Histories of International Law: Dealing with Eurocentrism, 19 Rechtsgeschichte (2011), 152-177 (original) (raw)
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Histories of International law: Dealing with Eurocentrism
Rechtsgeschichte - Legal History, 2011
In The Gentle Civilizer of Nations, I suggested that international law began in the 1860's as part of liberal entrenchment in Europe as the clouds of nationalism, racism and socialism were rising in the political horizon. It began as a project of practical men, attorneys and lawyers active in politics and parliament, and not out of philosophical contemplation or system-construction. University professors were involved, but these were professors of something that was seen more as a craft than a science. What they aimed at was to »civilize« the behaviour of their nations, but also the colonies, and to do this by coordinating liberal legislative reform in Europe, by supporting formal empire in the colonies, and by doing all this as part of a set of cosmopolitan legal projects they grouped into their »international law« (Droit international, diritto internazionale, Völkerrecht). The »men of 1873« as I came to call them, included the Belgian professor Ernest Nys (1851-1920) who eventually became the first historian of the new profession. Nys had taught legal history and jurisprudence at the Université Libre de Bruxelles from 1885 to 1898 and was thereupon appointed to professorship in international law at that same university. In the opening chapters of his Le droit international, les principes, les théories, les faits, Nys recounted the history of international law as part of the expansion of European civilization over the world. By 1904 there were forty-six States with full sovereign rights in the »international community« (22 European States, 21 American States, Japan, Liberia and the Independent State of the Congo). Nys accepted the division of that community into civilized, barbarian and savage peoples, but although he limited the circle of sovereigns to those inhabited by the first of these categories, he did not think the latter completely excluded from the benefits international law had to offer. On the contrary, he read the Berlin Africa conference of 1884-85 as a powerful illustration of the will of the European powers to protect indigenous populations and to advance their material 152 Histories of International law: Dealing with Eurocentrism
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THE IDEA OF THE INTERNATIONAL COMMUNITY IN THE HISTORY OF INTERNATIONAL LAW
The development of the idea of what now is called the international community is closely linked in the history of the science of international law with the evolution of such concepts as jus gentium, jus naturale, jus ad bellum, and others which themselves might deservedly be the subject of a separate analysis. The purpose of the present Note is to trace the evolution in legal theory of the idea of an international community among the classics of international legal doctrine, turning when necessary to other related theoretical propositions. The need for such an analysis is nourished by the reflection that the contemporary state of affairs in international life is in a crisis or transitional situation. The way out of the situation – in reality and in the theory of international law – may be dictated at least both with the assistance of resolving issues of a value nature and through recourse to the history of international legal doctrine. In any event, these orientations of the study cross, so that issues of philosophy, history, and law here share a common place. The period of the classics in the theory of international law is linked with elaborating base categories, which in and of itself may be a source of resolving many contemporary problems. One task of the present Note is to consider the positions in doctrinal writings, the clarification or critique of which will enable us to move on to other or relatively different levels of generalization. Romans and Post-Glossators.One may begin a history of the idea of an international community with an analysis of the elements thereof in the works of the Roman jurists or postglossators.1Basically, attention is focused in the literature on the theological orientation in the history of international legal doctrines, when within the framework of the so-called " second wave " of scholasticism the Spanish School comes to the forefront. In the view of Jouannet,2 this advance was conditioned by contemporary studies which sought to rehabilitate the mediaeval authors, sometimes excessively modernizing them. Had in the early sixteenth century a polished system on the theoretical plane of an international community been created, particularly in the works of Francisco de Vitoria (1492-1546) and Francisco Suarez (1548-1617)? The question is, of course, rhetorical, and one may speak only at least of the basic contours of the theory of an international community in which there is no place for theocracy or imperialism – the two principal political orientations of their time. The Renaissance, inspired by the Greeks and the Romans and their philosophical and political-legal achievements, strengthened these trends through aspirations for a uniform world community in the Imperial or Papal vision. Both on different grounds developed the idea o an international community from which a more complete theory of an international system arose; that is, communities of national political entities. We speak of them not as nations or States, but as juridical persons of international life that had formed. They are merely certain aspects of an external sovereignty, and concerning independence – with respect to one another and also with respect to some higher authority.
Some Remarks on the Eurocentricism and Imperialism in the Construction of International Law
HISTORIA I ŚWIAT no 9 2020, 2020
The modern international law is considered an offshoot of European intellectual contributions as its basic foundation is deeply imbued with the political and social upheavals took place in European history. As an example, the Westphalian order emerged in the culmination of thirty years war in 1648 was regarded as the most pivotal mile stone in modern history of international law. Yet the European domination and its intellectual contribution to the development of international law systematically excluded non-European nations from international law and its protection, which finally paved the path to use international law in the 19 th century as a tool of legitimizing the colonial expansion. This paper seeks to trace the historiography of modern international law and its dubious nature of disdaining non-Europeans and their civilizational thinking. Furthermore, this paper argues how European historical encounters carved the map of international law from a vantage point, which gave an utter prominence upon the European intellectual monopoly. The results emerge from this paper will strongly suggest the need of an alternative scholarship to unveil the history of international law.