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
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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).

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 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-
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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

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 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-
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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

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 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-
Copyright © 2001. Cambridge University Press. All rights reserved.

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.

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 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.
Copyright © 2001. Cambridge University Press. All rights reserved.

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.

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 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
Copyright © 2001. Cambridge University Press. All rights reserved.

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.

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 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-
Copyright © 2001. Cambridge University Press. All rights reserved.

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

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 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
Copyright © 2001. Cambridge University Press. All rights reserved.

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.

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 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
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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.

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 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.
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10

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