proposals that function at the level of empirical
sociology: who is constrained and by what means, who decides,
controls, implements? Are the norms self-judging, or is there a third
party to decide on their application? What is its jurisdiction? Who
elects its members? And so on.
Once focus is shifted to these latter issues, however, it becomes

increasingly difficult to see on what basis the various institutional
solutions can be assessed. If the institutions are invoked in order to
defend (or criticize) tradition, then the tradition cannot, without
circularity, be invoked to to defend (or criticize) institutions. The
result will be a purely institutional–pragmatic, technical discourse in
which an autonomous super-criterion of “effectiveness” or “binding
force” will determine the acceptability of particular outcomes.
Normative politics becomes institutional technique. This is pure
modernity.
Lauterpacht’s discussion of human rights crystallizes in his critique of

210 A similar ambiguity is evident also in the idealism/realism
discussion of the era.
Where historians such as E. H. Carr used existing institutional

practices to challenge the “utopian” views of lawyers such as
Lauterpacht, their conclusions were – as Lauterpacht perceptively
noted – conditional on a particular interpretation of the character
and logic of those institutions. Where the two disagreed was not on
whether one should rely on hard “facts” or the liberal “tradition,” but
how the two were to be interpreted. This is why Carr’s self-
characterization as a “realist”
appeared to Lauterpacht as a dishonest debating strategy. “On

Realism,” Collected Papers, 2, pp. 57–58. Why should not the view
that “the ultimate interest of States is peace” be equally “realist” as
any other statement about their interests? There is a distinction here
between the short term and the long term, but whichever one
chooses is not consequent on one’s “realism” or “idealism” but on
one’s understanding of human nature. For Lauterpacht, the ultimate
distinction is between optimism and tragedy: do people learn from
mistakes or do they not? This is much more a distinction of style and
culture than of epistemological commitment. In a conclusive
refutation of realist naïveté, Lauterpacht notes that “in the realm of
human action, ideas are facts,” p. 65.
397
the ineffectiveness of the Universal Declaration and in his proposal

for a legally binding and enforcible Bill of Rights. The invocation of
the tradition of liberal Enlightenment becomes concrete in a
bureaucratic structure. Natural law is transformed into twenty-nine
draft articles that define the rights to be protected, oblige States
parties to incorporate individual rights into their domestic law “by
appropriate constitutional means,” and set up a machinery of
international supervision. There would be a nine-member Human
Rights Council with broad powers to consider petitions, to set up
investigative Commissions, and conduct enquiries. States would be
entitled to appeal from the Council’s findings to the International
Court of Justice (ICJ). In cases of non-compliance, the General
Assembly could take “such action as may be appropriate in the
circumstances.”211
The Bill of Rights is Lauterpacht’s response to the ineffective

Universal Declaration and foreshadows the 1966 International
Covenants. Where Lauterpacht’s “political” writings in the interwar
era crystallized in a proposal for the collectivization of recognition –
and thus in an effective constitutionalization of the interstate system

–
his “human rights” writings seek an institutional solution to the moral

and political dilemmas of the age. And the teleological framework is
constantly present. The function of law is to bring about “the gradual
integration of international society in the direction of a supranational
Federation of the World – a development which must be regarded as
the ultimate postulate of the political organization of man.”212
Lauterpacht reacted to the Second World War by an express

invocation of the liberal–humanist tradition that had been the target
of defeated dictatorships. As he could no longer trust the
transparency or immediate plausibility of the tradition, however, the
focus of his writings turned to more effective institutions, control,
and constraint. The theory of liberal humanism and the associated
principles of human rights and the Rule of Law are supplemented by
and finally submerged in institutional 211 For the text of
Lauterpacht’s proposed Bill, cf. Lauterpacht, International Law and
Human Rights, pp. 313–321 and commentary 325–393.

Lauterpacht was quite express about federalism. In his 1950 talk in
Jerusalem, he urged his audience to see world federation “not as an
infinite ideal but as an object of a moral duty of positive action and
as a practical standard of human endeavour.” Two features of such
federation are important: the dissolution of the international
personality of members and the direct relation between individuals
and the federation. For that purpose the State of Israel was called to
contribute its “proper and appointed share.” “State Sovereignty and
Human Rights,” p. 430.
398
Lauterpacht: the Victorian tradition in international law proposals.

Political critique is neutralized in a critique of statehood as such –
with the result that tradition becomes increasingly abstract while the
problems of peace appear overwhelmingly as issues of institutional
competence.
After the war, Lauterpacht compensated his disappointment in the
lawlessness of the politics of international security by trying to revive
the humanitarian tradition in European political philosophy in a new
law of human rights. The other track he now followed was an
increasing emphasis on the importance of enlightened international
law practice.
He aimed to grasp the problem of world peace – always a problem

of legal order to Lauterpacht – from two sides: the postulation of a
cosmopolitan ethic and a stress on legal activism. Each acted so as
to support the other: the cosmopolitan ethic was concretized in
enlightened judicial practice; judicial practice received its legitimacy
from progressive cosmopolitanism. The two were brought together
in a constructive conception of the legal order as a function of
judicial imagination.
To carry out this task it did not suffice to remain in the university.
Lauterpacht had learned the limits to which academics could imagine

an international legal order into existence. In April 1948 he arrived in
New York to serve for three months as an adviser to the UN
Secretariat on the codification of international law. In that function,
he prepared a draft program of work including suggested topics for
codification of which a substantial part was adopted by the newly
established International Law Commission as its first program.213
However, laying down a program for the codification of international

law did not satisfy Lauterpacht’s desire to enter legal practice. After
all, the nucleus of the law was less in its substance than in its
interpretation and application. Having served as Counsel to the
British Government in 213 Hersch Lauterpacht, “Survey of
International Law in Relation to the Work of Codification of the
International Law Commission,” Collected Papers, 1, pp. 445–530.
Lauterpacht’s suggestions included the codification of the recognition
of States, jurisdictional immunities, extradition, right of asylum,
State succession, the regime of the High Seas and territorial waters,
nationality, the law of treaties, diplomatic and consular intercourse,
State responsibility, and arbitration procedure. Nearly all of these
topics were included in the Commission’s 1949 work program. For
the adoption of the program, cf. UNGA Res. 373 (IV) of December 6,
1949. Cf. also H. W.
Briggs, The International Law Commission (Ithaca, New York,

Cornell University Press, 1965), pp. 169–176.
399
the Corfu Channel case, he wrote a letter in May 1949 to the British
Legal Adviser, expressing an interest “in advising private clients and
foreign governments . . . mainly for the reason that it brings [him] in
touch with the practical side of international law.”214 And he
affirmed his loyalty by expressing his readiness to exclude cases that
would interfere with his teaching or be “clearly contrary” to the
views of the British Government
– with the characteristic reservation that unless he thought it useful

that such opinion be given by him instead of somebody else.
Before he retired from the bar and replaced Brierly in the

International Law Commission in 1952, he had participated as
counsel or advisor in a number of international cases, including
Anglo-Iranian Oil Company and Nottebohm.215 During 1952–1954
he served as a member of the Commission, where his principal
achievement consisted in the preparation of two reports on the law
of treaties.216 What is noteworthy in those reports is the central
role, again, allocated to the judicial function in curtailing the liberty
of parties to interpret or apply a treaty. A party asserting the
invalidity of a treaty on the ground of its having been imposed by
the use or threat of force or otherwise in violation of the principles of
the UN Charter must bring its claim to the International Court of
Justice.217 The same applied also to other grounds of invalidity, a
unilateral determination never enabling a State to free itself from a
treaty provision.218
Lauterpacht returns repeatedly to the problem of the freedom of the

State to interpret for itself what the law was – and his omnibus
solution remains the transfer of interpretative competence to
international bodies, in particular courts. This followed from his
nominalism: the law is how it is read and the crucial issue is who is
entitled to read it. Already in 1930 he had criticized the wide
formulations of the British Declaration of acceptance of the
compulsory jurisdiction of the Permanent Court under the Optional
Clause. For instance, the exclusion of disputes that 214 Lauterpacht
to Sir Eric Beckett, K. C., Foreign Office, May 16, 1949 (Lauterpacht
Archives).
215 For Lauterpacht’s Draft of Legal Submissions to the ICJ in the

Anglo-Iranian Oil Company case, cf. Collected Papers, 4, pp. 23–89.
His memoranda for the Government of Liechtenstein in the
Nottebohm case (1950) as well as for the Swiss Government in the
case concerning the proceedings against a Romanian consular officer
in Switzerland ( re Solvan Vitianu, 1949) have been reproduced in
5–19 and Collected Papers, 3, pp. 433–457.
216 The two reports supplement each other and have been edited
and reprinted in Collected Papers, 4, pp. 101–388.
217 Draft Art. 12 of the 1953 Report, Collected Papers, 4, p. 273.
218 Cf. e.g. Draft Art. 11(5) and 15, Collected Papers, 4, pp. 257,
296.
400
Lauterpacht: the Victorian tradition in international law had arisen
before the ratification of the declaration was of a “highly subjective
character” – for when is a dispute not related to anterior facts,
sometimes to facts quite far away in time?219 During his brief period
at the Court (1955–1960), his most memorable statements related
precisely to the self-judging reservations made by States to their
declarations of acceptance of the Court’s jurisdiction that enabled
them arbitrarily to foreclose the Court’s involvement. Unlike the
majority of the judges, Lauterpacht felt that such a reservation made
the whole declaration invalid abinitio: no compulsory jurisdiction was
in fact created at all.220
To combat self-judgment, The Function of Law had presented the

law as a limitless repository of argumentative practices through
which judges could decide individual cases even where it had first
seemed that the matter was “political” or where there did not seem
to be any law at all.221
Such an anti-metaphysical and practice oriented approach was in

line with Anglo-American pragmatism. It is also skeptical about the
ability of the juristicmethod to “find” the law. Lauterpacht viewed the
discussion about the methods of treaty interpretation as “sterile”222
and advocated a “flexible approach” to the ascertainment of
customary law.223
Everything is geared towards finding the opinio juris.224 His criticism

of State responsibility is typical. Standard doctrines had invested it
with “a degree of rigidity which has hindered the development of
international 219 Hersch Lauterpacht, “The British Reservations to
the Optional Clause” (1930), Economica, pp. 152, 137–172.
220 Cf. ICJ, Norwegian Loans case, Reports 1957, p. 34; Interhandel
case, Reports 1959, p. 95.
221 The notes Lauterpacht had prepared during 1958–1960 for the
second edition of the book show that his view remained unchanged.
There still appeared no reason to make a distinction between
justiciable and non-justiciable disputes – although, Lauterpacht now
was prepared to concede, the faculty to decide every case did not
necessarily mean that judges could settle every dispute. The political
usefulness of the law was a question to which there could be no
properly legal answer. This was a matter of faith. Cf. fragments of
additions that were to be inserted in a planned second edition of
Function of Law, manuscript for a new paragraph 11a, Lauterpacht
Archives, to be published in Collected Papers, 5 (part IX.3). Cf. also
“Some Observations on the Prohibition of ‘Non Liquet’,” pp. 200–201.
222 Lauterpacht, “Règles,” p. 364. Cf. also “The Doctrine of Plain

Meaning,” pp.
393–446. Thus, in an opinion given in 1939 to the Jewish Agency in

Palestine, Lauterpacht rejected a “purely formal interpretation” of
the equality clause in Art.
18 of the Mandate for Palestine in order to justify commercial

discrimination on the basis of reciprocity inasmuch as it was not the
text of the Mandate but “the well-being of the population [that was]
the decisive test,” Collected Papers, 3, pp. 89, 91.
223 Hersch Lauterpacht, “International Law – The General Part,”

66–67. “Many an act of judicial legislation may in fact be

accomplished under the guise of the ascertainment of customary
law,” Development of International Law, p. 368.
401

law by . . . [the] limitation of the sources of State responsibility to a
definite category of delicts defined in advance.” Instead, what is
needed is a
“reasonable adjustment of conflicting considerations.”225 Typically,

to attain this flexibility Lauterpacht envisions a large scope of
application for the equitable doctrine of abuse of rights, closing the
system by means of trust in enlightened judges: the inherent
dangers in such a flexible standard (“the abuse of abuse of rights”)
is checked by international tribunals themselves.226 The bottom line
of the argument, never seriously put in question, is the assumption
that international jurists are able to check the injustice at the
national level and that they do this not through the “automatic”
application of fixed rules but by balancing the various contextual
determinants involved.227
Lauterpacht’s pragmatic constructivism is nicely manifest in a 1950
article on the law applicable to the continental shelf. Here there was
a question in which a number of States had resorted to unilateral
acts to influence their legal position. Many argued that this was
permissible because no rule had crystallized and the Lotus principle
– the presumption of liberty of action – would therefore have to be
applied. However, consistent with the teaching in The Function of
Law, Lauterpacht discarded the possibility of non liquet and instead
constructed the applicable law by the relevant legal principles
available. There were two such opposing principles: geographical
contiguity and effective occupation.
Both were too extreme, however, and could not be used to dictate
particular solutions. To the contrary: “the conceptions of effective
occupation and contiguity, being relative, are but a starting point. It
is within the legitimate province of the judicial function – and of
statesmanship
– to use them with such discretion as the equitites of the case and
considerations of stability require.”228 Everything hinged on the
“decisive 225 Lauterpacht, “Règles,” p. 383.
226 Lauterpacht, Function of Law, pp. 282–306; “Règles,” pp. 383–

386, Development of International Law, pp. 162–165.
227 For example, applying the laws passed by the Allied occupation
authority in Germany after the war, French courts had restored the
German nationality of Jewish stateless persons whose nationality
had been illegally removed by the Nazi regime.
This, however, placed them perversely in the position of “enemy

aliens.” To check the manifest injustice involved, Lauterpacht
advocated recourse to the ICJ either under a 1938 Convention or
under the advisory procedure. There was no question in his mind
about enlightenment not residing at the international level. Hersch
Lauterpacht, “The Nationality of Denationalized Persons,” (1949),
Collected Papers, 3, pp. 383, 401–404.
228 Hersch Lauterpacht, “Sovereignty over Submarine Areas,”

(1950), Collected Papers, 3, p. 200.
402
Lauterpacht: the Victorian tradition in international law test of

reasonableness,” more particularly on the “judicial ascertainment of
reasonableness.”229 Where texts (treaties) and facts (custom)
remained indeterminate, and the possibility of autointerpretation was
ruled out as a matter of legal principle, authority could reside only in
courts, those enlightened organs of “socially attainable justice.”
Lauterpacht’s mature views on the constructive tasks of judges are

laid down in Development of International Law by the International
Court the second edition of which came out in 1958, only two years
before his death. In comparison to Function, Lauterpacht seems
more reserved: the Court has not been a significant instrument for
peace. The “state of international integration” has not allowed it to
attain the goals which the drafters of the Statute had set.230
However, where politics is fixed, law is creative. The book is a
celebration of judicial creativity. It is precisely because of the
absence of general legislative machinery that it falls upon
international courts (i.e. international lawyers) to take on the task of
legislation, e.g. by stating their views on as many legal points as
possible in connection with individual cases.231
For Lauterpacht, judicial legislation exists everywhere, although law

finds no clear articulation for it. It is treated by recourse to “the
fiction that the enunciation of the new rule is no more than an
application of an existing legal principle or an interpretation of an
existing text.”232 But this fiction, like the controversy about whether
judges create law or merely “reveal nascent rules” is “highly
unreal.”233 That decisions of the Court are not legal sources but
only evidence of the law turns on an equally unreal distinction. For
practical purposes, those decisions are treated as authoritative.234
In the absence of such formal, doctrinal obstacles, the way is open
for creativity and imagination by lawyers.
The greatest part of Development of International Law – like its

compan-ion article on the prohibition of non liquet – is an exposé of
the argumentative techniques that have enabled the Court to
“legislate” or speak in favor of such activism. Arguments from
general principles, such as the 229 Lauterpacht, “Sovereignty over
Submarine Areas,” pp. 184, 185, 217.
230 Lauterpacht, Development of International Law, pp. 3–5.
231 Lauterpacht, Development of International Law, pp. 37–47. The

suggestion that international courts might be used as legislative
avenues by providing non-binding opinions on desirable law was, of
course, already made in Function of Law and especially in
“The Absence of an International Legislature and the Compulsory
Jurisdiction of International Tribunals” (1930), XI BYIL, pp. 134,
144–154.
232 Lauterpacht, Development of International Law, p. 155.
403
nemo judex in sua causa or abuse of rights,235 have not been

limited to a technical application of Art. 38(3) of its Statute but have
aimed to attain
– with frequent reference to estoppel or good faith – a “socially

realizable morality.”236 The Court may itself have formulated such
principles by reference to parallel developments in adjacent rules or
fields of the law.237 Sometimes it has done this after having
expressly excluded the existence of an antecedent law in the
matter.238 A very frequent strategy has been to aim at maximal
effectiveness of the law – typically to curtail the “artful devices” of
the State burdened by the obligation.239
In a thoroughly realist vein, Lauterpacht dismissed the view of

judicial practice as the simple application of rules, for “those rules
are often obscure or controversial”240 – and yet, shunning realism,
he took care to qualify that this was not to give the Court a license
to replace the law, or party intention, if ascertainable, and to allow a
“rule of thumb” to replace a “flexible, critical and discriminating”
application of the law.241
This duality of freedom and constraint, creation and repetition, is a

part of Lauterpacht’s Victorian morality that always links liberty with
responsibility and set clear limits to what he allowed himself to put
forward. Everything depends on the enlightened responsibility of
judges that enables them to see how far they can go and at what
point defer-ence to diplomacy and State will becomes necessary.
Indeed, a complete freedom is unthinkable also from a scientific
point of view: “It is to a large extent this practical aspect of its
operation, namely in the ability of the lawyer to attempt to predict
the nature of the decision, that law is a science.”242 In fact,
Lauterpacht’s utopia is a world ruled by lawyers.
The three reasons for judicial caution that he discusses are reasons
of conjecture, linked to the present, temporary, and intrinsically
unsatisfactory character of international society. According to
Lauterpacht, judges should not legislate because they would then
lose the confidence of the governments; there would then be no
cases submitted to them; 235 Lauterpacht, Development of
International Law, pp. 158–165.
236 Lauterpacht, Development of International Law, p. 172. Cf. also

“Some Observations on the Prohibition of ‘Non Liquet,’” pp. 205–208.
237 E.g. by expanding the scope of legal subjects or basing the rule
on the vitiating effect of duress on the outlawry of war. Lauterpacht,
Development of International Law, pp.
173–185.
238 As in the Anglo-Norwegian Fisheries and Reservations cases,

Lauterpacht, Development of International Law, pp. 186–199.

404
Lauterpacht: the Victorian tradition in international law and there

would be no guarantee that their decisions would be
implemented.243 Every reason is connected to the statist character
of politics, and to self-judgment. None of them would be present in
Lauterpacht’s federalist utopia, as we have seen. There, national
governments would have no sovereign right of veto, the jurisdiction
of courts would be compulsory, and the implementation of their
decisions would fall upon effective administration. In other words,
judges should exercise caution because of reasons of prudence,
relative to the present nature of the international world, not because
of any principled objections against judicial legislation. If indeed (as
Lauterpacht assumes) the international bar is a collection of
enlightened cosmopolitan liberals, what reason would there be for
thinking otherwise?
In The Function of Law, Lauterpacht demonstrated the unacceptable

consequences of any doctrine of “inherent limitation” of the judicial
task. In Development of International Law he examines the practice
of the International Court of Justice and its predecessor, showing
how the unlimited and constructive nature of judicial activity has
presented itself.
None of the incidents of judicial caution that Lauterpacht takes up is

portrayed in a positive or even less progressive light. Some appear
as
“disappointments.”244 Other incidents of apparent judicial caution in

fact turn out as bold attempts to curtail State freedom.245 Yet other
examples of the exercise of caution are merely apparent.246 In
advisory jurisdiction, there is no reason for caution inasmuch as the
Court is acting in its capacity as the principal judicial organ of the
United Nations.247 Throughout “caution” is characterized negatively,
at best as a prudent device not to antagonize governments.
The problem of world order arises from the ability of States to
interpret for themselves the law to which they claim they are bound.
The need for an independent legal process arises from the wish to
curtail such self-judgment. The legal process, however, is not an
automatic application of rules. Claims presented by States are never
fully right or wrong but have “varying degrees of legal merit.”248
The judge’s task becomes 243 Lauterpacht, Development of
International Law, pp. 75–76.
245 Thus the discussion of the Court’s attempt to limit the

application of rebus sic stantibus speaks less about judicial caution
than about the Court’s willingness to affirm the law’s binding force in
face of governmental attempts to circumvent it. Lauterpacht,
Development of International Law, pp. 84–87.
405
that of the pragmatic manager of conflicting interests. Everything is

dependent on the judge’s professional ability and good sense. With a
subtle shift, the final resting-place of Lauterpacht’s argument lies in
the enlightened responsibility of judges and lawyers, their ability to
manage the world order by equitable compromises, by overruling
unjust laws, and suggesting desirable legislative changes. As
Lauterpacht once noted:
“[I]n the sphere of action, ideas may not be more potent than the
individual human beings called upon to realize them.”249 The image
of progress is no longer (as in the interwar “political” period) that of
diplomats arguing about collective security in Geneva, nor (as it was
after the Second World War) that of UN bodies administering human
rights.
Nor is progress fixed in legal rules and principles. Now it resides in

the judicial profession, in its ability to construct a world of legal
constraint by a pragmatic attitude towards its task.
Austrian liberalism of the fin-de-siècle was, Carl Schorske has

written, a
“garden-variety Victorianism . . . secure, righteous and repressive;

politically it was concerned for the rule of law, under which both
individual rights and social order were subsumed. It was
intellectually committed to the rule of the mind over the body and to
latter-day Voltairism: to social progress through science, education
and hard work.”250 Its back-bone was the “legalistic, puritanical
culture of both bourgeois and Jew.”251 However, in the period of
nationalist agitation and class conflict in late nineteenth-century
Europe, “the only social group which seemed to represent the state
were the Jews.”252 The Habsburg Jewry in particular had
manifested a “total dedication to liberalism.”253 From this
perspective, it is possible to understand why the ideals of rationalism
and progress became so firmly embedded in Lauterpacht’s work –
just as they characterized the oeuvre of his more famous colleagues
Jellinek and Kelsen. Lauterpacht’s legal utopia seeks to revive on a
cosmopolitan scale the Victorian liberalism that failed to survive the
offensives of nationalism and socialism in Central and Eastern
Europe.254
It might seem curious that an active Zionist during the second

decade 249 Lauterpacht, “Brierly’s Contribution,” p. 451.
250 Schorske, Fin-de-Siècle Vienna, p. 6.

251 Schorske, Fin-de-Siècle Vienna, p. 7.
252 Hannah Arendt, The Origins of Totalitarianism (2nd edn., 1958),

pp. 25 and generally 11 et seq.
253 Beller, Vienna and the Jews, p. 123.
254 For the utopia of a united humanity as part of the Jewish

enlightenment, cf. Beller, Vienna and the Jews, pp. 141–143.
406
Lauterpacht: the Victorian tradition in international law of the

twentieth century was transformed into a cosmopolitan individualist
during the third. However (at least part of) Jewish nationalism had
been essentially reactive and had arisen to combat German and
Austrian antisemitism. What Viennese Zionists such as Theodor Herzl
– or Lauterpacht – wished to create was a secular, liberal–democratic
State; in this they were opposed by the rabbis and the religious
right.255 When the protective need for a national Jewish State no
longer seemed pressing
– after Lauterpacht came to Britain – Zionism could transform back

into a cosmopolitan ethos that was the natural home of the Jewish
enlightenment.256 It was not until the oppression of German Jewry
began that an extreme protective need arose anew. At that point,
notwithstanding his critical posture towards statehood, Lauterpacht
was prepared to lend his efforts to support the establishment of the
State of Israel.
Where late nineteenth-century Viennese culture moved from the

ideal of the man of reason to the search for the psychological,
feeling man, Lauterpacht never followed suit. His utopianism
remained grounded in the idea of the rational man, convinced that
peace and social order through law were inescapable rational
necessities and political passion an external distortion. Even in 1946,
almost absurdly, Lauterpacht’s Victorian faith remained unshaken:
The modern state is not a disorderly crowd given to uncontrollable
eruptions of passion oblivious of moral scruples. It is, as a rule,
governed by individuals of experience and ability who reach
decisions after full deliberation and who are capable of forming a
judgment on the ethical merits of the issues confronting them.257
It was the legal profession’s task to protect the powers of reason –

universal by definition – against a modernist Gefühlskultur, the
“collective passion,”258 the politics of the crowd, short-sighted
positivism, national interest, and in particular the “crime,” the
“ruthless egotism,” and the
“ideology” of the raison d’état.259 This rationalism was the driving

force behind “progressive” proposals such as those to do away with
State immunity,260 to establish the criminal responsibility of States,
and a 255 Aside from the above work by Schorske, cf. McCagg, A
History of the Habsburg Jews, pp. 198–199.
256 Beller, Vienna and the Jews, pp. 140–143.
257 Lauterpacht, “The Grotian Tradition,” p. 338.
258 Lauterpacht, “Spinoza,” p. 9.
259 Lauterpacht, “The Grotian Tradition,” pp. 344, 345, 346.
260 In 1950, Lauterpacht wrote a memorandum to a British

Interdepartmental Committee on State Immunity that ended in a
proposal to do away with a substantial part of immunity and to put
the foreign sovereign in a situation analogous to that of the
domestic sovereign. “The Problem of the Jurisdictional Immunity of
Foreign States,” (1951), Collected Papers, 3, pp. 315–373. Here, as
elsewhere, progress seemed to reside in a submission of States to
the legal process.
407
collective system of humanitarian intervention.261 It was

indissociable from a liberalism that sought to guarantee maximum
political freedom for the individual in the economic and political
realms and to limit respectively the legitimate field of State
activity.262
Internationally, sovereignty was often manifested in the faculty of

self-judgment, and the problem of world order for Lauterpacht
became how to control self-judgment. This was a question of
institutional competence and jurisdiction, the exercise of
constraint over States.
Paradoxically, the liberal argument that had in the nineteenth

century been used to buttress the State against the forces that had
threatened it, was in the twentieth turned against the State that had
succumbed to those forces. That argument received force and
direction, as well as being limited, by a strong background morality
that forms the key to the specifically Victorian outlook of
Lauterpacht’s liberalism.
Contemporary assessments often highlight the importance of

morality for Lauterpacht. Jenks, for instance, speaks about the
“essentially moral foundation” of Lauterpacht’s work but extends
that attribute even deeper by the observation that “[t]he
outstanding quality of the man was his moral stature.”263 Of course,
Lauterpacht himself repeatedly insisted that a conception of
international law as derived from State will was insufficient and that
there was constant need “for judging its adequacy in the light of
ethics and reason.”264 Where law might be lacking, unclear,
contradictory, or unjust – and it was often precisely that –
morality came to the rescue, ensuring the law’s completeness and

acceptability, sometimes in the guise of general principles,
sometimes as domestic law analogy, always through the constructive
mediation of judicial practice. This was the Grotian tradition, to
satisfy “the craving, in the jurist and layman alike, for a moral
content of the law.”265 The question, however, is: what does
“morality” mean in this connection?
261 Cf. e.g. “Règles,” pp. 302–304; “Book Review. Karl Lowenstein,
Political Reconstruction” (1946), XXIII BYIL, pp. 510–511.
262 Cf. Hersch Lauterpacht, “Revolutionary Actitivies by Private

Persons against Foreign States” (1928), Collected Papers, 3, pp.
251–278 (an argument against State involvement in peaceful
transboundary political subversion) and “Boycott in International
Relations” (1928), Collected Papers, 3, pp. 297–311 (an argument in
favor of the freedom of non-public entities to engage in collective
commercial counter-measures). Cf. also Hersch Lauterpacht,
“Revolutionary Propaganda by Governments” (1928), Collected
Papers, 3, pp. 279–296 (“revolutionary propaganda, when
originating from the Government itself, constitutes a clear
international delinquency,” p. 281).
263 C. Wilfried Jenks, “Hersch Lauterpacht – The Scholar as

Prophet” (1960), XXXVI BYIL, pp. 101, 102.
264 Jenks, “Hersch Lauterpacht,” p. 330.
408
Lauterpacht: the Victorian tradition in international law It is possible

to examine Lauterpacht’s moral rationalism by contrasting it to the
post-Victorian modernisms of Kelsen and E. H.
Carr. In his otherwise positive assessment of the Reine Rechtslehre,

Lauterpacht swept aside Kelsen’s rejection of a natural law basis for
his system, a rejection Lauterpacht saw as a “theory superadded to
the main structure of his doctrine – principally for the sake of
argumentative advantage, but ultimately to the disadvantage of the
whole system.”266
The almost ad hominem character of this view reveals Lauterpacht’s

inability to appreciate the critical force of Kelsen’s moral agnosticism.
Lauterpacht doubts whether Kelsen in fact succeeded in keeping his

theory uncontaminated by morality and suggests that the success of
his work lies in that he did not.267 Kelsen would not have disagreed
with Lauterpacht’s point that morality enters the law through its
application and interpretation, but would have insisted only that how
they do it is not a properly legal question – though no less important
for that reason.
Kelsen did not deny the place of values in law (and for legal study)
but insisted on the need for openness in “value-choices” – e.g. the
choice between dualism and monism.268 Such relativism was not
part of Lauterpacht’s world: the Eternal Verities could not be
subjected to
“choice,” but were embedded in the teleological framework of history

and expressed in the best works of the liberal philosophical tradition.
Where in Kelsen Lauterpacht found too little morality, in Carr he

found too much. Building upon the primacy of States and State
power realism accepted a double morality – one morality for
individuals, another for States – in which the reason of the State
always finds a justification to override the individual – but universal
– ethic. From the perspective of methodological individualism,269
State morality – as expressed, for example, in the Hoare–Laval
pact270 – was a vicious distortion, a metaphysical mistake, that
blinded realists from grasping that the world was united in the
search for a single human good that could be understood only as the
good of individuals, similar in their nature as social animals.
266 Hersch Lauterpacht, “Kelsen’s Pure Science of Law” (1933),

424, 428–429.
267 Lauterpacht, “Kelsen’s Pure Science of Law,” pp. 428–429.
268 Hans Kelsen, Das Problem der Souveränität und die Theorie des
Völkerrechts (2nd edn., Tübingen, Mohr, 1928), pp. 257–266.
269 “The analogy – nay, the essential identity – of rules concerning

the conduct of states and of individuals . . . is due to the fact that
states are composed of individual human beings; it is due to the fact
that behind the mythical, impersonal, and therefore necessarily
irresponsible personality of the metaphysical state there are actual
subjects of rights and duties, namely individual human beings.”
Lauterpacht, “The Grotian Tradition,” p. 336.
270 “Professor Carr on International Morality,” Collected Papers, 2,

pp. 67–73. See also
“The Grotian Tradition,” pp. 333–346.
409
In Lauterpacht’s individualist world the (realist) tragedy of irreducible

conflict, of incompatible goods, is defined away. Morality and
enlightened self-interest always point in the same direction. The
general good is “identical with” national interest, conceived as the
interest of the individuals forming the nation.271 The optimistic
belief in the parallel interests of the rich and poor, weak and
powerful, seeks to restore a pre-Dickensian or perhaps a Pre-
Raphaelite world of justice and harmony – the “tradition of idealism
and progress”272 – in which man’s essential nature is social and
where the deepest truths are the simplest ones, that Grotian “law of
love, the law of charity, of Christian duty, of honour and of
goodness.”273
The starting-point of the realist critique had been “the collapse of
the whole structure of utopianism based on the concept of the
harmony of interests.”274 Lauterpacht responds by repeating the
axiom of the harmony of interests that is precisely what Carr put in
question. He can only remain puzzled by the incomprehensibility of
somebody not taking for granted the Truth for which “man” is by
nature endowed by “an ample measure of goodness, altruism, and
morality.”275 Between tragedy and optimism no rational argument
can take place. Only the way of indignant rejection remains
open.276
The reactions towards Kelsen and Carr reveal the nature of

Lauterpacht’s Victorianism. It relies on the interlocutor’s willingness
to take for granted the intrinsic rationality of a morality of sweet
reasonableness, the non-metaphysical doctrine of the golden middle.
It relies not on general principles or logical deductions as would a
Thomistic, religious morality. It is a morality of attitude at least as
much as substance, a morality of putting one’s foot down when
everybody’s arguments have been given a hearing. Among the many
virtues of Grotius, Lauterpacht admired his “atmosphere of strong
conviction, of reforming zeal, of moral fervor.”277 It is an
individualist morality controlled by the attempt to balance right with
duty and freedom with reason.278 It is 271 Lauterpacht, “Professor
Carr,” p. 90.
272 Lauterpacht, “The Grotian Tradition,” pp. 359–363.
274 Carr, Twenty-Years’ Crisis, p. 62.
276 Lauterpacht’s response to E. H. Carr remains unpolished and it

was not published before inclusion in Collected Papers.

278 For the former point, cf. Lauterpacht’s argument in favor of the
criminal jurisdiction of British courts against “Lord Haw-Haw,” or
William Joyce, an American citizen domiciled in Britain at the service
of Germany’s propaganda during the war. Hersch Lauterpacht,
“Allegiance, Diplomatic Protection and Criminal Jurisdiction against
Aliens” (1946), Collected Papers, 3, pp. 221–241.
410
Lauterpacht: the Victorian tradition in international law a morality of

control and self-control for which the greatest desire is the end of
desire. Lauterpacht accepts Spinoza’s dictum: “[t]he man is free who
lives, not according to the right of nature but according to reason.
And it is liberty achieved through obedience to reason which is the

ultimate object of the state.”279
Coda
I have interpreted Lauterpacht’s work in terms of a movement that
started as a theoretical–doctrinal effort to imagine an international
legal order resembling the structures of the liberal State and ended
up in celebrating the virtues of a legal pragmatism that is alien to
theory and doctrine. For me, Lauterpacht’s oeuvre and career
constitute a striking illustration of an international legal
consciousness that sought to resuscitate the rationalism of the
nineteenth century in the aftermath of the First World War but used
up its emancipatory potential in the doctrinal struggles of the 1930s;
became eclectic after the Second World War and was
institutionalized as the normal discourse of law and diplomacy in the
1960s.
In his main theoretical work, The Function of Law in the

International Community (1933), Lauterpacht elaborated the
doctrine of a gapless international legal order to defend in legal
terms the unity of a world that seemed to be heading from
fragmentation to catastrophe, from the League of Nations to the
Holocaust. It was in line with the ideas of nineteenth-century Jewish
enlightenment and prevailing pacifist sentiments, and helped
Lauterpacht to assimilate within a cosmopolitan elite that
constructed its identity from rationalist, anti-nationalist sentiments
and an individualist cultural outlook.
During his career, Lauterpacht applied this projected legal order to

politics, morality, and professional practice. I see these moves as
corresponding to three orientations in twentieth-century liberal
jurisprudence. First, there was the attempt in the 1930s and 1940s
to construe international law as a scientifically based, operative
constraint on the conduct of foreign policy. This strand in
Lauterpacht’s writing ended with the collapse of the interwar peace
system and the establishment of the United Nations on
“realist” principles. The central thesis in Recognition in International
Law (1947) (namely that nationalism can be tempered by a rational
legal order) is the most ambitious outcome of this effort. Second
was a move to replace legal politics by an attempt to articulate in
ethical terms the political unity that had seemed lost as the
juggernaut of modernity crashed into 279 Lauterpacht, “Spinoza and
International Law,” p. 374.
411
Auschwitz. The high point of this effort is the publication of Human

Rights in International Law (1950), a celebration of rationalist
naturalism that ended in a practical proposal. The third move was
towards increasing emphasis on enlightened judicial practice – that
is, legal pragmatism – as an instrument for peace, and culminates in
the publication in 1958 of the second edition of the Development of
International Law by the International Court
– an articulate defense of judicial practice’s ability to reconcile the

demands for order and justice in international life. Where The
Function of Law completed the work of theoretical reimagination,
Recognition hoped to bridge the gap between that theory and
practice, Human Rights insti -
tuted an abstract justification for the legal project, and Development

of International Law inaugurated pragmatism as the culture of future
generations of international lawyers.
My interest in this narrative lies in what it tells us about what

happened to international law as political commitment during the
twists and turns of a particularly tragic half-century that came to rest
in a pragmatism of the 1960s which by now may have spent
whatever creative force it once had.280 But I do wish to stress the
biographical aspects of this interpretation as well. The significance of
a story that begins in 1897 in a small Jewish community in Galicia
and traces the successive transformations of an active Zionist
student in Vienna into a university lecturer in London in the 1920s,
into the holder of the Whewell Chair of International Law in
Cambridge in the year of the Anschluss (1938), into a member of
the British War Crimes executive in 1945, and finally into a judge at
the International Court of Justice in 1955, is bound to transcend its
purely individual aspects. I have wished to situate Lauterpacht in a
biographical and historical context in order to expel the sense that
his doctrine was merely a free-floating academic play, an
intellectual’s pastime or at best a move in a sealed-off utopian
discourse. I see it as a consistent attempt to maintain, through
projection, the wholeness of a social world and personal identity
when none of the competing projects (of science, politics or
economy) had been up to the task. Lauterpacht was a Victorian
liberal in a time when the dialectic of the enlightenment is only
slowly asserting itself. That he had no doubt about the universal and
intrinsically beneficent character of legal reason defines him as an
historical agent whose defense of legal reason maps out for us a
large field of our shared professional past.
280 Cf. my “International Law in a Post-Realist Era” (1995), 16

Australian Yearbook of International Law, pp. 1–19.
412
Out of Europe: Carl Schmitt,
Hans Morgenthau, and the turn to
“international relations”
On April 28, 1965 President Lyndon B. Johnson disclosed that 400

US
marines had landed in the Dominican Republic “to give protection to
the hundreds of Americans who are still in the Dominican republic
and to escort them back to the country.” In a few days with the
ostensible support of the Organization of American States (OAS) the
evacuation turned into a large-scale invasion by more than 20,000
troops to prevent an elected leftist government from taking power.
In May President Johnson justified the operation by the need to
“prevent the emergence of another Cuba in the Western
hemisphere.” As he later remarked, “the danger of a Communist
take-over in the Dominican republicwas a real and present one . . . a
c ommunist regime in the Dominican republic would be dangerous to
the peace and security of the hemisphere and the United States.”1
In connection with the Cuban situation, the United States had
already earlier been able to persuade the
OAS
that
the
adherence
of
any
of
its
members
to
“Marxism–Leninism” would trigger the right of self-defense,

interpreting “communism” as equivalent to “armed attack” under Art.
51 of the UN Charter. As the marines were landing in the Dominican
Republic, the Legal Adviser of the State Department, L. C. Meeker,
asserted a general right to use military force by the United States in
the Western hemisphere against “foreign ideologies.”2 Later that
same June, he addressed the American Foreign Law Association,
drawing the attention of his audience to the
1 Quoted in Max Harrelson, Fires all around the Horizon. The UN’s
Uphill Battle to Preserve the Peace (New York, Praeger, 1989), p.
182.
2 Quoted in Thomas M. Franck, Nation against Nation. What

Happened to the UN Dream and What the US Can Do About It?
(Oxford University Press, 1985), p. 71.
413
artificiality of reliance on absolutes for judging and evaluating the

events of our time . . . [B]lack and white alone are inadequate to
portray the actuality of a particular situation in world politics and . . .
fundamentalist views on the nature of international legal obligation
are not very useful as a means for achieving practical and just
solutions of difficult political, economic and social problems.3
Soon thereafter Wolfgang Friedmann (1907–1972) of the Columbia

Law School published a fierce criticism of this argument and
especially the Legal Adviser’s dismissal of what he had described as
the “legal fundamentalism” of the critics of the intervention.
Friedmann was a legal theorist and an international lawyer of
German origin who had been dismissed from his positions by the
Nazi government in 1934 and had settled in the United States in
1955. What he had to say was this: The Legal Adviser’s argument is
one of policy, not of law, and it seeks to justify what is patently, by
standards of international law, an illegal action, in terms of the
ultimate policy objectives of the United States. By using the
language of legal rather than political justification, the argument
comes unintentionally close to the attempts made by Nazi and
Communist lawyers to justify the interventionist and aggressive
actions of their respective governments in terms of the legal order of
the future. Nazi lawyers spoke of the Völkerrechtliche
Grossraumordnung (international legal order of wide spaces) . . .
Surely, the legal as well as the political style of the United States
should remain unmistakably different from that of its totalitarian
opponents.4
Friedmann connected these arguments to the US involvement in

Vietnam and wondered whether it had come to the melancholy
conclusion “that it can no longer afford to abide by international law,
that it must counter the imperial aspirations of the Soviet Union, and
especially of Communist China, by similar means.” This, he
concluded, would mean “the absorption of the great majority of
world’s states as vassals or subjects in the few remaining empires” –
something he observed had been forecast after the end of the First
World War in Oswald Spengler’s Decline of the West and George
Orwell’s 1984: “The abandonment of the principles of national
integrity and the distinction between civil and international war –
both cardinal to the present structure of international law – is the
legal corollary of imperial power struggle.”5 As if he had not made
his concerns clear enough, Friedmann drew 3 Quoted in Wolfgang
Friedmann, “United States Policy and the Crisis of International Law.
Some Reflections on the State of International Law in ‘International
Cooperation Year’” (1965), 59 AJIL, p. 868.
4 Friedmann, “Crisis,” p. 869. The same point is made as the central

argument in Thomas M. Franck and Edward Weisband, Word Politics:
Verbal Strategy among the Superpowers (Oxford University Press,
1971).
5 Friedmann, “Crisis,” p. 871.
414
Carl Schmitt, Hans Morgenthau and “international relations”
a parallel between his critique and that made by Julien Benda in the
Trahison des Clercs forty years earlier, concluding the article by the
observation that “Freedom is today threatened from many sides. It
has never survived the abandonment of intellectual independence.”6
Friedmann’s critique is interesting not only because of its

exceptionally anxious tone but also because of the references to the
interwar debates that it contained. He was himself well placed to
suggest the parallel of the Grossraumordnung. But in fact, the
theory of the Grossraumordnung had been presented as a
generalization of the Monroe Doctrine and the connected idea of a
single-power supremacy in the Western hemisphere. While
Friedmann was writing, the main protagonist of that theory had still
not said his last word about the legal significance of the profound
transformations that had taken place in the world order after the
Second World War.
Already in 1950 Carl Schmitt (1888–1983) had published his last
large work with the intriguing title Der Nomos der Erde which dealt
with the end of the “European era,” the closing of the ius publicum
Europaeum that had regulated world order for the past 300 years.7
That Schmitt chose to speak of nomos where he might as well have
spoken of the “law” of the world was burdened with meaning. The
word “nomos,” usually translated as “order” (or sometimes “law,”
“rule,” or even “decision”), came into Schmitt’s political vocabulary in
1933–1934 via German Protestant theology and signified a
substantive or concrete (spatial) order or determination, in contrast
to the formal notion of Gesetz that Schmitt linked with the
degenerated normativism of nineteenth-century jurisprudence.8
Where a people (such as the Jewish) without land or State might
well identify itself by reference to a formal law, the German
substance –
as indeed the substance of Europe itself – was based on principles of

identification the most important among which was the original act
of land-taking ( Landnahme).9
6 Friedmann, “Crisis,” p. 871.
7 Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum
Europaeum (Berlin, Duncker & Humblot, 1950).
8 Schmitt, Der Nomos der Erde, pp. 36–51.
9 On the antisemitic connotations of the contrast nomos – Gesetz (to

which Schmitt was no alien), cf. e.g. Wolfgang Palaver, “Carl Schmitt
on Nomos and Space” (1996), 106
Telos, pp. 105–127 and Rafael Gross, “‘Jewish Law and Christian
Grace’ – Carl Schmitt’s Critique of Hans Kelsen,” in Dan Diner and
Michel Stolleis (eds.), Hans Kelsen and Karl Schmitt. A Juxtaposition
(Gerlingen, Bleicher, 1999), pp. 105–107. For a useful summary of
Schmitt’s antisemitism cf. Heinrich Meier, The Lesson of Carl Schmitt.
415
According to Schmitt, the European nomos had originated in the

discovery of the new world and the organization between European
imperial powers of that Landnahme – the “last great heroic deed of
the European peoples”10 that had replaced the respublica Christiana
in a first global, secular principle of ordering. Like every nomos,
European public law had had an internal and external aspect: it had
organized European space into nation-States that recognized each
other as sovereign; and it had distinguished between a non-
European land space that was free for appropriation and the High
Seas that remained open. The great achievement of this nomos had
been the limitation of European warfare: abolishing of civil and
religious wars and creating a non-discriminatory concept of
(European) war as a “duel” between formally equal sovereigns and
its humanization by conceptualizing the enemy as a justus hostis.11
But this (concrete) order, Schmitt argued, had collapsed in 1890–

1918
in face of a sea-based, economically driven Anglo-American

universalism that was slowly doing away with earlier spatial
distinctions and the centrality of sovereignty. A “discriminatory
concept of war” had emerged that depicted the enemy no longer as
a public law opponent but as an enemy of “humanity” tout court
against which no measures were excessive. The 1885 Berlin Act had
marked a watershed: a last great all-European Landnahme – but
also the first expression of a decadent civilizing mission that was a
mere façade for irreparable European division.
The corruption of the old nomos was strikingly illustrated in the
fiction of the “Independent State of the Congo” and its adoption as a
colony by Belgium in 1909 – when even twenty-five years later there
was no idea whether the colony consisted of 14 or 30 million
inhabitants!12
By the end of the nineteenth century, Schmitt argued, European

Footnote 9 ( cont.)
Four Chapters on the Distinction between Political Theology and

Political Philosophy (University of Chicago Press, 1998), pp. 151–
158. Among a burgeoning secondary literature, this work is among
the more interesting. On Schmitt’s notion of nomos, cf. G. L. Ulmen,
“The Concept of Nomos: Introduction to Schmitt’s

Appropriation/Distribution/
Production” (1993), 95 Telos, pp. 39–51 and Mathias Schmoeckel,

Die Grossraumtheorie.
Ein Beitrag zur Geschichte der Völkerrechtswissenschaft im Dritten

Reich, insbesondere der Kriegzeit (Berlin, Duncker & Humblot,
1994), pp. 34–37.
10 Carl Schmitt, “Nomos-Nahme-Name,” in Staat, Grossraum,

Nomos. Arbeiten aus den Jahren 1916–1969 (Berlin, Duncker &
Humblot 1995), p. 585; Schmitt, Der Nomos der Erde, pp. 69–109.
12 Schmitt, Der Nomos der Erde, pp. 188–200. The Berlin

Conference was also significant in that non-European powers –
particularly the United States – now for the first time played a
significant role.
416
lawyers had lost consciousness of a concrete spatial order underlying

the law, having started to speak in increasingly abstract and
universal terms, naïvely interpreting the expansion of common
diplomatic vocabulary as a European advance. In truth, Europe had
lost its centrality; the ius publicum Europaeum no longer existed.
This was not only owing to the emergence of new States. The
almost universally accepted ideology of free trade was forging a
global economy that undermined European States, not least by
compelling them to work out a constitutional separation between the
public realm and the realm of property, trade, and industry, the latter
silently expanding into a countervailing cosmopolitan order.13
Professional lawyers took no notice of the new ordering principles –
such as universalism vs. particularism or politics vs. economy. An era
of empty normativism began; international law was reduced to a
collection of precedents, applied without distinction, and of treaties
that were accepted all the more enthusiastically as their application
was disputed.14 Neither such law nor its only explicit ordering
principle – the distinction between “civilized” and “non-civilized” –
was powerful enough to prevent the slide into the abyss of 1914.
From his vantage-point of post-war Germany, Schmitt concluded that

international law had been reduced in 1890–1939 to an “empty
formalism of rules” that were apparently generally accepted and thus
hid from peoples’ consciousness the reality that a concrete order of
recognized powers had gone under and nothing had been found to
replace it.15 Versailles was no longer a European settlement; on the
contrary, in the League “delegates from Paraguay, Uruguay and an
Indian Maharaja . . . lec tured to Europe on World Unity.”16 The
League was a confused mélange of regional and universal pursuits
and antagonisms.
Debates on peaceful change had failed to touch the principal

territorial or economic aspects of Europe’s division. Nothing had
been done to resolve the striking conflict between the permanent
neutrality of some members and their collective security obligations.
The League was neither a political subject nor a substance: every
important political act either took place outside it (for instance, in
the Allied Conference of Ambassadors) or was veiled in an
apparently neutral process (such as the Permanent Court’s opinion in
the Mosul Boundary case). It could not be a political unit as it had
neither a determined guarantee (for Versailles remained just a
continuation of the Western alliance) nor a 13 Schmitt, Der Nomos
der Erde, pp. 208–209. Cf. also Schmoeckel, Die Grossraumtheorie,
pp.
24–31.
15 Schmitt, Der Nomos der Erde, p. 200.
417
homogeneous membership.17 All this was illustrated by the position

of the United States. As a formal sovereign, it was outside; as the
greatest economic power it was involved in every political discussion
– through its South American dependencies in the League and
through its private citizens (Young and Dawes) in the settlement of
the German debt. The official ideology separated economy from
politics – subordinating the latter to the former and thus
guaranteeing the political superiority of the United States in every
matter having to do with Europe.18
Finally, Schmitt drew attention to a silent transformation in the

concept of war, inaugurated by the war guilt clause in the Versailles
Treaty. The indictment of William II had been based not on law but
on the commission of a supreme offense against international
“morality.”
The US entry in the war had transformed it from a confrontation

between “just enemies” into one where justice and morality were
assumed to be on one side, injustice and immorality on the other.19
This discrimination became inextricable from a new, moral approach
to war, which continued in the League debates over aggression as
the supreme international evil, was declared in the Kellogg–Briand
Pact (1928), and finally codified in the London Protocol of August 8,
1945 that set up the Nuremberg tribunal.20 From that point on, war
could only be a “crime”
on one side, and enforcement of morality on the other.

Throughout the 1930s Schmitt had written about American
imperialism – the imperialism of free trade, of the “open door,” the
Stimson Doctrine, and the elastic and unilateral Monroe Doctrine –
as the most obvious substitute for the Eurocentric nomos, even if
the United States seemed trapped in a nervous back-and-forth
between isolationism and 17 For these arguments at length, cf. Carl
Schmitt, Kernfrage des Völkerbundes (Berlin, Dümmler, 1926).
18 Schmitt, Der Nomos der Erde, pp. 216 et seq., 228–231.
20 Schmitt, Der Nomos der Erde, p. 255. In 1945 Schmitt wrote a

lengthy legal opinion ( Gutachten) on the concept of aggression, in
which he criticized the indictment of aggressive war as an
international crime, claiming that while many of the “monstrous
atrocities” of the Hitler regime deserved to be solemnly condemned
(though even they did not become classifiable under “usual positive
law”) the concept of “criminal-ization” should not be used in
international law (it would break the citizen’s duty of loyalty to his
State) and was particularly inappropriate for the characterization of
aggression that had not by 1939 become illegal. Cf. Carl Schmitt,
Das internationalrechtliche Verbrechen des Angriffskrieges und der
Grundsatz “Nullum crimen, nulla poena sine lege”
(Berlin, Duncker & Humblot, 1994), p. 81.
418
interventionism. The core of US policy lay in economic expansion

which it interpreted as a non-political process – thereby asking the
world to agree to a profoundly political “Anglo-Saxon” understanding
of the social role of economy and private property. This was
sometimes accompanied by the formalization of American control
(especially in the Western hemisphere). More often, however,
especially in Europe and the Far East, the United States pledged
political non-intervention and free economic expansion, devising
informal modes of control, economic pressure, and its proxies in
Geneva, to bring recalcitrant States into line.21
Moralism was an essential part of the emerging nomos. It was

reflected in the slow abolition of neutrality and the abstract
condemnation of aggression – with the caveat carefully inserted into
the Kellogg–Briand Pact that allowed the United States to decide for
itself what might count as aggression and how to combat it.22 An
empire would hardly wage war on a non-discriminatory basis; it
would in fact wage no war at all – it would engage in police action
for the punishment of “criminals.”23 The remarkable coincidence
between universalism and the interests of American foreign policy
was visible in the new law of recognition. Granting or withholding
belligerent status to domesticrebels could be used as a means of
intervention or isolation, and the recognition of governments (Tobar
and Estrada Doctrines) or (non-)recognition of territorial title
(Stimson Doctrine) offered themselves as internationally effective
techniques of intervention.24 When these changes were linked with
the presence of mass-destruction weapons, it seemed clear for
Schmitt in 1950 that the new nomos would target large populations
in remote areas in a fashion that could not be conceptualized in
terms of traditional war. It would bring into existence
– in fact allow only the existence of – wars on behalf of humanity,

wars in which enemies would enjoy no protection, wars that would
necessarily be total.25
In 1955 Schmitt conceded that the fluctuations of American policy

reflected an uncertainty about the future and he saw three
alternatives 21 Cf. Carl Schmitt, “Völkerrechtliche Formen des
modernen Imperialismus” (1932), in Schmitt, Positionen und Begriffe
im Kampf mit Weimar-Genf-Versailles, 1923–1939 (Berlin, Duncker &
Humblot, 1988 [1940]), pp. 162–180 and “Grossraum gegen
Universalismus” (1939), ibid. pp. 295–302.
22 Cf. e.g. “Das neue Vae Neutris” (1938), in Schmitt, Positionen und
Begriffe, pp. 251–255.
23 Schmitt, “Völkerrechtliche Formen,” pp. 176–178.
419
for the coming global order.26 One was a universal empire under
one great power – the United States. This, of course, he saw as a
tragedy, a final victory of the dominance of economy and technology
(and those possessing them) over the rest of the world. A second
alternative was for the United States to take over England’s place in
the old territorial equilibrium as the “balancer,” the external
guarantor of Europe’s internal peace, accompanied by unquestioned
primacy in the Western Hemisphere. The third alternative – clearly
preferred by Schmitt and perhaps seen by him as the one most likely
to emerge – was a structure of territorial division between a limited
number of large blocks ( Grossräume) that mutually recognized each
other and excluded external intervention: the image of Spengler and
Orwell, and the focus of Friedmann’s anxiety in 1965.
In his last important article, published in 1978, Schmitt considered

that the first alternative was most likely to realize itself in terms of
an industrial world appropriation, the subjugation of all the
industries of the world under one power. His negative assessment
was unrelenting:
“The day world politics comes to the earth, it will be transformed
into a world police power.”27 Yet he thought that it was the third
alternative that had so far realized itself: ideological and economic
struggle had led to the formation of three Grossräume: the United
States, the USSR, and China, each of which was capable of
excluding external intervention, with a fourth sphere of the
developing States, still – at the time – enjoying “a certain political
freedom of movement.” As regards Europe, Schmitt confessed
himself “deeply pessimist.” Forces of globalization overrode European
unity.28 This assessment (though he did not make it express in
1978) was also an assessment about the state of European law.
In an intellectual “testament” Schmitt had written in the course of

1943
and 1944, in face of imminent German collapse, he had identified

European jurisprudence as the foundation of the European spirit and
the ius publicum Europaeum. In the absence of a legislature,
Europe’s predominance in the world had been articulated by
European lawyers who 26 “Der neue Nomos der Erde,” (1955), in
Schmitt, Staat, Grossraum, Nomos, pp. 518–522.
Cf. also commentary in Jean-François Kervégan, “Carl Schmitt and

World Unity,” in Chantal Mouffe (ed.), The Challenge of Carl Schmitt
(London, Verso, 1999), pp. 68–69 and Wolfgang Palaver, “Carl
Schmitt on Nomos and Space” (1996), 106 Telos, pp. 111–112.
27 Carl Schmitt, “Die Legale Weltrevolution: Politischer Mehrwärt als

Prämie auf juridische Legalität” (1978), 3 Der Staat, pp. 321–339.
Trans. G. L.Ulmen, as “The Legal World Revolution” (1987), 72 Telos,
pp. 73–89, p. 80 (italics in original). The references are to this
translation.
28 Schmitt, “The Legal World Revolution,” p. 85.
420
had drawn from Roman law and whose last great name had been
Savigny. Since 1848 this jurisprudence had been gradually
instrumentalized in the service of national legislatures and parties. It
had become part of “an untrammelled technicism which uses state
law as a tool” and lost its role as the “last refuge of legal
consciousness.”29 A quarter of a century later he had no reason to
change this assessment. That the forces for European unity were no
match to an economically and technologically driven globalization
paralleled the inequality of strength between a doctrinal–technical
Europäisches Gemeinschaftsrecht and what he called
“ideologies of progress.”30
Though Schmitt developed his Grossraumlehre chronologically close

to Hitler’s declarations about the need for German Lebensraum
(from 1939
onwards) and though it undoubtedly served German foreign policy

goals, its content was independent of them.31 Schmitt did not
conceive his “large space” on racial grounds and he generalized it as
a historical type of regional predominance. Schmitt connected the
demise of the ius publicum Europaeum with the demise of the
formal State and the formal equality between belligerents. For him,
the Monroe Doctrine illustrated a first case of a new type of informal
domination by one power over a region, something Japan had earlier
aimed at in the Far East and Germany in Central and Eastern
Europe. The merit of the Grossraum principle lay in the realistic
recognition it implied that some powers radi-ated their culture,
economy and influence beyond their formal boundaries.32 A
positivist law – such as Versailles – inevitably failed to counteract its
dynamic force. Whether or not one appreciated the advantages of
the old nomos (and Schmitt’s attitude towards it was nostalgic), its
time was over. It was powerless in face of expanding American
economic and cultural influence. To counter the universalizing pull of
a capitalist Grossraum would have required the presence of a
confident political entity. From his 1920s writings to his article on
world revolution in 1978, 29 Carl Schmitt, “Die Lage der
europäischen Rechtswissenschaft” (1943/44), trans.
G. L. Ulmen as “The Plight of European Jurisprudence” (1990), 83

Telos, pp. 35–70, 64, 66.
30 Schmitt, “The Plight,” p. 76. In the 1978 article Schmitt chose as

the paragon for Europe’s unity “the more than 1,000 pages of the
standard work on European common [i.e. Community] law by
Ipsen,” Schmitt, “The Legal World Revolution,”
p. 85.
31 On the other hand, Schmitt’s later admirers overstate their case

when they write that the two concepts had “nothing to do with each
other,” Julien Freund, “Schmitt’s Political Thought” (1995), 102 Telos,
p. 36.
32 Carl Schmitt, “Grossraum gegen Universalismus,” pp. 299–301.
421
Schmitt had no doubt that this required a clear perception of where

the enemy lay. For: “everywhere in political history, in foreign as well
as domestic politics, the incapacity or the unwillingness to make this
distinction [i.e. the distinction between friend and enemy] is a
symptom of the political end.”33
The ambivalences of a Katechon (restrainer)34
By 1950 Schmitt had become an intellectual pariah owing to his

association with the national-socialist regime in 1933–1936.
Although he had been blacklisted by the SS thereafter, and lost all
influence with the regime, moving from constitutional law and
political theory to international law, his enthusiasm for Hitler’s
dictatorship after 1933, his reputation as a Kronjurist of the Nazi
government and his (continued) antisemitism kept him a persona
non grata within West German political society until his death (at the
age of 95) in 1983. He had been arrested by the Allies in August
1945 and held in an interment camp until 1947.
He had also been brought to Nuremberg as a potential defendant in

the war crimes trials but was released without charges.35 Schmitt
continued writing, however, until the 1970s and had a large circle of
admirers within and beyond Germany. He has usually been held as
one of the sharpest critics of political liberalism but it is unclear what
his precise relationship to liberalism was. For many, he was an
external enemy, while others regard him an internal critic. There is
no doubt that he was conservative (though probably not a
conservative revolutionary). That his relationship to liberalism
remains an enigma speaks at least as much about the occasional
obscurity of his writing and his frequent changes 33 Carl Schmitt,
The Concept of the Political (trans. and introd. by George Schwab,
with a new foreword by Tracy B. Strong. 1st edn. 1927, trans. from
2nd edn. of 1932, Cambridge, Mass. and London, MIT Press, 1996),
p. 68.
34 Schmitt later characterized himself as a Katechon, that is a

retarder or restrainer. The expression has a religious origin,
signifying an earthly power that restrains the secular advance of the
Antichrist. For Schmitt, this original sense mixes comfortably with his
mission of restraining the “total functionalization” of law in the
service of social or economic policies. Cf. Paul Piccone and G. L.
Ulmen, “Schmitt’s Testament and the Future of Europe” (1990), 83
Telos, pp. 19–20.
35 Cf. Joseph Bendersky, “Carl Schmitt at Nuremberg” (1987), 72

Telos, pp. 91–96 and the “Interrogation of Carl Schmitt by Robert
Kempner,” ibid., pp. 97–129. A key point in the interrogation was the
prosecutor’s question about whether Schmitt had engaged in a
theoretical grounding of Hitler’s Lebensraum policy. Schmitt of
course denied this, claiming that his was a historically and
scientifically based concept that he would defend at any time.
422
of position as of the variations and contradictions of that cluster of

views usually associated with “liberalism.”36
Most of the recent Schmitt revival concentrates on him as a political

thinker – a “political theologist,” ironically but understandably
appropriated by left critics of liberalism. However, Schmitt’s
contribution to German constitutional law has always been
appreciated, as testified to by the regular publication of new editions
of his 1928 Verfassungslehre. 37
But Schmitt was also a significant international lawyer. Or, perhaps

better, arguments about international law arose naturally from his
political and legal theory. While many political theorists have
commented extensively on Schmitt’s 1950 book on the eclipse of the
European nomos, rather few international lawyers have done so.38
This may not be surprising. The ethos of post-1946 international law
has been – not least in Germany – uniformly universalistic and
humanitarian, and thus in principle vulnerable to Schmitt’s acerbic
critiques. Failing to address those critiques, however, and continuing
to construct their normative systems 36 The literature on Schmitt is
too voluminous to be fully reflected here. The standard English-
language biography is Joseph Bendersky, Carl Schmitt: Theorist for
the Reich (Princeton University Press, 1983). Also very useful is
George Schwab, The Challenge of the Exception. An Introduction to
the Political Ideas of Carl Schmitt between 1921 and 1936
(2nd edn., with a new introd., New York, Greenwood, 1989). Both of
these contain relatively positive assessments that are now countered
by the very polemical study by William E. Scheuerman, Carl Schmitt:
The End of Law (Lanham, Boulder, New York and Oxford, Rowman &
Littlefield, 1999). The best English-language study, however, is Gopal
Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt
(London, Verso, 2000). Renato Cristi, Carl Schmitt and Authoritarian
Liberalism (Cardiff, University of Wales Press, 1998), makes the
useful point about Schmitt being a liberal in the sense of advocating
a liberal economy outside a strong State. Two collections of essays
shed light on the various aspects of Schmitt’s work in the English
language, Chantal Mouffe (ed.), The Challenge of Carl Schmitt
(London, Verso, 1999), and David Dyzenhaus (ed.), Law as Politics.
Carl Schmitt’s Critique of Liberalism (Duke University Press, 1998).
Brief accounts of Schmitt’s biography are also contained in the
English translations of his major works.
37 The left appropriation of Schmitt is reflected in particular in the

pages of the US periodical Telos that has devoted several extensive
studies and special issues to Schmitt and published translations of
his key writings. Cf. e.g. the articles by Piccone, Ulmen, Hirst,
Bendersky, and Söllner in “Symposium: Carl Schmitt: Enemy or Foe?”
Special Issue (1987), 72 Telos as well as the articles by Ulmen,
Böckenförde, Slade, and Bendersky in “Carl Schmitt Now” (1996),
109 Telos. The ambivalence of the left in regard to Schmitt is also
usefully discussed in the essays contained in Mouffe, Challenge of
Carl Schmitt.
38 The best work is Schmoeckel, Die Grossraumtheorie. For useful

discussions by non-lawyers, cf. Paul Piccone and G. L. Ulmen,
“Schmitt’s ‘Testament’ and the Future of Europe” (1990), 83 Telos,
pp. 3–34 and Kervégan, “Carl Schmitt and World Unity,”
pp. 54–74. A useful analysis is also Peter Stirk, “Carl Schmitt’s

Völkerrechtliche Grossraumordnung” (1999), 20 History of Political
Thought, pp. 357–374.
423
through the thinnest sociological generalizations, international

lawyers have been compelled to witness the growth of a neighboring
discipline
– “international relations” – that has incorporated Schmittian insights

as parts of its professional identity. Schmitt’s reprehensible
association with the Nazis and his blatant antisemitism throw a well-
founded shadow on his life as well as on some of his writings from
that period.
But they fail to undermine the force of many of his insights about
law and the new political order. To deal with Schmitt is necessary, as
many have argued, to understand the complex relationship between
political utopias and struggles; and international lawyers do owe an
explanation for the fact that while there has never been as much
talk about international law and morality as in the twentieth century,
never have atrocities on such wide scale been committed in the
name of political utopias.
Under such circumstances, the choice between writing another

1,000-page textbook on humanitarian law and trying to deal with
Schmitt’s critiques of universal moralism should not be too difficult.
A discipline transforms itself: Schmitt on Scelle and

Lauterpacht
Before the war Schmitt had found the academic articulation for the
end of the ius publicum Europaeum as well as the contours of its
successor in the writings of Georges Scelle and Hersch Lauterpacht,
two lawyers whose separate lines of argument converged in the view
of international law as the law of a “communauté universelle.”39 In
Scelle’s Droit des gens Schmitt saw the so far most consistent
application of radical liberal–democratic ideas to the international
system. Employing the French concept of the legislative State,
Scelle’s federalism may have oscillated insecurely between
individualism and collectivism, but relegated formal State law
definitely into the realm of the metaphysical and the unscientific.
Where Scelle was expressly dismissive of the lex lata/lex ferenda
distinction, Lauterpacht developed a more limited common law
analysis of international cases 39 Carl Schmitt, Die Wendung zum
diskriminierenden Kriegsbegriff (Berlin, Duncker & Humblot, 1988
[1938]), pp. 1–8. The pamphlet is based on a paper given to the
Association of German Jurists in October 1937, as Schmitt had been
expelled from political positions and feared for his safety. But he did
not turn his back on Nazi policy and remained supported by Göring
and Hans Frank. Nonetheless, the paper may be seen as an attempt
to move to a less politically contentious realm and to participate in a
wider European scholarly debate. In this, he had little success.
Foreign Minister Ribbentrop congratulated him for expressing so well
the German position.
Balakrishnan, The Enemy, pp. 207, 228–231.
424
that nonetheless crystallized into a gapless world law. Scelle saw

international institutions as the instruments of federalism;
Lauterpacht allocated that function to the judiciary.
Schmitt’s discussion of Scelle and Lauterpacht is nuanced and even

to an extent admiring. He saw the two less as full-scale
representatives of a new system than as perceptive analyzers of the
gaps and inconsistencies of the old formalism behind Versailles,
unable to sustain a new nomos. Coming from the tradition of
Constant and Proudhon, Scelle worked towards a strong federal
institution as a representative of mankind with the right – even the
duty – to intervene if particular States violated the freedoms that
underlay the system.40 Nationality became a matter of free choice
and minority regimes and mandates forms of international
administration, detached from the States-system of a traditional
European law. All citizens had a right to resist if their State violated
international law. With his rejection of the traditional concept of war,
Scelle transformed every international violence into a global civil war
with crime on one side, police action on the other. Lauterpacht’s
more conventional starting-point led to the same result: the activities
of judges and arbitrators became “an international constitutional
machinery.”41 Peace became a postulate of order and war of the
absence of order: war had a place in the system only as breach. The
view of the Covenant as “higher law,” combined with the territorial
guarantee and the sanctions under Art. 16 led to the same point that
Scelle had reached: the aggressor was thrust outside as a violator
against whom all the rest of humanity would take defensive action.
If the Covenant was mankind’s constitution and sanctions

community action against a law-breaker, then neutrality had room
only as a limited, technical exception from the collective obligations
– such as the historically based Swiss neutrality – but not a free
foreign policy alternative.
There can be no neutrality between the policeman and the thief. The
concept of collective action, Schmitt held, was a key to the emerging
nomos. 42
It reintroduced the notion of the just war into international law –

with the significant twist that the power to decide where justice lay
was now arrogated to the League Council. This development bore,
for Schmitt, three corollaries. First, it did not merely restate the
Christian concept of the just war. Although American authors such as
James Brown Scott (1866–1943) propagated the “Catholic
conception of international law,”
40 Schmitt, Die Wendung, pp. 16–17.
41 Schmitt, Die Wendung, p. 22.

425
no turn to religion was possible. The new just war existed in a

wholly secular environment. The justice of the just war referred only
to the
“values” of the participants, allowing them to characterize

themselves as the enforcers of a de-nationalized normative truth. It
returned Europe to the civil war from which the ius publicum
Europaeum had tried to save it.
Second, instruments such as the Kellogg–Briand Pact abolished war
– but only at the level of concepts: by labeling violence either as

crime or as enforcement. Far from limiting violence, this merely lifted
the restraints that had been the most valuable achievement of the
old European nomos, and allowed extreme measures against the
adversary.
This is how Schmitt interpreted the Allied action against Germany:

the blockade, the war guilt clause, the indictment of the Kaiser, and
the reparations. These were not parts of a “duel” between States but
of a total war – a war of annihilation – against Germany seen as the
criminal who could not apply to sovereignty for its protection.
Against such an enemy
– just as against the pirate – any measures could be taken as

enforcement, and restraint was a matter only of the enforcer’s
private conscience. Statehood was abolished as the basis of the
system. The illegal belligerent was divided into two parts: the regime
that had commenced the war (of aggression) and was to be treated
as a group of gangsters, and the rest of the population that was to
be “protected” and enlisted as co-fighters. The State enjoyed no
protection but was to be treated as a
“rogue State” (“Räuberstaat”).43
Third, this transformation implied a program of imperial expansion

by the powers in charge of the decision-making in League organs.
Both Scelle and Lauterpacht aimed to explain the Covenant as a
constitution of a world community. If the League was a federation,
then there could of course be no war among its members: all
violence became a matter of criminal law. But if in addition to being
a federation, the League also saw itself in universal terms, then it
became an Empire in the precise sense that the way it treated third
States was determined by its internal laws. Here was the heart of
the emerging nomos and the significance of the transformations of
legal doctrine as well as those of international reality itself.44
Against liberal neutralizations and depoliticizations In his

1938 essay and in his other writings on the Geneva League Schmitt
was applying positions that he had first formulated in regard to 43
Schmitt, Die Wendung, p. 46.
426
the constitutional problems of the Weimar republic and liberal

democracy’s principles of operation. His discussion of the
universalizing tendencies of international law cannot be detached
from his critique of the all-encompassing search for depoliticization
and neutralization that had characterized Western liberal thought
since the end of the religious era.
Since then, liberalism had reduced all problems either into the realm
of a romantic aestheticism or chosen to treat them as exclusively
economic and technological.45 The end of European public law at
the end of the nineteenth century came about as a result of the
blurring of the notion of politics that had been a “presupposition”
behind the concept of the state.46
This argument was a central part of Schmitt’s early analysis of

political romanticism (1919) that depicted nineteenth-century
bourgeois sentimentality as an aesthetic and subjectivist attitude
towards the political world, and withdrawal from active
participation.47 The romantic sensibility conceptualized every social
event in relationship to the self that perceived it and projected on it
an esthetic value that it took as the object of its interminable
discussions. The political romanticists, Schmitt argued, had been
endless contemplators of their own feelings about the world, but
never willing to engage in action about it. We have encountered this
type already:
They made speculations, plans and bold promises. They made

intimations and held out prospects. They responded to every
expectation of a fulfillment of their promises with new promises. But
the enormous possibilities that they had opposed to reality never
became a reality. The romantic solution to this difficulty lay in
representing possibility as a higher category. In commonplace reality,
the romantics could not play the role of the ego who creates the
world.
They preferred the state of eternal becoming and possibilities that

are never consummated to the confines of concrete reality.48
Another technique for escaping politics, Schmitt argued in his

Political Theology (1922), lay in a normativism that sought to replace
the State by its law and to rid politics from the notion of sovereignty.
In the late nineteenth century, liberalism and secular jurisprudence
had started to 45 Carl Schmitt, “Das Zeitalter der Neutralisierungen
und Entpolitisierungen” (1929), in Schmitt, Positionen und Begriffe,
pp. 123–132.
46 “The concept of the state presupposes the concept of the
political.” Schmitt, The Concept of the Political, p. 19.
47 Carl Schmitt, Politische Romantik (1919/1925, trans. Guy Oakes

as Political Romanticism, Cambridge, Mass. and London, MIT Press,
1986).
48 Schmitt, Political Romanticism, p. 66.
427
downplay the conflictual character of the political realm. The

legitimacy of State authority was received not from its ability to
maintain peace but from the application of an impartial and
objective, democrat-ically based legal system. “All significant
concepts of the modern theory of the state are secularized
theological concepts.”49 The legislator was now conceived in the
image of the omnipotent God, possessing a response to every
question, having resolved every conflict in advance.
State law was like the law of nature: all-pervading, omnipotent, and
without an exception.
There could hardly have been a more striking gap between this kind
of liberal jurisprudence and the struggle against political collapse
that was the reality of Weimar. The situation itself seemed to prove
that order did not emerge from the spontaneous love of one’s
neighbors but had to be created by the political system. In a famous
debate between Kelsen and Schmitt about who is the “guardian” of
the constitution, Kelsen pointed to the supreme federal court while
Schmitt observed that this might be so as long as things stay
normal, but not if there is an extreme emergency – defined as the
inability of the regular legal process to control the situation. Here
Schmitt expounded his radical definition of the sovereign as “he who
decides on the exception,” that is to say, on “whether there is an
extreme emergency as well as what should be done to counter it.”50
The state of exception performed in politics the same task that
miracle did in theology: it reaffirmed and proved the authority of the
normal. How this was done cannot be legally circumscribed; no law
can foresee the exception and the conditions for suspending itself.
And more: every normality owes its existence to a pouvoir
constituant that once formed an exception: “The exception is more
interesting than the rule. The rule proves nothing; the exception
proves everything: It confirms not only the rule but also its
existence, which derives only from the exception.”51 Legal normality
hid political conflict from sight but did not make it disappear.
Conflict re-emerged every time the law was to be applied. “In every
transformation there is present an auctoritatis interpositio.”52 The
legal system relied on decisions by those in authoritative positions:
Kelsen had been able to construct a depoliticized law only by
emptying it of its content and ignoring implementation, the all-
important question Quis judicabit?
49 Carl Schmitt, Political Theology. Four Chapters on the Concept of

Sovereignty (1922, 2nd edn., 1934; trans. George Schwab,
Cambridge, Mass. and London, MIT Press, 1985), p. 35.
50 Schmitt, Political Theology, pp. 5–7.
51 Schmitt, Political Theology, p. 15.
52 Schmitt, Political Theology, p. 31.
428
Of course, everyone is for law, morality, ethics and peace; no-one

will want to commit injustice; but in concreto the relevant question is
always who shall decide what in this case is law, what counts as
peace, what is a threat or disturbance of peace, with what means it
shall be restored, when a situation has become normal or “peaceful”
and so on.53
Against abstract normativism Schmitt posed his own anti-formalism.
Only by focusing on law as decisions (and not as an abstract

normativity) can the conflictual reality of politics be fully appreciated,
and the means conceived whereby conflict does not escalate into
civil war. Even in 1932
Schmitt was ready to support the enactment of an emergency law

that would have banned the political activities of forces hostile to the
Republic, including the Nazi party. As Hindenburg recoiled, Schmitt
threw in his lot with the new regime in 1933 – with disastrous
results for his reputation.
The argument about liberalism’s failure to take determinate decisions

had been extensively discussed in Schmitt’s Crisis of Parliamentary
Democracy (1923).54 Here Schmitt revealed his ambivalent
relationship to democracy. On the one hand, democratic legitimacy
was the only form of legitimacy on which the modern nation-State
could draw. On the other hand, democracy often conflicted with
liberalism’s procedural principles. Democracy ideally meant identity
between the people and the State. Liberalism intended to bring
about that identity through parliamentary representation and the
principles of discussion and openness. But parliaments had
everywhere degenerated to factions representing special interests
and forums for inter-party compromise.
Discussion had become an empty formality. Liberal relativism made it

unable to articulate the principle of identity on which its constitution
was based: who constituted the demos and against whom it did
so.55
53 Carl Schmitt, “Zu Friedrich Meinecke’s ‘Idee der Staatsräson’

(1926),” in Schmitt, Positionen und Begriffe, p. 50.
54 Carl Schmitt, Die geistesgeschichtliche Lage des heutigen
Parlamentarismus (1923/1926, trans.
Ellen Kennedy as The Crisis of Parliamentary Democracy, Cambridge,

Mass. and London, MIT Press, 1988).
55 This was particularly visible in the reluctance of liberals to enforce

the homogeneity that was of the essence of democracy. It meant not
only the inclusion of the similar but also the exclusion of the
different. Without principles of exclusion, democracy would turn into
an undiscriminating cosmopolitanism. No democratic country,
Schmitt argued, practiced such, even if some claimed they did, and
it was doubtful if any could. For there was no absolute equality:
equality always existed in regard to some criterion (status, merit,
age, nationality, etc.) – and though parliaments do not often discuss
that criterion (because they take it as self-evident), this does not
mean it does not exist. Cf. “Die Gegensatz von Parlamentarismus
und moderner Massendemokratie” (1926), in Schmitt, Positionen und
Begriffe, pp. 59–66.
429
As the Parliament was taken over by interest-groups, State power

was undermined in two contrasting ways. In the nineteenth century,
the State had become a pouvoir neutre, its tasks limited to resolving
interest conflicts between economic and social actors. This was the
classical liberal model of the weak State. In the twentieth century it
became completely enmeshed with society, or, as Schmitt called it, a
“total State” out of weakness; a “self-organization of society” with
innumerable welfare, economic, or cultural tasks. But when
everything becomes “politics,” no scope is left for “the political.”56
This was the condition of Weimar. The State no longer had any
independent power to maintain order. Against the weakness of the
liberal (total) State, Schmitt emphasized the position of the Reich
President in maintaining the constitution and theorized the office of
the President – instead of the Parliament – as the democratic
representative.57 Central to this construction was the distinction
between the “fundamental principles” of the constitution and its
procedural provisions that enabled Schmitt to argue that the
President, as guardian of the constitution’s fundamental principles,
could put its procedural provisions in abeyance in order to safeguard
the substance of the political order.58 Only a ridiculous positivism,
he argued, could assume that the constitution allowed its own
destruction.
Schmitt’s anti-formalism was connected to his emphasis on the

significance of the political which, for him, was crucial for the State’s
function in maintaining order. Liberalism fused the State with
economy, technology, and ultimately “society,” in a way that lost
sight of the political. It was a delusion to think that political
problems could be solved by technology: even as technology was
neutral as such, it was completely political in its uses. The
characterization of the era as “technological” could be only
preliminary: we can give a final verdict only after we have seen what
kind of politics it advanced.59 But it is likely that, like Hannah
Arendt, Schmitt appreciated politics not only for its instrumental
usefulness but also for 56 Carl Schmitt, “Die Wendung zum totalen
Staat” (1931), in Schmitt, Positionen und Begriffe, pp. 146–157.
57 Thus in his study on dictatorship Schmitt put forward the concept

of commissarial dictatorship that was limited by its purpose of
maintaining the core of the constitution, a dictatorship, in other
words, in which the will of the people was reflected. For Schmitt,
there was no essential contradiction between democracy and
(communist or fascist) dictatorship; inasmuch as democracy was
best expressed in the concept of the volonté générale, it was not a
procedural but a substantive principle. Cf. also “Die Gegensatz,” pp.
64–66.
58 This is the gist of his book Legalität und Legitimität (1932, 4th
edn., Berlin, Duncker & Humblot, 1988). Cf. also Schmitt, “The Legal
World Revolution,” pp. 75–76.
59 Carl Schmitt, “Das Zeitalter der Neutralisierungen und

Entpolitisierungen,” p. 131.
430
existential reasons. Politics as struggle defined something essential

in what it is to be a human being “and that those who would
diminish the political diminish humanity.”60
Schmitt’s most famous thesis was undoubtedly the definition of the

political in terms of the irreducible opposition between the friend and
the enemy: “The specific political distinction to which political actions
and motives can be reduced is that between friend and enemy.”61
The core sense of the political as struggle lies in this definition. If
the State is a political body, then the definition of its enemy
constitutes its principle of identity. Hence it is the task of the State to
be clear about who its internal and external enemies are. To the
extent that the State is “depoliticized” or reduced to a social
association among others, it has lost this capacity and, no longer
able to recognize its enemies, will not be able to maintain order, will
no longer be a real State at all.
The friend–enemy distinction as the meaning of the political cannot

be reduced to a mere metaphor. The enemy, Schmitt writes, “is not
merely any competitor or just any partner of a conflict in general.”
Nor is the enemy “the private adversary whom one hates. An enemy
exists only when, at least potentially, one fighting collectivity of
people confronts a similar collectivity.”62 The enemy is the public
enemy in whose concept belongs the ever-present possibility of real
combat to the death.
This need not become reality, indeed would normally not appear:
“But it must nevertheless remain a real possibility for as long as the
concept of the enemy remains valid.”63 As in the case of the
exception here, too, the marginal situation completely overshadows
and determines the 60 Tracy B. Strong, “Foreword: Dimensions of
the New Debate around Carl Schmitt,”
in Schmitt, The Concept of the Political, p. xv. Whether Schmitt

should be credited with such a version of humanism is uncertain.
One plausible line of argument draws from Schmitt’s fervent
Catholicism the thesis of the inextricability of politics and the
struggle between faith and sin that seems to be a central part of
what Schmitt called “political theology.” From this perspective,
conceiving of the “end of politics” or the replacement of politics by a
harmonious social life, reduced to the administration of common
matters, would constitute the heresy of an earthly paradise that
would deny the reality of the original sin and the work of the
Antichrist in secular society. When Schmitt says that “all genuine
political theories presuppose man to be evil,” this recharacterizes
liberalism as not really a political theory at all but an attempt to get
away from it. In this sense all political theory stands on a profession
of anthropological faith, Schmitt, The Concept of the Political, pp.
57–58. For Schmitt, the resulting
“peace and security” will inaugurate the reign of the Antichrist, as

announced by St Paul in 1 Thessalonians. Cf. in particular, Meier, The
Lesson of Carl Schmitt, pp.
160–165.
61 Schmitt, The Concept of the Political, p. 26.
431
sense of what appears as the tranquil normality. The struggle to the

death with the enemy is the exception that confirms the order of
normality. Schmitt’s critique of Weimar liberalism focused on the
blurring of a clear sense of the republic’s internal enemies. But the
principal application of the friend–enemy distinction was received by
Schmitt in international politics.
As in the sphere of politics, it belongs to the State to “decide in a

concrete situation upon the enemy and the ability to fight him with
the power emanating from the entity.”64 In international relations,
the prospect of war to the death was an ever-present potentiality.
Schmitt’s awareness of and emphasis on this potentiality by no
means meant that he regarded war as a social ideal, and he had no
sympathy with the heroic notion of war espoused by his friend, the
novelist Ernst Jünger (1895–1998).65 The significance of war did not
lie in its provision of existential meaning to the lives of individuals or
in its aesthetic qualities. The readiness to fight was not to grow from
a warlike attitude but from a correct perception of the role of the
State: as long as a people exists in the political sphere, it must have
a clear view who its enemies are.
Otherwise, the State will cease to exist. What is left may be a set of
collective economic or cultural pursuits – sooner or later to dissolve
in civil war or by the force of external aggression.66
It had been the great merit of the ius publicum Europaeum that it
had limited war into a public law duel between formal States. As we
have seen, in Schmitt’s view, it was being replaced by a universalistic
“moralism” that far from doing away with conflict lifted all restraint
on how it would be waged. In the first place, it became outright
impossible to distinguish between conflict and its opposite. As war
ceased to be a formal status, what came in its stead was an
amorphous status mixtus, a grey zone of informal control and
pressure by those who had the means. This, Schmitt argued in the
1920s, had happened in the protectorates outside Europe that fell
short of formal annexation but guaranteed full control, as well as in
the innumerable forms of supervision, occupation, and investigation
over European (particularly German) territory established 64
Schmitt, The Concept of the Political, p. 45.
65 Cf. Meier, The Lesson of Carl Schmitt, pp. 38–39.
66 Schmitt, The Concept of the Political, pp. 45–48.
432
by the Versailles Treaty. As new States were formed under the

rhetoric of self-determination, nationalism and democracy, but
simultaneously subsumed under far-reaching regimes of economic
and political intervention, words such as “sovereignty” or
“independence” transformed into slogans.67 The legalization of the
status quo perpetuated and nor-malized the mixed status of informal
intervention.68
Secondly, and far more dangerously, moralism lifted all limits from
international violence. The renunciation of war as a matter of
“national policy” in the 1928 Kellogg–Briand Pact was deeply
deceptive: “The solemn declaration of outlawing war does not
abolish the friend–enemy distinction, but, on the contrary, opens
new possibilities for giving an international hostis declaration new
content and new vigor.”69 In practice, the declaration was
accompanied by specific reservations concerning war in self-defense
– reservations that were, Schmitt correctly observed, no mere
exceptions to the norm of peacefulness but “gave the norm its
concrete content . . . in dubious cases.” As sovereignty meant the
right to determine whether the enemy had attacked (or would attack
unless deterred), and what was needed to counter the foreseeable
attack, no change occurred in political reality. It was still the friend–
enemy distinction, and the ability to draw the extreme consequences
from it, that determined the political identity of States.70
This reality was blurred by the universalistic rhetoric that became

part of the diplomatic game. Of course, Schmitt wrote, it might be
possible to conceive a world where there were no States. In such
world, “[w]hat remains is neither politics nor state, but culture,
civilization, economics, morality, law, art, entertainment, etc.” But
nothing seemed further from reality:
Humanity as such cannot wage war because it has no enemy, at

least not on this planet . . . When a state fights its political enemy in
the name of humanity, it is not a war for the sake of humanity, but a
war wherein a particular state seeks to usurp a universal concept
against its military opponent. At the expense of its opponent, it tries
to identify itself with humanity in the same way as one can misuse
peace, justice, progress, and civilization in order to claim these as
one’s own and to deny the same to the enemy.71
67 Cf. Carl Schmitt, “Die Rheinland als Objekt internationaler Politik”

(1925), in Schmitt, Positionen und Begriffe, pp. 28–33.
68 “Der Status Quo und der Friede” (1925), in Schmitt, Positionen

und Begriffe, pp. 40–42.
70 Schmitt, The Concept of the Political, pp. 50–51.
433

The language of humanity had always been a favorite tool of
imperial expansion, particularly of economic imperialism. A world
policy is an imperial policy, a policy whose scope is the whole of
humanity. Such policy had been adopted during the interwar era in
the diplomatic language of the two principal non-European powers,
the Soviet Union and the United States. Yet: “To confiscate the word
humanity, to invoke and monopolize such a term probably has
certain incalculable effects, such as denying the enemy the quality of
being human and declaring him to be an outlaw of humanity; and
war can thereby be driven to the most extreme inhumanity.”72 Is it a
coincidence that the twentieth century saw the most widespread use
of the concept of humanity in warfare; and the most atrocious
destruction of lives ever carried out under the pretense of war? For
Schmitt, it was clear that “humanity” had no political content; that
no political entity, ideal or status, corresponded to it. It had been
invoked in the eighteenth century against the divine right of Kings
and in the nineteenth century against aristocratic or capitalist
privileges.
Here it had a political meaning: it identified an enemy. But if used by

the League or by the Great Powers, it merely veiled the politics of
those entities, the friend–enemy distinctions on which their identities
were based, liberating them from restraint against dealing with the
enemy.
The League was not “humanity” – it did not abolish war. On the
contrary: “It introduces new possibilities for wars, permits wars to
take place, sanctions coalition wars, and by legitimizing and
sanctioning certain wars it sweeps away many obstacles to war . . .
this establishment is not a league, but possibly an alliance.”73 The
humanitarian war becomes a war of annihilation (
Vernichtungskrieg), a global civil war where the enemy does not
have the dignity of a State and resistance will appear as “the illegal
and immoral resistance of a few delinquents, troublemak-ers, pirates
and gangsters.”74
Nothing of this had changed for Schmitt in fifty years. In 1978
“humanity” was still no political subject. It remained, he wrote with

reference to the argumentative practices of the United Nations, an
asymmetrical concept, containing “the possibility of the deepest
inequality.”
The implied contrast “human”/“inhuman” was like the familiar

oppositions between Greek and barbarian, Christian and heathen,
even superman and subhuman. The “linguistic potential for
argumentation gained from the terms human and humanity” lifted all
reason for 72 Schmitt, The Concept of the Political, p. 54.
74 Schmitt, Die Wendung, p. 43n45.
434
restraint in a struggle where the adversary was excommunicated

from humanity altogether.75
It was against all this that Schmitt devised his concept of the
Grossraum in 1939 and in 1950: as a space of politics to replace the
obsolete neutralism of formal States and as a restraining instrument
against the appropriation of the language of humanity by the clercs
of a single, industrially based nomos. Cuius industria, eius regio. In a
world-scale economy, this would mean not Landnahme but
Weltraumnahme.76 Because this process was conceptually identical
with the demise of the ius publicum Europaeum, it seems natural
that Schmitt did not see international law as an effective restraint on
it. From his Weimar writings as well as from his “testament” of
1943–1944, however, it is possible to extract a sense about what he
thought of the law’s role in the struggle between single empire and
Grossräume. Two types of legal thought were responsible for the
erosion of the European jurisprudence since the nineteenth century.
One was positivist formalism, identified with neo-Kantian philosophy,

and, in particular, Kelsen.77 Later, however, Schmitt changed his
principal target to legal “instrumentalism” that viewed jurisprudence
as a
“mere craft” of legislative commentary, “an instrument of arbitrary

prescriptions and endless enactments” by the “motorized legislator”
of the welfare State. As a contrast to both he invoked the rationalist
jurisprudence of the thirteenth-and fourteenth-century legists, the
humanistic jurisprudence of the sixteenth century, and, in particular,
the work and figure of Savigny. Possibly in view of his own
catastrophic misjudgment of 1933 he wrote ten years later:
We cannot choose the changing rulers and regimes according to our

own tastes, but in the changing situations we preserve the basis of a
rational human existence that cannot do without legal principles as
such: a recognition of the individual based on mutual respect even in
conflict situation; a sense for the logic and consistency of concepts
and institutions; a sense for reciprocity and the minimum of orderly
procedure, due process, without which there can be no law.78
In his testament Schmitt advocated a historically sensitive and

institutionally oriented jurisprudence that would look beyond formal
laws and legislative projects or intentions and would not succumb to
the temptation 75 Schmitt, “The Legal World Revolution,” pp. 87–88.
76 Schmitt, “The Legal World Revolution,” pp. 79–80.
77 Cf. e.g. Schmitt, Political Theology, pp. 18–22.
78 Schmitt, “The Plight,” p. 67.
435
of an abstract humanitarianism.79 But he remained skeptical of its

existence in Europe.
Schmitt and Morgenthau: the primacy of the political Schmitt

modified his discussion of the limits of the political between the first
(1927) and the second (1932) editions of Der Begriff des Politischen.
In the first edition, the “political” had existed alongside such other
realms as economy, morality, law, culture, etc. in an apparently
equal position as one of the aspects of a community’s life, distinct
from its other aspects.
In the second (and third) editions, the political stood out, however,
from such delimitations so as to potentially encompass all of them.
Now politics had no intrinsic limit: every aspect of life could manifest
the friend–enemy opposition and thus transform itself into political
struggle. Politics had no substance, it described the “intensity of
association or dissociation of human beings.”80 This increased the
need to ensure that the State had the ability to prevent that struggle
from leading into an all-out civil war or indeed an all-out
international war – something it could do only through a
concentration of overwhelming power in the hands of a “guardian.”
Now this idea of politics as an intensity concept did not exist in the
earlier edition of the book. By contrast, it was centrally present in
the 1929 doctoral dissertation to the Faculty of Law at the University
of Frankfurt by the 25-year-old Hans Morgenthau, titled Die
internationale Rechtspflege. Ihr Wesen und ihre Grenzen (The
International Judicial Function. Its Nature and Limits). Morgenthau
had specifically taken issue with Schmitt’s influential 1927 work by
reference to which he developed his own notion of the political as a
quality and not a substance, capable of penetrating every realm of
international life. This was the reason, the young Morgenthau
claimed, that international law had been such a weak structure.
Morgenthau sent his dissertation to Schmitt and received in
exchange a complimentary letter. When the second edition of
Schmitt’s Der Begriff des Politischen came out in 1932, it included
the new definition of the political as an intensity concept – without
due acknowledgment, as Morgenthau later bitterly remarked.81
79 Schmitt, “The Plight,” pp. 54–64, 68; Schmitt, Political Theology,

pp. 2–3.
80 Schmitt, The Concept of the Political, p. 38 (italics MK).
81 This story is made the basis of an argument about another

“hidden dialogue” (besides the better known one that took place
between Schmitt and Leo Strauss) between Schmitt and
Morgenthau. Cf. Scheuerman, Carl Schmitt, pp. 225–237.
436
Morgenthau continued his engagement with Schmitt in the 1930s

but after emigration to the United States in 1937 set Schmitt
together with most of his other European baggage aside. As he
received tenure at the University of Chicago in 1949 he had already
laid the basis for an extraordinarily influential career in international
relations by the publication of two books: Scientific Man vs. Power
Politics (1946) and Politics Among Nations. The Struggle for Power
and Peace (1948). His third book from that prolific period, In
Defense of the National Interest (1951) analyzed the world situation
in terms that were strikingly similar to those expressed by Schmitt.
Morgenthau’s 1951 book was a critique of American foreign policy
but also an end-of-an-era analysis. The Second World War,
Morgenthau wrote, had made the destructive effects of three
“revolutions of our age”
fully plain. A political change had led to “the end of the state system
which has existed since the sixteenth century in the Western world.”
That system had been based on the balance of power between

formally sovereign European nations. The non-European world had
been related to it either through isolation or subordination. “Of this
state system,”
Morgenthau wrote, “nothing is left today.”82 The end of the

European age had been consummated by the emergence of two
superpowers – the United States and the Soviet Union – whose
power and ambition outweighed anything remaining in Europe. The
adversity between these powers was total: each animated by a
crusading spirit, ready to strike at first instance of possibility: “Total
victory, total defeat, total destruction seem to be the alternatives
before the two great powers of the world.”83
A second, technological revolution had created a new, total concept

of war. Like Schmitt, Morgenthau wrote nostalgically of a military
past when “contests proceeded generally according to strict rules.”84
The mechanization of warfare and the atomic bomb had transformed
modern war “into the actuality of total war” that could follow no
rules, indeed that was irrational in its essence. Technology now
made the destruction and the conquest of the world possible by a
single power.
When this transformation was linked to Morgenthau’s third revolution

82 Hans Morgenthau, In Defense of the National Interest. A Critical
Examination of American Foreign Policy (New York, Knopf, 1951), pp.
41, 42.
83 Morgenthau, In Defense of the National Interest, p. 52.
437
– the moral transformation – this alternative started to seem almost

a likelihood. Throughout modern history there had been a European
“family of nations” that, despite internal dissension, had shared a

common civilization and a way of life. The moral and political
consensus had coincided with the restraining influence of the shared
state system and stationary technology.85 Its place had been taken
by “political religions” whose ambitions knew no limits. Pointing at
the “tendency towards worldwide salvation” Morgenthau echoed
Schmitt’s writings –
without due acknowledgement on his part this time. This

sentimentalism was a perversion; it was not morality but moralism, a
hypocritical dressing of the national interest in the garb of morality,
leading to an intensification of political conflict. For:
The appeal to moral principles in the international sphere has no

concrete universal meaning. It is either so vague as to have no
concrete meaning that could provide rational guidance for political
action, or it will be nothing but a reflection of the moral
preconceptions of a particular nation and will by the same token be
unable to gain the universal recognition it pretends to deserve.86
The Cold War was the final stage in the dismantling of what Schmitt
had called the ius publicum Europaeum, its place taken by two
crusading superpowers, assisted by proxies in Europe and Asia.
Bolshevism and US
foreign policy were both crafted into a moralistic frame they had
inherited from the Second World War as a war against the absolute
evil that must be compelled to unconditional surrender.87
Morgenthau’s intention in 1951 was to defend the dignity of national

interest against the utopian or legalisticdetractors. In a morally
agnos-ticworld it was immoral to act on the basis of utopian ideas. If
such ideas had an application, it was only to the extent “they had
been given concrete content and have been related to political
situations by society.”88
Like Schmitt, Morgenthau held that moralism, utopianism,

sentimentalism, and legalism were not simply ineffectual guides of
foreign policy but positively harmful in providing an ideological
justification for a limitless crusading politics. Only the national
interest was concretely rooted in a nation’s experience and power,
and thus a reliable guide for foreign policy. To look after one’s
interest – self-preservation – became both political necessity as well
as moral duty: “In the absence of an integrated international society,
the attainment of a modicum of order and the 85 Morgenthau, In
Defense of the National Interest, p. 61.
438
realization of a minimum of moral values are predicated upon the

existence of national communities capable of preserving order and
realizing moral values within the limits of their power.”
“[W]ithin the limits of their power.” This was Schmitt’s nomos, the
concrete order. Morgenthau’s 1951 book indicted American
utopianism, sentimentalism, legalism, and neo-isolationism as fatal
disregard of the need to determine clearly the (US) national interest
and to keep focus on it while one was acting. The “real issue” in the
cold war, for instance, was not an ideological confrontation but a
desire for power that transformed the revolutionary rhetoricof the
Soviet State into an instrument of Russian imperialism.89
Morgenthau agreed with Schmitt in his critique of US utopianism. It
led either into a completely unrealistic expectation that one’s political
contenders would feel bound by agreements concluded – the shock
at Soviet dismissal of the Yalta agreement on East European
democracy90 – or it resulted in the understanding of war as moral
struggle by “peace-loving nations” against the forces of evil; the
branding of the enemy as a “war criminal” having committed an “act
of aggression”
(the inverted commas are Morgenthau’s). The only policy directive

can then be the extreme one: “Crush the enemy; force him into
unconditional surrender; re-educate him in the ways of democratic,
peace-loving nations . . . a United Nations provides the finishing
touch for the brave new world from which war and, in the words of
Mr Cordell Hull, power politics itself will have been banished.”91 Like
Schmitt, Morgenthau interpreted this development as an attempt to
get away from politics, intrinsic to the liberal world. Unlike Churchill
or Stalin, Americans had failed to understand the nature of the
political. The United Nations and international law were imagined as
substitutes for power politics – while in fact they were simply new
forums for it. The related opposition between peace-loving and
aggressor States was only a step away from the juxtaposition of law-
abiding and criminal ones. Such “legalistic exercises” were outright
harmful: “At best, they have left the political issues where they
found them; at worst, they have embittered international relations
and thus made a peaceful settlement of the great political issues
more difficult.”92
By 1951, Morgenthau had thoroughly adapted to the American

context, writing confidently in the first person plural about the
virtuous realism of the foreign policy of the founding fathers –
particularly Alexander Hamilton – and the disappointing policies of
the “present 89 Morgenthau, In Defense of the National Interest, pp.
69–81.
90 Morgenthau, In Defense of the National Interest, pp. 105–113.
439
administration” in Europe and China. Now he showed himself both

an enfant terrible and an unflinching patriot,93 a conservative
through and through with deep suspicion against public opinion and
control of foreign policy. By contrast, the national leader appears
almost like Schmitt’s commissarial dictator whose position was not
contrary to but a c onfirmation of the substance (if not the process)
of general will.94 The analysis did not have any significant room for
law: the “vital objective”
of US foreign policy had to be the restoration of the balance of

power.95
Law, if needed, would come later: to uphold the status quo.96 The
concrete order – balance of power – had first to be set up. And this
was an irreducibly political task.
International law and politics: an asymmetrical

relationship
Morgenthau confessed that his 1929 dissertation had been
conceived partly as a reply to the first edition of Schmitt’s Der Begriff
des politischen.
Its ostensible purpose was to conduct an enquiry into the limits of

the judicial and arbitral function in the international field – a rather
standard object of scholarly interest in the 1920s. Behind the legal–
dogmatic surface, however, it is not difficult to detect a somewhat
anxious attempt to come to terms with the relationship between law
and politics in international life and, particularly, to develop an
explanation for what it was that made international law such a
fragile structure.97
Morgenthau’s thesis revolved around the apparent paradox that

though there were no objective reasons for why the legal process
could not be used for the resolution of any kinds of international
conflicts, in practice only a very small number were submitted to
it.98 Although 93 Alfons Söllner, “German Conservatism in America:
Morgenthau’s Political Realism”
(1987), 72 Telos, p. 169.
94 Morgenthau, In Defense of the National Interest, pp. 229 et seq,

241–242.
97 My reading has been much influenced by Pekka Korhonen, Hans

Morgenthau.
Intellektuaalinen Historia (Jyväskylän yliopisto, valtio-opin laitos;

Julkaisuja, 43, 1983), pp.
12–39 as well as the very useful Christoph Frei, Hans J. Morgenthau.
Eine intellektuelle Biographie (2nd edn., St. Galler Studien zur
Politikwissenschaft, Berne, Stuttgart, and Wien, Haupt, 1994).
98 Hans Morgenthau, Die internationale Rechtspflege, ihr Wesen und

ihre Grenzen (Leipzig, Noske, 1929), pp. 56–57. The original
manuscript bore a longer title: Die internationale Rechtspflege, das
Wesen ihrer Organe und die Grenzen ihrer Anwendung;
insbesondere der Begriff des politischen im Völkerrecht. Frei, Hans J.
Morgenthau, p. 130n45.
440
scholarship and practice had long attempted to provide a criterion

for the definition of questions that were suitable for legal settlement,
no definite criterion had emerged. From a formal perspective, as
Kelsen, Lauterpacht, and others had insisted, it was always possible
for a tribunal to proceed to a decision: if the claimant had no right
(that is to say, even in the absence of an applicable norm), then her
claim was to be dismissed. In this sense, there were no limits to
justiciability. But in practice, States refused to bring their grievances
to third-party settlement – in particular if they appeared to deal with
their “vital interests” or “national honor.” The problem that worried
lawyers was whether it was possible to define such notions – and
hence the notion of the “political” – in a way that would be
opposable to the State making such claim. For otherwise there
seemed to exist no binding third-party settlement at all.
Morgenthau’s contribution to this debate was to show that no such

delimitation was possible.
For instance, it was often suggested that a dispute was “political” if

it related to the personality or the individuality of the State. But
these perceptions were completely phenomenological, determined
by the State’s own self-image. It seemed impossible to oppose to a
State a deviating conception of its identity. Nor could a definition be
attained by reference to “vital interests” or “national honor”: these,
too, were dependent on what the State happened to hold
important.99 Nor, finally, did the mere fact that regulation was
lacking in some area (“gap in law”) define it as “political”: nothing
prevented States from agreeing to submit disputes about such
questions to equitable settlement. This showed that the political had
no fixed substance. Instead, it was better thought of as a quality
that could be attached to any object, and no object was essentially
free from becoming political in this sense. To say that something was
“political” was to describe it in terms of the degree of intensity with
which that object was linked to the State, to give it “a certain
coloring, a determined nuance in contrast to anything
substantial.”100 Anything might be, and nothing was necessarily
political, including any question over which a court might possess
jurisdiction.101
The “political” and “legal” were not symmetrically related to each

other:
199 Morgenthau, Die internationale Rechtspflege, pp. 105–107, 119

et seq.
100 Morgenthau, Die internationale Rechtspflege, p. 70.
101 Morgenthau, Die internationale Rechtspflege, pp. 62–72. For

Morgenthau, the concept of the political and the concept of national
“honor” covered an identical space, ibid. pp.
127–128.
441
The “legal” and the “political” are not at all an adequate pair of
concepts that could enter into a determinate contrast. The
conceptual counterpart of the concept of political is formed by the
concept of the non-political but not by the concept of “legal
question” which, for its part, can be both political or non-
political.102
Absence of symmetry meant that the political always loomed large

over any legal substance, prepared to overtake it in case the State
started to feel intensely enough about it. This conclusion showed
that Schmitt’s attempt in the first edition of Der Begriff des
Politischen to work with an autonomous sphere of “the political” had
been flawed. Questions initially having to do with morality, economy,
or culture became political as soon as the protagonists started to
feel strongly about them. In a way, Morgenthau understood Schmitt
better than Schmitt himself: the relationship of the political to the
legal in his 1929 dissertation came quite close to how Schmitt had
conceived the relationship between the sovereign and the
constitution in his Political Theology, or the (political) exception that
prevailed over (legal) normality while remaining uncontrolled by it.
These arguments led Morgenthau to distinguish between two kinds

of international conflicts: “disputes” ( Streitigkeiten) that could be
expressed in legal claims and “tensions” ( Spannungen) that cannot
be so expressed because they seek a transformation of legal rights
and duties.103 While the former could usefully be dealt with by legal
methods, the latter could not. This was not owing to any intrinsic
impossibility: even tensions involved positive rights and duties that
could be declared by a tribunal.
But those rights and duties are overwhelmed by the intensity of the
feelings of the participant States about them or about the context of
which they were a part. For example, there was no doubt that the
Versailles settlement constituted positive law. But its being so was
completely overshadowed by the intensity of the feelings (especially
in Germany) concerning its injustice. The controversy between the
Allied and Associated powers on the one hand and Germany on the
other could never be resolved by a tribunal. The “tension” was not
about what positive law said but whether and how it should be
changed.
From such a notion of politics it also followed that to which class a

conflict belonged could not be determined by pre-existing criteria.
Like Kaufmann in his work on rebus sic stantibus, Morgenthau
dismissed the 102 Morgenthau, Die internationale Rechtspflege, p.
62.
103 Morgenthau, Die internationale Rechtspflege, pp. 73–84.
442
possibility that the political could be reduced to a legally

circumscribed notion of Notrecht.104 Moreover, disputes and
tensions may also develop into each other. A long-standing dispute
may become a symbolic incident in a tension – and the dispersal of a
tension may be accompanied by its transformation into one or more
disputes, amenable to legal resolution.105 But no general definition
could be given. Everything depends on how the matter was viewed
by the national community itself.106 But, Morgenthau also argued,
although tensions cannot be successfully dealt with by formal
dispute settlement, the legal system might nonetheless take account
of them – or as he put it in the language of anti-formal legal theory:
the law should change from a staticto a dynamicorder.107 It should
develop a mechanism that would reflect underlying political
transformations and integrate new values and power relations while
simultaneously limiting the right of resort to war.108
Morgenthau’s intention was not to defend increasing recourse to

third-party settlement. On the contrary, in his view the fact that
disputes often referred to or developed into political tensions made
them frequently inappropriate for such settlement: the judges’
(unconscious) bias would do away with their trustworthiness; or it
would appear that a large issue was being decided by reference to
its marginal aspects.109 In both cases, the essential precondition of
justiciability – trust in the settlement organ by the parties – would be
absent.110 Moreover, the scope of tensions inappropriate for legal
settlement could be broadly identified only in regard to particular
situations. Therefore it was useless to strive for a universal
arbitration treaty. Third-party settlement was not – as suggested by
the “Schiboleth der Schiedsgerichtsbewegung” – a precondition for
peace but a consequence thereof.111 Nor could tensions be dealt
105 Morgenthau, Die internationale Rechtspflege, pp. 80–83 and for

a more elaborated account, cf. Hans Morgenthau, La notion du
“politique” et la théorie des différends internationaux (Paris, Sirey,
1933), pp. 72–85.
108 Thus disputes about Lebensinteressen could be integrated into

the law only by their exclusion from third-party settlement.
Interestingly, like Schmitt, Morgenthau applied such exclusion, for
example, to the Monroe Doctrine, whose content he, too, saw
completely dependent on unilateral decision by the United States. As
a leading power, the latter had extended it to include increasing US
intervention in Europe and Asia, Morgenthau, Die internationale
Rechtspflege, pp. 107–109.
111 Morgenthau, Die internationale Rechtspflege, pp. 95, 97.
443

through mediation or conciliation: their limits lay in exactly the same
place as the limits of arbitration or adjudication, in the
phenomenological world of politics. Though Morgenthau ended his
dissertation by expressing the hope that a “system of values and
norms” would develop that would enable the articulation of
“tensions,” too, in the language of legal claims, he refrained from
speculating when such time might come, and left the reader in some
doubt about his own faith in it.112
The dissertation was very well received. Morgenthau’s Frankfurt

supervisor Karl Strupp praised its scientific value and positive reviews
were written by Lauterpacht as well as Paul Guggenheim from
Geneva.113 The book’s originality lay in Morgenthau’s employment
of a psychologically oriented social theory. What “law” or “politics”
meant could not be detached from the feelings that human beings
had about them. Those “feelings,” again, arose from a basic
psychological drive: the desire for self-expression in and recognition
by community.114 This is why he identified the scope of “national
honor” with that of the political.115 Both resided in the realm of
emotional projection; and could therefore not be delimited by legal–
technical language. No external standards were authoritative and
conflicts could be resolved only by struggle. Nonetheless, the
institutionalization of drive-fulfillment was not outside the realm of
the possible. In domestic society, there was a large consensus on
how the societal changes brought about by the desire for self-
expression and recognition should be reflected in law. But there was
no such consensus – nor any such institutions – at the international
level. Here lay international law’s special weakness. A shift in power
will always be accompanied by threat of violence: as with Schmitt,
war remained an ever-present potentiality.116
It is not easy to see how, in the absence of formal legislation, law

might
“take account” of the vicissitudes of politics, understood in terms of

a theory of drives, without ceasing to be law. In an admiring
memorial article on Gustav Stresemann, Germany’s influential
foreign minister from 1923 to 1929, Morgenthau made the point that
Stresemann’s success lay in his ability to conduct a genuinely
German Völkerrechtspolitik 112 Morgenthau, Die internationale
Rechtspflege, pp. 148–152.
113 For reviews, cf. Paul Guggenheim (1929), 35/36 Juristische

Wochenzeitschrift, p. 3469; Hersch Lauterpacht (1931), 30 BYIL, p.
229.
114 “nach Selbsterhaltung und nach Geltung innerhalb des

Gemeinschaft, kurz, von dem Triebe nach Erhaltung und
Durchsetzung des Persönlichkeit.” Morgenthau, Die internationale
Rechtspflege, p. 74.
444
vis-à-vis the Versailles settlement while at the same time

strengthening the structures of international peace. Morgenthau
agreed with the majority of Germans. The settlement – including the
League of Nations
– had been “in its original spiritual and political function alien to the
German nature.”117 By securing Germany’s membership in the
League Stresemann had been able to transform the organization in
accordance with the new European situation and to end Germany’s
spiritual isolation through means that did not involve the use of
violence, indeed were opposed to it
This may have been a weak consolation, however, and certainly a

doubtful argument for proving the law’s importance. Later on,
Morgenthau no longer saw the League as an effective instrument for
guaranteeing the law’s realism. Were Germany’s successes in
Geneva not precisely proof of the weakness of international law
which, as he argued in his dissertation, lay in the fact that it was
constantly penetrated by politics? “From that discovery there was
but one step to the conclusion that what really mattered in relations
among nations was not international law but international
politics.”118
The formation of a German thinker: between law

and desire
On the basis of the positive reviews of his 1929 dissertation
Morgenthau finally opted for the university. Until that point he had
been uncertain about his future, having, as he recounts, chosen to
study law not because he was interested in it but because his father
would not let him study literature. Law was a second best as it
“appeared to make the least demands on special skills and emotional
commitment.”119 Although his dissertation dealt with a much-
discussed international law topic, and his writing technique was
completely in the style of the German legal academy, its main point
deviated from (and was in part directed against) the type of legal
formalism represented by the works of his supervisor Strupp. The
originality of the thesis lay in its psychological understanding of
power – a point of view Morgenthau never gave up. The view of
social behavior determined by the desire for power became one of
the 117 (“in seiner ursprünglichen geistigen und politischen Funktion
den deutschen Wesen fremd”),
Hans Morgenthau,
“Stresemann als Schöpfer der deutschen
Völkerrechtspolitik” (1929), 5 Die Justiz, p. 176.
118 Hans Morgenthau, “An Intellectual Autobiography” (1978), 15 (

January/February), Society, p. 65.
119 Morgenthau, “An Intellectual Autobiography,” p. 63.
445
hallmarks of the “Realism” for which Morgenthau became the

leading academic representative in United States after the war. That
view is rooted in a specifically German intellectual trajectory which
combines Morgenthau’s personal experience with themes of
discussion prevalent in the surrounding academic and political
environment.
Morgenthau was born in Coburg, Northern Bavaria, in 1904 to an

authoritarian father, a Jewish doctor and a German patriot, Ludwig
Morgenthau. Three experiences – he himself recalls – conditioned
his development. One was the antagonism to his father; nothing
young Hans could do would satisfy him and they would always
remain distant, even hostile. Hence Morgenthau’s life-long aloofness,
even timidity.
This was not unconnected to a pervasive loneliness which he later

theorized into an existential condition, an aspect of human
imperfection.
To seek friendship was to engage in a futile search for a perfection

that belonged only to God. The inevitable frustration defined human
life as tragedy.120 Morgenthau’s loneliness was not only attributable
to his personal timidity, however. Coburg had suffered greatly from
the post-war economic slump and had by 1922 become ready for
Hitler.
Antisemitism was pervasive in town and at school – the Gymnasium

Casimirianum – and Morgenthau often later referred to the
unhappiness of his school years as he was repeatedly ostracized and
mocked by his schoolmates. One incident was particularly striking.
As the first of his class, on April 11, 1922 he received the honor of
delivering a speech to the graduates leaving the school and to lay a
laurel on the statue of the Gymnasium’s founder, Duke Johann
Casimir. A photograph shows how during the address another Duke,
Carl Eduard von Saxe-Coburg Gotha, sat in the front row holding his
nose to show his contempt for the stinking Jew.121
A third important aspect of his youth was an intellectual ambition
that translated not only to an almost neurotic desire to get the
highest marks at every subject but also to a wish to counter the
surrounding, predominantly hostile world by an unflinching hardness
that he tried to attain by adopting the position of an outside
observer, seeking to under-120 Hans Morgenthau, “The Significance
of Being Alone” (Unpublished and undated paper, Morgenthau
archives, Library of Congress, Washington, copy on file with author).
121 The story is recounted in Frei, Hans J. Morgenthau, pp. 24–25

and in Kenneth W.
Thompson, “Hans J. Morgenthau. Principles of Political Realism,” in

Thompson, Masters of International Thought. Major Twentieth-
Century Theorists and the World Crisis (Baton Rouge and London,
Louisiana State University Press, 1980), p. 81.
446
stand the world in its naked reality, and not though the superficial
(religious, ethical, political) ideas through which it publicly justified
itself. For this purpose, science seemed a necessary instrument – not
just any science but one that would provide direct access to the
existential condition of social life. Already Morgenthau’s school
essays manifest this determination.122 It prompted him to study
philosophy for his first semester at the University of Frankfurt in
1923; but he left it after half a year, disappointed with the
superficially rationalist scientism en vogue there. Turning to law was
hardly a better choice in that respect, but at least it provided the
basis for a future livelihood.
It was not until after graduation in 1927, when he had taken the
position of assistant to the notable socialist lawyer Hugo Sinzheimer
(1875–1945), a former participant in the Weimar Assembly, the
owner of a law firm specializing in labor law, and through him had
come to know some of the most important legal and political
thinkers in Germany, that Morgenthau was introduced into an
intellectual milieu in which he felt that matters of existential and
political significance were being discussed.123 Among a
predominantly socialist group of lawyers and philosophers,
Morgenthau remained, however, a conservative.
Although he visited the famous Institut der Sozialforschung in

Frankfurt several times, and came to know its leading figures, he
was frustrated by what he felt as the irrelevance of their abstract
Marxist hair-splitting in face of the coming Nazi tide.124
Morgenthau had commenced writing his doctorate with Karl

Neumeyer (1869–1941), a private international lawyer and a
developer of “international administrative law” in Munich
immediately after graduation. Despite his admiration for Neumeyer’s
realist teaching methods and ethical–cosmopolitan aspirations,125 it
was only after the new contacts he had received through Sinzheimer
that his work started proceeding well. In his autobiography
Morgenthau credits Max Weber as his intellectual father; and
Weberian themes run through his writings, including the emphasis
on power and the concern with the non-rational 122 Frei, Hans J.
Morgenthau, pp. 25–30.
123 Those people included, for instance, Franz Neumann, Otto

Kahn-Freund, Paul Tillich, and Martin Buber.
124 Morgenthau, “An Intellectual Autobiography,” pp. 66–67; Frei,

Hans J. Morgenthau, pp. 42–43.
125 For Morgenthau’s assessment, cf. the obituary note he wrote

after the Jewish Neumeyer had committed suicide with his wife in
Munich at the age of 71 (1941), 35 AJIL, p. 672.
447

in social life. His biographer has, however, recently been able to find
through his personal notebooks a life-long engagement with
Nietzsche
– an engagement of which Morgenthau chose to remain silent after

his entry into the United States in 1937. During a period of
depression about his future as a Jew in Germany in the winter
semester 1925–1926, he had read Nietzsche’s Untimely Meditations.
“It belongs to the greatest pieces of good luck in one’s spiritual life
to bump into the right books at the right moment,” he wrote in his
diary later. It took Morgenthau forty months to read, with careful
annotation, through Nietzsche’s collected works. It is impossible here
to try to assess Nietzsche’s influence on Morgenthau’s writing in
detail. I find no reason to challenge, and much to support, the
biographer’s conclusion according to which Nietzsche’s effect on
Morgenthau is strongest as the image or ideal of a Promethean hero,
a private justification for an intellectual attitude developed during
the Coburg years but until the late 1920s without a style of public
expression. What he admired in Nietzsche was his “Blick des Sehers,”
the clear vision of the analytic, the free spirit with the courage to
look into the bottom of the soul.126
This had been the perspective that Morgenthau had employed –
however timidly – in the analysis of the political in his dissertation.

As an intensity concept, the political referred to the human psyche,
more specifically to the innate desire for self-assertion whose
relationship to that other primordial notion – the lust for power –
was still undeveloped.
The psychological perspective led Morgenthau to study Freud and

the result of that confrontation the following year was a more than
100-page manuscript On the Derivation of the Political from Human
Nature.127 The text, written without scientific notation and almost
without references, in a didactic style as if reality itself spoke
through it, sought to ground the political in individual psychology:
“Individuals are always the sole carriers of social forces.”128 In a
section titled “Of the basic facts of psychical life” Morgenthau found
the most basic of such facts to be “life”
itself.129 However, “life” had no form of presence that would be

independent from the drives that gave expression to it. There were
two basic drives: the more primitive one that looked for self-
preservation 126 Frei, Hans J. Morgenthau, pp. 101–111.
127 “Über die Herkunft des Politischen aus dem Wesen des
Menschen” (Morgenthau Archive, Library of Congress, HJM-B-151,
copy on file with author).
128 “Träger aller gesellschaftlichen Kräfte sind immer nur

Einzelmenschen,” “Über die Herkunft des Politischen,” p. 4.
129 Morgenthau, “Über die Herkunft des Politischen,” p. 5.
448
( Erhaltungstrieb) and existed in humans and animals alike, and the

drive for self-assertion ( Bewährungstrieb), a higher-level drive that
worked on the surplus of energy produced by the successful
fulfillment of the self-preservation drive.
The drive to self-assertion worked, like all drives, under what

Morgenthau chose to call the principle of desire ( Lustprincip), a
limitless source of energy that in social life looked for satisfaction
through the establishment of a relationship of power: the ability of a
psyche to be the cause of motivations in another.130 The most
sublime form of satisfaction for the drive to self-assertion,
Morgenthau wrote, was constituted by psychological superiority (
Herrschaft ), as manifested in one’s ability to be the cause of the
behavior of another person. Often this could not be attained without
resistance. In social life, the drives of individuals col-lided against
each other; hence the permanent condition of struggle.131
But if power was a necessary instrument for prevailing in struggle, it

was not its main objective. The objective at an individual level
remained the satisfaction of the drive and at a metaphysical level,
life’s becoming conscious of itself.
The manuscript was never published. Morgenthau later added a five-

page preface to it, connecting it to the law/politics dichotomy that
had been the object of his dissertation. The manuscript could be
read as an attempt to elucidate just in what the “intensity” that
defined politics lay; namely in the realm of drives and the desire
principle. In an autobio-graphical note from 1978 Morgenthau
distanced himself from the Freudian language of his early paper: its
reductionism could not account for the “complexities and varieties of
political experience.”132 But although the desire principle does not
appear in his later writings, the notion of power remains
psychologically grounded: the limits of law and rationality remain set
by what Morgenthau continues to assume as the existential
condition of an unending quest for power.
The period in Frankfurt after 1929 was for Morgenthau one of

extraordinary activity. In carrying out his Referendariat as
Sinzheimer’s assistant Morgenthau had the occasion to acquaint
himself professionally with the ambivalences of the fragile Republic.
He sometimes pleaded on Sinzheimer’s behalf before the Frankfurt
labor court and occasionally attended it as a temporary member. He
recounts of that experience:
“What was decisive was not the merits of legal interpretation, but
the 130 Morgenthau, “Über die Herkunft des Politischen,” p. 17.
131 Morgenthau, “Über die Herkunft des Politischen,” pp. 31–35, 43.
132 Morgenthau, “An Intellectual Autobiography,” p. 67.

449
distribution of political power. Most of the judges were passionately

and sometimes openly hostile to the Republicand to the political
parties and social structure supporting it.”133 Or, in another context:
“The judges were generally very conservative, if not reactionary, and
they hated, first of all they hated Jews.”134 Such experiences must
have convinced Morgenthau about the futility of confidence in a
formal law, however rational its principles of organization or however
liberal its political ethos. Writing almost twenty years afterwards,
Morgenthau had not the slightest hesitation to characterize Weimar,
the Rule of Law and the liberal internationalism associated with the
League of Nations, as forms of a decadent liberalism – in contrast to
the “heroic” liberalism of the nineteenth century – that lacked the
courage to see the truth of human society as an unending struggle
for power.135
Although Morgenthau published little during that period, many of his

later ideas can be found in a series of manuscripts and notes from
that time. Aside from the derivation of the political from human
nature, conceived as a function of innate drives, and inspired by a
proto-existen-tialist Lebensphilosophie, Morgenthau also prepared a
polemical fifty-page review of German pacifism and the “new war
philosophy” popularized in the writings of Ernst Jünger. The review
was submitted for publication in January 1931 but was rejected –
perhaps for the reason that the engagement with Jünger revealed a
fascination with the latter’s dramatic style and his exaltation of the
war experience that was not effectively offset by the suggested
sublimation in more constructive social activities.136 The essay was
prefaced by a quotation from Nietzsche’s Gay Science that explained
its title: war is but a suicide, but a suicide with good conscience. The
title was a gloss on Jünger and reveals the asymmetrical interest the
author has for his two subjects.
Morgenthau dismissed the “organized pacifism” of Alfred Fried,
Walther Schücking and others lightly, and perhaps unjustly, as
unable to understand the irrationality of politics. The war, he wrote,
had demonstrated that society was no machine. Peoples did not
want peace. In 1914, they desired the excitement of the war and
enjoyed the passion and the distance from their grey everyday lives
it promised. Moreover, 133 Morgenthau, “An Intellectual
Autobiography,” p. 65.
134 Frei, Hans J. Morgenthau, p. 41.
135 Hans Morgenthau, Scientific Man vs. Power Politics (University of

Chicago Press, 1946), pp. 41 et seq, 68–71.
136 Hans Morgenthau, “Der Selbstmord mit guten Gewissen. Zur

Kritik des Pazifismus und der neuen deutschen Kriegsphilosophie”
(Morgenthau Archive, Library of Congress, HJM-B-96, copy on file
with author).
450
pacifism was itself an instrument of irrationality by providing

justifications for war – namely war as “sanction” by the League of
Nations. Like Schmitt, Morgenthau tried to penetrate through
humanitarian rhetoric: war for humanitarian purpose was no less
war and no amount of tinker-ing with definitions (“sanction”) could
alter this. In the absence of effective mechanisms of legislative
change, war will have to remain a present possibility, the ultimate
means to fight injustice. In fact, Morgenthau quipped, pacifism and
war philosophy differed only in which values they invoked to justify
war.137
Morgenthau’s lengthy quotations from Jünger align his text with the
latter’s powerful expressionism. The attempt to come to terms with
the irrational by embracing it with full force was not too alien to
what Morgenthau saw himself doing. To create distance from Jünger,
Morgenthau espoused a rationalism that was at odds with the rest of
the article but surfaced constantly in his later writings, too, creating
the sense of contradiction that has so puzzled later commentators.
He agreed with Jünger that the official justifications for war were
really nothing; war was sought for the inner experience it provided,
the experience of energy, danger, “life” in an authentic non-
bourgeois sense. Where Jünger’s vitalism failed, Morgenthau
claimed, was in providing no explanation for why it still contradicted
human conscience. By not treating that contradiction, but dismissing
it, Jünger was pushed into extreme subjectivism.
Only the inner experience became important. Like the pacifists,

Jünger failed to understand that politics is always inter-subjective, a
social relationship. Although expressed as a vindication of “life,”
Jünger’s vitalism became an escape from (social) life, into death.138
Subjective experience became a standin for reality – and war a
“suicide with good conscience.” But modern, technological warfare
was doing away with struggle as Jünger admired it. Mass murder on
an industrial scale provided little room for Kampf als inneres
Erlebnis: the bomb falls and you die.139
Morgenthau sought a solution in the Freudian theory of sublimation:

even if drives determine behavior, they can be directed into
constructive purposes.140 Contrary to what was suggested in
Jünger’s Gothic escap-ism, or Spengler’s popular legends, Europe
was not (quite) dead yet; there was room for spiritual growth. The
real battlefield, Morgenthau ended by observing, was not provided
by war but by culture, politics, and 137 Morgenthau, “Der
Selbstmord mit guten Gewissen,” pp. 2–13.
138 Morgenthau, “Der Selbstmord mit guten Gewissen,” pp. 23–25.
139 Morgenthau, “Der Selbstmord mit guten Gewissen,” pp. 23, 30.
140 Morgenthau, “Der Selbstmord mit guten Gewissen,” pp. 32–35.

451
economy that enabled the satisfaction of the drives without

contradicting “life itself.”
The two unpublished essays from 1930 examined politics as an

effect of drives embedded in human nature and employed a theory
of sublimation to account for enlightenment. No doubt, such an
apparatus made it possible to understand some of the developments
in the surrounding society. As Morgenthau’s Referendariat came to
an end in 1931, it turned out impossible for him to secure a
university post in Frankfurt or elsewhere in Germany. This may not
have been exclusively caused by his ethnic background. The
economic situation had gone from bad to worse and large numbers
of young academics were competing for diminishing opportunities.
Through Sinzheimer’s contacts, Morgenthau was finally invited to
take a position as teacher of German public law at the University of
Geneva.
For his trial lecture, Morgenthau chose to speak on the Struggle of

German Theory of the State over the Reality of the State.141 Here
he had the opportunity to evaluate – and of course, mostly to
criticize – the tradition in which he was educated. The result was an
extremely ambitious thirty-page lecture that linked three phases of
German public law theory from Jellinek to Kelsen and finally to
Schmitt to developments in German politics and culture. The leading
thread was a move from idealism to reality – that is to say, to an
increasingly “realist” theory of the State. In Morgenthau’s account,
Jellinek’s humanistic eclecticism was a clear advance over Laband’s
formalism; his theory of ideal types, his use of the history of ideas,
and the doctrine of the “normative power of the factual” each
constituted a step towards a coherent and descriptively accurate
conception of the State. Unfortunately, Bismarckian reality did not
lend itself to classification by typology or principles. If Kelsen went
beyond Jellinek in his recognition of the contradictory character of
the reality of Wilhelminian politics, his response – to withdraw from
this reality altogether – could not be sustained: “pure law” did not
provide solutions to actual problems. Only recently had lawyers
focused on the political as the central reality of the State, even if so
far in an unsystematic way. Morgenthau appreciated Rudolf Smend’s
(1882–1975) theory of social integration as the core reality of
statehood – but criticized its 141 The original French lecture bore
simply the title “La doctrine et l’évolution de la théorie de l’Etat en
Allemagne.” The title of the German translation which closely
reflected its contents was “Der Kampf der deutschen Staatslehre um
die Wirklichkeit des Staates” (Morgenthau Archive, Library of
Congress, HJM-B-110. Copies of the French lecture as well as the
German translation are both on file with author).
452
insufficient grounding. If the State was torn apart by political

antagonism, what point was there in restating the theoretical
principle of unity?
Morgenthau shared Schmitt’s anti-formalism and admired his

“uncommon spiritual intensity and certainty of instinct.” But Schmitt’s
insights and critiques had never amounted to more than fragments.
He had gone only half way, failing to see that what lay at the heart
of the political was the unchanging psyche of the human being, the
lust for power.142
Morgenthau ended his lecture with a call for a new, psychologically

based theory of the State – the theory he was working on.
The engagement with Schmitt peaked in Morgenthau’s second book

that was published in Paris in 1933 under the title La notion du
“politique” et la théorie des différends internationaux. Written in a
tangled French, it applied his new ideas to the subject-matter of his
dissertation. The first half recapitulated the criticism of the alleged
opposition between “legal” and
“political” disputes and the definition of the political as an intensity

concept. The positivist attempt to produce a clear line between
“political” and “legal” disputes had failed.143 In a twenty-page
critique Morgenthau disputed Schmitt’s theory of the friend–enemy
distinction as what defined politics in a way that was analogous to
the distinctions good–bad that characterized morality or beautiful–
ugly that was the basis of aesthetics. The latter oppositions were
derived from the quality of the relevant sphere: goodness and evil
were tautologically related to morality like beautiful and ugly defined
aestheticvalue. In politics, the parallel opposition was between
political–non-political or, possibly, politically valuable–politically non-
valuable. The friend–enemy distinction was merely a personalized
derivation from the more fundamental distinction between political
worth and absence of such worth. Friends were politically worthy but
friendship did not exhaust political worth. Enemies were undoubtedly
harmful but there were other harmful things besides them.144
Morgenthau saw the friend–enemy opposition as ultimately
metaphysical, and as such beyond rational debate. The critique was
not completely beside the point – but it did reflect a limited reading
of the friend–enemy distinction. More significant is what unites the
two Weimar lawyers: the sense of the political as a struggle that
knew no intrinsic limits.
Where Schmitt’s understanding of this reality was ultimately

religious, 142 Frei, Hans J. Morgenthau, p. 124. On Morgenthau’s
wish to inaugurate a psychological theory of the State, cf. ibid. p.
125 and on Freud’s influence, cf. Morgenthau, “An Intellectual
Autobiography,” p. 67.
143 Morgenthau, La notion du “politique,” pp. 10–42.

453
Morgenthau chose to describe it in psychological terms. Far from a

radical opposition, the engagement seemed more like sectarian
struggle over orthodoxy.
The 1933 book explained the problems of international law from a

psychologically based social theory. The political was of course a
sociological fact. But “[w]hat is common to such sociological facts is
that they all have their basis, as a psychological factor, in the will to
power
[volonté de puissance].”145 Facts about States, too, are ultimately

determined by the psychology of individuals.146 In social life the
principle of desire is translated into the lust for power that has three
political forms of expression: the politics of the status quo (use of
power in order to preserve a state of affairs advantageous to oneself
); the politics of imperialism (the use of power to effect a change to
one’s advantage); and the politics of prestige (the use of power to
manifest power, to assert oneself).147 This threefold schema –
included in Morgenthau’s 1948 textbook and today the stuff of
introductory courses at international relations departments – comes
directly from the unpublished 1930 essay on Herkunft des
Politischen.
Law sought to respond to the politics of the status quo by delimiting

domains of power into spheres of jurisdiction and to the politics of
imperialism through its rules of change. On both scores,
international law was deficient. Although it did possess rules of
delimitation, it was powerless to enforce them. And it was almost
totally devoid of rules of change. Though all law had a preference
for the status quo, international law had a real obsession to this
effect.148 Therefore it became unrealistic when status quo powers
were not winning. As pressure for change increases, international
law will break down. There is no magic formula for coping with such
situations. True, sometimes a tension may be successfully converted
into a (legal) dispute – the Alabama arbitration (1871) was one
example. On the other hand, it may also happen that an originally
legal dispute changes into (the symbol of) a political tension. In such
case, it no longer can be dealt with by reference to law but involves
a challenge to it.149 At the end of his book, Morgenthau gave up
the nor-145 Morgenthau, La notion du “politique,” p. 43.
146 “Les constatations que nous avons pu faire dans le domaine de

la vie humaine en général trouvent leur vérification dans le domaine
de la vie des Etats,” Morgenthau, La notion du “politique,” p. 61.
147 Morgenthau, La notion du “politique,” p. 61. The irrationality of

politics is, of course, most apparent in the third category: here
subjective feelings dominate.
454
mative concerns and expressly refrained from a policy proposal – a

rare thing for him to do.150 It may not be a surprise that in 1933,
Morgenthau saw much less prospect for a reform towards a
“dynamic” law than four years earlier.
Morgenthau’s last legal book – his Habilitationsschrift in Geneva – La

réalité des normes. En particulier des normes du droit international
(1934) – was heavily influenced by Kelsen, though his attitude
towards formalism remained unrepentantly Schmittian.
Neokantianism was “the faithful expression of the decadence of
philosophical thought at German universities at the end of the last
century.”151 Morgenthau adopted from Kelsen a stress on
“validity” as the distinguishing property of legal (as against moral or

social) norms, but conceived it in psychological terms as the norm’s
abstract ability to determine the content of someone’s will.152
Normative relations became – like any other social relations –
relations of will: the creator of the norm sought to impose his will on
that of the addressee.
Whether or not this succeeds is dependent on the existence of

sanction:
“human will can only be determined by the expectation of pleasure

or fear of pain [déplaisir].”153 Instead of pure ought Morgenthau
wanted to examine the reality of the legal ought, the Sein of Kelsen’s
Sollen.
This was no longer a study in law but a study of law: Morgenthau

now became the external observer in regard to law as well, the
anthropologist or the analyst of law, instead of its practitioner. The
Sein of law could be only psychological or physical. Through
sanctions, it could be both. The fear of sanction was the
psychological reality of norms that brought about conformity as the
physical reality. If the expectation of sanction is missing, then the
norm lacks reality: “We have today come to the conclusion that the
essential problem must be seen in the nature of sanctions.”154
The essential question is whether someone can in fact send in the

police.
Morgenthau’s views of human nature and motivation left no space

for a law that would be anything but an instrument of causality
whereby one 150 Morgenthau, La notion du “politique,” pp. 86–90.
151 Hans Morgenthau, La réalité des normes. En particulier des

normes du droit international (Paris, Alcan, 1934), p. xi.
152 Morgenthau, La réalité des normes, pp. 25–29. Also Kelsenian
are his emphasis on the analytical distinction between “le point de
vue sociologique et le point de vue normatif ” as well as the view of
the State as the sphere of validity of State law, pp.
214–216.
153 Morgenthau, La réalité des normes, p. 46.
455
will determines the content of another will. Such (Nietzschean)

outlook finds no social reality for morality, or natural law, beyond
hypocrisy.155
An invocation of natural law is to throw an ideological veil over the

relations of will thus justified. Such justification may be an
indispensable element of social stability, or for overcoming
constitutional crises.156 But it is never the ultimate reason, or
guarantor, of the constitution. This guarantor is the executive body
that has the power to put the sanctions into effect – an executive
power that is internationally constituted by the balance of power.
Morgenthau’s analysis resembles the discussion between Kelsen and

Schmitt over the validity of the (Weimar) constitution, or who is its
“guardian.”157 He distinguishes between the “guardian” of the

international legal system in toto and that of its individual norms. As
the former is the person that holds executive power, he comes to the
apparently inevitable, yet odd suggestion that the international legal
system is “ultimately” guaranteed by the Heads of State of the
members of the international community.158 The sanction of the
rest of international law is determined by the publicopinion: “the
totality of the people that belong to the international community
would then be the carriers of the norm’s validity.”159 Such a defense
by Morgenthau of international law’s reality was at best only half-
hearted.160 That his discussion 155 Which is not to say, however,
that Morgenthau would join Nietzsche in going
“beyond good and evil.” He seems to grant the existence of natural

law but locates it beyond political discourse. Morality’s “validity” is
always relative to the individual’s conscience, La réalité des normes,
p. 53. If natural law can express itself only through voluntary law, it
is relative to the community’s view and the possibility of ideology or
“error” can never be excluded, Morgenthau, La réalité des normes,

pp. 41–43.
156 Morgenthau, La réalité des normes, pp. 43–44.
157 Cf. David Dyzenhaus, Legality and Legitimacy. Carl Schmitt,

Hans Kelsen and Hermann Heller in Weimar (Oxford, Clarendon,
1997), pp. 70–85, 108–123. In Politics among Nations.
The Struggle for Power and Peace (New York, Knopf, 1948) the
same theme is discussed in connection with sovereignty. Here
Morgenthau moves from a Kelsenian conception of “sovereignty” as
“supreme legal authority” (p. 248, italics mine) to a Schmittian
notion under which such supremacy is a function of struggle
between contending forces that lies normally dormant but asserts
itself “in times of crisis” (p. 261).
158 Morgenthau, La réalité des normes, pp. 217–219. Morgenthau

holds this situation analogous to the Middle Ages when the Emperor
was the secular arm of the Church, pp.
222–223n2. Possibly under Kelsen’s influence Morgenthau describes

States as aggregates of individuals, united in States that, when
carrying out sanctions, “remplissent ici une fonction internationale
déterminée,” p. 233.
160 The chapter on sanctions in international law is expressly

written in the form of a defense against the “deniers,” Morgenthau,
La réalité des normes, pp. 223–224.
456
remained – paradoxically – wholly conceptual and made no

reference to examples from international life emphasizes its fragility.
And he conceded that the fact that normative validity (“the abstract
capacity of the norm to determine the will of a person”) in
international law is highly relative meant that the number of its valid
norms was significantly smaller than the number exposed in
standard treatises.161
Morgenthau had difficulty in having his book accepted as a

Habilitation. Only after the setting up of a second examination
board, chaired by Kelsen, and Kelsen’s unreservedly positive
assessment, did Morgenthau finally receive his Habilitation in the
spring of 1934.162 At that time, however, his financial and
professional situation in Geneva had become unbearable. After
several attempts to find a teaching job in Europe – Germany was
already out of the question – Morgenthau received a position at a
recently established research institute for international studies in
Madrid ( Instituto de Estudios Internacionales y Económicos),
teaching and publishing on international law with an emphasis on
matters relative to Spain. This period came to an abrupt end in the
summer of 1936 as the Morgenthaus found out that the civil war
prevented their return to Madrid from a holiday abroad. They were
left stranded first in Italy and then in France and Switzerland, with
practically all their property left back in besieged Madrid, their
valuables confiscated by the republican government as (German)
enemy property.
After a year’s odyssey around Europe, and successive failures to get
a visa to the United States, the Morgenthaus finally boarded a steam
ship on July 17, 1937 from Antwerp to New York, with a visa
received on the strength of the declarations by a second cousin to
Frau Morgenthau, Samuel Rothschild.163
During his Spanish period Morgenthau updated and summarized the

themes of his Habilitation in a two-part article on the theory of
international sanctions. Although the article was written for an
audience of international lawyers, it was targeted against ideas
about morality and public opinion as bases for international
lawfulness. The article was composed of a general theory of
sanctions (a very detailed classification of elements and types of
sanctions) which was applied in the international realm. A norm was
a “prescription of will,” its validity the 161 Morgenthau, La réalité des
normes, p. 227.
162 Cf. Frei, Hans J. Morgenthau, pp. 51–56. Morgenthau was

particularly disappointed at the sharp criticism from a Jewish
colleague and a friend, Paul Guggenheim.
163 Cf. Frei, Hans J. Morgenthau, pp. 65–70.
457
“abstract capacity of the norm to determine someone’s will,” and its

effectiveness its power to do so in concreto. The reality of a legal
norm was determined by its being accompanied by a sanction (a
“measure of constraint that intervenes when the norm is violated”)
that was actually effective, that is to say, capable of “breaking the
recalcitrant will.”164
From this definition Morgenthau arrived at a critique of pacifism and

a stress on the balance of power as the condition for the reality of
international law.
The critique of pacifism followed from the insistence that sanctions
be not only enacted but actually effective for legal rules to have
reality. It was a paradox, of course, that States had to prepare to
use force in order to prevent force – “to pursue civilization by
barbaric means.”165 In the absence of centralized sanctions–
employment organs, however, no other conclusion was possible. The
Anglo-American opposition to sanctions and reliance on public
opinion was undermined by the degree to which public opinion was
a fragile, manipulable aspect of democratic life. It may have
significance in parliamentary democracies – even there its
whimsicality was notorious – but remained absolutely useless in
autocracies.166 For a sanction to be effective, it must be able to
break the resistance of its target. For national criminal law, that was
normally no problem and if it is, then revolution was at hand.
Internationally, the presence of overwhelming public force was an
exception, however, and in the normal situation different
interpretations confronted each other with some amount of force on
each side. Like Kelsen, Morgenthau described international conflict
as the clash of two effective national systems of sanctions whose
relationship can only show their relative power:167 “The functioning
of sanctions in international law is thus of the simplest kind:
everyone defends his legal position against everyone else, and
reprisals serve as sanction.”168 The establishment of a balance of
power marks the movement from anarchy to order. The hope of the
anti-sanction school of relying on principles of justice or the harmony
of interests was but
“an unrealizable dream”: “The justice of one is necessarily the

injustice of another.” To struggle for absolute justice was to lose both
relative justice and peace. Such an attitude may be proper for
moralists or revolutionaries, but not for the jurist for whom belongs
the “tragictask”
to argue not on moral or political legitimacy but on what is actually

164 Hans Morgenthau, “Théorie des sanctions internationales”
(1935), 3/16 RDI, pp.
478–483, 490.
165 Morgenthau, “Théorie,” p. 496.
166 Morgenthau, “Théorie,” pp. 812–820.
167 Morgenthau, “Théorie,” pp. 493–495.
168 Morgenthau, “Théorie,” p. 825.
458
there.169 The Covenant or the Locarno Treaty had changed nothing:

power remained in the hands of States and the legal order of the
treaties was guaranteed only by the relative equilibrium between
them.170
Schmitt and Morgenthau: the pedigree of anti-formalism

Morgenthau wrote his legal swan song from his position as lecturer
at the University of Kansas City – the famous 1940 article that
criticized the way international law was “paying almost no attention
to the psychological and sociological laws governing the actions of
men in the international sphere.”171 From the safety of across the
Atlantic he described interwar formalism as an “attempt to exorcize
social evils by the indefatigable repetition of magic formulae.”172
Like German public law positivists, international lawyers had grasped
at an illusion. Like the Weimar constitution, international law had
become alien to “rules of international law as they are actually
applied.” Formalism’s error lay in its dogmatic reliance on a notion of
“validity” that qualified as law rules that were not actually applied,
and failed to include all rules that were.
Morgenthau called for interdisciplinarity: lawyers should no longer

remain blind to the “sociological context of economic interests, social
tensions, and aspirations of power, which are the motivating forces
in the international field.”173 They should also develop a better
understanding of the relationship between law and ethics. For law
made constant reference to ethical principles and “the successful
search for these principles is as essential for the scientific
understanding of international law as of any legal system.”174 The
1940 article was written as a prelude for an anti-formalist
jurisprudence that would hark back to sociology and ethics. Such
jurisprudence would not receive the meaning of a treaty, for 169
Morgenthau, “Théorie,” pp. 829, 830. This was very close to Weber’s
famous argument against an ethics of ultimate ends and for an
ethics of responsibility in “Politics as Vocation,” in From Max Weber:
Essays in Sociology (trans., ed. and with an Introd. by H. H. Gerth
and C. Wright Mills, London, Routledge, 1967), esp. pp. 117–128.
170 Morgenthau, “Théorie,” pp. 830–833. For Morgenthau, the

modification of this situation – and the creation of an international
community – would require three steps: the establishment of an
international morality, the suppression of State sovereignty, and the
conviction among the most influential members of this “international
community” that the legal system created by it is actually legitimate,
“Théorie,” pp. 833–834.
171 Hans Morgenthau, “Positivism, Functionalism and International

Law” (1940), 34
AJIL, p. 283.
172 Morgenthau, “Positivism,” p. 260
173 Morgenthau, “Positivism,” p. 269.
459

instance, from its words but from the social context and the
objective the treaty was to fulfill.175 It would anchor legal validity
not to formal legislation but to the likelihood of effective sanction
and predict when sanctions might follow.176
But Morgenthau never developed such anti-formalist jurisprudence.
Instead, he stopped writing about international law and became the

theorist of power with idiosyncratic views about responsible
statesmanship who is now known as the father of “Realism” in
international relations. By contrast, Schmitt continued to speculate
about the new international law that he saw taking the place of
decadent formalism. At that point the intellectual paths of the two
Weimar lawyers separated.
While Schmitt saw the new nomos articulate a “legal world

revolution,”
Morgenthau depicted the principal aspects of the post-war order as a

realm of (pure) power, and of politics, but not of law. In order to
determine where precisely the two differed, and what choices were
opened to international lawyers by their shared anti-formalism, it is
convenient to summarize the five points at which their paths did
converge.
First, for both, an era – the European era – had come to an end. A
political, technological, and moral revolution had undermined the
balance of power that had dominated Victorian normality. Interwar
formalism had collapsed in face of the realities of “power.” The
informal opposition between the blocs now set the absolute
conditions for international cooperation, diplomacy and law. It also
provided an atmosphere of crisis that threatened to collapse into a
full-scale nuclear destruction. The liberals had conceived technology
as an instrument of peace. Schmitt and Morgenthau saw it as a
means for political control, total war, and world domination.177
Legal normality was formed by reference to the extreme situation –
the nuclear catastrophe – that dictated the conditions under which
lawyers could work.178
176 Morgenthau, “Positivism,” pp. 276–280. Morgenthau

acknowledged his debt to Legal Realism, p. 274n43. But he was
otherwise closer to Schmitt than to the American anti-formalists.
177 Morgenthau, Politics among Nations, pp. 292–305. Cf. also Hans
Morgenthau, “The National Socialist Doctrine on World Organization”
(1943), Proceedings of the Seventh Conference of Teachers of
International Law and Related Subjects, Washington DC, April 23–
25, 1941, p. 107.
178 For example, Morgenthau argued that a fundamental distinction

was to be made between international law that dealt with stable
interests (diplomatic privileges, jurisdiction, extradition of criminals,
and maritime law) and the “political law” that was subservient to the
play of shifting interests. This in fact repeated the distinction
between important and unimportant matters and relegated
international law firmly into the latter, Morgenthau, “Positivism,” pp.
278–280.
460
Second, both Weimar lawyers saw the international order

determined by a concrete distribution of power that automatically
undermined sovereign equality. For Morgenthau, power was an
incident of resources and foreign policy had to do with the constant
redefinition of the national interest by reference to the resources
available to the State. From the perspective of international order,
what counted was whether a breach would be followed by a
reaction. And this was a function of interest and resources, not of
legislation.179 Whatever international order may be attainable was:
“predicated upon the existence of national communities capable of
preserving order and realizing moral values within the limits of their
power.”180 Moreover, “social force” could lie within States, but it
could also lie with groups of States, or concentrations of ideological,
economic, or military interest. A “competitive quest for power will
determine the victorious social forces, and the change of the existing
legal order will be decided, not though a legal procedure . . . but
through a conflagration of conflicting social forces which challenge
the legal order as a whole.”181
Third, Morgenthau followed Schmitt in interpreting international law

as part of the liberal strategy of depoliticization. Liberalism, both
argued, saw international conflict as an atavistic residue of primitive
ages that was to be replaced by the rational management of the
States system, economics, and the harmony of interests.182
International law would channel political tensions into committees,
assemblies, and formal dispute settlement mechanisms. All of this
was illusion. Depoliticization was a politics by the status quo powers
to consolidate their advantages.
Economy and free trade were instruments of the middle classes

against old privileges, or the United States towards the world at
large.183 What Morgenthau had to say about the League Assembly
echoes what Schmitt said about the Weimar Parliament: “political
problems were never solved but only tossed about and finally
shelved according to the rules of the legal game.” This was repeated
in the UN’s dealing with the crises in Greece, Spain, Indonesia and
Iran: “These cases have provided opportunities for exercises in
parliamentary procedure, but on no occasion has even an attempt
been made of facing the political issues of which these situations are
surface manifestations.”184 To think of the Versailles Treaty as “law,”
Schmitt had argued, was to fail to understand 179 Morgenthau,
“Positivism,” pp. 276–278.
180 Morgenthau, In Defense of the National Interest, pp. 38, 117–

121.
181 Morgenthau, “Positivism,” pp. 276.
182 Morgenthau, Scientific Man, pp. 41–71.
183 Morgenthau, Scientific Man, pp. 77–81, 83–84.
184 Morgenthau, Scientific Man, p. 119.
461
its role in buttressing Anglo-American hegemony.185 To have

expected the Soviet Union to abide by its Yalta commitments,
Morgenthau wrote later, was to have no understanding of its political
objectives or of its readiness to repudiate the agreement.186 Both
empires, the American and the Soviet, subscribed to non-
intervention – yet both intervened constantly and as soon as their
interests seemed threatened. The only relevant principle was
“selectivity” – the assessment of intervention and non-intervention
through the careful balancing of the pros and cons in light of
available resources.187
Fourth, the use or moralizing and legalistic language intensified

international conflicts. “Peace-loving nations,” Morgenthau claimed,
would be in constant war against “criminal” ones. The new just war
would distinguish between “belligerents whose participation is
justified in ethics and law, and those who are not considered to have
the legal and moral right to take up arms.”188 The result would be a
“fight to the death or to
‘unconditional surrender’ of all those who adhere to another, a false

and evil, ‘ideal’ and ‘way of life.’”189 In the total wars of modern
ideologies, there was no longer any “framework of shared beliefs
and common values.” National “ethical systems” had come to
present themselves as universal in a way that rendered compromise
and accommodation impossible.190
Fifth, the critiques of legal and moral principles shifted attention to
the decisions in which they received meaning in the context of
political struggle. Schmitt had already undertaken a critique of the
idea of 185 Schmitt, Kernfrage, pp. 37–42.
186 Morgenthau, Scientific Man, p. 105. Despite its rationalist aura,

collective security, for instance, had been “simply a rationalization of
the French desire for security, that is, the rationalization of French
foreign policy in a certain period of history.”
Morgenthau, “The National Socialist Doctrine,” p. 104. The use of

moralistic language had become banally accepted through the
American rhetoric during its involvement in the two world wars. Yet,
this had not led to a world of formal legality or moral politics – only
a “battle over the minds of men.” Morgenthau, In Defense of the
National Interest, pp. 208–210.
187 Hans Morgenthau, A New Foreign Policy for the United States
(New York, Washington, and London, Praeger, 1969), pp. 111 et seq.
113, 128.
188 Morgenthau, Politics among Nations, p. 289.
189 “The moral duty to spare the wounded, the sick, the
surrendering and unarmed enemy, and to respect him as a human
being an enemy only by virtue of being found on the other side of
the fence, is superseded by the moral duty to punish and to wipe off
the face of the earth the professors and practitioners of evil,”
Morgenthau, Politics among Nations, pp. 182–183. Cf. also Greg
Russell, Hans J. Morgenthau and the Ethics of American Statecraft
(Baton Rouge, Louisiana State University Press, 1990), pp.
207–209.
190 Morgenthau, Politics among Nations, pp. 193, 195.
462
neutral interpretations in his early enquiry into the judicial function.

A judicial decision was in accordance with the law when judicial
practice chose to treat it so.191 In the 1930s he had applied his
“decisionism” in acerbic analyses of Weimar and the League of
Nations. Though Morgenthau shared Schmitt’s rule-skepticism, he
still retained the ideal of the rule of law in a domesticcontext. But
this would not work internationally. In domestic society, situations
were typical; in the international world, they were unique. Hence,
“only a strictly individualized rule of law will be adequate to it.”192
By recourse to a paradox –“individualized rule of law” – Morgenthau
in fact adopted Schmitt’s decisionism.
In Morgenthau’s view, legal formalism isolated aspects of a general

situation in order to make it a legal “case” to be decided on its
“merits.”
Where this might work in a domesticcontext where the “social forces

of integration” guaranteed that even legal decisions felt to be unjust
were implemented, in international life, missing the larger context
was always a scandal. Every international case was always a part of
a larger situation, ramifying beyond the legal terms under which it
was being considered. The relevant question then was not what the
law was but what it should be “and this question cannot be
answered by the lawyer but only by the statesman. The choice is not
between legality and illegality but between political wisdom and
political stupidity.”193 Like Schmitt, Morgenthau saw the
international as a context where strategically placed individuals
made choices that determined the fate of their nations and the
quality of the international order. Such choices came out not as
“applications of the law” but as individual assessments of the
situation. The liberal attempt to attain democratic control of foreign
policy was thoroughly misplaced: the popular mind could not
understand the “fine distinctions of the statesman’s thinking” and
therefore reasoned “more often than not in the simple
moralisticterms of absolute good and absolute evil.”194 By contrast,
statesmanship was the prudence of the wise individual that could
not be squeezed into a method or a procedure, even less a science.
It had to do with the sensibility and acuteness of judgment of
particular decision-makers: the 191 Carl Schmitt, Gesetz und Urteil.
Eine Untersuchung zum Problem der Rechtspraxis (Berlin, Liebmann,
1912).
192 Morgenthau, “Positivism,” p. 271. In regard to the principles of

the UN Charter such as self-determination or justice, he claimed that
“it is the concrete political situation which gives these abstract terms
a concrete meaning and enables them to guide the judgments and
action of men,” Politics among Nations, p. 383.
193 Morgenthau, Scientific Man, p. 120; Politics among Nations, p.

441.
463
“extraordinary moral and intellectual qualities which all the leading

participants must possess.”195
In other words, Schmitt and Morgenthau were both led from a

critique of formalism, through sociology and morality into a
decisionism that no longer provided space for legal constraint
beyond physical possibility and the statesman’s conscience. Unlike
Schmitt, however, Morgenthau did not draw from this the
consequence that a new legal order was emerging that would
become the instrument of a bipolar nomos. But that is precisely
where his functional jurisprudence would have led him. He never
followed up his 1940 suggestion but chose to write about
international law in traditional terms because he was profoundly
critical of the transformations and, unlike Schmitt, refused to see in
law merely a ratification of the concrete order. “Power,” he wrote,
“engenders that revolt against power, which is as universal as the

aspiration of power itself.” This revolt was expressed in “ethics,
mores, and law” – all three constituting the substance of which
political ideologies were “but a reflection”: “Superior power gives no
right, either moral or legal, to do with that power all that it is
physically capable of doing.”196
Unlike Schmitt, Morgenthau held that these restraints – including

international law – would continue to play a modest but definite role
in coordinating international relations outside the key issues of
foreign policy, in matters such as “the limits of territorial jurisdiction,
the rights of vessels in foreign waters, and the status of
diplomaticrepresenta-tives.”197 Although Morgenthau lost his
interest in international law after 1940, his later writings occasionally
refer to it, and always in traditional terms. On the one hand, he
remained critical of the decadent idealism of Geneva and inflated
expectations about the United Nations. International law’s lack of
precision was a “debilitating vice”
that created unsupported claims of rights. On the other hand, he

continued to see a role for law as one aspect of the prudent
statesmanship that sought to advance the national interest but also
pushed the international order slowly towards a global federation
that remained Morgenthau’s normative ideal.198 The result of his
argument was a privileging of power and politics in the
determination of international order, and a secondary, restraining
character for law as an instrument of enlightened statesmanship. No
doubt, Morgenthau failed to bring 195 Morgenthau, Politics among
Nations, p. 444.
196 Morgenthau, Politics among Nations, pp. 169, 170.

198 Morgenthau, Politics among Nations, pp. 211, 229–230.
464
the two together in an overarching theory – hence the sense of self-

contradiction that many have found in the “realist” and “idealist”
passages in his Politics among Nations. No doubt, Schmitt’s
reduction of law as an external articulation of the concrete order
constituted a more consistent anti-formalism. At the time, only
Morgenthau’s ambivalence could provide a room for a new academic
discipline: international relations.
It was only later – by the time of the intervention in the Dominican

Republic– that considerations of argumentative rigor would move
both political scientists and international lawyers to a more
confidently Schmittian anti-formalism.
From international law to international relations It is a well-

known fact that “international relations” is a predominantly Anglo-
American discipline whose origins lie in the academic activities of
refugees – often with a legal background – from the German Reich
in the United States during the early years of the Cold War.199 One
of them was Hans Morgenthau, whom Stanley Hoffmann has called,
bluntly,
“the founder of the discipline”200 and who was listed (with Hannah
Arendt, Leo Strauss, and Herbert Marcuse) among “the four most
influential of [the] refugee intellectuals” in the development of
political theory in the United States.201 Morgenthau’s influence as
the founder of international relations follows from his conscious
departure from (legal) formalism on the one hand, but, crucially, of
his steadfast refusal to collapse the field into mainstream sociology
or ethics, on the other. He did not found the discipline despite the
contradiction between realism and idealism in Politics among
Nations. He founded it on that contradiction.
Before the war, the study of international relations in the United 199
Cf. Alfons Söllner, “Vom Völkerrecht zum science of international
relations. Vier typische Vertreter des politikwissenschaftlichen
Emigration,” in Ilja Srubar (ed.), Exil, Wissenschaft, Identität. Die
Emigration deutscher Sozialwissenschaftler 1933–1945
(Frankfurt, Suhrkamp 1988), pp. 164–180 (discussing Kelsen,

Morgenthau, John Herz, and Karl Deutsch as typical representatives
of this emigration). Out of the at least sixty-four German social
scientists who emigrated from Germany, more than half had a legal
background and over 90 percent took positions in American
universities – in most cases in the field of international relations, p.
165.
200 Stanley Hoffmann, “An American Social Science: International

Relations,” in Stanley Hoffmann, Janus and Minerva. Essays in the
Theory and Practice of International Politics (Boulder and London,
Westview, 1987), p. 6.
201 Peter Graf Kielmansegg, “Introduction,” in Peter Graf

Kielmansegg, Horst Mewes, and Elisabeth Glaser-Schmidt (eds.),
Hannah Arendt and Leo Strauss. German Emigrés and American
Political Thought after World War II (Cambridge University Press,
1995), p. 1.
465
States had been dominated by Wilsonian legalism. Scholars with a

legal background, connected with the Carnegie Endowment for
International Peace, had been prominent in the field.202 For
example, Elihu Root (1845–1937) and Charles Evans Hughes (1862–
1948) had been Secretaries of State and Presidents of the American
Society of International Law simultaneously. State Department jurists
had taken an active role in the Harvard Research in International
Law that prepared the background for the 1930 League Codification
Conference and continued its activities until 1949.203 In 1930,
eighteen of the twenty-four professors of international relations at
American universities taught international law and organization.204
Their idealism –
whether in a formalist or natural law version – was completely

discredited after the war.205
Morgenthau’s arguments provided a much more credible basis for

understanding the violence and irrationality of the international
world, as well as a more effective guide for foreign policy. At the
same time, they provided identity and substance for the academic
discipline of international relations that had so far existed somewhat
insecurely on the boundaries of law and political science. At the
heart of those arguments was the claim of an essential distinction
between the domestic and the international context. Morgenthau
later quoted Martin Wight’s succinct statement: “Political theory and
law are maps of experience or systems of action within the realm of
normal relationships and calculable results. They are the theory of
the good life. International theory is the theory of survival. What for
political theory is the extreme case (as revolution or civil war) is for
international theory the regular case.”206 The distinction between a
tranquil domestic normality and the struggle for survival in the
international realm came about through a projection at 202 Among
the most visible of them were James Brown Scott (1866–1943),
Pitman Potter (born 1892), and James T. Shotwell (1874–1965).
203 The atmosphere among American internationalists during the

interwar era can be usefully gleaned in Arthur K. Kuhn, Pathways in
International Law: A Personal Narrative (New York, Macmillan,
1953), e.g. pp. 95 et seq., 144–146.
204 Jack Donnelly, “Realism and the Academic Study of International

Relations,” in James Farr, John S. Dryszek, and Stephen T. Leonard
(eds.), Political Science in History.
Research Programs and Political Traditions (Cambridge University
Press, 1995), p. 178.
205 Cf. David Kennedy, “When Renewal Repeats: Thinking against

the Box” (2000), 32
New York University Journal of International Law and Politics, pp.

378–380.
206 The citation is from Martin Wight, “Why is There no

International Theory?,” cited in Morgenthau, The Decline of
Democratic Politics (University of Chicago Press, 1969), p. 64. Cf.
also Hans Morgenthau’s critique of the idea of the World State, in
Politics among Nations, pp. 391–406.
466
the international level of a distinct sensibility that the German

refugees brought from Weimar about matters political, a sensibility
which in Schmitt’s case has been aptly described as an “aesthetics of
horror”207
and which in Morgenthau appears in a thoroughly pessimistic

outlook on human nature and society. In order to understand
international relations it was necessary to accept that iron laws
governed the field transforming even good-intentioned policies into
struggles for power and prestige. The liberal Kelsen scholar John H.
Herz (born 1908) – another refugee from Weimar and Geneva –
depicted this existential fact in 1951
in terms of the “security dilemma” that led States (even liberal

States) and statesmen to seek security by accumulating their power
– and thus to create a feeling of insecurity in their neighbors.208
The “Realism” that German jurists such as Morgenthau, Herz or Karl
Deutsch (1912–1992) inaugurated in the international relations
academia, espoused a Hobbesean anthropology, an obsession with
the marginal situation, the pervading sense of a spiritual and political
“crisis” in the (liberal) West, and constant concern over political
collapse.209
These arguments created space for an academic discipline that

would be neither an extension of international law nor simply an
exotic variation of sociology or ethics. “International relations”
received substance and identity from Morgenthau’s twin movement
between 1940 and 1950: anti-formalism on the one hand, and
consistent refusal to take the premises of anti-formalism too
seriously, on the other. In the first place, all behavior was
determined by the eternal laws of human nature, among them the
principle of desire that Morgenthau had theorized in his 1930
manuscript and which in his published writings led to the description
of social life – in particular, social life among States – in terms of a
relentless pursuit of power. In the second place, everything also
always depended on the qualities of foreign policy leaders, their
ethical sensibility and acuteness of judgment. Behind Morgenthau’s
call for “sociology” was no properly sociological theory at all. All his
social laws followed as generalizations about the individual psyche.
“Society”
was not an automaton but the outcome of actions by individuals

seeking 207 Richard Wolin, “Carl Schmitt. The Conservative
Revolutionary Habitus and the Aesthetics of Horror” (1992), 20
Political Theory, pp. 424–447.
208 John H. Herz, Political Realism and Political Idealism. A Study in

Theories and Realities (University of Chicago Press, 1951).
209 Cf. Jürgen Gebhardt, “Leo Strauss: The Quest for Truth in Times
of Perplexity,” in Kielmansegg, Mewes, and Glaser-Schmidt, Hannah
Arendt (linking this attitude to the general outlook of the German
academic elite – including the émigrés in the United States), pp. 84–
89.
467
to fulfill their desires. The decisive actor in international politics was

the statesman who had to rise above the masses to realize the
national interest: to be, in a way, human and superhuman
simultaneously.
This perspective led Morgenthau to become a determined opponent

of the reigning school of American political science, associated with
the teachings of Charles Merriam (1874–1953) and Harold Lasswell
(1902–1978) in Chicago in the 1930s and 1940s. These scholars
aimed to establish a behavioralist study of society that would employ
quantita-tive measurements and hypothetical laws to be tested by
methods of fal-sification. Morgenthau’s 1946 book Scientific Man vs.
Power Politics was an extended critique of precisely such efforts.
They provided no understanding of the existential meaning of
politics as struggle in which, as he had written in 1930, “life”
attained consciousness of itself. On the contrary, behavioralism was
part of that depoliticization that infected the liberal mind and made it
incapable of taking determined action. If international relations was
to be an independent and policy-relevant study, it needed to rely on
the same intuitive insights as statesmen did.210
Even if politics had a unique source in human nature, there was no

predetermined way in which it influenced international behavior, and
hence no single method of “power politics,” either, that could simply
be applied to reach one’s objectives.211 Even an anarchic
international system could differ between periods or locations of
more or less cooperation and confrontation, as both Henry Kissinger
and Raymond Aron would readily concede. The idea of social
engineering oversim-plified and distorted the perception of the
international world, creating inflated hopes about the solution of its
problems – and was “bound to be disappointed over and over
again.”212 Each situation called for an idiosyncratic response that
could be deduced from a “scientific” model just as little as it could be
received by a legalistic interpretation of a collective security pact.
In this way, Morgenthau avoided reducing international relations to a

branch of scientific sociology. Instead, it came to involve an
existential–decisionist understanding of politics in terms of the
decisions taken by the statesman under a prudential, situational
ethics, “forever condemned to experience the contrast between the
longings of his mind 210 Cf. Stefano Guzzini, Realism in International
Relations and International Political Economy (London and New York,
Routledge, 1998), p. 37; Söllner, “German Conservation in America,”
pp. 163–168.
211 “No formula will give the statesman certainty, no calculation

eliminate the risk, no accumulation of facts open the future,”
Morgenthau, Scientific Man, p. 221.
468
and his actual condition as his personal, eminently human

tragedy.”213
And precisely because Morgenthau’s ethics, like Weber’s, was

situational, it provided no basis for a foreign policy guided by ethical
principles, indeed was against such absolutism.214 For Morgenthau
was nothing if not critical of a morally loaded Cold War crusade
against communism and the ideological aspects of the policy of
containment in 1947–1968. On the contrary, his argument was
directed against the ideological and “moralistic” excesses of the
foreign policies of Wilson or Roosevelt which he interpreted as
fundamentally hypocritical: “what the moral law demanded was by a
felicitous coincidence always identical with what the national interest
seemed to require.”215 Morgenthau advocated limited objectives
(which he often associated with the lesser evil) with attention
focused on one’s main interest, and an interpretation of Soviet policy
not in terms of revolutionary rhetoric but through its traditional
position as an imperial power that felt itself isolated. Global
commitment to intervene against communism wherever it arose was
for him a fatal, ideologically induced mistake that could lead only to
failure.
Here lay the affinity between Morgenthau’s academic work and the
political realism of diplomats such as George Kennan or Henry
Kissinger. Morgenthau never supported the role of an international
“guarantor” for any single State (in fact, he favored world

government with an effective international police force)216 and
insisted on the ultimately moral justification of a limited national
interest.217 His stress on the idiosyncratic and often tragic choices
available in each situation aimed to educate foreign policy decision-
makers to face up to the existential truth about human conduct –
including the conduct of States –
being determined by an all-encompassing Lustprincip.218
The conditions of the Cold War – particularly the threat of a nuclear

catastrophe – and the emerging global ambitions of the United
States provided a uniquely suitable context for the cultivation of such
a spirit.
So it was no wonder that there was, to quote Hoffmann again, “a

214 Compare in this regard, e.g., Morgenthau, Scientific Man, pp.

201–203 and Weber,
“Politics as Vocation,” pp. 125–126.

216 Cf. e.g. Hans Morgenthau, Truth and Power. Essays of a Decade
1960–1970 (London, Pall Mall, 1970), pp. 306–314.
217 For an early formulation, cf. Morgenthau, In Defense of the

National Interest, pp. 33–39
and passim.
218 An analogous interpretation of the “contradiction” in

Morgenthau’s thought about determinism and free will is in Martin
Griffiths, Realism, Idealism and International Politics; A
Reinterpretation (London, New York, Routledge, 1992), pp. 71–72.
469
remarkable chronological convergence between [the needs of policy-

makers in Washington] and the scholars’ performances.”219 An
argument against isolationism and in favor of global involvement,
intervention in the national interest, and the accumulation of power
could not have been planted in a more fertile soil. After all, who else
but the United States could think of itself as the “guardian” of the
international political order – and thus find a justification to bring its
force to bear if that seemed needed. This must have strengthened
Morgenthau’s resolve never to shun from normative statements –
and thus helped to inaugurate the instrumentalist approach to
international relations that still today sees scientific work justified
primarily if it ends up in policy proposals.
Morgenthau’s arguments led beyond law as the banal application of

(formal) rules but also beyond sociology and ethics as scientificdisci-
plines or bureaucratic techniques. Instead, they brought into
existence international relations as an academic discipline that would
deal “realistically” with the functioning of eternal human laws in a
condition of anarchy. Already the problem-setting involved a
contradiction. Realism claimed to be based on science; yet its
argument was anti-scientific. The
“eternal laws” of politics claimed the status of deep insights into

social and psychological life. But the polemics against the
behavioralists had been directed precisely against the idea that the
field could be reduced to scientificlaws. On the one hand, everything
was always already determined by the fundamental laws of politics.
On the other, everything also depended on the sensitivity of the
foreign policy decision-maker to the interests of his country and the
requirements of the situation. This ambivalence was completely
embedded in a Weberian value-relativism: if the absence of a
constraining law or morality left individuals free (and alone, as
Morgenthau would write), might they still be constrained by their
political sensitivity and willingness to accept responsibility?
The simultaneous affirmation of constraint and freedom was crucially

important as the foundation for Morgenthau’s polemical
technique.220 It made it possible for him to argue against legal
positivism and in favor of a sociological emphasis on power while yet
taking a traditional view on the ethics of statesmanship against
attempts to reduce 219 Hoffmann, “American Social Science,” p. 10.
For an elaboration, cf. also Steve Smith, “Paradigm Dominance in
International Relations: The Development of International Relations
as a Social Science” (1987), 16 Millennium: Journal of International
Studies, pp. 189–206.
220 Cf. also Guzzini, Realism in International Relations, pp. 15–31.
470
foreign policy to the application of scientific laws. This was a

powerful technique that took account of the difficulties in applying
the principles of study of domestic societies to international affairs.
But it was also unstable and arbitrary. There was something
suspicious in a fundamental critique of foreign policy decision-
making that always ended up idol-izing the most traditional values of
personal character. Speakers of truth to power, possessors of
historical wisdom and sensitivity for the national interest,
Morgenthau’s Prometheus, like Schmitt’s Katechon, were mythical
figures that worked as cultural metaphors originating in a world that
was rapidly receding into history.221
Political science departments at US universities received from the

German refugees an image of international law as Weimar law writ
large, formalistic, moralistic, and unable to influence the realities of
international life. “The real relationship between international law
and the actual behavior of states,” John Herz wrote, “has been that
between utopian ideology and reality.”222 Having published an
exposition and critique of national socialist international law in his
native Germany in 1938 (under a pseudonym), Herz came to the
States, like Morgenthau, to characterize international law as an
overoptimistic ideology which even in its best proponents, Kelsen
and Scelle, failed to take account of the “competition for power and
security” that was the essence of international politics.223 The
dangerous and unpredictable conditions of international politics
made it imperative that decision-makers be freed from formal rules
or dogmatic moral principles that tied their hands when prudence
and innovation – Morgenthau’s “wisdom” – were called for. They
were in full agreement with Kennan’s 1951 critique of US
interwar foreign policy as having failed to understand that the

“function of a system of international relationships is not to inhibit
[the] process of change by imposing a legal strait jacket upon it.”224
However, Herz and Morgenthau also reserved a limited role for law in
situations where the balance of power or common interests were
working. Both conserved a traditional court and case oriented image
of law. Legal rules and institutions were sometimes useful as
instruments for 221 This is accepted by Morgenthau as he writes
with undiguised nostalgia about the virtues of the aristocratic
internationalism of the nineteenth century. Cf.
Morgenthau, Politics among Nations, pp. 184–187. Not without

reason, Griffiths labels Morgenthau a “nostalgic idealist,” Realism,
pp. 35, 72.
222 Herz, Political Realism, p. 204.
223 Herz, Political Realism, pp. 96–102.
224 George Kennan, American Diplomacy (expanded edn., University

of Chicago Press, 1984), p. 98.
471
the advancement of State interests that every now and then

converged to create a stable normality. The residual role they
reserved for international law was an inseparable part of their
traditionalism that focused on the cultivated sensibilities of foreign
policy decision-makers who would understand the value of the
experiences that were condensed in legal rules even if they were not
“binding” or enforceable in the straightforward fashion like rules of
national law.
This kind of traditionalism – that law could contribute as Kennan’s
“gentle civilizer of the national self-interest” – found no room within

the discipline of international relations that had been created out of
a critique of formalism but was left oscillating between empiricism
and behavioralism on the one hand, and search for policy-relevance
on the other.225 Conceived in terms of science, international
relations could not accommodate that kind of culturally embedded
propositions of which
“prudence” or “wisdom” consisted. It is no surprise that the only
reference to “laws” in Kenneth Waltz’s (born 1927), influential neo-
Realist Theory of International Politics of 1979 were to the laws of
logical relation and scientific explanation.226 On the other hand,
developed as propositions about an American foreign policy,
international relations was too busy trying to find a foothold for the
articulation of the national interests of a Great Power, engaged in an
ideological struggle, not to shy away from the complacent
internationalism that sought to argue – as it had done before the
war – for the essential identity of US interests with that of
international institutions.227
Elsewhere, the relations between international law and international

relations have organized themselves differently. In France (with the
possible exception of Raymond Aron) and many other European
countries, international relations was, and continues to be, largely
enmeshed with the study of diplomatic history and international
organization. Positive legal rules – especially treaties and
constitutions of international organizations – have a modest but
useful role in structuring international life.
Nor have the British (apart from, perhaps, E. H. Carr, Georg

Schwarzenberger, and F. H. Hinsley) discussed international law with
the sense of impending doom that has been a part of the Weimar–
realist 225 Cf. e.g. Donnelly, “Realism,” pp. 175–197.
226 Kenneth Waltz, Theory of International Politics (Reading,

London, and Amsterdam, Addison-Wesley, 1979).
227 For a recent attempt to build upon Morgenthau’s “pragmatic

realism” and the positivist–empirical “concessional realism” by re-
integrating ethical concerns within the latter, cf. Roger D. Spegele,
Political Realism in International Relations Theory (Cambridge
University Press, 1996), esp. pp. 83 et seq.
472
genre. To some extent, this may follow as a matter of academic

tradition. International relations came about as an academic
discipline as an express reaction to the shock of the war with the
setting up of the Woodrow Wilson Professorship at the University
College of Wales at Aberystwyth in 1919. The mandate of the chair
included the promotion of world government and its first holders (K.
C. Webster and Sir Alfred Zimmern) were policy oriented pragmatists
with a special interest in the League of Nations.228 Though E. H.
Carr perhaps killed their type of traditionalism, the later
representatives of the “English School” continued to reserve a place
for international law in their analyses. Martin Wight (1913–1972)
saw international law as a historical tradition that like theories about
international relations was divided into “rationalist,”
“realist,” and “revolutionist” streams, and confessed himself to have

moved increasingly into the rationalist camp – with all that this
meant regarding the adoption of a Grotian legal morality.229 Hedley
Bull (1932–1985) credited international law with a number of
essential (albeit limited) “functions” in relation to an international
order which paradoxically reflected the nature of “society” and
“anarchy” simulta-neously230 while his arguments about
international law as one of its institutions (alongside war, balance of
power, and diplomacy) capture a rather formalistic understanding of
the law. International law is – and should be – rules and the role of
the lawyer should be “to state what the rules of international law
are.”231 Against the interdisciplinary ambitions of the post-war
American scholars he retorted that to think of international law as a
“process of authoritative decision . . . deprives international law of
its essential focus and leads to its disappearance as a distinct branch
of international studies.”232
Where European students of international relations have largely

accepted the presence of different vocabularies within their discipline
–
and a rather quaint formalism in their writings about international
228 For brief but useful chronologies of the definitions and
delimitation of international relations as a doctrine and a set of
theories (as well as canons of books), cf. e.g.
William Olson and Nicholas Onuf, “The Growth of a Discipline

Reviewed,” in Steve Smith (ed.), International Relations. British and
American Perspectives (Oxford, Blackwell, 1985), pp. 1–28 and
Steve Smith, “The Self-Images of a Discipline: A Genealogy of
International Relations Theory,” in Ken Booth and Steve Smith (eds.),
International Relations Theory Today (Cambridge, Polity, 1995), pp.
1–37.
229 Martin Wight, International Theory. The Three Traditions

(Gabriele Wight and Brian Porter eds., Leicester University Press, for
the RIIA, 1994), pp. 233–258, 268.
230 Hedley Bull, The Anarchical Society. A Study of Order in World

Politics (London, Macmillan, 1977), pp. 140–145.
231 Bull, The Anarchical Society, p. 150.
232 Bull, The Anarchical Society, p. 160.
473
law,233 Americans had internalized Morgenthau’s anti-formalism as

a foundational part of their discipline. Even if it might have been
possible to unlearn Realism as a set of academic propositions, the
interests of United States policy-makers and the outlook of a Great
Power guaranteed that the critiques of legal formalism would remain
an ineradicable part of the profession. Realists or liberal
institutionalists, structuralists, postmodernists, or advocates of a new
normativism, international relations scholars have dismissed
international law on the basis of critiques they received from Weimar
but which originated in a critique of German and French public law
positivism in the last two decades of the nineteenth century.
The heritage of realism in American international law The

atmospheric change in the United States brought about by the
Weimar refugees was no less striking in the field of international law
itself. Like Morgenthau and Herz, Josef Kunz (1890–1970), Kelsen’s
disciple from Vienna, came to the United States and wrote through
the 1950s about a crisis in international law that was a “partial
phenomenon of the total crisis of the whole occidental culture.”234
Kunz, too, saw the crisis as having its roots in the First World War
and peaking in the juxtaposition of the two superpowers and the
consequent destruction of European values. “The decline of Europe”
and “the total crisis of our occidental culture” were not independent,
of course, but (although Kunz refrained from quite formulating this
sentence) the second was a consequence of the first.235 Many
Americans agreed. “[T]he shadow of possible catastrophe hangs
with increasing common apprehension over all our heads,” Myres S.
McDougal (1906–1998) from Yale told his students at the Hague
Academy in 1953 in a course that outlined the task of international
lawyers as anti-communist policy advisers.236
233 On this “pluralism,” cf. e.g. Richard Little, “The English School’s
Contribution to the Study of International Relations” (2000), 6
European Journal of International Relations, pp. 395–422.
234 Josef Kunz, “The Changing Science of International Law,” in The

Changing Law of Nations: Essays on International Law (Ohio State
University Press, 1968), p. 158.
235 Josef Kunz, “The Changing Law of Nations,” in The Changing

Law of Nations, pp. 10, 35, 50.
236 Myres S. McDougal, “International Law, Power and Policy. A

Contemporary Conception” (1953/I), 82 RdC, p. 138. Postwar
American legal thought seems in general to have been less anxious
about “totalitarianism” than political thinking generally. Carl
Landauer derives this from the confidence scholars such as
McDougal had in the US government’s ability to deal with the threat,
fostered by their closeness to that government, “Deliberating Speed:
Totalitarian Anxieties and Postwar Legal Thought” (2000), 12 Yale
Journal of Law and the Humanities, pp. 171, 230–234.
474
McDougal’s and Harold Lasswell’s Yale School was only the most
visible but perhaps among the least influential of the new
approaches that grew up in the United States in the 1950s and
1960s. During those years, American international lawyers were
faced with three responses to the decline of interwar formalism.237
First, legal realism was overwhelming domestic academic law and
cultivated an image of the lawyer as a policy-maker relatively free to
choose the direction of legal advice.
Its most important legacy consisted of “its challenge to the orthodox

claim that legal thought was separable and autonomous from moral
and political discourse.”238 Second, domestic social science was
being instrumentalized into “policy science” in part as a result of the
role of social scientists in the war effort, in part through the
continuing use of the discipline to defend American policy in the cold
war.239 Third was the activity of the German émigré internationalists
working on international relations as well as international law.
Among the effects that this convergence of realism from three sides
brought to international law in the United States two were
particularly important.
One was a pervasive rule-skepticism that turned the attention of

aca-demiclawyers from exegeticwork with treaties, cases, and formal
diplomacy to broader aspects of international cooperation and
conflict. The legal profession reimagined itself as a participant in
international policy as advisers and decision-makers in governments,
international organizations, and businesses, pursuing a variety of
interests and agendas. Public international lawyers increasingly
conceived international law from the perspective of a world power,
whose leaders have “options” and routinely choose among
alternative “strategies” in an ultimately hostile world. The
combination of rule-skepticism and policy orientation had already led
McDougal and Lasswell in 1943 to declare that “much of what
currently passes for instruction in law schools is a waste of time.”240
Formal rules were disappointing. On the one hand, they were
“inconsistent, ambiguous, and full of omissions.” Principles came
with counter-principles and 237 Of course, formalism remained in
the margins, with the leading work being Grenville Clark and Louis
Sohn, World Peace Through World Law (2nd edn., Cambridge, Mass.,
Harvard University Press, 1960).
238 Morton Horwitz, The Transformation of American Law 1879–

1960: The Crisis of Legal Orthodoxy (Oxford University Press, 1992),
p. 193.
239 Cf. Bent Rosenthal, Etude de l’oeuvre de Myres Smith McDougal

en matière de droit international (Paris, LGDJ, 1970), pp. 40–44 and
passim.
240 Myres S. McDougal and Harold Lasswell, “Legal Education and

Public Policy: Professional Training in the Public Interest” [1943], in
Myres S. McDougal and Associates, Studies in World Public Order
(New Haven and Dordrecht, New Haven Press and Nijhoff, 1987), p.
57.
475
facts failed to subsume themselves neatly under legal categories.

Literal meanings or drafter intentions remained out of reach of
interpreters who were engaging in “policy choices.”241 On the other
hand, rules were in any case only “trends of past decision,”
insufficient for the needs of democratic society in an era when
freedom was threatened by totalitarianism and human dignity was at
stake. Legal education should become “training for policy-
making.”242 In an ironicturn of the tables, the view of the jurist as
the legal conscience of the civilized world reappeared. Like the men
of 1873, McDougal had a political agenda, an anti-formalist outlook,
and little doubt about the ability of his moral sensibility to capture
people’s law in its authenticity.
A second contribution of realism was the emphasis on

interdisciplinarity as a crucial aspect of academic work,
accommodation of insights from sociology and ethics, as Morgenthau
and McDougal had suggested, but also from economics,
international relations, policy analysis, political theory, anthropology,
systems theory, phenomenology, and so on – an almost interminable
list of more or less exotic specializations. In a 1967 overview Richard
Falk (born 1930) from Princeton identified several new strands of
study that aimed to “move beyond the impressionism of earlier
approaches” so that they would “begin to acquire a scientific
character.”243 “Functionalism” saw an international legal system
emerge from day-to-day low-level political work in international
institutions, governments and civil associations. Systems theory
identified “strategic variables” to enable an accurate description and
prediction of international behavior. Functional equivalents of
domestic legal institutions had been canvassed, precedent-formation
and reciprocity had been explored; communication study and game
theory had become parts of the legal curriculum.
None of the individual schools came to dominance over the field.

The Yale School had a powerful voice in McDougal and his associates
who grasped the proposal for a functional jurisprudence in
Morgenthau’s 1940 article but were critical of what they interpreted
as his retreat to
“pure power policy.”244 But their repetitive lists of variables of policy
analysis failed to protect their postulated goal values from a critique
of being either an old-fashioned naturalism in disguise or a smoke
screen for a defense of American foreign policy. Inasmuch as they
failed to 241 McDougal and Lasswell, “Legal Education,” pp. 82–83.
242 McDougal and Lasswell, “Legal Education,” p. 46.
243 Richard Falk, “New Approaches to the Study of International

Law” (1967), 61 AJIL, p. 487.
244 McDougal, “Contemporary Concepts,” pp. 157–164.
476
answer the question “is this law or not?,” the usefulness of their
proposals appeared doubtful (and certainly not worth the trouble it
took to learn their language) to lawyers whose lay colleagues
persisted in asking precisely that question.
The Yale scholars were rivaled by the more conventionally

internationalist liberals around Columbia University, such as
Friedmann, Louis Henkin (born 1917), or Oscar Schachter (born
1915). Unlike McDougal and his associates the Columbia scholars
were not obsessed by Great Power antagonism but worked to
develop what C. Wilfred Jenks (1909–1973) termed a “common law
of mankind” through social and international welfare activities. They
focused on peacekeeping and resource administration through UN
agencies and other functional organizations, work in human rights
and economic development.245
Friedmann’s slogan about a transformation from a law of

coordination to a law of cooperation, associated with the move from
formal sovereign consent to a common interest-based system that
relied on informal persuasion to reach compliance, demonstrated the
continuity between the Columbia scholars and the pluralists and
interdependence theorists of the interwar. Many traditional scholars
such as Charles Fenwick (1880–1973) agreed in their enthusiasm
about the “extension of international law in new areas of economic
and social cooperation.”246 The Columbia scholars had, however,
integrated the realist teaching and were insistent to leave the kind of
naturalism and formalism that were projected as the shared
mistakes of interwar lawyers.247 They linked their institutional faith
with behavioral studies about the causes of international conflict and
cooperation and, somewhat like Fried or Niemeyer in Germany half a
century earlier, hoped to make international law a technically
sophisticated instrument for managing the tension between
sovereignty and community.248 They sometimes articulated their
theoretical views in terms of the (American) “legal process”
school that had been the leading successor to legal realism in the
1950s and had accepted much of the realists’ emphasis on discretion
but sought control by focusing on negotiating behavior, competence,
and 245 Wolfgang Friedmann, The Changing Structure of
International Law (New York, Columbia University Press, 1964), esp.
pp. 60–71, 82–95.
246 Charles G. Fenwick, “International Law: The Old and the New”
(1966), 60 AJIL, pp. 481–483.
247 Kennedy, “When Renewal Repeats,” pp. 380–387.
248 Friedmann’s law of cooperation was designed precisely to deal

with Morgenthau’s problem about international law always
supporting the status quo. Here was the
“flexible” and responsive law that overcame the rigidities of formal

coordination, The Changing Structure, pp. 58–59.
477

restraint inside formal and informal institutions.249 The argument by
Abram Chayes (1922–2000) about the role of international law in the
Cuban conflict constituted a liberal alternative to McDougal’s
confrontational policy analyses.250
McDougal argued that a conception of law as fixed “rules” seemed

irrelevant unless it was accompanied by power to control and
enforce and counter-productive inasmuch as it limited the choices
available to those who have the means to enforce them. If
Friedmann, Chayes, and others were less inclined to use the
language of power they, too, worried about international law’s
instrumental character, believing in rather softer manners of
influencing “how nations behave.”251
Everyone wanted to expand the law’s scope beyond formal

diplomacy, to include not only new substances such as welfare and
human rights issues but also new actors such as international
organizations, companies, even transnational political parties.252
Some lawyers occupied a political middle ground. Richard Falk, for
instance, regarded Morgenthau’s views as “simplistically cynical” and
took an expressly eclectic position between Kelsen and McDougal,
suggesting that “each of these enquiries reflects a genuine
intellectual need.”253 He was politically much closer to the Columbia
scholars but admired the methodological rigor of McDougal and his
associates. But he, too, saw the only hope for international law in
learning from social sciences and became (with Saul Mendlowitz) a
founder of the “World Order Models Project (WOMP),” that projected
desired futures of the international system and promoted causal
techniques through which they could be reached.
The one theme that connected the different strands of US interna-

249 Horowitz, The Transformation, p. 254 and Mary Ellen O’Connell,
“New International Legal Process” (1999), 93 AJIL, pp. 334–351.
250 Abram Chayes, The Cuban Missile Crisis (New York, Oxford
Cf. also Abram Chayes, International Legal Process. Materials for an
Introductory Course (Boston, Little, Brown, 1968–1969).
251 Cf. Louis Henkin, How Nations Behave. Law and Foreign Policy
(2nd edn., New Haven, Columbia University Press, 1979).
252 E.g. McDougal, “International Law,” pp. 227–258.
253 Richard Falk, The Status of Law in the International Society

(Princeton University Press, 1970), p. 9; Richard Falk, “International
Legal Order. Alwyn Freeman vs. Myres S.
McDougal” (1965), 59 AJIL, p. 66. Cf also Richard Falk, “The

Relevance of Political Context to the Nature and Functioning of
International Law: An Intermediate View,” in Karl W. Deutsch and
Stanley Hoffmann (eds.), The Relevance of International Law. Essays
in Honor of Leo Gross (Cambridge, Schenkman, 1968), pp. 133–152.
478
tional law scholarship after the realist challenge was its deformalized
concept of law. Whatever political differences there were between
McDougal and Columbia scholars, they agreed that international law
was not merely formal diplomacy or cases from the International
Court of Justice but that – if it were to be relevant – it had to be
conceived in terms of broader political processes or techniques that
aimed towards policy “objectives.” A relevant law would be
enmeshed in the social context and studied through the best
techniques of neighboring disciplines.254 This would mean a shift of
emphasis from formal obligations to informal understandings and
“regimes,” with the acknowledgement that violations could be of
different degrees. Such policy pragmatism received support from the
negotiations leading up to the defusing of the Cuban missile crisis
and the period of détente that followed. What now seemed needed
was “avoiding all temptation to the adoption of single, high-level
code of the law of Soviet–Western relations” and “any Western
insistence on a postulated ‘World Rule of Law’” in favor of an
“essentially modest, low-level, empirically-based, step-by-step
approach.”255 Policy pragmatism to the core.
In more recent years, Realism in the international relations

departments has been challenged by a “fundamentally non-idealist”
branch of liberal internationalism.256 Realist insights have been
used to project an interdependent world of cooperation beyond the
nation-State. As a consequence, an intellectual alliance has been
proposed between international lawyers and international relations
scholars advocating regime theory – that is, a theory about the
effects of informal norms in constructing collaborative “regimes.”257
It is no wonder that such approaches have 254 For a full statement,
cf. e.g. Falk, The Status of Law, pp. 9–37.
255 Edward McWhinney, “Changing International Law Method and

Objectives in the Era of Soviet–Western Détente” (1965), 59 AJIL,
pp. 10, 11, 4n48.
256 Donnelly, “Realism,” p. 189. The influential work is Robert D.

Keohane, After Hegemony: Cooperation and Discord in the World of
Political Economy (Princeton University Press, 1984), esp. pp. 65–
109 (aiming to create a theoretical frame for studying international
cooperation in regimes on explicitly realist premises about States as
rational egoists; every such State, Keohane argues, would have
reason to collaborate in regimes that tend to remain even if no
longer supported by a hegemon that helped to create them).
257 A regime is then defined as “sets of implicit or explicit principles,

norms, rules and decision-making procedures around which actors’
expectations converge in a given area of international relations,”
Stephen D. Krasner, “Structural Causes and Regime Consequences:
Regimes as Intervening Variables,” in Krasner (ed.), International
Regimes (Ithaca, New York, Cornell University Press, 1983), p. 2.
479
become popular in the United States. The language of “governance”

(in contrast to government258), of the management of “regimes,” of
ensuring “compliance,” that has become rooted in much American
writing about international law, is the language of a powerful and a
confident actor with an enviable amount of resources to back up its
policies.259
Empire’s law
The invasion of the Dominican Republic in 1965 was an undoubtedly

imperial act. As Friedmann pointed out, it affirmed the concrete
order of US predominance in the Western Hemisphere precisely in
the way that Schmitt had characterized his exemplary case of the
Grossraum. Its point was both to reassert and to enforce:
intervention by outside powers – “communism” – was out of the
question. It was part of a transition from what Schmitt and
Morgenthau had with more or less nostalgia seen as the classical
European nomos of sovereign equality (between European powers),
via an impoverished formalism, to a new period of imperial
Landnahme by non-European powers, radiating their culture and
power beyond their formal boundaries. In Schmitt’s conceptual
world, the intervention was part of the world’s territorial order, an
act of power, of course, but precisely because it was an act of
effective power, it was also an act of law, and, manifesting the
opposition between the industrial and developing world, even a kind
of a constitutional act.260
Morgenthau’s attitude towards the legal meaning of the intervention

was much more ambivalent. He approved of the intervention as a
political act, of course, but only if it came about not through the
application of “the simple slogan ‘Stop Communism’” but met the
“empirical test”
of being actually in accordance with US interests.261 This position
followed from his repeated stress on the primacy of the national
interest, 258 Anne-Marie Slaughter, Andrew S. Tulumello, and Stepan
Wood, “International Law and International Relations Theory: A New
Generation of Interdisciplinary Scholarship” (1998), 92 AJIL, pp.
370–371.
259 This, I guess, is the flip side of Oppenheim’s dictum that respect
for international law has been greatest in balance-of-power systems.
If such balance is lacking, legal formalism gives way to the
enforcement of the hegemon’s morality. Cf. Stanley Hoffmann,
“International Systems and International Law,” in Hoffmann, Janus
and Minerva, pp. 157–164.
260 Cf. Carl Schmitt, “Die Ordnung der Welt nach dem Zweiten
Weltkrieg” (1962), in Staat, Grossraum, Nomos, pp. 600–607
(identifying the developing–developed States opposition as “die
wirkliche Verfassung der Erde,” p. 605).
261 Morgenthau, New Foreign Policy, pp. 124–125.
480
understood realistically as acting within the limits of the power that

one has. Unlike Schmitt, however, Morgenthau did not immediately
conclude that a new legal order was being established. Instead, he
left the legal question open. The relations between the superpowers
were “politics” and not law. Or, perhaps better, to think of them as
law would be to move within a rationalist utopianism. What was at
issue in the Bay of Pigs invasion, the Cuban quarantine, the
intervention in Vietnam, or the Dominican Republic was not whether
they were lawful or not but whether they were in accordance with
the national interest. Two aspects of that position are noteworthy.
First, Morgenthau revealed his traditionalist, “European” attitude
towards international law by assuming that it could not and should
not be applied in situations that were essentially political. He did not
say that there was no law on the matter of intervention, but argued
that whatever that law was it was irrelevant for an intelligent
assessment of the events. There was no trace of the “functional
jurisprudence” of his 1940
article. Unlike most other American lawyers who were arguing about
the lawfulness of the intervention in one way or the other, he
refrained from taking sides on the legal controversy and especially
from following Schmitt or McDougal, for whom the events were part
of a process whereby a legal order was being created and
reaffirmed.
Second, however, he shared with Schmitt a negative attitude about

the way the United States was carrying out a morally based anti-
communist crusade. And it is precisely because he was critical about
it that must have made it impossible for him to interpret it through
the law.
For he was here between two unappealing alternatives. To have

publicly criticized the intervention as illegal would have put him in
the group of
“legal fundamentalists” that the State Department legal adviser

attacked in providing his thoroughly functional justifications. He
could not now take on the role of the formalist lawyer – the “legal
fundamentalist” –
without becoming vulnerable to the arguments he had so often

made against others. But, significantly, he could not follow the
alternative adopted by Schmitt and McDougal, either, namely to
replace the traditional notion of international law as a framework for
formal inter-sovereign relationships by a new, flexible, policy-
dependent instrument for US decision-makers. The reasons for why
he could not do so are worth quoting in extenso:
Traditional international law and organization derive from a

pluralistic, relativistic conception of the state system. Divergent as
well as parallel and identical national interests are codified in
international law, and it is the main political 481
purpose of international organization to harmonize the divergent

interests.
Accommodation and compromise are therefore the necessary

political ear-marks of such legal system.
The international legal order appropriate to the globalism of

American foreign policy would be monistic and absolutistic rather
than pluralistic and relativistic.
For American globalism assumes the existence of one valid legal

order whose content is defined by the United States and which
reflects the objectives of American foreign policy. Thus American
globalism of necessity culminates in a pax Americana or American
imperium in which the political interests and legal values of the
United States are identified with universal ones.262
In other words, to have responded to his own call for a “functional

jurisprudence” would only have legitimized a pax Americana of
which he was profoundly critical. To have taken into account also the
call for ethics would either have pushed Morgenthau into McDougal’s
camp of the anti-communist crusade – or it would have necessitated
an ethical debate with McDougal and the crusaders about conflicting
objectives and values that he could not, on his own Nietzschean
premises, think could be rationally resolved. There was nothing left
for him as a (European) lawyer but to retreat to the position of the
outsider.
Imperialism was a political, not a legal matter. Thereby he could at
least preserve his nostalgic attachment to the traditionalism he had
tried to exorcize in his 1940 article but which kept haunting him
throughout his later career. Among the many complexities in
Morgenthau’s thought is that he remained a moral critic of American
foreign policy. But his moral positions never emerged from large
principles or utilitarian calculations. They did not take the form of
naturalist or deontological argument. They were existential choices,
fragmented glimpses of grand truths whose full revelation always fell
short of the human capacity. The ethics of Morgenthau’s idealized
statecraft was a combination of prudence, historical wisdom, and a
sense of tragedy, that belonged only to few statesmen. From his
own pen, they came about as series of intuitively grasped truths
projected upon political events by someone whom fate had
accidentally but irrevocably cast as an outsider After the Second
World War, American international lawyers largely gave up the
“utopian” hopes of their interwar predecessors. The critiques of
formalism rehearsed by Morgenthau and Schmitt became part 262
Hans Morgenthau, “Emergent Problems of United States Foreign
Policy,” in Deutsch and Hoffmann, The Relevance of International
Law, pp. 55–56.
482
of their renewed self-understanding. The discipline faced the choice

of either accepting the marginalization of law from the center of
political decision-making or adopting a functional jurisprudence that
recast the lawyer as adviser for the political decision-maker. Where
Morgenthau had accepted the former option, as it were, tragically,
Schmitt’s legacy was to inaugurate a dynamic and deformalized
concept of law that would show its usefulness as the symbol of the
concrete order that American power was able to produce.263
We have seen how McDougal and his associates on the one hand,
and the Columbia and legal process scholars on the other, applied
the functional understanding. They used a flexible concept of
international law that would serve their preferred values by
facilitating decision-making in contexts where they thought they
were dominant. Interdisciplinary orientation, as Richard Falk pointed
out in 1967, was a central aspect of this technique. The concern for
the relevance of international law arose as the shared obsession of
the profession, “relevance” being defined as instrumental usefulness
whose measurement seemed to call for complex sociological and
policy oriented analyses.
Today, many lawyers in the United States persist in calling for an

integration of international law and international relations theory
under a
“common agenda.” This is an American crusade. By this, I do not

mean only that some of the crusaders have chosen to argue for an
increasing recourse to US principles of domestic legitimacy in the
justification of its external behavior,264 nor that nearly all of the
relevant literature comes from North America.265 (Indeed, an early
review of legal responses to the “realist challenge” found no
significant examples 263 For the argument in a domestic context, cf.
Ingeborg Maus, “The 1933 ‘Break’ in Carl Schmitt’s Theory,” in
Dyzenhaus, Carl Schmitt’s Critique of Liberalism, pp.
197–212. The argument for this change of self-image is stated with

great clarity in Michael W. Reisman, “International Incidents: A New
Genre of Study of International Law,” in Michael W. Reisman and
Andrew Willard (eds.), International Incidents: The Law that Counts
in World Politics (Princeton University Press, 1988), where the author
distinguishes between law as a “myth system” and an “operational
code.”
Today, he writes “much of the . . . international legal description is

patently out of step with elite expectations.” Only an operational,
incident oriented study will
“inform about expectations of those who are politically effective in

the world community.” The author’s criterion for legal relevance is
enchantingly present in his confident indictment of formalism: “Small
wonder that political advisors rarely use their international lawyers,”
pp. 4, 12, 15.
264 Lea Brilmayer, Justifying International Acts (Princeton University

Press, 1989).
265 Slaughter, Tulumello, and Wood, “International Law and

International Relations Theory,” pp. 393–397 (Bibliography).
483
beyond the universities of the American East.266) Nor am I relying

on the fact that the concepts of “liberalism” or “democracy” in this
literature refer back to an American understanding that links them
with determined (Western) liberal institutions.267 What I want to
say, instead, is that the interdisciplinary agenda itself, together with
a deformalized concept of law, and enthusiasm about the spread of
“liberalism,” constitutes an academic project that cannot but buttress
the justification of American empire, as both Schmitt and McDougal
well understood. This is not because of bad faith or conspiracy on
anybody’s part. It is the logic of an argument – the Weimar
argument – that hopes to salvage the law by making it an
instrument for the values (or better, “decisions”) of the powerful that
compels the conclusion.
A review in 1998 of interdisciplinary approaches identified a number

of ways in which international lawyers today “used” international
relations theory.268 The review also argued that international
lawyers had contributed to international relations by examining the
legal process as a causal mechanism, by showing how legal norms
“constructed” the international system and by drawing attention to
the effects of domestic and transnational law on the international
scene.269 It then mapped a
“joint discipline” that would study the design of international regimes

and processes, that would create specific analyses of the law’s
“constructive” effects, provide an account of structural
transformations, and look into the disaggregation of States and the
embeddedness of international institutions in domestic societies.270
Such an argument about “collaboration” implies a thoroughly

deformalized image of international law. The relevant literature is
obsessed with questions such as how and why States use
international institutions 266 That is to say, Yale (McDougal),
Princeton (Falk), Harvard (Chayes), and Columbia (Henkin). The
absence of NYU (Franck) must have been a simple oversight on the
author’s part. Anne-Marie Slaughter Burley, “International Law and
International Relations: A Dual Agenda” (1993), 87 AJIL, pp. 209–
214.
267 Susan Marks, “The End of History? Reflexions on Some

International Law Theses”
(1997), 8 EJIL, pp. 449–477, esp. 471–475.
268 That is to say, “(1) to diagnose international policy problems and

to formulate solutions to them; (2) to explain the function of
particular international legal institutions; and (3) to examine and
reconceptualize particular institutions of international law generally,”
Slaughter, Tulumello, and Wood, “International Law and
International Relations Theory,” p. 373.

International Relations Theory,” pp. 379–383.

International Relations Theory” pp. 384–393.
484
“to manage interstate cooperation or conflict,”271 and when it might

be useful for States to choose formal and when informal agreements
to realize their purposes.272 An international relations scholar has
outlined two “optics” for examining international law that could be
used by lawyers and international relations theorists alike,
instrumentalism and normativism.273 This was Morgenthau’s appeal
for sociology and ethics, in today’s language. Few of these writings
sustain a concept of international law that would be other than an
idiosyncratic technique for studying either what works
(instrumentalism) or what would be good if it should work
(normativism), in other words, a special kind of sociology or morality
of the international.274 The two aspects of the argument are
indissociable: under the dual agenda instrumentalism and
normativism complement each other in a necessary, yet profoundly
ambivalent way.
Instrumentalism proposes a law that is relevant for policy-makers by

indicating the technical avenues through which they can reach their
objectives. It speaks about functions and effectiveness, or, in the
words of a recent study by the American Society of International
Law, of “commitment and compliance.”275 For instrumentalism, law
is a functional technique and legal problems are technical problems.
If formal law shows itself inflexible or empty, it can always be
replaced by a wider standard, policy guideline, informal mechanism
of compliance control, soft law, or indeed the values of liberal
democracy. For a decision process to be called “law,” it would suffice
that it is “authoritative” and “controlling,” in McDougal’s language: if
it works let it be law, and let it be law as long as and to the extent
that it does work. This allows turning attention away from the
relative absence of formal legislation, and of the problems with the
interpretation of rules that do exist. For focus on compliance silently
assumes that the political question – what the objectives are – has
already been resolved. Such focus intervenes in precisely the 271
Kenneth W. Abbott and Duncan Snidal, “Why States Act through
Formal International Organizations” (1998), 42 Journal of Conflict
Resolution, p. 8.
272 Charles Lipson, “Why are Some Agreements Informal?” (1991),

45 International Organization, pp. 495–538.
273 Robert O. Keohane, “International Relations and International

Law: Two Optics”
(1997), 38 Harvard International Law Journal, p. 487.
274 This is quite expressly stated in Keohane’s article, where he

observes that causality (i.e. what works) cannot provide the sole
perspective from which to look at international law and adds that
“the function of moral judgment” is “fundamental,”
Keohane, “International Relations and International Law,” pp. 488–

489. No other alternative is considered. Law is either sociology or
morality.
275 Cf. Dinah Shelton (ed.), Commitment and Compliance. The Role
of Non-Binding Norms in the International Legal System (Oxford
485
way sociology has always done: transforming the debate about the
ends of action to the means of action, from normative praxis to
instrumental techne. It was this aspect of instrumentalism and the
turn to “science” to which Morgenthau and Schmitt drew attention in
their critiques of the liberal depoliticization and neutralization of
political choices.276
An instrumentalist culture, however, creates the danger of
administrative abuse. If law is only about what works, and pays no
attention to the objectives for which it is used, then it will become
only a smokescreen for effective power. Moreover, as Weber has
shown, recourse to deformalized standards (such as “democratic” or
“equitable”) transforms law into an instrument for the power that
has control over the executive.
Every administrative act becomes a value-judgment by the authority

in position to take the decision. In this process, benevolent
jurisprudential intentions may sometimes be enlisted for dubious
causes – a process that both Schmitt and Morgenthau witnessed
around their professional milieu. To insist that the Weimar judge
should set aside formal rules and apply directly the social interests
that lay “behind” the law may have seemed a welcome reaction to
the hair-splitting of Wilhelminian Begriffsjurisprudenz. Schmitt’s early
decisionism, as well as the “free law”
school of Kantorowicz and others, worked with a much more

sophisticated awareness of social and linguistic theory than
formalistic jurisprudence had ever been able to attain. Nonetheless,
Ernst Bloch comments on that experiment: “In Germany, juridical
liberalism was marked by progressive intentions, but the existing
relations were not at all progressive. And so the Nazi as a judge,
servile through and through, but free from juridical measures,
demonstrated what he could do.”277 As Schmitt and others criticized
the false formality of general legislation in Weimar, 276 The great
virtue of technical norms – norms about effectiveness, persuasion,
compliance, and so on – lies in the way their validity can be proved
by scientific measurements: this (instrumental) norm (N) is valid
because it can be proved to attain the objective (O) in a fashion that
is valid for everyone accepting the standard of scientific
measurement. The objective (O), however, is not addressed by this
technique. It is simply taken as a given and often ritually restated by
code expressions through which the professional context is identified
such as “peace,” “clean environment,”
“right to life,” “humanitarian intervention,” and so on. The political
conflict regarding the meaning of such general notions in the
particular context – what claims should be supported, what
overridden, how scarce resources should be distributed, and so on –
is hidden and attention is turned from them to problems in the
technical efficiency of the implementation of whatever agenda it is
the decision-maker thinks has to be implemented.
277 Ernst Bloch, Natural Law and Human Dignity (trans. Dennis J.
Schmidt, Cambridge, Mass., MIT Press, 1987), pp. 132, 149–152.
486
an odd intellectual alliance was forged between Kelsenian formalists

and the Marxian left, both insisting on the need to maintain the rule
of law against the use of the executive for the enforcement of Nazi
decrees.278
In other words, if the “dual agenda” were only about what works, it
would achieve a thoroughly function-dependent, non-autonomous
law, an ingenious justification for a world Leviathan. Aside from
sociology, ethics is needed. This was precisely what McDougal and
his associates tried to attain by reference to their “goal values” of
“human dignity.”
They were not “decisionists” in Schmitt’s sense. They believed that

their ethics would control decision-making by more or less
automatically vindicating the “free society” that coalesced with US
foreign policy goals.
But that kind of naturalism could not sustain the critiques of ethics
that had become part of the agnostic modernity of the profession.
The lawyers on the left fared no better. Institutionalism and legal
process relied on assumptions about interdependence and rational
behavior that had been effectively discarded by the Realists. They
were of course right to think that decision-makers in international
institutions shared a basiccommitment to liberal internationalism that
would by and large reflect the preferences of American
internationalists as well. But the scarcity of resources and conflicts of
interest between States imposed choices upon institutions that were
difficult to justify by the argument about long-term harmony of
interests. Such choices made these institutions – the United Nations
especially – vulnerable to the charge of political partiality. A
moderate internationalism proved just as little controlling in the
debates in the 1970s and 1980s on a new international economic
order, or on how to decide between environmental and economic
preferences in the 1990s, as it had been able to produce collective
security in the 1930s.
Morgenthau’s attempt to create constraint over foreign policy

decision-making in an anarchic international environment by
focusing on prudent statesmanship resembles Weber’s recourse to
an ethic of responsibility as a substitute for the controlling force of
determining formal rules or binding ethical principles. In both, there
is a tragic aspect to their proposal, and it is hard to tell whether they
had much faith in its realization. Moreover, in Morgenthau
“prudence” turned inwards, to the national community (national
interest), and could work as an argument about acceptable
international order only by a further assumption 278 For a review, cf.
William E. Scheuerman, Between the Norm and the Exception. The
Frankfurt School and the Rule of Law (Cambridge, Mass., MIT Press,
1997), pp. 74–76, 93–96, 140–147, and generally.
487
about an invisible hand that could not be sustained by his

anthropological pessimism.279
Today, interdisciplinary scholars in American academia hope to
control the dangers of instrumentalization by accompanying it by a
normative optic received from “democracy” and “liberalism.” The
argument still starts with a sociological point about the emergence
of a new world order in which formal sovereignty, diplomacy, and
law are being replaced by more fluid actors and processes such as
“transgovernmental networks” (of courts, regulatory agencies,
executives, even legislatures) within which judges, government
officials, company executives, and members of
governmental and non-governmental organizations
(NGOs) and interest groups meet to coordinate their policies in a

fashion which, by comparison with formal interState cooperation is
“fast, flexible, and effective.”280 The argument draws inspiration

from a sociology that sees sovereign equality as a formalistic
obstacle against the dynamic of “real life” that leads automatically
(albeit invisibly) from a
“dual agenda” to a “liberal agenda.”281 That this sociology is

normatively tinged is an absolutely central part of it: “The most
distinctive aspect of Liberal international relations theory is that it
permits, indeed mandates, a distinction among different types of
States, based on their domestic political structure and ideology.” As
sovereignty breaks down and globalization becomes the order of the
day, the dynamic of a politically oriented law will no longer tolerate
formalism: “The resulting behavioral distinctions between liberal
democracies and other kinds of States, or more generally between
liberal and non-liberal States, cannot be accommodated within the
framework of classical international law.”282 In other words, the
interdisciplinary call cannot be divorced 279 The tension between
Morgenthau’s theory of power and his faith in a controlling morality
is highlighted in Jan Willem Honig, “Totalitarianism and Realism:
Hans Morgenthau’s German Years,” in Benjamin Frankel (ed.), Roots
of Realism (London and Portland, Cass, 1996), pp. 307–310. For the
argument that an application of the Weberian ethic of responsibility
in international affairs requires a conception of moral community (of
individuals and of States), cf. Daniel Warner, An Ethic of
Responsibility in International Relations (Boulder and London,
Rienner, 1991), esp. pp.
107–116.
280 Anne-Marie Slaughter, “The Real New World Order” (1997), 76

Foreign Affairs, pp.
193, 183–197.
281 Anne-Marie Slaughter, “International Law and International

Relations: A Dual Agenda” (1993), 87 AJIL, pp. 205–239 .
282 Anne-Marie Slaughter, “International Law in a World of Liberal

States” (1995), 6
EJIL, p. 504. For (a rather conservative) argument about the threat

posed by globalization to formal rules and contstraint, cf. William E.
Scheuerman, “Globalization and the Fate of Law,” in David
Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of the Legal
Order (Oxford, Hart, 1999), pp. 252–266.
488
from the kinds of sociology and ethics that are being advocated. The
suggested sociology is always already normatively loaded, and
loaded so as to underwrite the constellation already produced
through power.
In Morgenthau as well as in today’s liberal deformalized

jurisprudence interdisciplinarity comes with two sides: an argument
about sociology and an argument about ethics. The sociological
argument makes law indistinguishable from the preferences of the
persons whom fate and power have put in decision-making
positions. The ethical argument seeks to avoid the critique that this
makes law simply a collection of the prejudices of the decision-
makers, seeking to replace the constraint rules failed to offer. But if
the ethics of “prudence” in Morgenthau, “human dignity” in
McDougal, or “interdependence” in Friedmann failed to create that
constraint, today’s interdisciplinary enthusiasts seek refuge from
positions often associated with a moral doctrine adopted from
Immanuel Kant. It is the particular configuration of interdisciplinarity,
deformalization, and Kantian morality that inevitably comes to
support a liberal Empire. Why?
Initially, the call for a new morality to constrain the international

decision-maker seems hardly different from the naturalism of the
interwar lawyers, or the arguments from the civilized conscience–
consciousness of the men of 1873. As such, it would be vulnerable
to the critique of the manipulability of the postulated moral
sensibilities, their being just the prejudices of a narrow class of
internationally minded Western lawyers. But the advocates of
deformalization now claim that their moral norms enjoy a special
character that enables them to transgress the preferences of single
individuals, clans, or nations. The force of their norms lies, they
maintain, in the peculiar universality of those norms that results
from their having been derived through a purely formal system of
reasoning, or perhaps more accurately, from our ability to reason
about them, or from reason tout court. Because reason (in contrast
to preference) is universal, these commands enjoy universal validity.
That is to say, every thinking person, State, or people would choose

them
– or would have reason to choose them – from behind a “veil of

ignorance” about what kind of a person, group or State one is.283
This is what it means to say, these lawyers claim, that they
constitute a rational choice for all, an effective and legitimate
constraint over otherwise deformalized decision-making, as well as
an objective (and legal) guide for foreign policy.
283 For a reformulation, cf. John Rawls, The Law of Peoples: with
the “Idea of Public Reason”
Revisited (Cambridge, Mass., Harvard University Press, 1999), pp.

32–33.
489
It follows that a person, group, or a State that does not share them
is not only of another opinion (or preference) but has made a
mistake about something that that person, group, or State should
think rational for itself, too. Universalizability in theory leads
automatically to expansion as practice. If my principle is valid
because it is universal, then I not only may but perhaps must try to
make others accept it as well. In any case, I can rest confident that I
know what principles apply not only to me and my group but to any
person or any group. If I engage in contacts with them, I need not
face them as equals. I need not be open to their preferences
because I already know that mine are universally valid, for me as
well as for them, too. I may (or perhaps must) be kind towards and
patient with them, but the object of my encounter can only be the
transformation of the way they see the world, having them accept
my principles, too (because they are not really “mine” but universally
good).284
But this is, as many critics have argued, an impossible position. No

actual person, State or people lives in abstraction from particular
histories, contexts, and qualities.285 Irrespective of whether it is
possible hypothetically to make an argument about rules to which
everyone has reason to agree, that position has never been open to
anyone and it is doubtful whether the principles thus invented would
actually be persuasive.286 If, however, one persists in thinking that
this is what one must assume as right, in order to avoid the
otherwise compelling conclusion that in a deformalized environment
one is simply imposing one’s own preferences on others, then the
temptation emerges to interpret actual decision-making in this light.
That temptation becomes particularly strong if one is oneself the
decision-maker. In such a case, one casts one’s own views and
preferences with the quality that this theory demands. But if no
particular decision can claim the kind of validity that this theory
regards as the only justifiable norm, then the result is imperialism in
either of two alternative forms.
284 This is the objective of the foreign policy of “liberal peoples” in

Rawls, The Law of Peoples, pp. 92–93.
285 The argument from a hypothetical choice situation must build on

the dubious assumption that the individual self can exist in
abstraction from its (historically contingent) properties or the ends it
pursues. Cf. Michael Sandel, Liberalism and the Limits of Justice
(Cambridge University Press, 1982), pp. 50–65.
286 Michael Walzer, for instance, argues plausibly against the use of
invented moral principles to apply to the lives of situated persons: a
minimal morality such as offered by the hypothetical choice will be
unresponsive to the concerns and aspirations of any actual (“dense”)
culture with a sense of belonging “there.” Cf. Michael Walzer,
Interpretation and Moral Criticism (Cambridge, Mass., Harvard
490
First case is the one where the decision-maker (State, legal adviser)
believes that his preferences fulfill the criteria postulated by the
theory about universal (rational) norms. In such a case, every
deviating position will appear as irrational, or at least partial,
subjective, historically conditioned, political bias. It may be taken
into account, of course, if that leads to the most effective overall
realization of the decision-maker’s own non-contextually valid
preference. But it enjoys no independent normative validity vis-à-vis
the decision-maker. It may be treated as an atavisticresidue from
political, religious, ethnic, or other such particular moralities. In due
course, with increasing enlightenment (defined as gradual
acceptance of the non-contextual position), it would be given up or
at least loosen its obsessive hold on those who still cling to it. In a
deep sense, having such preference either demonstrates ignorance
and error when measured against the norms or policies that are
accepted as universally valid, or results from the evil manipulations
of the leaders of that other community. These positions might be
called rational imperialism.287
In the second alternative, the decision-maker shares the view that

the only legitimate norm is one that enjoys non-contextual validity
but does not think that he (or anyone else) is now in possession of
it. Every empirical position is contextually and historically based.
Nonetheless, the decision-maker persists in making justifications that
refer back to the non-contextual assumption. This will produce the
same outcome as the 287 This was the position of Christian
missionaries and theologians such as Bartoloméo de Las Casas,
whose defense of the Indians was based on his unquestioning faith
in a single, universally valid religion. Though emerging from love,
this view erased the Indian’s particularity. Cf. chapter 2 above.
Today, this position gives no independent normative standing for
sovereignty, or the effective control of a government over a
population. It deduces the unacceptability of a regime immediately
from its having not been instituted by determined rituals of popular
consultation. Often it concludes that there must be a right (or even a
duty) of intervention by others to oust such a regime from office. For
two critical discussions of “liberal triumphalism,” cf. Brad Roth,
Governmental Illegitimacy in International Law (Oxford, Clarendon,
1999), esp. pp.
34–35, 413–430 and Susan Marks, The Riddle of All Constitutions
(Oxford University Press, 2000). Both suggest that to posit a “right
to democracy” may raise more problems than it resolves, inasmuch
as “[s]uch a ‘right’ either is indeterminate or entails the imposition of
specific liberal–democratic worldview that has yet to find general
acceptance,” Roth, Governmental Illegitimacy, p. 424. Where Roth’s
analysis is predominantly descriptive and analytical, Marks hopes to
juxtapose a transformative and critical notion of democracy to the
“low intensity democracy” or “pannational democracy,” associated
with specific Western institutions. Both focus on the imperial-
ist character of the internationalist discourse of democracy in the

1990s (without using that word, however).
491
former alternative, with the significant twist, however, that the

decision-maker is now acting in bad faith. He does not think that his
policy enjoys the non-contextual validity that his theory of legitimate
decision-making requires. But he still overrules deviating
preferences, and does this by claiming that it does. This leads to
what could be called cynical imperialism.288
Now both of these positions are distinctly imperialist in the sense

that other positions are overruled not because of their content but
because they do not enjoy the same kind of validity as that of the
decision-maker.
They do not compete on their merits, but are overruled at the outset
as lacking some special character (non-contextuality) of the norms
the decision-maker holds. They are not just different but at a
different level of seriousness or justifiability altogether: “irrational”
where the decision-maker’s is “rational,” “subjective” or “passionate,”
against his
“objective” or “reasonable” position.289 Because they are so, there
never 288 In Tzvetan Todorov’s classic study, the distinction between
rational and cynical is expressed in the opposition of Las Casas and
Cortès, the former being a colonialist out of love, the latter using the
language of love in search of private gain. The Conquest of America.
The Question of the Other (trans. Richard Howard, New York,
HarperCollins, 1984), pp. 174–176. Moral universalism as a
psychological trap imposing excessive demands on its proponents –
and thus eventually leading to brutalization and cynicism – is a
consistent theme in critiques of Kant. For a controversial argument
about morality as “the last refuge of Eurocentrism,” cf. Hans Magnus
Enzensberger, Civil War (London, Granta, 1994), pp. 59, 61. This is
not too far from Schmitt’s arguments against universalism. The
defense is taken up by Jürgen Habermas: if moralization is mediated
through a legal order, no brutalization will occur. This is, as
Habermas readily admits, a liberal response that assumes the
presence of “an authority that judges impartially and fulfills the
conditions of neutral criminal punishment.” Jürgen Habermas, “Kant’s
Idea of Perpetual Peace, with the Benefit of Two Hundred Years’
Hindsight,” in James Bohman and Matthias Lutz-Bachmann (eds.),
Perpetual Peace. Essays in Kant’s Cosmopolitan Ideal (Cambridge,
Mass., MIT Press, 1997), p. 147. But this seems to assume what was
to be proved, namely the existence of a determining positive law or
procedure that could mediate between moral beliefs and public
enforcement. But if the critiques of legal formality are right, then this
presumption cannot be upheld. Habermas, too, accepts that a
“deception”
follows from unmediated moralism, for instance in the form of a

“fundamentalism of human rights.” From the perspective of Schmitt
and Morgenthau, every universalism involves at least internationally
(that is to say, in the absence of a social cohesion sufficient to
support one’s interpretations) the danger of “deception”: the Empire
will project its internal morality to the world at large. Perpetual
Peace, pp.
145–149. To avoid this, a more determined defense of formalism and
legal autonomy would seem needed.
289 Framed in such a way, the opposition enacts the Enlightenment

story of reason against myth. The exclusion of the unreasonable
preference becomes then less a political maneuver than a necessary
step towards truth and progress, a pre-political operation that simply
clears the ground for (rational, universal) politics. What the 492
is – and can never be – dialogue between the decision-maker and

those with different preferences. Equality is excluded. Only
imperialism remains, as Schmitt wrote more than sixty years ago,
describing the new order through the discriminatory concept of war.
The different-thinking Other becomes not just my adversary, but an
enemy of humanity because he fails to accept what I know is true of
all humanity.
Therefore, as John Rawls writes today, the non-liberal, non-decent

State is the outlaw State.290
A world where decision-makers learn that one is entitled to think

one’s preferences justified only if they are justified for everyone else,
too, is bound to tragedy, or imperialism, or both. Gliding from a
“continuous discomfort of a perpetually uneasy conscience” involved
in acting upon preferences that one knows others do not
(necessarily) share, to identifying those preferences as universal is,
as Morgenthau observed, the most human of inclinations.291 If
nobody’s positions are justifiable in the way demanded by the theory
of rational coercion, and that, because of this, nobody has a
justifiable claim for allegiance, then all decision-making in a
deformalized context will always appear as the use of power to
impose arbitrary preferences over others. Morgenthau’s arguments
about the Lustprincip came close to providing just such an
explanation of international politics. States are obsessed by a desire
for power that could be controlled only by the exceptional statesman
who recognized this fact.
Only that individual can rise above hypocrisy or cynicism who can
accept the tragedy of life as struggle between incompatible but
equally valid (because equally arbitrary) preferences.
But most interdisciplinary lawyers are led to another intellectual itin-

erary. Once the critique of formalism has freed the lawyer from the
constraint of rules, and the Weberian problem of administrative
abuse has emerged, the lawyer is encouraged to begin a quest for
the fabled moral norms that dictate what are rational choices for
everyone, in other words, to reimagine the law’s job as having to do
with the resolution of depiction fails to accept is that myth might be
only another form of reason. Cf.
Vincent Descombs, The Barometer of Modern Reason. On The

Philosophies of Current Events (Oxford University Press, 1993), p.
144 and generally the discussion of the “profound ambiguity of the
French Revolution . . . when a particular community [i.e. the French]
presumed to speak for humanity as a whole,” p. 134. Descombs’
discussion builds on themes in Jean-François Lyotard, The Differend:
Phrases in Dispute (trans.
Georges van den Abbeele, University of Minnesota Press, 1988), pp.

145–147.
Lyotard points out, in a Schmittian vein, that “[a]fter 1789,

international wars are also civil wars,” p. 146.
290 Rawls, The Law of Peoples, p. 90.
493

the 3,000-year old enigma about objective morality.292 Or the
lawyer may turn away from that task in frustration and fall back on
intuition –
justifying this nonetheless as if it had been produced by

contemplation of a moral theory that everyone has reason to accept.
To escape the megalomania of the first path, and the cynicism
awaiting at the end of the second, the tempting alternative is to turn
back to the interdisciplinary scholars, and to accept as correct, and
controlling, not only their critique of formalism but also the policies
and preferences they suggest to replace it by. Do not their complex
moral ponderings, multi-factor calculations, dependent and
independent variables, graphs, or quixotic discourses suggest an
altogether deeper mode of understanding than do the lawyer’s banal
antics? In this way, the anti-formalist technique, and the
interdisciplinary call, in fact lead to an invitation for the lawyer to
accept as authoritative the styles of argument and substantive
outcome that the international relations academia has been able to
scavenge from the moral battlefield. Behind the call for
“collaboration” is a strategy to use the international lawyer’s
“Weimarian” insecurity in order to tempt him or her to accept the
self-image as an underlaborer to the policy agendas of (the
American) international relations orthodoxy.
Since Kelsen, lawyers have looked for professional identity in a

middle ground between that which is sociological description (of
what works) and that which is moral speculation (of what would be
good). This is not because lawyers would have dismissed sociology
or ethics as unworthy enterprises but because neither one nor the
other is able to answer the question that lawyers are called upon to
answer; namely the question 292 Thus Tesón, for instance, suggests
that international law problems about humanitarian intervention
should be answered by recourse to philosophy: “I will suggest that
moral philosophy is necessarily a part of the articulation of legal
propositions.” This then leads him to the position where the
“ultimate justification of the existence of a state is the protection
and enforcement of the natural rights of the citizens.” If they fail,
then “foreign armies are morally entitled to help victims of
oppression in overthrowing dictators, provided that the intervention
is proportionate to the evil which it is designed to suppress.”
Ferdinand Tesón, Humanitarian Intervention: An Inquiry into Law
and Morality (Dobbs Ferry and New York, Transnational, 1988), pp.
6, 15. The replacement of legal argument by philosophy here seems
both empty and superflu-ous. Surely the references to “natural
rights,” “victims of oppression,” and “proportionality” have failed to
deal with the lawyer’s professional insecurity; surely it is precisely
the vagueness of those notions where the lawyer’s problem lies –
and it can hardly be resolved by restating them.
494
about (valid) law. There may be disagreement about the significance

of that question – and some of the Weimar critics, including Schmitt
and Morgenthau, certainly felt that it was . . . uninteresting. Its
significance depends on what view one takes on the proper place of
formal law (including lawyers, courts, legal arguments, etc.) in
society, a question that emerges – as it did in Weimar – especially in
face of demands for increasing legislative intervention to support
particular interests or values.293
Sometimes there is a need for exceptional measures that cannot be

encompassed within the general formulation of the formally valid
rule.
And there may be a time for revolution and the throwing off of valid
law (and the profession that sustains it) altogether. But none of this
detracts from the need to know about valid law – indeed is premised
upon our ability to know it. And that need cannot be satisfied by
seeking to answer the causal or the moral question. On the contrary,
these latter questions can be meaningfully asked only once we share
an image of law as something that is – for want of a better word –
“valid.” The absence of this image is a product of the Weimar
heritage in American international relations theory.
Answers to questions about (valid) law are conditioned upon the

criteria for validity that a legal system uses to define its substance.
These criteria do refer to social facts and moral ideas but cannot be
reduced to them – without doing away with the legal question (by
interpreting it as
“in fact” a question about what works, or what is good) and the
profession that was tasked to answer it. Yet we know, of course,
that questions of valid law do not admit of a single right answer.
Even if there may be agreement on a form, that often vanishes
when we seek to establish its meaning: States may undoubtedly not
cause harm to each other. But when asked what is “harm”? we are
led to interminable interpretative arguments, juxtapositions of rules
with exceptions, principles with counter-principles. All this does little
to facilitate sociological analyses about effectiveness, implementation
and compliance. But that is not the lawyer’s problem – unless the
lawyer has internalized the self-image of the political decision-
maker’s little helper.
The way back to a Kelsenian formalism, a formalism sans peur et

sans reproche is no longer open. The critique of rules and principles
cannot 293 For a famous argument about the dangers in the dilution
of legal formality (and the emergence of a kind of “Khadi justice”) in
complex modern society, cf. Max Weber, On Law in Economy and
Society (ed. with introd. and annot. by Max Rheinstein, New York,
Simon & Schuster, 1954), pp. 305–315.
495

be undone. And even if it could be, there is hardly reason to hope
for its resuscitation. Formal rules are just as capable of coexisting
with injustice as informal principles. There may be a workable
concept of legal validity that is independent from social facts and
moral choices but it is a concept that fails to identify any particular
substance as definitely legal or illegal. Kelsen and Schmitt agreed
that no decision could be automatically inferred from a pre-existing
norm, but that each decision set down a new individual norm, an
obligation that did not exist before.294
Much of the appeal of functional jurisprudence has emerged from a

disappointment with formalism’s failure to fulfill the expectation that
rules and processes would contain ready-made solutions to social
conflict, and the apparent arrogance of a profession that refused to
acknowledge this failure. So it has been swept aside as a petrified
mysticism, unable to assist in the fulfillment of modernity’s great
projects: political justice, efficient and equitable economy,
sustainable development, human rights. By contrast anti-formalism
dressed its professionalism in a culture of dynamism. Why bother
with rules and forms? Did they not support the past over the future,
and did they not do this in an ignoble way, behind a veil of
impartiality? Now it was time to reach beyond rules and the
interminable controversies they occasioned. It was time to realize
legislative purposes, community interests, and to balance the
equities. There was to be an unmediated, perhaps even “authentic”
relationship to social conflict. The professionals should speak directly
to the values, interests, and passions involved – and they could do
this by the technical languages of effectiveness, optimization,
compliance.295
294 Cf. Schmitt, Gesetz und Urteil, pp. 108–119; Hans Kelsen,
Introduction to Problems of Legal Theory. A Translation of the First
Edition of the Reine Rechtslehre or Pure Theory of Law (trans.
Bonnie Litchewski Paulson and Stanley L. Paulson, with an introd. by

Stanley L.
Paulson, Oxford, Clarendon, 1992), pp. 77–89, and for a more
elaborate account, cf. Hans Kelsen, General Theory of Norms (trans.
Michael Hartney, Oxford, Clarendon, 1991), pp. 226–251.
295 The discourse of “compliance” (in contrast to “breach”) is one

technique in the international relations’ struggle against formalism.
The problem with formalism, from an international relations’
perspective, is that it is able to dispose with normative ambiguity
only in formal dispute settlement procedures. Such procedures,
however, do not rank highly within a culture of dynamism. So
“compliance” is defined as a problem of technical management:
conflicting participant interpretations about what might count as
breach are set aside by technical measurements that are able to give
a direct answer to questions about compliance irrespective of
normative disagreements – but of course only under the assumption
that the rule is known independently of such disagreements. The
discourse of compliance – heavily meshed in the language of
American political science – locates this knowledge in the
international relations 496
All such notions appeared in a discussion organized by the

Association of the Bar of New York City on May 2, 1966 on the US
intervention in the Dominican Republic. Among invited speakers
were Professor A. J.
Thomas of the Southern Methodist University, the co-author of a

background paper for the discussion, Professor Adolf A. Berle from
the Columbia Law School, former Assistant Secretary of State, and
Wolfgang Friedmann, also from Columbia. Professors Thomas and
Berle were staunch defenders of the intervention. The infiltration of
the revolution in the Dominican Republic by Cuban-trained
communists constituted a clear and present danger, as President
Johnson had said, to values that the United States projected over
the Western Hemisphere.
They made their arguments largely through deformalized reasoning.
Professor Thomas held that “under basic legal theory . . . a legal rule
can never be explained in terms of itself without reference to its
purpose.”
The purpose of the rule against intervention was to protect “the

liberty and self-determination of a people.” But “[o]nce the
communists control a government, liberty and self-determination are
no longer possible.” Hence, the intervention must have been
justified.296 It was also justified as self-defense against “armed
attack” or “indirect aggression”: if communists had successfully
infiltrated the rebellion, their activities could be considered an armed
attack against the territorial inviolability, the sovereignty and the
independence of the Dominican Republic.”297
There was, however, always also another tack in the arguments of

Professors Thomas and Berle. To the claim that the OAS could not
have been understood to take “enforcement action” in the absence
of a proper authorization under Article 53 (1) of the UN Charter,
Berle responded: “In old common law pleading, ‘the man with the
soundest academy. As “breach” becomes “non-compliance,” “law”
becomes “regime,” and peaceful settlement turns into management,
the culture of dynamism inaugurates political science as a world
tribunal.
296 A. J. Thomas and Ann Van Wynen Thomas, “The Dominican

Republic Crisis 1965.
Legal Aspects,” in The Dominican Republic Crisis, pp. 26–27.
297 Thomas and Thomas, “The Dominican Republic Crisis,” p. 30

and remark by A. J.
Thomas, The Dominican Republic Crisis, pp. 96–97. In this

argument, deformalization accomplishes two tasks that a formal
argument could not accomplish. First, it presumes to know the
purpose of the non-intervention rule in an unmediated fashion,
irrespective of any interpretative disagreement that might exist
between the parties or within legal doctrine about it. Neither are
addressed: the purpose is known, not argued, and projected as part
of the transcendental (and thus universal) condition of the
argument. Second, the dissociation of liberty and communism is
likewise not argued but known, again in an unmediated way,
assumed as universally valid and thus in no need of (formal)
defense.
497
case in the world was thrown out of court because his lawyers had
forgotten to put in the right words of art.’ I suggest that we cannot
leave the rights of peoples, the safety of nations, to that kind of
technical-ity.”298 In other words, as if in an afterthought, perhaps as
an intuitive reflection of the awkwardness of the more formal – yet
completely deformalized – reasoning, the proponents of the
intervention sought to discard the relevance of the legal arguments
altogether. Not without impatience, Berle took the floor, making it
clear that the legal debate was somehow altogether beside the
point: “We here deal seriously with international affairs, where life
and death are at stake and not with interminable Byzantine
legalistics without point or outcome.”299 Later on he added the
rhetorical question, reminiscent of what Schmitt and Morgenthau
had written: “in international crises, do you want action, or do you
want merely words? We can have all manner of delay and debate.
We can have all kinds of reference from this body to that body, to
the Security Council, to the Powers having veto and back again. Is
that international law or international mockery?”300
Faced with such arguments Professor Friedmann confessed he felt “a

little like Alice in Wonderland,” particularly in view of the “incredible
suggestion that the revolution that took place was an act of attack
against the United States, which justified self-defense.” He then took
on the anti-formalist legal theory of his interlocutors. They had
suggested that black and white could not adequately portray the
situation in world politics:
“We all know that many legal situations are open and subject to
different interpretations, but law is ultimately a matter of black and
white, or we should have no business to sit here and profess to be
lawyers . . . I submit we must find an answer in terms of right and
wrong.”301 To the argument made by Mr Berle to think in terms of
action, not words, Friedmann responded: “I think that as a legal
argument this is perilous, because whether we like it or not, law is
based on words, words formulated in statutes, in treaties, in
conventions, in customary law.”302
Now it is true, of course, that the way back to formalism was no

more open to Friedmann in 1966 than it is for us today. If we think
about the debate only in terms of deformalized reasoning vs. formal
rules, we can have no reason to feel sympathy with Friedmann. But
I think many 298 Remark by Berle, The Dominican Republic Crisis,
pp. 109–110.
299 Remark by Berle, The Dominican Republic Crisis, p. 87.
300 Remark by Berle, The Dominican Republic Crisis, p. 107.
301 Remark by Friedmann, The Dominican Republic Crisis, p. 112.
498
lawyers do feel sympathy for him – though they are perhaps

uncertain about how to articulate that sympathy into a professionally
respectable position. The first step in doing that is to realize that of
all the protagonists in the debate, Friedmann – author of the widely
used Legal Theory and Law in Changing Society as well as the
posthumous recipient of the Phillips Prize of the American
Philosophical Society – was the least vulnerable to the argument
about the lack of awareness of the complexity of legal positions.
Opening his remarks by pointing out that “many legal situations are
open and subject to different interpretations,” he wished, of course,
to convey precisely the message that he was not just an impossible
“Byzantine” formalist but well aware of the shades of grey in all legal
argumentation. Nonetheless, in this debate the point of his critique
is directed against the anti-formalist reasoning of Thomas and Berle.
He says: “But there are norms of international law. If we wish to
ignore them, then let us say frankly that international law is of no
concern to us. But don’t let us pretend that we argue in terms of
international law, when in fact we argue in terms of power or of
ideology.” 303 Notice how Friedmann follows Morgenthau’s
traditionalism: law might be relevant or irrelevant but it should not
be argued “in terms of power or ideology.” Himself sometimes
characterized as “realist,” Friedmann finds much less offensive the
setting aside of law from considerations of policy than the pretense
that one’s position of power is also supported by (suspect) legal
arguments.304 This is an argument about the somehow
unacceptable arrogance of the position of Thomas and Berle. Can
that arrogance be more clearly defined? Perhaps what Friedmann
finds objectionable is the nonchalance with which Thomas and Berle
treat his profession, the (to him) self-evident hypocrisy that
accompanied their reasoning and that seemed to fatally undermine
the profession’s faith and integrity. Indeed, it may have seemed to
him that what Thomas and Berle were doing was not part of that
discourse at all.
Thomas and Berle spoke the language of moral universalism – but a

universalism that showed itself as imperialism. They claimed to know
what is good not only for the United States but for the citizens of the
Dominican Republic (and everyone else), too. Because that was the
starting-point (or condition of possibility) of their argument, they
were never open to alternative views. That is what so enraged
Friedmann: the implicit suggestion that the meaning of the rule of
non-intervention or 303 Remark by Friedmann, The Dominican
Republic Crisis, p. 113.
304 Cf. Wolfgang Friedmann, “The Reality of International Law – A

Reappraisal”
(1971), 10 Columbia Journal of Transnational Law, pp. 47–50.
499
the status of communism as aggression were so self-evident as to

require no defense at all, and were projected as conditions of the
debate, not as outcomes of it. Friedmann’s arguments could never
receive a hearing.
They were overruled at the outset by the technical argument about

the nature of the conversation that excluded Friedmann’s
“Byzantine” formalism. Friedmann felt that he was like Alice in
Wonderland because the rules imposed on the debate by Thomas
and Berle barred him from articulating his concerns by laying the
conclusion he wanted to contest as its condition.
I suggest that the opposition between Thomas and Berle on the one
hand, and Friedmann on the other, was not about “deformalized
standards” and “formal rules,” but about two cultures: the culture of
dynamism and what could be called a culture of formalism. Even if
formalism may no longer be open as a jurisprudential doctrine of the
black and white of legal validity (a position perhaps never
represented by anyone), nothing has undermined formalism as a
culture of resistance to power, a social practice of accountability,
openness, and equality whose status cannot be reduced to the
political positions of any one of the parties whose claims are treated
within it. As such, it makes a claim for universality that may be able
to resist the pull towards imperialism. To be sure, we often think of
formalism in terms of Kantian ideas about a (universal) reason – and
in so doing fall into the trap of generalizing a European
particularism: this is the stuff of the civilizing mission. The important
task is to avoid that kind of imperialism while at the same time
continuing the search for something beyond particular interests and
identity politics, or the irreducibility of difference. This is what the
culture of formalism hopes to achieve, and what was at issue in the
debate in New York on May 2, 1966.
The decisive moment at which formalism’s virtue was revealed was

when Thomas and Berle retreated from rationalism to cynicism,
moving from deformalized legal arguments about the purpose of
non-intervention and the status of communism as aggression to
invoking the ultimate irrelevance of law, including, of course, their
own initial positions. Rational imperialism turned out to be a façade
for cynical imperialism. What remained were hermetically sealed-off
(subjective)
“value-systems” whose clash could be resolved only by power.

Deviating views received no treatment because the premises of
Thomas and Berle allowed only the acceptance of their own
conclusions. “Law” had no normative place. It may be used as a
strategic instrument to ensure 500
victory but it has no claim as against their material views and may
be discarded as soon as victory by other means has been assured.
Now this is precisely what a culture of formalism cannot tolerate –

the transformation of the formal into a façade for the material in a
way that denies the value of the formal as such. There is an
extremely important dissonance in the debate. Teasing out its
implications will reveal that at issue was not only the good faith of
the interlocutors or a professional “ethic of civility,”305 even less any
jurisprudential clash. The dissonance had to do with the conditions
of democratic politics and progressive transformation in an era that
had lost its faith in anything universal and, wary of being betrayed,
has become accustomed to interpreting every potential universal as
a disguised particular. Where Thomas and Berle were playing a game
of power between firmly delimited political positions, Friedmann was
trying to keep open the possibility of universal community, as
mediated by his formalism. Thomas and Berle did not simply happen
to have another substantive position from Friedmann’s: the
dissonance between their views related to how they saw the
conditions of the debate. Thomas and Berle saw politics as a clash of
incompatible particularities – “identity politics,” in a word, while
Friedmann kept open the space for something beyond the merely
particular.
The culture of formalism represented by Friedmann may be

characterized in a familiar way as a practice that builds on formal
arguments that are available to all under conditions of equality. It
seeks to persuade the protagonists (lawyers, decision-makers) to
take a momentary distance from their preferences and to enter a
terrain where these preferences should be justified, instead of taken
for granted, by reference to standards that are independent from
their particular positions or interests. Members of such a culture
might be more interested in the generality of their arguments, their
repercussions beyond the actual case, than in how that case will
finally be resolved. Defenders of such culture may take their cue
from Kant and insist on the need to base the outcome on some
general principle, and frequently have a rather obsessive-looking
interest in the procedural conditions imposed on the debate. They do
this so as to distance the protagonists from their preferences and
teach them openness to what others have to say. To be sure, the
culture of formalism accepts that the translation of every voice to
the professional 305 An interesting defense of the Rule of Law in
terms of an ethic of civility is made by Christine Synopwich, “Utopia
and the Rule of Law,” in Dyzenhaus, Recrafting the Rule of Law, pp.
178–195.
501
idiolect so as to give it a fair hearing may not always succeed. But it

insists that absent the possibility of building social life on
unmediated love or universal reason, persuading people to bracket
their own sensibilities and learn openness for others, is not
worthless.
All of this is familiar language. And it must be immediately granted

that like any culture, formalism may often have become bureaucratic
and worked as a smokescreen for apathy and disinterest. It may
frequently have failed to live up to its promises and it has certainly
sometimes been enlisted to support dubious or outright abominable
causes.
None of this, however, abolishes the value of the political message

that its rituals, traditions, and documents express sometimes more,
sometimes less adequately. What is this message? To put it simply,
and, I fear, through a banality it may not deserve, the message is
that there must be limits to the exercise of power, that those who
are in positions of strength must be accountable and that those who
are weak must be heard and protected, and that when professional
men and women engage in an argument about what is lawful and
what is not, they are engaged in a politics that imagines the
possibility of a community overriding particular alliances and
preferences and allowing a meaningful distinction between lawful
constraint and the application of naked power.
Something like that was part of the political faith of the men of 1873
who projected international law as a professional practice to give

effect to their complex of liberal rationalism and Victorian moral
verities. It was involved in the concept of the Rechtsstaat as it was
espoused by the (often Jewish) professors in Germany and Austria at
the turn of the century that would hold in check the autocratic
tendencies and disruptive forces of their fragile societies. It was the
ideal of those who spoke of the rights of individuals – but also of
those who defended a right of self-determination of human groups
under a protective statehood. It helped to produce all the federalist
proposals, blueprints for peace, disarmament and the public,
international administration of the colonies in the League of Nations.
And it returned from the Second World War as the unarticulated
premise of a legal pragmatism that invoked “the development of
international law by the international court,” looked towards
increased codification, the functional activities of international
organizations, human rights, and the narrowing down of the
domesticjurisdic-tion of States.
A culture of formalism – the story of international law from Rolin to

Friedmann does have coherence. Of course, there have been twists
and turns, large disappointments and small victories, starting-points
that 502
have led nowhere as well as results produced by external causes.

There has been stupidity, unwarranted ambition, careerism, and
much hypocrisy. But there has also been some political wisdom, and
a little courage, times when faith was lost, but also stubborn refusal
to admit defeat. Like any culture, formalism has oscillated
ambivalently between a bright and a dark side: activism, belief in
progress, rational administration on the one hand, careerism,
indifference, advancement of special interest on the other. It has
never been terribly sophisticated in terms of philosophical defenses
and often outright disappointing when it has tried to find them. But
it does have coherence and a distinct feel that we recognize as we
read the debates in New York in May 1966. For those who feel
sympathy towards Friedmann, but find it hard to express why they
feel so, I suggest that the sympathy is directed towards the culture
of formalism that is so conspicuously presented in his arguments.
There are two important objections to such a positive appraisal.
First, it may seem that it merely rehearses a standard liberal defense
of the Rule of Law – and ignores the extent to which the Rule of Law
has been undermined by the realist critique that every legal position
is a “politics of law.” Second, it may also, or alternatively, appear that
to side with Friedmann is to accept a conservatism that privileges
the policy of the status quo over the interests that Thomas and Berle
seek to advance, a policy equally particularist as theirs, though
opposite. In other words, it may be objected that what I have called
the “culture of formalism” is merely another expression for a rather
worn-out form of legalism that betrays a systematic conservatism.
I do not think so. There is room for a culture of formalism even after
the critique of rules has done its work. It is precisely because the
critique is correct that formalism cannot be permanently associated
with any of the substantive outcomes it may have coexisted with. Of
course, formalism may occasionally have supported good,
occasionally evil policies. It cannot replace political commitment or
responsibility. Formalists may sometimes have claimed that their
policies were “good” or “legitimate” because they were produced or
supported by formalism. In such cases they made a monster of it.
Such defenders ignore the critique of rules, and the fact that they
could have acted otherwise, too. To assess the culture of formalism
by reference to its substantive alignments is, as Kelsen well knew, to
mix up categories that should be held distinct. A bad policy is (and
should be criticized as) bad as policy and not because of whether or
not it was supported by impeccable legal arguments. The
emancipatory core, and the universalism of the culture of formalism,
503
lies precisely in its resistance to subsumption under particularist

causes.
But the culture of formalism cannot be reduced to a jurisprudential
doctrine, either. To assume that Friedmann’s position in the debate
on May 2, 1966 may be translated into a defense of legal positivism
or a sociological generalization about the effects of the Rule of Law
is, again, to remain blind to the dissonance in the arguments: the
closed world of fixed identities (we vs. the communists) in Thomas
and Berle, Friedmann’s openness to the possibility of community
between different-thinking particularities. Alvarez, Le Fur, Kaufmann,
Scelle, Lauterpacht, Morgenthau, and many other lawyers did dress
their reformism in jurisprudential positions, suggesting that
international problems could be resolved only after the adoption of
one or another theory as the “basis” for one’s legal practice. This
was academic hubris.
As I have argued elsewhere, resolutions to social problems cannot

be derived from legal theories.306 Theories may make us see new
things and articulate experiences more sharply, and they may make
us better practitioners. But they do not, and can not, contain ready-
made blueprints of the good society. As Schmitt and Morgenthau
correctly pointed out, international lawyers (among other liberals)
have tried to do away with the irreducibly conflictual character of
politics by presuming that the good society can be derived from
ethically, sociologically, or scientifically constructed laws. But the fact
that they cannot be so derived is an essential condition of
democratic politics.
So I come finally to the value of the culture of formalism in trying to

account for the possibility of democratic politics in an era deeply
suspicious both of universalist ideologies and the bureaucratic
management of social conflict by bargaining between interest
groups. Between the Scylla of Empire and the Charybdis of
fragmentation, the culture of formalism resists reduction into
substantive policy, whether imperial or particular. It represents the
possibility of the universal (as Kant well knew) but it does this by
remaining “empty,” a negative instead of a positive datum, and thus
avoids the danger of imperialism. Instead, it tries to induce every
particularity to bring about the universality hidden in it.
Let me explain. We have become accustomed to thinking of the

(postmodern) political world in terms of separate identities seeking
recognition. No particular identity, however, can make a claim
without doing this in universal terms, albeit, as Ernesto Laclau has
shown, in terms that 306 Martti Koskenniemi, “Letter to the Editors
of the Symposium” (1999), 93 AJIL, pp.
351–361.
504
are necessarily negative, instead of positive, in terms of a lack – for

instance lack of voice, lack of resources, lack of education, etc.307
To make itself heard, the particular must apply to something that is
universal: perhaps a right of self-determination, fair distribution of
resources, equality of opportunity, and so on. No group – especially
no group in a vulnerable position – can claim a right merely in terms
of its separate
“value-system.” But even Thomas and Berle were invoking

something other than the US constitution, namely the (universal)
right to security and assistance against armed aggression. The
particular and the universal are related through paradox: the
articulation of the particular can be carried out only by reaching
towards the universal. In this way, the universal also remains
inseparable from the particular claims from which it emanates: no
automatic application to others – imperialism – is implied.
History – and European history, in particular – is full of examples of

cases where a particular actor has claimed to take on the body of
that which is universal. The Christian church claimed this in the
Middle Ages, the French nation in 1789, “European civilization” at
the end of the nineteenth century, the working class and the market
in the twentieth century. Each of them was accompanied by a law
that claimed universality – and each fell, predictably, when the
asserted universality revealed itself as disguised particularity. This
experience has fundamentally affected today’s hopes of political
transformation. On the one hand, every norm or institution appears
always as only partial, subjective, ideological – with the result,
finally, that none of them is any longer vulnerable to critique. This
has been a part of the paralysis of democratic politics. If there is no
truth, there is no ideology. Politics becomes only a clash of
incommensurate “value-systems” none of which can be rationally
preferred. No distinction can be made between the discourse of the
oppressor and the discourse of the oppressed. Only a reversal of
power is possible but never the form of that power itself. The
decolonized will use terror against the master that had terrorized it
in the past. Positions are reversed but terror remains.308
This image of modern politics fails to account for the dependence of

every particularity on a universality that defines it, and constitutes
the ground from which it may experience itself as unfulfilled, devoid
of some aspect without which it cannot fully realize itself. Through
attention to 307 Ernesto Laclau, “Universalism, Particularism and the
Question of Identity,” and
“Subject of Politics, Politics of Subject,” in Emancipation(s) (London,

Verso, 1996), pp.
20–35, 48–51.
308 Laclau, “Universalism,” pp. 29–32.
505
that “lack,” that absence of what a particular feels it should possess

in order to be fully itself, focus is directed to its universal aspect: its
alleged right to self-determination, a fair distribution of resources,
etc. By directing attention to that universality, the particular is
opened up, and its communal lien, its shared property or value with
other particularities, is revealed. But unlike in imperialism, it is not
opened by a positive principle but a negative one: what is it that we
lack? The ability to articulate this lack, and to do this in universal
terms, is what the culture of formalism provides. Such articulation
remains always relative to the particularity from which it emerges,
and vulnerable to critique as such. Universality here is neither a fixed
principle nor a process but a horizon of possibility that opens up the
particular identities in the very process where they make their claims
of identity.309 This is why a culture of formalism that insists on
articulation in terms of a universal principle, such as Friedmann’s,
when assessed against that of his opponents, is also premised on a
need for democracy’s constant expansion. Instead of repeating the
structure of power by accepting this or that particularity’s subjective
value – through which the other would then be coerced – the very
structure of power is now put in question by questioning the
universality that it takes for granted. The decolonized does not
merely take on the instruments of its colonial master, and turn those
against it, but seeks to articulate the lack of security it experienced
under colonial rule as the universal violation committed by its former
ruler and make the eradication of that lack the principle of its future
rule.
In other words, the political dissonance in the arguments between

Thomas and Berle on the one hand, and Friedmann on the other,
had to do with the possibility of a non-imperialist universality,
together with a critique of the particular way universality had been
defined in the arguments of Thomas and Berle. Their universalism
was one of complete difference: the communist as the aggressor
became the object of full exclusion: it was us against them.
Friedmann’s formalism would have required an open articulation of
this principle and thus its subjection to critique that would have
integrated Thomas and Berle in a single universe with the
communists – thus undermining the imperialist effect of their 309 To
the objection that such notion of the universal reproduces Kant’s
regulative ideal and invites cynicism as the objective can never be
realized, Laclau retorts that the actual aims remain always all that
the actors fight for; here universality is incorporated as an aspect of
their aims, not a good beyond it, “Structure, History and the
Political,” in Judith Butler, Ernesto Laclau, and Slavoj Z ˇ izěk,
Contingency, Hegemony, Universality. Contemporary Dialogues on
the Left (London, Verso, 2000), p. 196.
506
dichotomous world. Against the full closure of the American

professors Friedmann was invoking the possibility of an open area of
politics – the possibility that the principle of legal community
projected by international law be articulated, reaffirmed, or perhaps
redefined in the course of the debate. This may seem a rather
strange way of putting a familiar idea: the Rule of Law. But it is not.
The Rule of Law hopes to fix the universal in a particular, positive
space (a law, a moral or procedural principle, an institution). A
culture of formalism resists such fixation. For any such connection
will make the formal appear merely a surface for something
substantive or procedural, and thus destroys it. In this sense
universality (and universal community) is written into the culture of
formalism as an idea (or horizon), unattainable but still necessary.
That it may appear as a culture of resistance comes from its
suspicion of being harnessed for substantive causes that have only
rendered themselves invisible by becoming internalized, or “second
nature.” To rid itself of its suspicion, it must remain open for other
voices, other expressions of “lack” (or injustice) that, when given
standing under it, redefine the scope of its universality. In the case
of the Dominican Republic, this might have involved looking into the
claims of the local factions, giving effect to the results of the
election, and examining the meaning of “communism” in the
conditions of social deprivation that had existed in the country. Of
course, the result of the argument would have been uncertain. It
would probably have polarized the debate along the same lines. But
the point is not in the immediate result but in the formal standing
which the aspirations of universality inscribed in the claims of the
various particular groups would have received. International law
would not have been reduced into “anti-communism” but would
have recognized the legitimacy of the claims made even by
“communists” inasmuch as these claims would have presumed
universal validity.
What this means, also, is that a culture of formalism is recognizable,

or indeed has identity, only in terms of its opposition to something
that it is not. Here I have defined it in contrast to the culture of
dynamism represented by the American anti-formalists. But it has no
essence, and its techniques are constantly redefined in the context
of political struggle: what the particular lacks cannot be decided
once and for all.310 If the claims of women, for instance, cannot be
heard in a public law oriented system of representation, then that
system has become an aspect of the process of silencing. However
formal its language may appear, it 310 Laclau, “Subject of Politics,”
pp. 56–60.
507
is betrayed as particularist, and substantive, in its remaining closed

to that particular call for recognition of identity. But it is equally
closed if it fixates on a particular understanding of “woman,” or
gender, and fails to articulate differences within those categories.
And so on. In this way, formalism projects the universal community
as a standard – but always as an unachieved one. The number or
nature of claims of identity – and thus articulations of universal lack
– remain undefined and changing.
Thus every decision process with an aspiration to inclusiveness must
constantly negotiate its own boundaries as it is challenged by new
claims or surrounded by new silences. Yet because it is unachieved,
it can sustain (radical) democracy and political progress, and resist
accepting as universal the claims it has done most to recognize in
the past.
As a culture, formalism is certainly not a substance or a theory, but

strad-dles such frontiers as well as other dichotomies such as the
social and the individual, constraint and freedom, even past and
future. Although every (legal) decision is constitutive, and not just a
reproduction of some underlying structure, each decision also acts
as a kind of surface on which the horizon of universality becomes
visible. Formalism’s utopian moment lies in its resistance towards
being reduced to structure (which is anyway indeterminate) or pure
subjectivity (Schmitt’s “decision”), and in its identifying itself as a
practice of decision-making that persists in time and through which
the aspirations of self-determining communities remain alive – even
as (or perhaps precisely because) the universal they embody
remains only a “horizon.”311 By contrast, anti-formalism is
reductionist. In seeing law as determined by external objectives,
structures or necessities, or making it seem the infinitely flexible
instrument of the political decision-maker, it kills the possibility of
politics, and of freedom, that lies in the gap between the two.
As with any culture, more and less authentic representations appear,

superficial and “deep” variants, together with occasional cases of
fraud, the appropriation of outward symbols without internal
conviction, for purposes of manipulation. It was perhaps this special
violation that explains Friedmann’s anxiety at the meeting on May 2,
1966. For fraud here was the ultimate transgression, the cynicism of
letting the ideal of 311 Laclau speaks of a “chain of equivalences”:
while each decision or event remains particular, non-identical with
others, the structure of political struggle may throw them on the
same side of a constitutive antagonism. In such a case they become,
irrespective of their differences, individual symbols or carriers of
what are universal claims, “Subject of Politics,” pp. 56–57, 63–65.
508
universality fall the moment when something about the realization of

one’s particular preferences is obstructed by it: “if this is to be the
law of nations, then I do not see how I can continue to teach
international law at Columbia, or anywhere else.”312
509
Epilogue
There once was a professional gentleman, a barrister who divided

his leisure between educating his two sons and furthering the
welfare of his people. As he grew older, he saw progress divide its
fruit very unevenly around himself. On the one hand, it offered
marvellous opportunities for political liberation and personal
autonomy; on the other hand it undermined familiar truths and
traditions. The virtues of character that had seemed such reliable
guides for personal and public lives – charity, reasonableness,
courage in the face of adversity – were increasingly ridiculed as the
symbols of the corruption of an ancient world.
He decided to learn philosophy and the new sciences of society so as

to understand what tradition and experience had failed to teach him.
Why were people prepared to go to such lengths in defense of
extreme views on matters that had earlier been thought to have
been regulated by reason and good sense? He did not precisely wish
to become a philosopher or a sociologist but hoped to find
intellectual reassurance and perhaps a more efficient platform from
which to continue his civilizing activities.
As the sons grew up, they learned that none of this had really
worked.
The father had to quit his welfare activities, partly because they
seemed to have no effect on his clients who were either joining
extremist causes or sinking deeper into apathy, partly because they
threatened his own livelihood. In an increasingly difficult economic
situation, he retired a poor man. The sons loved their father dearly
but reacted in opposite ways to his misfortune. One promised him
that he would bring the father’s project to a conclusion. The good
son shared the father’s ideals and would teach himself to avoid his
mistakes so that he could one day come home with proof that the
father had been right all along. Then they would sit down and
everything would be well, as it had been. The 510
Epilogue
rebel son loved his father equally. But because it broke his heart to
think how unjustly the world had treated his father, he reacted by
rejection.
“You failed because you were wrong,” he shouted just before he

slammed the door behind him.
Both sons had successful, even very successful careers, and many
people admired them and tried to learn from them although what
they taught were the exact opposites. But it often seemed that they
were followed less because of the depth of their teaching than their
ability to give powerful expression to something that many people
felt intuitively right though somehow always only partially
convincing. As they were saying the opposite things, well, then
perhaps it was not so tragic that the listeners were believing those
incompatible things as well. In the end, it was not what the two
said, but the strength of their commitment that mattered most to
their acolytes: how few people nowadays really say that in the end
all that matters is either love and charity or the lust for power!
“Now we of course know that it is both love and power because the
world is a dreadfully complex place – but isn’t it nice to know that
there are some who still commit their lives to a religion of love or a
religion of power as if there still existed clear alternatives to choose
from?”
An empty space separates the end of the foregoing chapters from

today.
What happened to international law after 1960? The Institut de droit

international continued to meet but with little sense that its
members might represent the juridical conscience of the civilized
world or that anything about international progress might depend on
what took place in its closed sessions. The idea of a scientific
restatement to guide the development of international relations had
never been terribly successful. By 1960, the very languages of
conscience–consciousness and civilization had become either
inappropriate or meaningless as the articulation of the sense of legal
activity.
At that time, the profession did not yet feel the implications of this
fact. Many of the last representatives of international law’s heroic
period left the scene (Kaufmann retired in 1958, Alvarez and
Lauterpacht died in 1960, Scelle in 1961, Morgenthau had already
quit writing about international law in 1940) but their presence was
still concretely felt.
The vision of a public law oriented federalism as an instrument for

liberal–humanitarian reform still seemed to bear a liberating
potential.
Speaking in his capacity as the President of the Institut to his

colleagues in Brussels in 1963, Henri Rolin (1891–1973), the son of
AlbéricRolin, nephew of Gustave Rolin-Jaequemyns, identified four
factors that were 511

now having a significant effect on his Institute as well as the
profession more generally: technological progress, the expansion of
international organization, the Cold War, and decolonization. The first
two were progressive developments that gave international lawyers
much to do in the management of the world order. The harnessing
of technology by public international institutions opened encouraging
prospects for the control and direction of social change. On the other
hand, the Cold War provided a convenient explanation for why a full
realization of the internationalist hopes was still impossible. If the
Charter had not become an effective constitution of mankind, this
must have resulted from the antagonism between the Great Powers:
the Rule of Law would have to wait for the coming of a more
enlightened age. Meanwhile, the way of peaceful compromise would
have to be followed. But the most significant fact of the surrounding
political reality was decolonization which Rolin interpreted in
accordance with the profession’s universalist hopes.
The expansion of sovereignty and the increasing access to resources

for the world’s population would bring international law’s expansion
to a conclusion. In this regard, Rolin observed, there was still much
to do.
The developed States had not taken seriously their responsibility

towards the poor countries of the Third World. And he ended his talk
by proposing the inclusion of a devoir d’assistance in the Institute’s
declaration of rights and duties from 1929.1
Reading this talk from the perspective of today, our assessment is

different. Technology is no longer seen predominantly as a promise
but often rather a threat. The ability of public international
organizations to manage technological change has been very limited.
Formal decolonization did not turn out to create a just international
system. Initiatives within the United Nations, such as the New
International Economic Order, failed to bring about a noticeable
transformation in the global distribution of resources. On the
contrary, when the regulative objectives of the 1982 UN Convention
on the Law of the Sea were watered down in a 1994 implementation
agreement, this was done under the language of “securing the
universality of the Convention” that in fact underwrote the Western
policy of creating a cost-effective market for private enterprise in the
deep seabed.2 Receiving the benefit of sove-1 “Discours inaugural
de M. Henri Rolin, Président de l’Institut” (1963), 50/II Annuaire IDI,
pp. 38–47 .
2 Cf. Martti Koskenniemi and Marja Lehto, “The Privilege of

Universality: International Law, Economic Ideology, and Seabed
Resources” (1996), 65 Nordic Journal of International Law, pp. 533–
555.
512
Epilogue
reignty did not do away with conflict in the Third World, though it
may have localized much of it as civil war. The end of the Cold War
did bring about a significant expansion of the electoral process. Yet,
today’s democratic melancholy suggests that progressive
transformation requires more than the export of a determined set of
public institutions – but just what this might require and what role
international law might play in the future remains obscure. Whatever
globalization may mean, it has certainly not strengthened
international public policy. Nothing may have undermined the need
for a middle ground between the Empire and the tribe, capitalism
and identity politics. But whether it is possible to articulate and
uphold such a space, without repeating the tired antics of statehood,
the Rule of Law, and a State-centered international system remains
an open question.
In 1963, international lawyers could still think the civilizing project

valid as such, partly under way, partly obstructed by external causes.
Like Henri Rolin, they would call forth a change of vocabulary in this
respect, but at the same time reaffirm their faith in the public law
institutions that provided the context of their professional activity. It
is much less clear whether such faith can be sustained today. The
acceptance by the developed States of a legal obligation to eradicate
poverty in the Third World is no longer seriously expected. Indeed,
the very idea that economic injustice might be usefully dealt with by
States, and public law, may now seem altogether old-fashioned, and
politically ambivalent.
Legal internationalism always hovered insecurely between

cosmopolitan humanism and imperial apology, revealing itself as
either one or the other the moment it was enlisted to support a
particular institutional or normative arrangement. In the conditions
of the Cold War, it may still have been possible to think that this
resulted from the political interpretations that the protagonists in
that struggle projected on to the law.
Today, it has become much harder to believe that there is a

rationality embedded in international law that is independent from
the political perspectives from which it is seen. On the contrary, a
Security Council sanctions regime or a multilateral trade
arrangement within the World Trade Organization appear as
completely legal and completely political at the same time, rather
like Wittgenstein’s image of the duck–rabbit. If there is no
perspective-independent meaning to public law institutions and
norms, what then becomes of international law’s universal, liberating
promise?
From the outside, little may have changed between 1960 and 2000.
Choosing international law at law school may still seem more than a
513
banal career choice among others. It still implies a commitment to a

mild cosmopolitan progressivism: human rights, protection of the
environment, peaceful settlement, preference for the universal over
the particular, integration over sovereignty. That the choice is
commonly described as commitment highlights its existential
character, its being about more than cold calculation of personal gain
or the interests of one’s clan.
An aspect of heroism may be involved: there will be difficulties, even

risk in the way ahead, and no guarantee of final victory. Courage
against adversity, speaking truth to power – such images still make
up a large chunk of the profession’s psychological imagery. However
subdued the sense of commitment to a universal normative system
may appear in the daily activity of legal professionals, it is hard to
think how their routines could exist for a second without some such
background explanation bridging the gap between recurrent reform
projects and blueprints about “governance” and control, and the
reality of picking up the per diem from the latest caucus meeting in
Geneva or New York.
Yet commitment is fragile and hard to sustain.3 Although

international governance through public law institutions continues to
occupy the professional imagination, little has been done to respond
to the challenges of contingency and the market. Invoking the name
of Kant may go some way towards a justifying explanation but
perhaps more by way of a cultural vignette than a serious piece of
argument. Faith in progressive internationalism may have become
impossible to articulate in an intellectually respectable fashion.
Power and law have been entangled in much more complex
relationships than the conventional imagery would allow: if collective
security in the League failed because it lacked the support of power,
the United Nations seems to have suffered from its becoming
indistinguishable from power. Critique of sovereignty – as central to
the profession in 1873, 1923, or 1963 as now – is not proof of the
beneficial nature of one’s proposed politics. Intervention may still
emerge from solidarity and superiority and it is hard to tell which
alternative provides the better frame of interpretation. As the debate
on Kosovo has suggested, there may be very little law in that
direction anyway. And the doubt must remain that the abstract
subject celebrated as the carrier of universal human rights is but a
fabrication of the disciplinary techniques of Western
“governmentality” whose only reality lies 3 I have discussed this
further in Martti Koskenniemi, “Between Commitment and Cynicism.
Outline of a Theory of International Law as Practice,” in Collection of
Essays of Legal Advisers of States, Legal Advisers of International
Organizations and Practitioners in the Field of International Law
(New York, United Nations, 1999), pp. 495–523.
514
Epilogue
in the imposition on social relations of a particular structure of

domination. Universality still seems an essential part of progressive
thought –
but it also implies an imperial logic of identity: I will accept you, but
only on the condition that I may think of you as I think of myself.
But recognition of particularity may be an act of condescension, and
at worst a prelude for rejection. Between the arrogance of
universality and the indifference of particularity, what else is there
apart from the civilized manners of gentle spirits?
What is the meaning of the esprit d’internationalité today? The

verities of the men of 1873 did not survive the critiques developed
by the modernity they helped to inaugurate. But neither did the
Ersatz moralities of philosophy or sociology in the 1920s or 1930s.
The vision of a single social space of “the international” has been
replaced by a fragmented, or kaleidoscopic understanding of the
world where the new configura-tions of space and time have
completely mixed up what is particular and what universal. Today,
the question is not whether to be cosmopolitan or not but what kind
of cosmopolis one should prefer, against what particularity should
one be poised today. Should there be free trade – or should some
values be imagined as cultural in a deep sense, without expression
in international law’s political economy? Or how should one think of
the global regime of cyberspace: in the struggle between Nokia and
Microsoft, on the one hand, to protect commercial confidentiality,
and the CIA and the Pentagon, on the other, to receive access codes
for the pursuit of international criminality, which side should
international lawyers take?
Because no position or policy may be identified with the international

spirit as such, and even if it were, there would be no guarantee of
its beneficiality, taking on the “international” as the space for one’s
commitment is meaningless – apart from the sense in which it may
provide a political identification whose significance comes from its
opposition to some contrasting pattern in the patchwork of political
antagonism: I am for trade, you are for the environment. Yet
environmental and trade regulators may find themselves aligned
against the deregulators of the World Bank or a powerful
department of trade. If particularity is the only universal
characteristic we have, then every universal idea will reveal itself as
particularism. None of this is to say that international law could not
remain useful as a diplomatic language and an honorable aspect of
professional education at law schools. But its self-understanding
must now be permanently affected by the ease with which it is
relativized into the rituals of a tribe living somewhere between First
and 515
Second Avenues, around 45th and 50th street, New York, and
compelled to negotiate with other tribes in a terrain that remains a
no-man’s land.
Like the men of 1873, international lawyers today stress the

pragmatic functions of their profession. Blueprints for world order
have been taken over by technical sub-disciplines and
specializations. Environmental or human rights regimes are created
and the legal aspects of the European Union’s foreign and security
policy debated without the need for an overarching theory. Writing
commentary on the Statute of the International Criminal Court or a
critique of the latest round of talks at the World Trade Organization
offer platforms for political engagement and the demonstration of
technical skill. Debates about institutional reform and
reconceptualization of, say, Security Council decision-making as
enforcement of human rights and democracy sustain back-up
narratives that link counseling or article-writing to larger visions,
grasped by private intuition rather than public discourse. Where
Rolin, Scelle, or Lauterpacht derived their pragmatism from a
commitment to international law as part of the cosmopolitan reason,
and projected it as always already containing the project of their
ideal society, and only a shadow of a doubt blocked the optimism of
the 1960s, today’s lawyers are not entitled to wallow in such
reveries. This may sound all to the good – but there is a paradox
here. In the absence of an overarching standpoint, legal technique
will reveal itself as more evidently political than ever before.
But precisely at this moment it has lost the ability to articulate its
politics: when everything is politics, Schmitt wrote, nothing is.
Without the ability to articulate political visions and critiques,
international law becomes pragmatism all the way down, an all-
encompassing internaliza-tion, symbol, and reaffirmation of power.
But maybe the time of synthesis is not yet here. Maybe it is now a
time to listen, and to learn. And in the process one could do worse
than remember that however one imagines what one is doing, and
how that relates to other people’s being, history has put the
international lawyer in a tradition that has thought of itself as the
“organ of the legal conscience of the civilized world.” I still think
international law cannot be reconceived all the time, and that doing
it is at least as important as thinking about doing it. But I agree that
there must be a standpoint for critique that is not just an
idiosyncratic “decision” by the occasional Weberian jurist but can be
articulated by reference to the ideal of universal emancipation,
peace, and social progress. It is not enough to isolate these as
“regulative ideals” – an all-too-convenient justification for
complacency. International law’s energy and hope lies in its ability to
516
Epilogue
articulate existing transformative commitment in the language of

rights and duties and thereby to give voice to those who are
otherwise routinely excluded. This can not mean fixing the law’s
content permanently to definite institutional or normative structures.
It is a formal ideal that seeks community by understanding that
every community is based on an exclusion and that therefore it must
be a part of an acceptable community’s self-definition that it
constantly negotiates that exclusion, widens its horizon.
517
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Index
absolutism, 18, 22–23
arbitration, 212–213, 237, 440, 443–444

abuse of rights, 311, 402, 404
Archiv des öffentlichen Rechts, 167
Abushiri Rebellion, 147
Arendt, Hannah, 430, 465
Act of Algeçiras, 155
Arnaud, André-Jean, 289
Action française, 316, 317
Arnold, Matthew, 88
Adam, Robert, 128
Arntz, Egide, 122, 143
Africa, 101, 111, 116–178
Aron, Raymond, 347, 468
aggression, 340, 378, 381, 419, 425
Aryan law, 59
Ago, Roberto, 351
Aryan race, 77, 103–104
Alabama arbitration, 40, 62, 454
Asser, Tobias, 12, 13, 17, 57, 66
Alain (Emile Chartier), 329
assimilation, 372–374, 375, 411

Algeria, 110, 142
Association for International Conciliation
Allied Conference of Ambassadors, 328
(German), 218
Allied Supreme Council, 171
Association internationale Africain (AIA), 121, 136, Alvarez,

Alejandro, 302–305, 308–309, 310,
145
311, 313, 314, 322, 330, 342, 349, 511
Association internationale du Congo (AIC) , 136, 156
American Society of International Law, 390,
Association internationale pour le progrès des sciences 466, 485
sociales, 12
analogy, 364, 374–375
Austin, John, 34, 46, 48, 92
anarchism, 69
Austro-German Customs Union case, 222
Anderson, Percy, 118
authoritarianism, 269, 308–309, 313–314,
Anghie, Antony, 174

325–326
Anglo-Iranian Oil Company case, 400
Annam, 117
balance of power, 23, 29, 189, 192, 311–312,
annexation
420, 437, 440, 458, 460, 471, 473
symbolic, as basis of title, 137
Bar, Ludwig von, 216
Annuaire français de droit international, 348
Barrès, Maurice, 269, 308, 320
Annual Digest of Public International Law Cases Basdevant, Jules,

312–313
(later International Law Reports), 375
Bechuanaland, 125
anthropology, 101, 455
Benda, Julien, 317–318, 319, 415
anti-formalism, 52, 467, 475–476, 479–480,
Benjamin, Walter, 392
482–489, 508
Bentham, Jeremy, 14
in Alvarez, 304–305
Bergbohm, Carl, 27, 185–186, 189
in Scelle and Le Fur, 341–342
Bergson, Henri, 318
in Schmitt and Morgenthau, 459–465
Berle, Adolf, 497–501
in post-war French law, 349
Berlin Act (1885), 62, 65, 125, 126, 416
antisemitism, 104, 199, 359, 369–371, 407,
Berlin Conference (1884–1885), 106, 107,
422, 424, 446–447, 450
117, 121–127, 149, 272
559
Index
Bernard, Montague, 33
Catholicism, 37, 91, 247, 315, 322, 323, 326,
Berthélemy, Henri, 317
334, 339, 351, 425
Bildung, 85
Cathrein, Viktor, 229–231

biology, 327–331, 339
Cattier, Félicien, 158–159, 160
Bismarck, 64, 91, 109, 110, 118, 123, 189,
Cauchy, Eugène, 275–276
194, 207, 256
Charter of the United Nations
Bloch, Ernst, 486
Article 2(7), 394
Blum, Léon, 313
Article 55, 394
Bluntschli, Johann Caspar, 40, 46–47, 48, 49,
chartered companies, 109, 117–120, 143–147
52, 53, 58, 68–69, 72, 80–81, 84–85,
Chayes, Abram, 478
86–87, 92, 127, 128, 146, 188, 222, 280
China, 132, 134, 414
and correspondence with von Moltke, 84–85
chronique de droit international, 17
and nationalism, 64
Churchill, Winston, 439

and organic theory, 46–47, 50–51, 80–81
civil law, 280
and the founding of the Institut, 42–43, 45
civilization, 53, 55, 56, 75–76, 76–88,
as politician, 90–91
102–103, 131–132, 132–136, 223,
as proponent of “Aryan Law,” 59, 103–104
228–229, 416–417, 500
Bodin, Jean, 258
Clausewitz, Karl, 83
Boer War, 64–65
Clemenceau, Georges, 137, 285, 293
Bonfils, Henri, 73, 280, 291
Cobden, Richard, 83
Bonnecase, Julien, 318
Code Civil, 30, 43, 275, 282, 289
Bouglé, Charles, 329
codification, 42–43, 45, 47, 307, 306–397
Bourgeois, Léon, 153, 267, 284–291, 300,
Cold War, 338, 438, 465, 469, 512, 513

310, 314, 318, 330, 333, 346
collective security, 358, 377–379, 381, 417, 487
Brazza, Pierre Savorgnan de, 107, 136–137,
collectivism, 69
143, 145, 272
French 268–269, 289, 298–302
Brentano, Lujo, 234
colonialism, 9, 62, 74, 98–178, 359–360
Briand, Aristide, 342, 343, 347
Belgian 168
Brierly, James, 172–173, 390
British 108, 111–112
Bristler, Edouard (John H. Herz), 256
French 110, 117, 137, 142, 164, 167–168,
British Association for the Promotion of Social
271, 272–274, 279, 291
Science, 59, 72
German 109, 110, 118, 119–120, 137, 145,
British North Borneo Company, 117, 122
146
British South Africa Company (BSAC), 120
internationalization of, 121–126, 166–178
British Year Book of International Law, 375
Italian 168
Brockdorff-Rantzau, Ulrich, 236, 293
Commission on Human Rights, 394
Brougham, (Lord) Henry, 28
Comité des Etudes du Haut-Congo, 136, 143
Brunet, René, 270
communism, 67, 68, 318, 329, 339–340, 341,
Bruns, Viktor, 233
413, 469,497, 480, 500–507
Bull, Hedley, 473
comparative law, 13
Bulmerincq, August, 102–103
Comparative Method, 101, 103
Bund neues Vaterland, 218
competencies, theory of, 332–333, 335
Burritt, Elihu, 40
Comte, Auguste, 23, 29, 267, 268, 301, 336, 347

Burton, Richard, 147
Concept of the Political, The (Der Begriff des
Bülow, Bernard, 212
Politischen), 436, 440, 442
concrete
Calvo, Carlos, 40
order, 416–417, 440, 465
Canning, George, 384
reality (theory of), 182, 251–255
Canon law, 22
conflict of laws, 66
“Cape to Cairo plan,” 152, 153
Congo
capitalism, 60
Independent State of, 62 108, 121,
Carr, Edwin Hallett, 361, 409, 410, 473
155–166, 177, 416
Carré de Malberg, Raymond, 269
King Léopold’s rule over, 155–166,
Casablanca case, 287

transfer to Belgium, 164–165, 416
Casement, Roger, 158
Congo Reform Association, 158, 164
Castonnet des Fossés, Henri, 167
Congress of Vienna (1815), 21, 28
Catellani, Enrico, 98–99, 168
conquest, 137
560
Index
Conrad, Joseph, 155
Delpech, Joseph, 271
conscience-consciousness ( conscience), 3, 41, democracy, 31, 60,

178, 313, 319, 363, 407,
47–49, 51–54, 71, 80, 91, 177, 189, 489,
429–430, 504, 508
511
depoliticization, 426–432, 461–462, 485–486
conservatism, 26, 212, 229–230, 261, 503
Descamps, Baron Edouard, 141, 160,
Kaufmann’s, 249–261
161–163, 286
Le Fur’s, 317–327
desire principle ( Lustprincip), 448–449, 469
Constant, Benjamin, 27, 285
Despagnet, Frantz, 164, 272–274, 284, 291
constitutional law, 9, 428–430
Deutsch, Karl, 467
international law as, 330, 333
Deutsche Gesellschaft für Völkerrecht, 220, 232, League Covenant

as, 378–379, 425, 426
234–235, 237
consular jurisdiction, 96, 114–115, 133, 134
Deutsche Ostafrikanische Gesellschaft (DOAG), 119
coordination law 32–33, 38, 179, 187, 228,
Development of International Law by the International 254
Court, 403–406, 412
Corfu Channel case, 400
Diderot, Denis, 115, 116
corporatism (syndicalism), 267, 301–302, 329
Die internationale Rechtspflege, ihr Wesen und ihre

cosmopolitanism, 37, 44, 50, 53, 55–56, 63,
Grenzen, 436, 440–444
66–67, 183, 245–248, 267, 356–359, 371,
difference (logic of) 142, 506–507
373–374, 390, 399, 405, 411, 515–516
division of labor, 269–270, 297
Kelsen’s, 246–249
Dominican Republic
Lauterpacht’s, 406–412
US intervention in, 413, 480, 481, 497–501
Scelle’s, 331–336
drive theory, 444, 448–452, 469, 493
Schmitt’s critique of, 424–426
Droit public de l’Europe, 31, 112–115, 415–417
Covenant of the League of Nations, 425, 459
Droun de Lhuys, Edmund, 40
Article 10, 239, 333, 352
Drummond, Eric, 346
Article 11, 340
Duguit, Léon, 267, 298–301, 305, 319
Article 15, 353

Dupuis, Charles, 311, 313, 314
Article 16, 340, 353, 378, 379, 425
Dupuy, René-Jean, 348, 350
Article 19, 324, 238, 335–338, 382
Durkheim, Emile, 267, 268, 297, 302, 315,
Article 20, 376
331, 336, 347
as constitution, 376, 379, 426
dynamism in law, 43, 303–304, 443, 444,
French draft of, 294–295
459–460, 480, 488, 496
German draft of, 220–221, 235–236
negotiations, 294–295, 333
economic policy, 416, 418, 421, 461
Crimean War (1854–1856), 11–12, 35
French 329, 342
Crisis of Parliamentary Democracy (Die
effective occupation, as basis of title, 109,
geistesgeschichtliche Lage des heutigen
123–124, 129, 140–142, 148, 402

Parlamentarimsus), 429–430
effectiveness, 397, 485
Crowe, Sheryl, 127
Egypt, 120–121, 152, 273
Cuba, 413, 481
empiricism, 299
cultural consciousness, 70–88, 101–105,
Engelhardt, Edouard, 107, 131, 150
107–110, 214–215, 223, 270–274,
Engels, Friedrich, 195
295–296
Entente cordiale 154
culture
esprit d’internationalité, 13, 20, 27, 57, 69, 92, as character, 75–88
170, 211, 515
of formalism, 500–509
ethics, 188, 459, 482, 487, 489, 494
customary law in the Orient (project of the
Eurocentrism, 9, 305
Institut), 132–133
European Coal and Steel Community
cynicism, 491–492
(ECSC), 345, 348
European community (“European
Darwinism, 36, 38, 70, 74–76, 104
civilization”), 22, 25–26, 44, 49, 51,
decisionism in Schmitt and Morgenthau,
52–54, 56–57, 66–67, 70–97, 189,
427–429, 462–463, 468–469, 486, 488
280–281, 316, 416–418
decolonization, 175–178, 512–513
European Economic Community (EEC) 345
dédoublement fonctionnel, 333, 338
European Journal of International Law, 8
deformalized law, 479, 489
European Union, 316
Delcassé, Théophile, 153, 155,
in Le Fur and Scelle, 342–345, 347–348
561
Index
evolutionism, 74–76, 99, 100, 101–110, 142, 308
general principles of law, 364, 369, 403–404
exclusion–inclusion logic, 127–130, 141, 175
Geneva Convention for the Amelioration of
extradition, 50, 68–69
the Condition of the Wounded of the
Armies in the Field (1864), 15, 39
Falk, Richard, 476, 478, 483
Geneva Protocol for the Pacific Settlement of
Fashoda crisis, 152–155, 279
International Disputes (1924), 306
Fauchille, Paul, 73, 223, 279–281, 302
Gény, Francois, 281
federalism, 3, 20, 61, 62, 129, 308, 315–316,
Gerber, Carl Friedrich von, 46, 183–184, 189,
319, 326–327, 354, 355, 357–358,
195
373–374, 382, 390–391, 424–425, 426
German Confederation, 21, 31, 64
Lauterpacht’s, 376–379
German East Africa Company ( Deutsche
Le Fur’s, 324–327
Ostafrikanische Gesellschaft, DOAG), 119
Scelle’s, 266–267, 269, 331–336
German League of Nations Union ( Deutsche
Schücking’s, 216–222
Liga für Völkerbund), 209
federations (Jellinek on), 202
German public law theory, 183–185, 187–188,
Fenwick, Charles, 477
208–213
Ferry, Jules, 107
German South West Africa, 166
Fichte, Johan Gottlieb, 23
Gide, André, 318
Field, David Dudley, 40
Gierke, Otto, 184, 227
Fiore, Pasquale, 54–57, 63, 128
Giraud, Charles, 31, 274
Fischer Williams, John, 173

Gladstone, William, 120–121
formalism, 79, 80, 183–185, 228, 247, 258,
Goethe, Johann Wolfgang, 10
262, 303, 312, 341, 349, 365, 395, 417,
Goldie, George, 117, 118–119, 126
425, 459–465, 473–474, 475, 488, 494,
Grey, Edward, 153
500–509
Grossraum doctrine, 251, 414, 415, 420–422, Foucault, Michel, 9
435, 480
Fouillée, Alfred, 286
Grotian tradition, 356, 406–411, 473
Franco, Francisco, 339, 340
Grotius, Hugo, 4, 17, 33, 46, 116, 131, 362,
Franco-Prussian War (1870–1871), 36, 39,
392
84, 182–183
Grundnorm, 241, 366
free trade, 27, 35, 58, 111, 123, 335, 417,
Gumplowicz, Ludwig, 196

418–419, 461
freedom
Hague Academy of International Law, 193,
of navigation, 122, 123,
214, 251, 319, 331, 474
of religion, 53, 60, 65, 79
Hague Conferences (1899 and 1907), 87, 134,
French Congo, 166
211, 217–218, 275, 284–286, 288
Fried, Alfred, 216, 228, 450, 477
Hall, William E., 81–83, 108
Friedmann, Wolfgang, 414, 420, 477, 478,
Hamilton, Alexander, 439
480, 497–501
Hanotaux, Gabriel, 153
Funck-Brentano, Théophile, 276
Harcourt, William, 33, 86
Function of Law in the International Community, Hardenberg, Karl-

August, 21
368–369, 372, 376, 383, 390, 401, 402,

harmony of interests, 461–462, 487
405, 411
Hautefeuille, Laurent-Basile, 30, 86
functionalism, 239, 282–285, 476
Hegel, Georg Wilhelm Friedrich, 23, 32, 180,
fundamental
182, 195, 197, 198, 260, 262–264, 320
change ( rebus sic stantibus) 179–180, 254, 324, Heidegger, Martin,

264, 295
336–338
Heilborn, Paul, 109, 129, 187, 192, 227
rights of States, 282
Heimburger, Karl, 109, 141, 144
Heller, Hermann, 239–240
Galicia, 369, 370
Henderson, Arthur, 381, 382
Gallagher, John, 116
Henkin, Louis, 477
gaps in law, 362, 366–367, 441
Herz, John J., 467, 471

Geffcken, Friedrich, 109, 146, 147
Herzl, Theodor, 407
Geffcken, Heinrich, 226–227
Hinsley, F. H., 472
General Act for the Pacific Settlement of
Hinterland, 151
International Disputes (1928), 381, 378,
historical school of law, 25, 43, 44–47, 48, 51,
379
72, 114, 131, 277, 435
562
Index
Hobbes, Thomas, 359
interdependence, 27, 93, 96, 192, 207–208,
Hoffmann, Stanley, 465, 469
222–228, 229, 231, 260, 270, 282,
Holocaust, 388–389, 393, 411
297–298, 299, 301, 304, 305, 325, 363,
Holtzendorff, Franz, 40, 63, 65, 72–73, 132,
477, 479, 487

222–223, 263, 280
interdisciplinarity, 459–460, 464, 476–478,
Holy Alliance, 15, 27–28, 35
478–480, 483, 484–485, 488–494
Hornung, Joseph, 105, 109, 129–130, 170
interests, theory of 226–227, 228
Huber, Max, 227–228
International Bill of Rights, 394–395, 398
Hughes, Charles Evans, 466
International Court of Justice, 398–402
Hughes, Thomas, 76
International Labour Organization (ILO),
Hull, Cordell, 439
332, 338
human rights, 3, 50, 52, 99, 104, 128, 130,
International Law and Human Rights, 392–399
199, 356, 514
International Law Association, 61, 232
Fiore on, 54–57
International Law Commission, 399–400

Lauterpacht on, 391–399
international relations as a discipline, 393,
humanitarianism, 15, 70, 83–86, 129, 130,
465–474, 482–489, 493, 494
265, 424, 436
internationalism, 4, 63–67, 222–228,
humanity, as political subject, 433–435
371–372, 513–516
Hurst, Cecil, 390
in France 270–274, 284, 325
in Germany 189, 190, 208, 213, 216,
idea of France, 272, 274, 350, 351
222–228, 233–234, 237, 239, 250,
ideal types, 202
262–263
idealism (German) 182, 195, 214–215,
interpretation
257–260
Kelsen on, 248
identity (logic of) 142, 515

Lauterpacht on, 357, 368–369, 378, 383,
Imperial British East Africa Company
385–387, 400–401
(IBEAC), 119
intervention, 22, 34, 55, 94–95, 238, 271, 332,
imperialism, 5, 99, 240, 480, 482, 489–494
335, 339–342, 419, 480–482, 514
Anglo-American, 238
irrationalism, 196–197, 229, 256, 356, 360,
German, 207–208
407
US, 418, 419, 480–481, 483, 487
Israel, 396, 407
In Defense of the National Interest, 437
ius publicum Europaeum, 415, 417, 420, 426, 432, independence,

21, 175, 177,
438
Indian Mutiny (1857) 146
ius publicum universale, 31
individualism, 269, 282, 298–302, 306, 314,

318, 324, 330, 332, 334, 365, 409,
Jameson raid (1895), 120
410
Japan, 133, 135
in Kaufmann, 180, 252–253
Jellinek, Georg, 21, 188, 198–208, 212, 242,
in Kelsen, 244
250, 251, 322, 406, 452
in Lauterpacht, 357
defense of international law, 200–201
in Le Fur, 324–325
theory of federations, 202
in Scelle, 330, 332, 334
theory of state, 202–206
industrialism, 11, 36, 58, 194, 288–289
views on war, 207
informal empire, 110–112, 116–121, 144
Jellinek, Walter, 234
Institut de droit international, 2, 19, 41, 42, 47–48, Jenks, Wilfried,

408, 477
54, 58, 60, 61, 62, 75, 79, 88–89, 92–97,
Jèze, Gaston, 106–107, 132, 137–138, 140,
98, 103, 121, 127, 129, 130, 132–133,
317, 329
140, 143, 149–151, 157, 163, 170, 173,
Jhering, Rudolf, 36, 322
179, 181, 188, 193, 210, 211, 216, 223,
Johnson, Lyndon, B., 413
237, 258, 276, 278, 280, 293, 302, 313,
Joseph-Barthélemy, 313, 318
511
Journal of the History of International Law, 9
Institut des hautes études internationales ( Paris), 279, judicial

legislation, 402–406
309–311, 314, 315
just war, 334, 425–426
Institut für auswärtige Politik (Hamburg), 232–233
Jünger, Ernst, 431, 450–451
Institut für Sozialforschung (Frankfurt), 447
institutionalism, 176–178, 396–398, 477, 487

Kaiser-Wilhelm-Instutut für Völkerrecht (Berlin), instrumentalism,
435, 485–487
233
563
Index
Kaltenborn von Stachau, Karl Baron, 24–28,
on collective security, 377–381
31, 92
on colonialism, 359–360
Kant, Immanuel, 15, 113, 189, 191, 194, 197,
on neutrality, 379–381
198, 204, 249, 249, 262–264, 268, 320,
on recognition, 382–388
357, 489, 501, 514
on self-judgment, 358, 366–367, 377–380,
Kantorowicz, Hermann, 195–196, 486
397, 401, 408
Kasson, John A., 138
theory of law as “complete system,”
Katchenowski, D. I., 40
361–369
Kaufmann, Erich, 179–181, 189, 233,
Laveleye, Emile de, 36, 60–61, 71, 121, 149,
249–261, 442, 511
156, 170
critique of neo-Kantianism, 251–255
Le Bon, Gustave, 196–197, 360
on the Versailles settlement, 181, 249–250
Le Fur, Louis, 315–316, 317–318, 328,
on natural law, 258, 260–261
330–334, 339–345, 349, 351
theory of state, 252–253
appointment as Professor in Paris,
Kellogg–Briand Pact (Pact of Paris, 1928),
316–317
377, 384, 418, 419, 433
critique of “German theory,” 320–322
Kelsen, Hans, 182, 238–249, 213, 250–251,
on the European Union, 342–345
255, 306, 321, 356, 357, 360, 366, 371,

on natural law, 318–319, 323–324
406, 409, 410, 428, 435, 441, 452, 455,
on Spanish Civil War, 338–342
456–458, 471, 494, 495, 496
League of Nations, 7–8, 170–172, 181, 209,
as left-liberal, 245–246, 247
235–236, 236–238, 239, 249–250, 267,
as relativist, 247–248, 409
270, 294–295, 306, 307, 311, 312, 320,
theory of state, 243, 244
330, 342–345, 353–354, 355, 358,
theory of validity, 241
376–382, 393, 411, 445, 461
Kennan, George, 469, 471
League of Nations as universal federation,
Kiel Institute of International Law, 231–232
426
Kissinger, Henry, 468, 469
League of Nations’ Codification Conference
Kitchener, (Lord) Herbert, 153

(1930), 265, 466
Klüber, Johann Ludwig, 21–24, 25, 26, 30, 71,
legal process school, 477–478, 487
92, 112–116, 131
legal realism, 475–6, 479, 483
Kohler, Josef, 213–215, 229
legal system
Krabbe, Hugo, 330
completeness of, 366–368, 372, 375, 383,
Kunz, Joseph, 474
401–404
Leibnitz, Gottfried Wilhelm, 198–199
La notion du politique et la théorie des différends Léopold II, 108,

122, 123, 136–137, 153,
internationaux, 453–455
156–162
La réalité des normes: En particulier des normes du recognition as

the Head of State of the
droit international, 455–457
Congo, 155, 156
Laband, Paul, 46, 184–185, 195, 213, 228,

Lévi-Strauss, Claude, 351
240
Lévy-Bruhl, Lucien, 329
Laclau, Ernesto, 504
liberal activism, 26, 35, 57–67
L’affaire Scelle (1925), 316–317
liberal humanitarianism, 51, 53, 54–57
laissez-faire, 144, 269, 288
liberalism, 11–19, 27–28, 29, 38, 67–97
Lapradelle (La Pradelle), Albert Geouffre de,
Austrian, 359, 370, 406–407
154, 309, 310, 312, 343, 350
Belgian, 16, 90
Larnaude, Ferdinand, 293, 295
British, 59–60, 90, 372–373, 392
Las Casas, Bartolomé de, 78, 142, 147
French, 281, 288–291, 301–302
Lasson, Adolf, 32–33, 37–38, 63, 92, 182–183,
German, 91 215–222, 252–253, 261
186, 189, 223, 262

Morgenthau’s critique of, 461–463
Lasswell, Harold, 468, 475
Schmitt’s critique of, 426–436
Lauterpacht, Elihu, 370
Lieber, Francis, 39, 42, 49, 59, 67, 68, 69, 77,
Lauterpacht, Hersch, 1, 2, 8, 353–412, 511
87, 96
and human rights, 392–399
Liszt, Franz, 102, 195, 209, 225–226, 229,
as liberal, 360–361, 365, 373, 406–411
231
as practitioner, 399–401
Lithuania, 328–329
as Zionist, 370–372
Livingstone, David, 146
critique of positivism, 355–357, 364
Locarno Treaty (1925), 237, 238, 250, 377,
in Nuremberg, 388–390
459
564
Index
Lorimer, James, 33, 34, 62, 66, 68, 69, 70, 77
critique of American foreign policy,
104, 129, 131
437–440
Lotus principle, 402
on national interest, 469, 480–481
Lüderitz, Adolf, 118
on statesmanship, 463–464, 468–469, 471,
482, 487–488
Machiavelli, Niccolo, 359
on total war, 437
Mackinnon, William, 117, 119
psychological theory of power, 448–449,
Mahdi, The, 155
454, 455–456, 468, 469
Maine, Henry Sumner, 36, 46, 48, 75, 85–86,
theory of sanctions, 455–459
100
traditionalism of, 471–472

Maistre, Joseph de, 27
Mosul Boundary case, 417
Manchuria,
Moye, Marcel, 167,
Japan’s attack on (1931), 239, 353, 377,
Moynier, Gustave, 39, 121, 12, 149, 156, 163,
378–379
170
Mancini, Pasquale, 14, 41, 61, 62, 66
Munich accords (1938) 353–355
Mandates under the League Covenant,
171–172, 360, 375
Nachtigal, Gustav, 137
Marchand, Jean-Baptiste, 153–155
national honor, 441
Marcuse, Herbert, 465
national socialism, 261–262, 414, 422, 471
Martens, Fedor, 68, 157
nationalism, 37, 58, 62–67, 180, 211–213,
Martens, Georg Friedrich, 4, 25, 26, 27, 30,

215, 216, 221, 224, 230–231, 256–258,
71, 92, 112–116, 131
271, 309, 317–318, 320, 321, 325,
Martitz, Ferdinand, 134, 138, 150
334–335, 355–356, 359, 370
Marx, Karl, 88, 195
native
materialism, 37,
citizenship, 128
McDougal, Myres S., 474–475, 476, 477–479,
consent, 138, 139, 140–142
481, 482, 483, 487, 489
sovereignty, 113–114
McNair, Arnold, 356, 376
treaties, 109, 128, 136–143
Meeker, L. C., 413
natural law, 4, 20–24, 28–29, 30, 73, 79, 91,
Meinecke, Friedrich, 234
92, 94–95, 96, 100, 105, 115–116, 128,
Mendelssohn-Bartholdy, Albrecht, 232, 234

131, 229–230, 289, 274, 299, 300, 312,
Mendlowitz, Saul, 478
315–316, 318, 319, 322, 323, 334, 337,
Menelik, Emperor of Abyssinia, 108
346, 356, 357, 365, 373, 392, 396, 466,
Mérignhac, Alexandre, 140, 284
476–477
Merriam, Charles, 468
Nazism, 261–262
Miles, James B., 40
Nelson, Leonard, 255
militarism, 35, 48,
neo-colonialism, 175
Mill, John Stuart, 23, 73
Neumeyer, Karl, 447
Millot, Albert, 172
neutrality, 85, 86, 291, 306–307, 379–381,
Mohl, Robert, 32, 50
471, 419
Moltke, Count Helmuth von, 83, 84–85

neutralization (of the Congo) 121–122
Monnet, Jean, 345–346
New International Economic Order, 175, 512
Monroe Doctrine, 415, 418, 421
Niemeyer, Theodor, 232–234, 239, 477
Montesquieu, Charles Secondat, Baron de, 14,
Nietzsche, Friedrich, 79, 192, 196, 205, 254,
29, 73, 100, 105, 113
320, 448, 450
“moralism” in foreign policy, 438, 462, 469
Nippold, Otfried, 192–193
morality, 89–97, 299–230, 418, 487–494, 499
Nobel Peace Prize
in Durkheim and Scelle, 297–298, 334
given to Bourgeois 295
in Lauterpacht, 404, 406–411
given to Renault, 278
in Le Fur 318–319, 325, 343
Noble Savage, 74, 101
in Politis, 308, 310

nominalism (Lauterpacht’s), 368–369
Morant Bay Rebellion, 147
nomos, 415, 416, 419, 423, 439, 460, 480
Morel, Edmund, 158
non-intervention, 313–314, 340, 341,
Morgenthau, Hans, 436–471, 480–483, 486,
499–500
489, 493
normative force of facts, 205
and liberalism, 459–465
normativism, 417, 428–429
as founder of “international relations,”
Notrecht, 254, 443
465–468
Nottebohm case, 400
565
Index
Nuremberg Trial (1946), 388–390, 418, 422
private international law, 43–44, 57, 66, 293
Nys, Ernest, 160–161

Private Law Sources and Analogies, 366–367, 374–375, 376, 383
occupation, 148–155, 432
privatism, 269, 275–276, 288
Oncken, Hermann, 234
progress, 29, 27–28, 29, 46, 48, 57–58, 59,
Oppenheim, Lassa, 8, 92
74–75, 82, 91, 93, 96, 233–234, 302–305,
organic
358–359, 365, 373, 397, 399, 406, 511,
solidarity, 297–298, 331
512
theory, 31–32, 43, 44, 45, 46, 49, 50, 63, 91,
property, right of, 104, 113–114, 127–128, 300
183–184, 186, 321
protectorates, 109, 117, 118, 119, 124–125,
Organization of American States (OAS), 413,
126, 129, 151–152, 169, 432
497
Protestantism, 42, 54, 65, 79, 91, 415
Orwell, George, 414, 420

Proudhon, Pierre-Joseph, 35, 285
psychological theory, 200–201, 206, 225–226,
pacifism, 35, 209, 210, 211, 213–214,
242–243, 448–449, 454, 455, 459, 470
215–222, 240, 257, 450–451, 458
public opinion, 15–16, 28, 51, 54–55, 57, 72 ,
Pact of Paris ( see Kellogg–Briand Pact)
302, 319, 363, 458
Parieu, F. Esquireu de, 40
Puchta, Georg Friedrich, 45
particularism, 504–509
Pufendorff, Samuel, 73
Peace Act (1933), 381
peaceful change (cf. Covenant of the League
quasi-contract, 290, 300
of Nations, Article 19)
pedigree history, 101–103
racism, 58, 70–71, 96, 103–104, 107, 321,
Permanent Court of Arbitration, 212, 217,
322–323
275, 286
radicalism (French), 288–289, 296, 329
Permanent Court of International Justice,
rational will (theory of), 190–192, 208
193, 215, 221–222, 246
rationalism, 13, 20–24, 24–25, 31, 43, 44, 45,
Perrinjaquet, Jean, 151
47, 71, 91, 92–94, 96, 208, 250, 251–252,
Peters, Carl, 107, 119, 138
275–277, 330, 356, 358–359, 370,
Phillimore, Robert, 34
489–490
Pillet, Antoine, 271, 281–284, 300, 302, 311,
Rawls, John, 290, 493
349
Rayneval, Gérard de, 28, 29, 113
as “functionalist,” 282–284
realism, 8, 26, 38,195–198, 311, 313–314,
critic of the Versailles settlement, 292–293
360, 368, 373, 376, 384, 393, 404, 409

Piloty, Robert, 213
legal, 475–476
Poincaré, Raymond, 296, 346
“Realism” in international relations, 446, 460,
political
479
concept of, 430–437, 440–445, 448–449,
reasonableness, 402–403
452–455, 468
rebus sic stantibus, 363, 368, 442 ( see also disputes, 367–368,
440–445
fundamental change)
Political Romanticism ( Politische Romantik), 427
Rechtsstaat, 20, 32, 191, 196, 197, 198–208, Political Theology. Four
Concepts on the Concept of 247, 249, 268, 502
Sovereignty (Politische Theologie. Vier Kapitel recognition, 419, 507,

508
zur Lehre von der Souveränität), 427–428, 442
Lauterpacht on 384–386
Politics among Nations. The Struggle for Power and Lorimer’s theory
of, 70–71
for Peace, 437
Recognition in International Law, 382–388
Politis, Nicolas, 305–309, 314, 330
Red Cross, 39, 122
positive freedom 264
Reddie, James, 23, 33, 71, 72
positivism, 4, 29, 46, 48, 82, 91, 96, 130–131,
Redslob, Robert, 271, 274
186–188, 257–259, 355, 363, 364,
Reeves, Jesse, 164, 165
393–394, 407
reform
Pound, Roscoe, 194
advocated by Institut founders, 14–19, 57–67
pragmatism, 369, 479, 502, 516
regime theory, 479–480
French, 275, 347, 348–352
Reine Rechtslehre, 241, 248
Lauterpacht’s 387–388, 399–412
Renan, Ernst, 269

primitive law
Renault, Louis, 105–106, 274–278, 284, 291,
international law as, 361–362
302, 305, 312
566
Index
Renner, Karl, 246
on friend–enemy opposition, 431–435,
republicanism (French), 267, 269, 273–274,
453–454
288–291, 346
on humanitarian war, 434, 451
respublica Christiana, 416
on humanitarianism, 434–436
Reuter, Paul, 345–346, 347
on Lauterpacht, 424–426
revolution, 35, 269, 273–274, 288, 289, 301, 374
on Scelle, 424–426, 471
Revue de droit international et de législation comparée, on

sovereignty, 428
4, 12–19, 60, 121, 127, 143, 166, 361
Schopenhauer, Arthur, 198–199
Revue générale de droit international public, Schücking, Walther,

209, 215–222, 232, 239,
278–279, 362
306, 450
Rhodes, Cecil, 117, 120
Schuman Declaration (1950), 338, 345
Rivier, Alphonse, 31, 39, 52–53, 67–68, 135,
Schwarzenberger, Georg, 472
160, 223
science
Robinson, Ronald, 116, 126
international law as, 23, 24–28, 32, 40, 41,
Rolin, Albéric, 69, 229
56–57, 95–97, 105, 188–189, 193, 210,
Rolin, Henri (1874–1946), 171, 511
214, 240–249, 289, 297–302, 331, 334,
Rolin, Henri (1891–1973), 511–512, 513
335–336, 346, 357, 363–364, 384–385,

Rolin-Jaequemyns, Gustave, 12–19, 20,
447, 476
39–41, 48, 49, 51–52, 60, 61, 63, 65, 67,
international relations as, 470–471, 472
76–77, 79, 80, 81, 89, 90, 92, 127, 133,
Scientific Man vs. Power Politics, 437, 468
144, 156, 166, 502, 511, 516
scientism, 468
Roman law, 100, 22, 24, 31, 93, 420
Scott, James Brown, 425
romanticism, 47, 427
Security Council, 350, 391, 516
Roosevelt, F. D., 467
security dilemma, 467
Root, Elihu, 466
Selbstverpflichtung, 201, 205, 206
Rousseau, Charles, 348
self-determination, 64, 191, 193, 271, 321,
Rousseau, Jean-Jacques, 86, 115, 116, 315, 330
328, 334
Royer-Collard, Pierre Paul, 31
self-legislation (theory of), 186, 192, 201, 204,
Rule of Law, 178, 361, 381, 450, 503
208, 321
rule-skepticism, 463, 475–476
Shawcross, Hartley, 388, 389
Russell, Lord, 107–108
Siam, 16, 133, 134
Russia, 35, 272, 284, 344
Sibert, M, 350
Sidgwick, Henry, 74
Saalfeld, Friedrich, 113
Simons, Walter, 220, 221, 235
sacred trust of civilization, 171
Sinzheimer, Hugo, 447, 449
Salomon, Charles, 106, 130, 132, 137, 144
slave trade, 94
sanctions, 244, 311, 455–459
Sloterdijk, Peter, 352
Savigny, Friedrich Carl, 32, 36, 43–45, 46, 77,

Smend, Rudolf, 233, 452
100, 114, 183, 421, 435
Smith, Adam, 60
Scelle, Georges, 266–267, 316–317, 319,
Smyrniadis, Bion, 350,
327–338, 342–347, 349, 351, 424–426,
social solidarity, 298–301, 318, 319, 331
471, 511
socialism, 58, 60–61, 67, 68–69, 281, 301
and sociological monism, 331–334
Société française pour le droit international, 349
on European Union, 342–345
sociology, 23, 72, 97, 99, 188, 195–196, 199,
on nationalism and self-determination,
200, 202–203, 204, 206, 222–228,
334–335
233–234, 242–243, 262, 266 et seq. 277,
on Spanish Civil War, 338–342
281, 289, 299–302, 322, 327–338, 346,
political alignments, 329–330

349, 350, 397, 459, 467–468, 470–471,
theory of state, 330
486, 488, 494
theory of treaty revision, 336–338
solidarism, 192, 285–291, 295–297
Schachter, Oscar, 477
in Alvarez, 302–305, 309
Schmitt, Carl, 238, 239, 415–437, 453–454,
in Politis, 305–308, 309
459–465, 480, 481, 486, 496
in Scelle, 331–338
and “total State”, 430
Sorel, Albert, 276
and antisemitism, 424, 426
sovereignty, 3, 4, 20, 21, 25–26, 31, 48,
and liberalism, 422–423, 426–432
109–110, 121, 125–126, 127, 128, 134,
on democracy, 429
137–138, 139, 140–143, 143–152, 156,
567
Index
sovereignty ( cont. )
Tylor, E. B., 131
168, 170–177, 204, 239–240, 242, 244,
Tönnies, Ferdinand, 227, 234, 235
302, 303, 306–307, 324, 330, 335,
346–347, 355, 358, 359, 365, 389, 393,
Ullmann, Emanuel, 224–225, 263
407, 428, 514
United Nations, 434, 487
Soviet Union, 414
Anglo-American plans for, 389–391
Spanish Civil War (1936–1939), 313,
United Nations Charter, 391, 392, 394
338–342
Article 51, 414
Speke, John, 147
Universal Declaration of Human Rights
Spencer, Herbert, 38,70, 71, 75, 308
(Lauterpacht’s critique), 395–397

Spengler, Oswald, 414, 420, 451
universal
spheres of interest, 125, 154–155, 169
federation, 325–326, 464
spying, 85–86
norms, 489–494, 499–500
Stahl, Friedich Julius, 180
universalism, 71,100–101, 102–105, 130–131,
Stalin, Josef, 439
141–142, 210, 245–246, 253, 416, 417,
standard of civilization, 132–136
423, 426, 433, 489–494, 500–509
Stanley, Henry, M., 107, 121, 136–137,
French, 270, 271, 294, 295–296, 307, 318,
138–140, 143, 147
322
state theory
utilitarianism, 13, 29, 34, 86
French, 269, 298–301, 324
German 277, 299, 321–322, 452–453

Vattel, Emmerich (Emer), 4, 21, 29, 33, 46,
German theory of, 197–198, 198–208,
131
244–245, 252–253
Verdross, Alfred, 246–247, 306, 366
States as persons 80–83
Vergé, Charles, 27–28
Stengel, Carl von, 208, 211–212
Verne, Jules, 41
Stone, Julius, 361
Versailles Peace Conference (1918–1919),
Strauss, Leo, 465
219–221, 236
Stresemann, Gustav, 237, 445
Versailles Treaty (1919), 181, 236–238, 249,
structuralism, 5, 6
292, 293, 296–297, 311, 417–418, 442,
struggle for power
445
Morgenthau’s theory, 448–450, 493

Vilna, 328,
nineteenth-century theory, 32–33,
Vinogradoff, Paul, 75
36–38
virtue, 80
Strupp, Karl, 238, 265, 445–446
vital interests, 441
Störk, F., 213
Vitoria, Francisco de, 78, 142, 147
Suarez, Francisco, 78
Volksgeist, 32, 43
subjective right, 184, 187
Voltaire, Francois Marie Arouet, 115
“subjectivism,” 320
voluntarism (will theory of law), 180, 186,
189–190, 192–193, 200–201, 204–206,
terra nullius, 129, 134, 154
256, 258, 275, 320, 321
Third Republic, French, 281, 285, 288–289,
296
Walker, T. A., 155
Thomas, A. J., 497–501
Waltz, Kenneth, 472
Torres Campos, Manuel, 168
war, 29, 35–36, 38, 39, 88–88, 207, 215
tradition
as police action, 325, 425
in Lauterpacht, 373, 392
as social ideal, 179–180, 182, 183
in Le Fur 317–327
discriminatory concept of, 418, 419,
in Morgenthau, 471–472, 499
425–426, 433–435, 437–439, 462
treaties, 52, 71–72, 185, 186, 193, 211,
formal, 432–433, 437
331–332
guilt, 236, 237, 293, 324
Triepel, Heinrich, 190, 210, 211, 233, 322
total, 419, 462
Truyol y Serra, Antonio, 351

Weber, Max, 80, 88, 195, 196, 201, 268, 347,
Tunisia, 117, 142, 273
447, 486, 487
Turkey (Ottoman Empire), 62, 73, 104, 129,
Webster, K. C., 473
133, 134, 135, 272, 273, 344
Wehberg, Hans, 215, 221
Twiss, Travers, 33, 78, 108, 122, 132–133,
Weimar Republic (1919–1933), 248, 250–251,
143, 280
426–432, 449–450, 459, 495
568
Index
Wesen des Völkerrechts und die Clausula rebus sic Windelband,

Wilhelm, 199
stantibus, 179, 251
Woolsey, Theodor, 100
Westlake, John, 12, 13, 17, 48, 49, 52, 59–60,
World Federation of Jewish Students, 370, 371
63, 64–65, 70, 76, 80, 85–86, 90, 92, 93,

World Trade Organization (WTO), 177, 513
108, 127, 128, 130, 131, 134, 138,
149–150, 163–164, 166–167, 278,
Xhosa Rebellion (1857), 147
372–373
Wheaton, Henry, 17, 30, 50, 114–115
Yalta agreement, 439, 462
White, Hayden, 103
Wight, Martin, 466, 473
Zanzibar, 125
Wildman, Richard, 48, 94
Zimmern, Alfred, 473
William II, 418, 426
Zionism, 369–372, 407
Wilson, Woodrow, 171, 220, 235, 294–295,
Zitelmann, Ernst, 230
321, 356, 469
Zorn, Philipp, 208, 211–212, 236
Wimbledon case, 173
Zouche, Richard, 327

569
Document Outline
Cover
Half-title
Series-title
Title
Copyright
Dedication
Contents
Preface
Abbreviations
Introduction
I
II
III
1 “The legal conscience of the civilized world ”
A manifesto
An amateur science
A time of danger
2 Sovereignty: a gift of civilization – international lawyers and
imperialism, 1870–1914
The myth of civilization: a logic of exclusion–inclusion
Between universality and relativism: colonial treaties
3 International law as philosophy: Germany 1871–1933
From form to substance: the doctrine of the rational will
Rationalism and politics: a dificulty
A pacifist profession? Kohler, Schücking, and the First World
War
The internationalists: between sociology and formalism
1914
Getting organized
reaction
4 International law as sociology: French “solidarism” 1871–1950
Internationalism as nationalism: the idea of France
International solidarity ...almost: Alvarez and Politis
Meanwhile in Paris ...
L’affaire Scelle
Which solidarity? Whose tradition? The Spanish Civil War
The European Union
pragmatism
5 Lauterpacht: the Victorian tradition in international law
A complete system
Coda
6 Out of Europe: Carl Schmitt, Hans Morgenthau, and the turn
to “international relations”
The ambivalences of a Katechon (restrainer)
A discipline transforms itself: Schmitt on Scelle and
Lauterpacht
Against liberal neutralizations and depoliticizations
Schmitt and Morgenthau: the primacy of the political
International law and politics: an asymmetrical relationship
The formation of a German thinker: between law and desire
The heritage of realism in American international law
Empire’s law
Epilogue
Bibliography
Index
Table of Contents
Cover
Half-title
Series-title
Title
Copyright
Dedication
Contents
Preface
Abbreviations
Introduction
I
II
III
1 “The legal conscience of the civilized world ”
A manifesto
An amateur science
A time of danger
2 Sovereignty: a gift of civilization – international lawyers and
imperialism, 1870–1914
The myth of civilization: a logic of exclusion–inclusion
Between universality and relativism: colonial treaties
3 International law as philosophy: Germany 1871–1933
From form to substance: the doctrine of the rational will
Rationalism and politics: a dificulty
A pacifist profession? Kohler, Schücking, and the First World War
The internationalists: between sociology and formalism
1914
Getting organized
reaction
4 International law as sociology: French “solidarism” 1871–1950
Internationalism as nationalism: the idea of France
International solidarity ...almost: Alvarez and Politis
Meanwhile in Paris ...
L’affaire Scelle
Which solidarity? Whose tradition? The Spanish Civil War
The European Union
pragmatism
5 Lauterpacht: the Victorian tradition in international law
A complete system
Coda
6 Out of Europe: Carl Schmitt, Hans Morgenthau, and the turn to
“international relations”
The ambivalences of a Katechon (restrainer)
A discipline transforms itself: Schmitt on Scelle and Lauterpacht
Against liberal neutralizations and depoliticizations
Schmitt and Morgenthau: the primacy of the political
International law and politics: an asymmetrical relationship
The formation of a German thinker: between law and desire
The heritage of realism in American international law
Empire’s law
Epilogue
Bibliography
Index

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The Gentle Civilizer of Nations

The Rise and Fall of International

Modern international law was born from the impulse to “civilize”

late nineteenth-century attitudes towards race and society, argues

  is Professor of International

General Assembly; he was legal adviser to the Finnish delegation at

The Gentle Civilizer of Nations

The Rise and Fall of International Law 1870–1960

International Law and the Antarctic Treaty System

Aspects of the Administration of International Justice 0 521 46312 2

Some Recent Developments

The International Law Commission

Corporations in and under International Law

    

The Pitt Building, Trumpington Street, Cambridge, United Kingdom

  

The Edinburgh Building, Cambridge CB2 2RU, UK

40 West 20th Street, New York, NY 10011-4211, USA

477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de

Dock House, The Waterfront, Cape Town 8001, South Africa

© Martti Koskenniemi 2004

First published in printed format 2001

ISBN 0-511-03532-2 eBook (Adobe Reader)

ISBN 0-521-62311-1 hardback

I cannot resist the thought that if we were able to . . . refrain from

George Kennan, American Diplomacy (Expanded edn., University of

To the memory of Vieno Koskenniemi (1897–1989), the gentlest of

A transitional critic: Kaltenborn von Stachau

A meeting in Ghent, 1873

A social conception of law

Towards a culture of human rights: Fiore

Advancing the liberal project

The elusive sensibility

Informal empire 1815–1870: hic sunt leones

The lawyers 1815–1870

The demise of informal empire in Africa

The Berlin Conference 1884–1885

The myth of civilization: a logic of exclusion–inclusion 127

Looking for a standard

The myth of sovereignty: a beneficent empire

The limits of sovereignty: civilization betrayed

Occupation is nothing – Fashoda

Sovereignty as terror – the Congo

From sovereignty to internationalization

1871: law as the science of the legal form

From form to substance: the doctrine of the rational will 188

Between the dangerous and the illusory State

Rechtsstaat – domesticand international: Georg Jellinek 198

Rationalism and politics: a difficulty

Drawing lines in the profession

Publiclaw and the Hague Treaties

A pacifist profession? Kohler, Schücking, and the First World War

The internationalists: between sociology and formalism 222

Beyond Versailles: the end of German internationalism 236

Ways of escape – I: Hans Kelsen and liberalism as science 238

Ways of escape – II: Erich Kaufmann and the conservative reaction

Break: the end of philosophy

Internationalism as nationalism: the idea of France 270

From civilists to functionalists 1874–1918: Renault to Pillet 274

Solidarity at the Hague: Léon Bourgeois