System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel

545 Pages·2016·2.926 MB·English

by  Stefan Kadelbach, Thomas Kleinlein, David Roth-Isigkeit

i
THE HISTORY AND THEORY
OF INTERNATIONAL LAW
System, Order, and International Law
ii
THE HISTORY AND THEORY
OF INTERNATIONAL LAW
General Editors
NEHAL BHUTA
Professor of Public International Law, European University Institute
ANTHONY PAGDEN
Distinguished Professor, University of California Los Angeles
BENJAMIN STRAUMANN
Alberico Gentili Senior Fellow, New York University School of Law
In the past few decades the understanding of the relationship between nations
has undergone a radical transformation. The role of the traditional nation-s tate
is diminishing, along with many of the traditional vocabularies which were
once used to describe what has been called, ever since Jeremy Bentham coined
the phrase in 1780, ‘international law’. The older boundaries between states
are growing ever more fluid, and new conceptions and new languages have
emerged which are slowly coming to replace the image of a world of sovereign
independent nation-s tates which has dominated the study of international rela-
tions since the early nineteenth century. This redefinition of the international
arena demands a new understanding of classical and contemporary questions
in international and legal theory. It is the editors’ conviction that the best way
to achieve this is by bridging the traditional divide between international legal
theory, intellectual history, and legal and political history. The aim of the series,
therefore, is to provide a forum for historical studies, from classical antiquity to
the twenty- first century, that are theoretically- informed and for philosophical
work that is historically conscious, in the hope that a new vision of the rapidly
evolving international world, its past, and its possible future, may emerge.
PREVIOUSLY PUBLISHED IN THIS SERIES
The Law of Nations in Global History
C. H. Alexandrowicz
Edited by David Armitage and Jennifer Pitts
To Reform the World
International Organizations and the Making of Modern States
Guy Fiti Sinclair
International Law and Empire
Historical Explorations
Edited by Martti Koskenniemi, Walter Rech, and Manuel Jiménez Fonseca
Formalizing Displacement
International Law and Population Transfers
Umut Özsu
The Project of Positivism in International Law
Mónica García- Salmones Rovira
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System, Order,
and International Law
The Early History of International Legal
Thought from Machiavelli to Hegel
Edited by
STEFAN KADELBACH
THOMAS KLEINLEIN
and
DAVID ROTH-I SIGKEIT
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In memory of Merio Scattola
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Series Editors’ Preface
Long before international law became an institutionalized academic discipline in
the nineteenth century, prominent thinkers engaged in debates about the reach of
legal norms. As the idea of sovereign statehood emerged in early modern Europe,
and as European empire-states competed with each other and with non-European
polities in their imperial endeavours, questions concerning moral and legal norms
capable of reaching beyond these emerging states became especially salient. Could
there be any role for specifically legal norms in creating order outside the state? And
if so, what were the sources of these norms, what their grounds of validity?
The present volume provides a broad perspective on these questions and on the
sophisticated answers that have been given to them over the centuries. It aims suc-
cessfully at walking the fine line between a potentially parochial contextualism on
the one hand and a too-exclusive attention to ideas, without consideration of the
historical problems that gave rise to the ideas in the first place, on the other. The
guiding concern that lends unity to this collection of essays is the place of interna-
tional law in the development of a secular international order.
The unconventional choice of Machiavelli and Hegel as starting and ending
points of the analysis presented here is as startling as it is illuminating. Machiavelli,
not usually discussed in the context of international legal thought, marks the begin-
ning of the analysis because he can be interpreted as the first thinker to have given
expression to an idea of international order, however rudimentary, after the inde-
pendence of the Italian communes from the Holy Roman Empire became a late
medieval reality. The French invasion of Italy in the late fifteenth century was one
of the key factors prompting early modern state formation and forced Machiavelli
to consider the viability of Italian city-states in this novel international structure.
His inclusion in a discussion of international political and legal thought helps con-
siderably in clarifying what it was that later international legal thinkers were trying
to achieve, what kind of order they sought to remake in light of their normative
systems.
Jean Bodin, another author who is not usually included in discussions of inter-
national legal thought, is a further example of the important insights that can be
gained once one is willing to cast a wider net and enlarge the canon of those writing
about international order. The idea of state sovereignty, as developed most influen-
tially by Bodin, created interesting problems concerning the legal rights and duties
of sovereigns, both inside and outside of the state. Other authors discussed in the
first part of the present collection who are not conventionally discussed as inter-
national legal thinkers include Althusius, Spinoza, Montesquieu, Rousseau, and
Hegel. Hegel marks the end of international law understood in its expansive pre-
positive sense as a philosophical and historical endeavour before the establishment
of a specialized academic curriculum. The volume therefore redirects our attention
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viii Series Editors’ Preface
to the fundamentals of international order by offering a broad understanding of
international legal thought not confined to the disciplinary borders of nineteenth
century positivism.
The subtle and original interpretations of these authors put forward here prove
how much sustained reflection on international law can gain from ideas that were
developed outside the narrow province of the canon of what is today commonly
accepted as constituting international legal theory. The volume gives us what the
editors call a ‘creative reading of history’, which, while attentive to the historical
problem situations within which these ideas took shape, does not insulate itself
from the texts analysed. As the editors emphasize, the volume pursues a ‘moderate
anachronism’ in search of a conception of legal order outside the state that makes
sense ‘beyond its contingent existence conditions’.
Moderate anachronism thus really turns out to be an ambitious programme that
allows us to put the historical material to the test and to evaluate it comparatively.
In its second, systematic part the volume draws on the insights gained from the
first, historical part. Some of the ideas treated in the first part are here considered in
a critical way that seeks to provide a sense of long-term orientation. In this second
part, causal historical explanations for the current state of international law and
international legal thinking are given, all the while attending to the reasoning con-
tained in the historical material. The second part builds on the first in showing how
our point of view was reached, but it goes beyond that and attempts to formulate
historically literate answers to some of the problems touched upon by the cast of
historical thinkers.
By adopting a deep, historical view, the authors of this collection provide an
antidote to an ahistorical worldview that is blind to its own limitations. By offer-
ing a long-term historical picture of international legal ideas and the problems they
were designed to answer, the approaches to the challenges of global order portrayed
in this book provide a refreshing and original sense of available alternatives. No
longer the slaves of some defunct political or legal theorists, international lawyers
and international legal thinkers are now in a position to make up their own minds.
Benjamin Straumann
New York City
December 2016
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Avant-Propos
Like a pair of Herculean pillars, System and Order are presiding over the pre-
sent expedition into three centuries of nascent international legal thought. The
field that is being explored is the early history of a philosophical perspective of
international law, the Ideengeschichte of its genesis. In recent years the histori-
cal aspects of international law have aroused considerable interest among wider
circles of jurists and neighbouring disciplines. This historical turn (as it has been
dubbed) was fairly unexpected to those who have dwelt upon that field ear-
lier on. Those were essentially internationalists who felt themselves, and would
appear to their colleagues, as a few aficionados cultivating their secret garden,
without being taken very seriously. As in other legal disciplines, the history of
international law usually has at best an ornamental value, except when it can be
instrumentalized for practical purposes. Of course there are professional legal
historians, but these would hardly ever care for international law. The traditional
historians of international law, starting with their remote ancestor, Robert Ward,
were rather seen as marginal amateurs. Genuine internationalists (just as other
jurists) deal with current law, which means actual practice rather than detached
theoretical considerations.
And yet such a sharp division between supposedly positive law and the halo
of ideas surrounding it, while it may work in most fields of municipal law, is
untenable in international law. By ignoring its roots, which lie in history and
philosophy, one loses sight as it were of its very matrix and soul. This seemed
already obvious, at the height of legal positivism toward the end of the nine-
teenth century, to one of its outstanding representatives, Alphonse Rivier. A
staunch positivist, Rivier was the Swiss consul in Belgium and professor of
Roman and international law at the Université Libre de Bruxelles (with Ernest
Nys, the most eminent historian of international law of his time, as his col-
league). Rivier considered what he still called the law of nations— ‘Principes
du droit des gens’ is the title of his main work— as ‘an eminently historical
discipline’: history is more than just an auxiliary science, he asserted, ‘it is
its main basis, its foremost source being the usage of nations’ (Völkerbrauch).
Almost in the same breath he added that philosophy is quite as indispensable
in its critical and theoretical function, striving to integrate the existing materi-
als and practices into ‘a harmonious and logically articulated whole’ (Lehrbuch
des Völkerrechts, Stuttgart, 1889). He also recognized the crucial part played by
abstract philosophical constructions in the origins of international law (though
he judged them irrelevant for the present).
In fact, international law in its beginnings appears to a large extent as an off-
shoot of early modern political and moral philosophy at grips with the Romanistic
and Canonistic jus commune; and philosophy has ever since had an important