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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 “instrumen-
talism.” 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 interna-
tional 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 Gentle Civilizer of Nations
The Rise and Fall of International Law 1870–1960
0 521 62311 1

 
Self-Determination of Peoples
A Legal Appraisal
0 521 63752 X

   
International Law and the Antarctic Treaty System
0 521 46311 4

  

Aspects of the Administration of International Justice
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  . 

State Immunity
Some Recent Developments
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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

MARTTI KO SKE NNIE 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 romantic profession: 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 – domestic and international: Georg Jellinek 198
Rationalism and politics: a difficulty 206
Drawing lines in the profession 209
Public law 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
Scientific solidarism: 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 innu-
merable 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 com-
ments 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 partic-
ularly 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 inter-war 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 ref-
erences. 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 pub-
lished 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 inter-
national 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 compe-
tent international law practice, it fell short of explaining why individual
lawyers had come to endorse particular positions or arguments in dis-
tinct 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).

1
 The Gentle Civilizer of Nations

“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 open-
ness 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 aston-
ishingly alive today – nor of practices, but a sensibility that connotes
both ideas and practices but also involves broader aspects of the politi-
cal 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 disposi-
tions 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 spec-
tacular 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 multilat-
eral 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 conse-
quences that were the exact opposite of the lawyers’ expectations: the
projection of Western sovereignty in the colonies is the most conspicu-
ous example. What was distinctive about the internationalist sensibility
was not only its reformist political bent but its conviction that interna-
tional reform could be derived from deep insights about society, history,
human nature or developmental laws of an international and institu-
tional modernity. While the first generation of internationalists ima-
gined 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 soci-
eties 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 inter-war world in 1939. The pro-
fession never really recovered from the war. It was, instead, both depol-
iticized 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 nos-
talgia, 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 ade-
quate 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
 The Gentle Civilizer of Nations

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 articu-
lation. 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 polit-
ical questions of the day. Much was at issue in those debates for the par-
ticipants, 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 “forma-
listic” 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 mis-
taken. 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 gener-
alization can be made in this regard, it is rather that these men were cen-
trists 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.

4
 Introduction

The most important exception to this was their support of official impe-
rialism, as discussed in chapter 2 below. Until 1914, they did advocate
the extension of Western sovereignty beyond Europe as the only orga-
nized 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 inter-
national 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 oppor-
tunities that were available to them, and open horizons beyond aca-
demic 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 protag-
onists 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 down-
play 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 pro-
fessional 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.

5
 The Gentle Civilizer of Nations

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 nec-
essarily any greener in the adjoining fields. Historiography, like sociol-
ogy 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 alterna-
tives 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 contest-
able assumptions about what was central and what peripheral, what val-
uable 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, Völkerrechts-
geschichte. 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.

6
 Introduction

of narrative perspective. Moreover, having to pay attention to enor-

mously difficult questions about the miracle of historical progression, or
the nature of the “law” employed in such narratives, would have under-
mined 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 con-
ceptual abstractions. I wanted to examine the way it has developed as a
career choice for internationally minded lawyers in the course of a rel-
atively 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 practi-
tioners 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 phenom-
enon, 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 profes-
sional, academic or political projects we have. I wanted to articulate
some of those projects, and thus to describe the lawyers as actors in par-
ticular 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 occasion-
ally 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 inter-war lawyers were writing about the League of
Nations, it would be completely wrong to assume that they wrote from

7
 The Gentle Civilizer of Nations

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 incom-
patible with the assumption that individual lives could have a significant
effect on the grand course of international politics. However, the dis-
credit 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 nat-
urally 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.

8
 Introduction

No doubt, interest in the historical aspects of the profession is increas-

ing, 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 polit-
ical 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 relation-
ship 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 constitu-
tional law, or public law 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 polit-
ical 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.

9
 The Gentle Civilizer of Nations

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 situa-
tion 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 pro-
tagonists 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
 1

“The legal conscience of the

civilized world”

Man in his conscience is no longer bound by the ends of particu-

larity. 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 con-
ditions 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
co-operation 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 indus-
trialization or free trade. Progress, while undeniable, had grown out of a
peace that seemed both precarious – as had been shown by the Crimean

11
 The Gentle Civilizer of Nations

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 associa-
tion 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 toler-
ance, 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
 “The legal conscience of the civilized world”

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 pur-
poses and after four conferences it broke up leaving in the minds of the
three men their fruitful co-operation 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 leg-
islative 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 ques-
tions of private international law and comparative law on an interna-
tional 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 législa-
tion 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
co-operation 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
 The Gentle Civilizer of Nations

Legislators and jurists needed to learn about the laws and legislative pro-
jects of different countries so as to better appreciate the effects of pro-
posed 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 compar-
ative 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 “con-
science 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 inter-
national 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 applica-
tion 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 9
Roeben, “Bluntschli,” pp. 117–118. 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
11
international (Basle, Karger, 1973), p. 5. Asser, “Fondation de la revue,” p. 113.
12
Gustave Rolin-Jaequemyns, “De l’étude de la législation comparée et de droit inter-
national” (1869), I RDI, p. 11.

14
 “The legal conscience of the civilized world”

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 ques-
tions of international law proper. Rolin pointed to the increasing influ-
ence 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 arro-
gated 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 absolut-
ism 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 pro-
foundly.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 appli-
cation 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.
15
Rolin-Jaequemyns, “De l’étude de la législation comparée et de droit international,”
pp. 225–226.

15
 The Gentle Civilizer of Nations

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, mani-
fested 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 partic-
ular 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 rep-
resentative – the organ – of humanity’s conscience. Public opinion crys-
tallized 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 co-operative 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.
17
Rolin-Jaequemyns, “De l’étude de la législation comparée et de droit international,”
p. 228.
18
Rolin-Jaequemyns, “De l’étude de la législation comparée et de droit international,”
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
 “The legal conscience of the civilized world”

theory. In his prolific writings in the Revue he often reported on the activ-
ities 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 prac-
tical 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 dip-
lomat 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 includ-
ing 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
 The Gentle Civilizer of Nations

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 nation-
ality, extradition, and enforcement of sentences. These were standard
reformist themes. During its first twenty years, the Revue reported exten-
sively 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 co-operation 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 demo-
cratic 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 success-
ful 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 monar-
chic 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 cor-
poral 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 capitu-
lations 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
24
of domestic insurgents. Gay, The Cultivation of Hatred, p. 526.

18
 “The legal conscience of the civilized world”

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 edi-
torship it was continued by his brother Albéric and his son Edouard).

An old-fashioned tradition
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 com-
pletely passed over the treatises that had come out earlier in the century,
particularly in Germany, written by experts in public law, with an inter-
est in international affairs often triggered by consultant work to a sove-
reign. 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 introduc-
tion to European international law.26 The concept of law employed in
that book had been that of the fully rational social compact.27 Like indi-
viduals 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, some-
times 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
27
de l’Europe. Martens, Précis, I, pp. 37 § 2, 40–41 § 4.
28
Martens, Précis, I, p. 46 § 6.

19
 The Gentle Civilizer of Nations

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 differ-
ent geographic locations and of different rank, States classified by refer-
ence 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 typolo-
gies 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 Napoleonic intermission,
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 ter-
ritory was acquired, how war was waged. It contained no conception of
society or culture beyond diplomatic form and protocol. It was not a con-
servative, 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 30
Martens, Précis, I, p. 56 § 8. 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,
33
I, p. 151 § 44. Martens, Précis, I, pp. 322–336 § 120–124.
34
Martens, Précis, I, p. 60 § 10, p. 83–88 § 17.

20
 “The legal conscience of the civilized world”

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 despot-
ism”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 self-consciously 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 indepen-
dence 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 res-
toration 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
 The Gentle Civilizer of Nations

its own perfection41 – with the assumption that natural development

would lead to the greatest happiness of all.42 Although Klüber recog-
nized 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 “dialecti-
cal” or “metaphysical” speculations.44 Diplomacy was to pay no atten-
tion 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 argu-
ment 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 devel-
opments 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 individ-
uals 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 hege-
mony, 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 revolu-
tionary 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
 “The legal conscience of the civilized world”

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 asso-
ciated (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 uni-
versally 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 inevi-
table 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 obser-
vation, 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
 The Gentle Civilizer of Nations

method to extract the principles that guided the development of inter-

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

A transitional critic: Kaltenborn von Stachau

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 inter-
national law as a historical subject (as well as a distinctly Protestant disci-
pline).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 con-
stituted 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 abstract-
ing 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
55
(London, Butterworth, 1989), p. 47. Cf. Kaltenborn, Kritik, pp. 243–246.
56
Cf. especially Kaltenborn, Kritik, pp. 103–127.

24
 “The legal conscience of the civilized world”

Martens and Klüber had failed to arrive at any autonomous understand-

ing 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 condi-
tions 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 inter-
national law was law in the absence of legislation, adjudication, and
enforcement through an argument that was to become the profession’s
57 58
Kaltenborn, Kritik, pp. 112–113, 175–185. 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,”
63
Kaltenborn, Kritik, p. 235. Kaltenborn, Kritik, pp. 256–272.
64
Kaltenborn, Kritik, pp. 295–300.

25
 The Gentle Civilizer of Nations

standard way of reconciling sovereignty and community.65 In reality, he

claimed, States themselves were legislators and judges and war interna-
tional 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 sponta-
neously 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 sub-
sidiary 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 acknowl-
edged 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 interna-
tional 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 humanitar-
ianism 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
66
Staatswissenschaft, pp. 69–124. 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.
69
13. Kaltenborn, Kritik, pp. 13–14.

26
 “The legal conscience of the civilized world”

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 inter-
national co-operation 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 indepen-
dence 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
 The Gentle Civilizer of Nations

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 pro-
duced 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 trea-
tise, 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 con-
ceived 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, cf.
(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
 “The legal conscience of the civilized world”

natural independence, equality, and the balance of power under a util-

itarian rhetoric adopted from Montesquieu81 and Vattel.82 The obliga-
tion 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 pos-
itive 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 theo-
logical to positive, military to industrial. The diplomacy of States was an
outdated growth of earlier, pre-positive eras – and so were the diplo-
matic 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 spir-
itual leadership of “chefs d’industrie.” In contrast to “government” and “coordina-
tion,” 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.,
87
Cambridge University Press, 1987), p. 76. Comte, La sociologie, pp. 403–404.

29
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