1. Introduction: a British Victorian tradition?
Was there a specifically ‘Victorian’ tradition of international law in nineteenth-century Britain? At the start of that century, two naturalist traditions—one absolute, one relative—had continued to circulate among British scholars. The former tradition can be found in James Mackintosh’s Discourse on the Study of the Law of Nature and Nations (1799)—an oft-overlooked monument to classic scholarship.Footnote 1 A more relativist conception of natural law, by contrast, is given voice in the work of Robert Ward,Footnote 2 who conceived of different international law orders—in the plural—that were to apply to different ‘sets’ or ‘classes’ of nations.
Neither of these two traditions would, however, prevail in the British nineteenth century, for both remained within a pre-Enlightenment past, whose antiquated principles even a post-1815 ‘restoration’ was unable to fully resurrect. After the middle of the nineteenth century, and especially in its last third, natural law thinking seemed dead. What normative ideas came to replace it? For centuries, much of English legal scholarship on international law had extensively drawn on foreign writers;Footnote 3 and, from the 1820s onwards, many of the key ideas now came from the United States (US).Footnote 4 Writing in 1839, William Manning, author of the first systematic British textbook on the law of nations, could therefore justly lament:
It is indeed singular that, in the multiplicity of works which are published on almost every subject, we have never had a systematic treatise on the Law of Nations by an English writer. There are two productions on this subject in our language, both of which I should be proud to claim as belonging to our literature, but both are written by Americans … The fact of the systematic writers on the Law of Nations having been all foreigners, is, I think, chiefly attributable to the similarity of the method of studying the Law of Nations, and that adopted in the study of the Roman Law, the basis of jurisprudence on the continent.Footnote 5
Taking up Manning’s gauntlet, many more British textbooks on international law did finally appear during the Victorian period—a period symbolically framed by the reign of its eponymous Queen (1837–1901). What characterises this Victorian period of British international law, and what are its main authors and ideas? There are surprisingly few studies dedicated to this issue.Footnote 6 This literary gap is especially remarkable, because a classic treatise on the history of international law memorably brands the nineteenth century the ‘British age’ (1815–1919);Footnote 7 and one of the most well-known contemporary historians of the subject has famously claimed that modern international law (1870–1960) was shaped by a ‘shared Victorian conscience’,Footnote 8 which animated the ‘Victorian tradition’ of international law until the middle of the twentieth century.Footnote 9
What are the normative and legal manifestations of this Victorian tradition? The article explores this question for British international law scholarship in the nineteenth century. It starts with a discussion of ‘public’ international law scholarship between 1830 and 1914 in Section 2. It aims to show here that, instead of one, there were, in fact, three distinct legal traditions during this period: an early Victorian naturalist tradition was complemented by a mid-Victorian historicist tradition that itself came to compete with a late Victorian voluntarist tradition. These three Victorian traditions will be further explored and compared in Section 3 in the context of ‘private’ international law. Section 4, by contrast, offers a closer analysis of the transformative work of Lassa Oppenheim, whose intellectual evolution, it will be argued, announces and reflects a radical break in the ‘sensibility’ (Koskenniemi) of international lawyers around ‘1914’ and the outbreak of the Great War. Abandoning his earlier Victorian syncretism, Oppenheim indeed ended the nineteenth century and opened the ‘modern’ twentieth century for British international law.
In revisiting the normative project(s) of Victorian international law scholars, as presented in British textbooks of the era, this article aims to critically engage with three established views in the academic literature. The first view holds that State positivism, especially that of the British utilitarians, exercised a decisive influence on British international law scholarship after 1830.Footnote 10 A second view has claimed, relatedly, that, after 1850, an idiosyncratic and particularly British approach to international law emerged that was ‘distinctive from the continental one’.Footnote 11 Third and finally, it has been argued that there was a ‘radical’ break in the field of international law around 1870, whose reformist sensibility was ‘distinctly different’ from the first half of the nineteenth century and which lasted—through Lauterpacht in Britain—until ‘around 1960’.Footnote 12 The conclusion argues that all three views must be qualified, if not completely abandoned.
2. Victorian traditions I: foundations of public international law
With the onset of the Victorian era in the late 1830s, three British conceptions of international law coexisted in three overlapping phases. An early Victorian tradition had remained rooted in natural law and simply equated the law of nations with the law of nature, whose verity and authority ultimately derived from ‘God’ (Section 2.1). In the middle of the nineteenth century, a secular metaphysical conception was added. This second tradition borrowed from the German Historical School and its normative belief that all positive law ultimately derived from the historical morality of a particular society (Section 2.2).Footnote 13 Finally, around 1880, a State positivist school emerged that rejected all religious and metaphysical foundations and attempted to justify the normativity of international law solely through the voluntary consent of sovereign States (Section 2.3). This section presents and analyses each of these three Victorian traditions, and their normative foundations, in the context of public international law. The next section will do the same in respect of private international law.
2.1. The ‘naturalist’ tradition: the re-Christianisation of international law
The unofficial starting point for a British–Victorian conception of international law is Manning’s Commentaries on the Law of Nations (1839).Footnote 14 What are its normative ingredients? Drawing on older European and modern American authors,Footnote 15 it expressly rejects Austinian positivism and categorically affirms the legal quality of international law.Footnote 16 For Manning, there undoubtedly exists a law of nature and that law is, to him, ‘identical with the will of God’.Footnote 17 What is the will of God? The will of God is to make mankind happy; and the foundations of Manning’s Law of Nations therefore seem, at first, rooted in Bentham’s utilitarian ideas:
[Everything] around us proves that God designed the happiness of his creatures. It is the will of God that mankind should be happy. To ascertain the will of God regarding any action, we have therefore to consider the tendency of that action to promote or diminish human happiness. The right application of this principle, commonly known as the principle of utility, is identical with the law of nature, the laws prescribed by human nature being obviously the laws tending to human happiness … The bringing of this principle into general circulation is due to the writings of Bentham, and constitutes his real claim to be regarded as an improver of the science of morals. Bentham’s classifications may be regarded as unnecessary, and his works may, and probably will, fall into disuse; but the benefit he conferred on moral science should never be forgotten. He was the propagator of a doctrine of which he expressly disclaims being the originator; but it is to him that we owe the common use of the most correct, and readiest, test of moral action.Footnote 18
Yet ultimately antithetical to Bentham, and heavily influenced by William Paley (and Robert Ward),Footnote 19 Manning believed that ‘Christianity reveals to us a general system of morality’ and that ‘[i]t is as an “authoritative publication of natural religion” that Christianity must be looked to in international relations’.Footnote 20 This contrasts strikingly with the relativist Ward, because the law of Christianity is no longer seen as solely imposing legal obligations on Christian nations themselves; it is ‘the law of nature – obligations from which none can be exempt’.Footnote 21 And, interestingly, while Manning did accept custom and convention as positive sources of international law, the relationship between the divine law of nature and positive international law was hierarchically defined: ‘[t]he Divine law commands the observance of the Positive law; and the latter cannot be disregarded without violating the former’.Footnote 22
This new Christian ‘universalism’ can also be detected in Phillimore’s mid-century Commentaries upon International Law (1854).Footnote 23 Not only are the ‘precepts of Natural Law’ normatively considered to be ‘obligatory upon Heathen States’,Footnote 24 but also the ‘principles of international justice’ again assume a strong Christian flavour. This re-Christianisation of international law was reflected in the sources of international law that Phillimore identified as follows:
1. The Divine Law, in both its branches – namely: The principles of Eternal Justice implanted by God in all moral and social creatures, of which nations are the aggregate, and of which governments are the International organs[.]
2. The Revealed Will of God, enforcing and extending these principles of Natural Justice.
3. Reason, which governs the application of these principles to particular cases, itself guided and fortified by a constant reference to analogous cases and to the written reason embodied in the text of the Roman Law, and in the works of Commentators thereupon.
4. The universal consent of Nations, both as expressed (1) by positive compact or treaty, and (2) as implied by usage, custom and practice[.]Footnote 25
This mix of divine and positive international law also resurfaces in Halleck’s International Law (originally published 1861 in the US but widely read in the United Kingdom),Footnote 26 which offers a standard account of the evangelical religiosity found in the Victorian age. The divine law is here understood as ‘the rules of conduct prescribed by God to his rational creatures, and revealed by the light of reason, or the sacred scriptures’, which are—following Grotius—themselves conceived of as ‘natural law’.Footnote 27 This natural law must, it is nevertheless admitted, often be modified when applied to States; and it will therefore—following Vattel—need to be complemented by a positive law of nations in the form of international treaties and international custom.Footnote 28 Yet the relationship between the two bodies of natural and positive law is clear: ‘Customs which are lawful and innocent are binding upon the States which have adopted them; but those which are unjust and illegal, and in violation of natural and Divine law, have no binding force.’Footnote 29
The most idiosyncratic illustration of this Victorian re-Christianisation of international law, however, can be found in the work of James Lorimer.Footnote 30 This closet Hegelian considered the law of nature to be ‘realised in the relations of separate nations’, and his entire Law of Nations was therefore centred on the (Hegelian) doctrine of recognition;Footnote 31 yet Lorimer explicitly linked his idea of the ‘reciprocating will’ to religious creeds and, in particular, Christianity:
It is Christianity alone which, in opening humanity a new avenue to knowledge of God’s will, and of those ultimate and absolute laws which lie behind and beyond all religions, does not close the avenue to this knowledge which nature has opened to mankind. In claiming to be a direct revelation to humanity, it does not repudiate the indirect revelation though humanity. On the contrary, it is on its coincidence with the latter, so far as the latter goes, that Christianity mainly bases its claim to our further acceptance. Its divinity is guaranteed to our nature by the divinity which addresses us through our nature.Footnote 32
These few illustrations, drawn from this first Victorian tradition of international law, should caution any attempt to characterise this period as predominantly influenced by State positivism—whether in its collective or individualist variants.Footnote 33 Nineteenth-century British international law scholarship did, indeed, retain a natural law undercurrent until the last quarter of the nineteenth century;Footnote 34 and, as will be seen in the next section, a similarly strong metaphysical rebuttal of State voluntarist ideas came from a second normative conception that rose to prominence after 1848: legal historicism.
2.2. The ‘historicist’ tradition: the rise of the German Historical School
By the middle of the nineteenth century, the religious foundations of British international law encountered a competitor: ‘the traditional, religiously based notion of international law’ had henceforth to coexist with ‘other, no less moralistic but more secular notions of the subject’.Footnote 35 This new metaphysical competitor had been introduced by James Reddie. Reddie agreed with Bentham that a classic ‘naturalism’ could no longer be justified,Footnote 36 yet he disagreed with the utilitarian positivist that ‘such a Jus naturae has no existence whatever’.Footnote 37 To explain this philosophical middle ground, Reddie drew on the German Historical School,Footnote 38 and the clearest expression of this intellectual debt is given in a series of articles, published anonymously between 1848 and 1850, in the Law Review and Quarterly Journal of British and Foreign Jurisprudence.Footnote 39
What is the nature of international law? To Reddie, international law is ‘real’ law,Footnote 40 whose normative foundation is described as follows:
[I]f, guided by observation and experience, we pass from the contemplation of individuals, living together in civil society, to the contemplation of such individuals, so associated and congregated, as constituting so many separate communities or states, we find, that among the latter also, as among the former, certain juridical or legal relations exist, or arise, in certain circumstances, anterior to, and independent of, any exercise of the national will … And many, if not most, of these juridical or legal relations, and the concomitant or consequent rights and obligations, are simple and obvious, and are almost intuitively perceived or apprehended, and almost instinctively felt, by the ordinary population generally of whom states are composed. They come to exist in the consciousness or conviction of the people, just in the same manner, in which M. de Savigny shows the private rights and obligations of individuals living in civil society are unfolded, in the gradual progress of the internal jurisprudence of states. Footnote 41
The collective ‘consciousness’ of people(s) within international civil society is here seen as the fountain of positive international law; and with this novel reconceptualisation, divine or natural law is replaced by customary law as the central source of international law.Footnote 42 But importantly, it is not actual custom, as an empirical phenomenon, that constitutes the basis of international law; the true—idealistic—foundation of all international law is the ratio juris underlying custom: the collective consciousness itself.Footnote 43 It is legal reason that creates all legal or judicial relations among nations. These relations are ‘antecedent to, independent of, and not created by, human legislation’; and it consequently follows that, despite the absence of legislative or judicial powers above States, there ‘exist among nations, legal relations, rights and obligations, similar or at least analogous to those, which are recognised among individuals in the private law of a State’.Footnote 44
With this spectacular introduction of the work of Savigny, British international law scholarship comes under the spell of the German Historical School.Footnote 45 For once international society—and not the State or States—is seen as the origin or fountain of international law, there positively can be—contrary to Austin’s view—international ‘law’ even without a sovereign or State. In other words, and to quote Phillimore once more:
It is sometimes said that there can be no law between nations because they acknowledge no common superior authority, no international executive capable of enforcing the precepts of International Law. This objection admits of various answers: First, it is a matter of fact that states and nations recognize the existence and independence of each other; and out of a recognized society of nations, as out of a society of individuals, Law must necessarily spring. The common rules of right approved by nations as regulating their intercourse are of themselves, as has been shown, such a law. Secondly, the contrary position confounds two distinct things; namely, the physical sanction which law derives from being enforced by superior power, and the moral sanction conferred on it by the fundamental principle of right; the error is similar in kind to that which has led jurists to divide moral obligations into perfect and imperfect.Footnote 46
This view is, mutatis mutandis, shared by Twiss:
Savigny has observed, that “there may exist between different Nations a common consciousness of Right similar to that which engenders the Positive Law of a particular Nation. The foundation of this community of feeling rests partly on a community of origin, partly on common religious convictions; and upon this Community of feeling has been built up a Positive Law of Nations, as it especially exists amongst the Christian States of Europe”.Footnote 47
International law is therefore ‘law’ because it is based on a ‘community of feeling’ and the Austinian objection that there can be no law without a sovereign is flatly rejected.Footnote 48 This international ‘community’ or ‘society’ conception is further reinforced by Maine’s historical studies,Footnote 49 but it fell to Westlake—the most famous Victorian international lawyer—to sum up this philosophical tradition conclusively: ‘whatever merit Austin’s analysis may have for the law of a country, his treatment of international matters appears to be inadequate’ because ‘the nation with its law is merely the strongest case in point; and that another case, not less real because weaker, is presented by the society of states with its international law’.Footnote 50
The Austinian challenge is here met by postulating—following Savigny—the co-constitutive function of ‘society’ and ‘law’. International law exists because there is an international society: ‘When we assert that there is such a thing as international law, we assert that there is a society of states: when we recognise that there is a society of states, we recognise that there is international law’.Footnote 51 Westlake’s famous later work International Law (1910), consequently, redefines its subject-matter as ‘the law of the society of states or nations’.Footnote 52
But did such an international society really exist? This was, of course, ‘the’ critical question, for:
when international law is claimed as a branch of law proper, it is asserted that there is a society of states sufficiently like the society of men, and a law of the society of states sufficiently like state law, to justify the claim, not on the ground of metaphor, but on the ground of likeness to the type.Footnote 53
And looking at the facts of international life, Westlake had no doubts: ‘states live together in the civilised world substantially as men live together in a state, the difference being one of machinery [only], and we are entitled to say that there is a society of states and a law of that society’.Footnote 54
This emphasis on international society elevated, according to Westlake, custom and reason—not treaties—to its normative centre: ‘[c]ustom and reason are the two sources of international law.’Footnote 55 Custom is thereby defined as ‘that line of conduct which the society has consented to as obligatory’;Footnote 56 and, fundamentally, consent here does not refer to individual State consent, as it is ‘not necessary to show that the state in question has assented to the rule’.Footnote 57 What is, instead, meant is the ‘consent of the international society’, that is: ‘the general consensus of opinion within the limits of European civilisation’ reconstructed by ‘reason’.Footnote 58
With international treaties as a formal source of international law excluded,Footnote 59 Westlake consequently sees international law as a non-voluntary law: ‘This is so because the international society is not a voluntary but a necessary one, and the general consensus of opinion among its members is the only authority that can make rules for it.’Footnote 60 To many Victorian authors, including Westlake, the emphasis on custom (and reason) thereby also implied a monistic relationship between international and national law, with customary international law especially being seen as an integral part of the common law of England.Footnote 61 It is this historicist–monistic common law position that would become the ‘gold standard’ in the last quarter of the British nineteenth century.Footnote 62
2.3. The ‘voluntarist’ tradition: the rise of State positivism after 1870
The historicist conception of international law had successfully challenged the earlier naturalist tradition—even if both schools continued to coexist for some time. The ultimate decline of the naturalist school was only sealed when a new ‘positivistic’ challenge made its first appearance in the 1870s.Footnote 63 This third approach began to radically question all non-voluntarist foundations, whether religious or metaphysical, that went beyond the consent of sovereign States. Part and parcel of this State positivist tradition would be the rise of the international treaty as the primary source of international law; and the concomitant marginalisation of customary law therefore also challenged the metaphysical assumptions behind the Historical School.
How did this new voluntarist tradition gain momentum and force? Holland’s Elements of Jurisprudence (1880) represents a first major assault on the ‘legal’ and ‘public’ nature of international law.Footnote 64 It was complemented by Hall’s Treatise on International Law (1880),Footnote 65 according to which all international law depended on the consent of sovereign States:
[States] are independent beings, subject to no control, and owning no superior; no person or body of persons exists to which authority has been delegated to declare law for the common good; a state is only bound by rules to which it feels itself obliged in conscience after reasonable examination to submit.Footnote 66
For Hall, an exploration of the binding rules of international law must consequently start—and end—with national acts that offer evidence of consent;Footnote 67 and the clearest evidence is—of course—offered by international treaties.Footnote 68
Surprisingly, this new State voluntarism still seeks—despite the centrality of State sovereignty—to affirm the legal quality of international law.Footnote 69 Hall thus expressly rejects Austin’s criticism of the legal nature of international law (though he admits that ‘there is an element of truth in [his] criticism’), because he finds—consistent with the Historical School—‘that the proper scope of the term law transcends the limits of the more perfect examples of law’.Footnote 70 International law can, therefore, be considered as positive law and not merely as positive morality.Footnote 71 An almost identical argument can also be found in Lawrence’s Essays on Some Disputed Questions in Modern International Law (1885) as well as his later Principles of International Law (1895).Footnote 72
What, however, is the difference between international ‘law’ and international ‘morality’? To Lawrence (and Hall), the difference lies in the fact that States have, as regards the former, individually consented to particular norms.Footnote 73 Law is binding because, and only to the extent that, each and every State has given its consent. Moreover, and importantly, the legal and moral spheres of international life must be kept distinct: ‘the question what are the rules of International Law on a given subject and the question whether they are good or bad should be kept distinct’ because ‘[t]hey differ in their nature and in their method of solution, and nothing but harm can come of any attempt to unite them’.Footnote 74 This clear-cut separation between (international) law and (international) morality will become a core feature of all future positivist approaches to international law.Footnote 75
3. Victorian traditions II: foundations of private international law
Turning now to the nineteenth-century foundations of private international law, the beginnings of this branch of law in the Victorian period also emanated from abroad and an American jurist: Joseph Story. This constitutional law scholar and US Supreme Court judge had published his influential Commentaries on the Conflict of Laws in 1834.Footnote 76 Lamenting the lack of a systematic treatise in English, while criticising ‘[t]he civilians of continental Europe’ for their overly ‘theoretical distinctions’ and ‘metaphysical subtleties’,Footnote 77 Story’s fundamental starting point is the principle that ‘every nation possesses an exclusive sovereignty and jurisdiction within its own territory’.Footnote 78 To him, it is clear that ‘whatever force and obligation the laws of one country have in another, depend solely upon the laws, and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent’.Footnote 79
From this State voluntarist perspective, private international law is neither ‘international’ nor ‘private’; instead, it is a branch of national public law, which determines to what extent judicial authorities are to apply foreign law. Story, however, did not deny that there were moments when a State morally ought to recognise and apply foreign law within its territory. However, this was not a legal obligation but derived from ‘comity’;Footnote 80 and this duty of comity was, as an ‘imperfect obligation’, for each State to judge for itself.Footnote 81
This quasi-sovereignist solution was to become, with some qualifications, the early Victorian solution too, which can be found, for example, in William Burge’s Commentaries on Colonial and Foreign Laws (1838).Footnote 82 Yet with the rise of the Historical School in the mid-Victorian period, a new ‘international society’ conception of private international law gradually gained ground (Section 3.1). That this historicist tradition nevertheless ultimately fails in Great Britain is the result of a late Victorian constitutional scholar, Albert V Dicey (Section 3.2).
3.1. The rise of ‘Savignian’ private international law around 1850
The rise of the Historical School in Germany (and elsewhere) had reignited the idea of an international law that directly applied to private individuals. For much of the nineteenth century,Footnote 83 this private international law is seen as a legitimate sibling to public international law, with both branches rooted in international society. With the general emergence of the Historical School in mid-Victorian England, it is not surprising that the Savignian idea of a private international law also entered Britain around the same time.Footnote 84
The chief entry point for this British reception of German ideas is, again, James Reddie. His Inquiries in International Law: Public and Private (1851) considers private international law as international law proper: ‘the independence and sovereignty of states do not entitle them to establish such laws and issue such orders within their own territories with regard to foreigners as they may think fit’.Footnote 85 With Savigny, and in contrast to Story, the earlier conflict-of-laws discipline is now radically reconceptualised as a branch of international law:
[W]hen an independent state allows it citizens or subjects to have intercourse with the inhabitants of other states, for the purposes of commerce or otherwise, and to enter into connections or transactions similar to those into which its own subjects enter with each other, and which are enforced by the state under the social union, the state itself, as well as its inhabitants, thereby creates judicial relations, and comes under legal obligations, which it is bound, and may be legally compelled, to see or cause to be fulfilled. So far, we apprehend, private international law does not rest upon the comitas or courtesy, or upon the mere consent of nations, but may be legitimately enforced by such physical means as such states have at their disposal … [W]e thus place the principles of private, as well as public international law, as being co-ordinate with, or on the same level of footing with, the principles of the private common law in civil societies or states[.] Footnote 86
For Reddie, private international law is thus, in contrast to Story, ‘not merely a matter of comitas or courtesy, to be observed at pleasure or not, if found convenient – not mere ethical rules’; rather, it is ‘in reality a branch of what we call law’, namely, international law.Footnote 87 Based primarily on custom ‘it rests upon principles more definite and stable than the mere comitas or courtesy of nations … namely, upon what the Romans called the ratio juris, upon juridical relations, which arise in the course of their mutual transactions and dealings with each other’.Footnote 88
This historicist position was subsequently taken up by Twiss’s Two Introductory Lectures on the Science of International Law (1856). He states:
Allusion has already been made to the expression ‘International Law’, as of a more extensive import than ‘the Law of Nations’, which may be regarded as a specific subdivision of the former … Writers, amongst whom Heffter, one of the most recent and most distinguished jurists of Germany, may be mentioned, have proposed to designate the system of law, which regulates the mutual relations of sovereign states, by the name of external Public Law of states as distinguished from the internal Public Law of states, and thereupon assign to the expression International Law a still wider application, including under it those private relations between the citizens of separate states … to which, apart from that which regulates the relations between sovereign states, as such, the name of private International Law has been assigned. Thus the conflict of laws, foreign and domestic, as it has been termed by Mr Justice Story, would fall within the province of private international law[.]Footnote 89
Nevertheless, Twiss ultimately felt closer to Story than to Savigny; and the same is true for Westlake’s Treatise on Private International Law or the Conflict of Laws (1858),Footnote 90 which settled on a similar compromise between the two views.Footnote 91 Yet this balance again partly tilted back towards Savigny during the 1860s. One reason for this was Phillimore’s Private International Law or Comity (1861), whose very title had been chosen in direct opposition to Story’s Conflict of Laws.Footnote 92 Indeed, for Phillimore, private international law was identical to the jus gentium and, like public international law (jus inter gentes),Footnote 93 it was ‘built upon the hypothesis of a common law for a Commonwealth of States’.Footnote 94 This historicist–communitarian conception would gain broader support still through the English translation of Savigny’s famous work on the subject in 1869.Footnote 95
A Scottish voice in favour of the international conception of the conflict of laws ought to be mentioned here too. Even if James Lorimer rejected the normative premisses of the Historical School, his private international law was a branch of the international law of nature.Footnote 96 To Lorimer, the binding nature of private international law derived from the conceptually necessary self-limitation required by the inter-dependence of States,Footnote 97 because the recognition of another State simultaneously implied the recognition of ‘the rights of the private citizens of whom the State is composed’.Footnote 98 Yet this naturalistic recognition of the international and legal nature of private international law was idiosyncratic to the extreme. It should be considered a naturalist outlier to an historicist mainstream that was itself increasingly challenged by a late Victorian voluntarist conception.
3.2. The triumph of the voluntarist conflict-of-laws conception
From the late 1870s onwards,Footnote 99 Savigny’s conception of private international law began to dramatically decline in England. A first decisive move was again made by TE Holland,Footnote 100 whose Elements of Jurisprudence (1880) claimed that the very term ‘private international law’ was indefensible:
Such a phrase should mean, in accordance with that use of the word “international” which, besides being well established in ordinary language, is both scientifically convenient and etymologically correct, “a private species of the body of rules which prevails between one nation and another”. Nothing of the sort is however intended; and the unfortunate employment of the phrase, as indicating the principles which govern the choice of the system of private law applicable to a given class of facts, has led to endless misconception of the true nature of this department of legal science. It has also made it necessary to lengthen the description of International Law, properly so called, by prefixing to it the otherwise superfluous epithet “public”. It is most important, for the clear understanding of the real character of the topic which for the last forty years has been misdescribed as “Private International law”, that this barbarous compound should no longer be employed.Footnote 101
Story’s original label ‘conflict of laws’ was consequently revived, because private international law was a branch of national law and, as part of national law, the choice whether or not to apply foreign law was a purely ‘voluntary act’ based on comity and with total indifference to international law.Footnote 102 This view was equally shared by HallFootnote 103 and Lawrence.Footnote 104 Yet the final nail in the coffin of the Historical School would not be forged by an international law scholar. Rather, it was the work of the most important constitutional law scholar of Victorian Britain, Albert Venn Dicey,Footnote 105 that ensured the triumph of State voluntarism in late Victorian England.
Following Holland’s lead,Footnote 106 Dicey’s The Law of England with Reference to the Conflict of Laws (1896) left no doubt as to his views on the nature of this branch of law: the very idea of a ‘private international law’ was fatally misconceived. For not only could ‘international’ law, in line with Bentham, only exist between nations; any such law could not, in line with Austin, be ‘law’ in a proper sense.Footnote 107 All that private ‘international’ law could be, if it wanted to be positive law, was (external) national law. The various ‘conflict of laws’ rules thus simply reflected each nation’s choice whether, and to what extent, to impose its domestic law on foreigners.
Methodologically, Dicey also thought that the Historical School, and especially Savigny, was fundamentally mistaken.Footnote 108 Its theoretical method had blurred the line between is and ought: ‘What each author attempts to provide is a statement of the principles which ought, as a matter of consistency and expediency, to guide the judges of every country when called upon to deal with a conflict of laws’;Footnote 109 yet this was not what the law is. Only the ‘positive method’ could avoid this problem:
The positive method is followed by a whole body of authors, among whom Story is the most celebrated … This school starts from the fact that the rules for determining the conflict of laws are themselves ‘laws’ in the strict sense of that term, and that they derive their authority from the support of the sovereign in whose territory they are enforced. Story, therefore … [did] not practically concern [himself] with any common law of Europe, but made it the object of their labours to ascertain what is the law of a given country with regard to the extra-territorial operation of rights … Hence it follows that these authors ought not, in so far as they act consistently with their own method, to attempt the deduction of the rules of private international law from certain general and abstract principles, for their aim is to discover not what ought to be, but what is the law.Footnote 110
Dicey, in conclusion, comes to lastingly deny the very existence of any private international law in Britain. There simply was no such law: all that there was were ‘statutory enactments and the judicial decisions’ adopted within each national legal order.Footnote 111 Conflict-of-law norms were positive national laws that could only gain an international dimension if harmonised in international treaties voluntarily agreed to by each sovereign State.
4. From ‘Victorian’ to ‘modern’ scholar: Lassa Oppenheim’s two lives
The Victorian era formally ended with the death of its eponymous Queen in 1901, yet much of the era’s intellectual sensibility posthumously extended until the outbreak of World War I.Footnote 112 Among these post-Victorian ‘Victorians’ is Lassa Oppenheim,Footnote 113 who—at first—embraced a late Victorian synthesis between the historical–legal and State positivist traditions. While rejecting natural law, Oppenheim indeed retains the Historical School’s commitment to the normative existence of an international community, governed by customary law; yet this law is now, in a voluntarist countermove, recast in ‘Statist’ terms (Section 4.1). Around 1914–1918, however, Oppenheim abandons this Victorian synthesis and takes a decisive ‘institutionalist’ turn that—clairvoyantly—proposes to replace the (unorganised) ‘Family of Nations’ with an (organised) ‘League of Nations’ (Section 4.2).
4.1. The ‘Victorian’ Oppenheim: recasting customary law in Statist terms
What are the normative foundations and legal sources for Oppenheim? His famous textbook begins with a clear definition: international law ‘is the name for the body of customary and conventional rules which are considered legally binding’.Footnote 114 This definition conceptually excludes all natural lawFootnote 115 and, importantly, it also excludes all private international law because international law is to him, as to Bentham, ‘a law for the intercourse of States with one another, not a law for individuals’.Footnote 116 International law is, consequently, the law of nations that exclusively applies to States and that is exclusively made by States.
But can this international law be real law properly so called? Oppenheim undoubtedly thinks so, and the legal nature of international law is here, with Savigny, established through the organic–historicist connection between a community and its law:
[T]here need not be, at least not among primitive communities, a law-giving authority within a community. Just as the rules of morality are growing through the influence of many different factors, so the law can grow without being expressly laid down and set by a law-giving authority. Wherever we have an opportunity of observing a primitive community, we find that some of its rules of human conduct apply to conscience only, whereas others shall by common consent of the community be enforced; the former are rules of morality only, whereas the later are rules of law. For the existence of law neither a law-giving authority nor courts of justice are essential.Footnote 117
Law, for Oppenheim, is thus defined as ‘a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power’.Footnote 118 This definition axiomatically links the legal nature of international law to three conditions. First, like the Historical School, Oppenheim insists that there must be a community or society before there can be law. Second, this community must agree on rules of State behaviour by ‘common consent’; and, third, these rules must, and by the same common consent, be externally enforceable so as to distinguish them from moral rules.
As regards the first condition, Oppenheim specifically finds:
The conception of community is a wider one than the conception of state. A State is a community, but not every community is a State. Likewise, the conception of law pure and simple is a wider one than that of Municipal Law … A community may be said to be the body of a number of individuals more or less bound together through such common interests as create a constant and manifold intercourse between the single individuals. This definition of community covers not only a community of individual men, but also a community of individual communities such as individual States … Innumerable are the interests which knit all the individual civilised States together and which create constant intercourse between these States as well as between their subjects … And these common interests and the necessary intercourse which serves these interests, unite the separate States into an indivisible community. For hundreds of years this community has been called “Family of Nations” or “Society of Nations”.Footnote 119
Oppenheim thus arrives, like the Historical School, at the non-universal scope of international law. The dominion of the latter is restricted by the existence of shared interests that define and bound a moral and legal community. But this (moral) international community is—unlike the position of the Historical School—no longer thought of as a supranational community of individuals; it is, on the contrary, ‘a community of individual states’.Footnote 120 International society is, to Oppenheim, a society of States: the ‘family of nations’.
This family of nations generates its own law; yet Oppenheim also insists on the law’s external enforcement and thus comes to re-emphasise the sanctions element within international law. But in the absence of a central enforcement authority, how could there be international law? Oppenheim’s answer here reverts to the classic idea of decentralised enforcement: ‘Self-help and the help of the other States which sympathise with the wronged one are the means by which the rules of the Law of Nations can be and actually are enforced’.Footnote 121 This makes international law weaker than municipal law, ‘[b]ut a weak law is nevertheless still law’.Footnote 122
To Oppenheim, all international law creation and enforcement must—finally—be done by common consent: ‘common consent is the basis of all law’.Footnote 123 This consent requirement does not mean, however, that all States must consent to all international law all the time, as it only refers to ‘the express or tacit consent of such an overwhelming majority of the members that those who dissent are of no importance whatever’.Footnote 124 (Oppenheim’s common consent is thus closer to Rousseau’s ‘volonté générale’ than to a ‘volonté de tous’.Footnote 125 ) ‘[N]o State which is a member of the Family of Nations can at some time or another declare that it will in future no longer submit to a certain recognised rule of the Law of Nations’;Footnote 126 nor can States wishing to enter the (European) family of nations pick and choose the rules they wish to follow.Footnote 127
Because common consent is seen as the foundation of all international law, it is evident to Oppenheim that ‘there must exist, and can only exist, as many sources of International Law as there are facts through which such a common consent can possibly come into existence’; and, to him, there ‘are only two’ such sources: international treaties (express consent) and international custom (tacit consent).Footnote 128 Oppenheim thereby considers custom the older and original source of international law, which is—importantly—also normatively superior to treaties. ‘[T]reaties are a source the power of which derives from custom’, because their binding nature ‘is based on the customary rule of the Law of Nations’.Footnote 129 Following the Historical School, ‘custom is at the background of all law, whether written or unwritten’.Footnote 130
Oppenheim’s historicist views on the normative primacy and collective origin of customary law distinguish him from those English (and German) State positivists that see the ultimate basis of international law in the self-limitation of sovereign States through treaties.Footnote 131 Yet Oppenheim’s theory also departs from the philosophical premises of the Historical School, as his customary law is no longer the organic product of the moral consciousness of individuals or peoples forming international society; rather, it is the sum of State actions and convictions. (The semantic shift from the international society metaphor to the family-of-nations metaphor reflects this subtle move away from a naturalist–individualist to a voluntaristic–nationalist definition of customary law.) Nonetheless, Oppenheim’s conception of customary law remains rooted in a collective voluntarism that locks individual State wills into a collective volonté générale: ‘Der Wille der einzelnen Staaten bricht sich an der Maurer der uneinnehmbaren Festung dieser Gemeinschaft.’Footnote 132
How can this external limitation of State sovereignty in international law be squared with each State’s sovereignty in national law? Oppenheim’s solution to this problem represents a fundamental departure from the classic monistic common law solution.Footnote 133 He adopts Triepel’s dualistic theory, according to which international and national law are ‘essentially different’ types of law.Footnote 134 National courts can apply only those rules of international law that have been transformed into national law and they ‘must apply even such rules of Municipal Law as conflict with the Law of Nations’.Footnote 135 To Oppenheim (following Triepel), this conceptual dualism between international and national law thereby derives from their different subjects: international law exclusively applies to States—and never to individuals—whereas national law exclusively applies to individuals and never to States.Footnote 136
4.2. The modern Oppenheim: the ascendence of institutional international law
The historical and hierarchical priority of custom as a source of international law, expressed in Oppenheim’s early conception of international law, make him—as regards his intellectual sensibility—one of the last Victorian scholars. Yet this appearance is one-sided, as there is a significant change in Oppenheim’s intellectual outlook on international law around 1914. This philosophical shift is indeed so significant that one ought to speak of two ‘Oppenheims’: in addition to the late Victorian scholar looking backwards into the nineteenth century, the modern Oppenheim is looking forwards into the twentieth century, in which a positive international law is to be founded upon and legislated within international organisations.
This second—institutional—Oppenheim comes to believe that, while the international community of the past had not been totally anarchic, its aims would be much better achieved if it were ‘organised’. This new vision of an organised international society is set out in two books: The Future of International Law (1911/1914) and The League of Nations and Its Problems (1919).Footnote 137 In both works, Oppenheim not only comes to totally reject the Historical School’s conception of an organic international society based on (rationalised) custom;Footnote 138 he even seems to question the very usefulness of customary law in the new, twentieth century.Footnote 139
What form should the organised society of nations take? Oppenheim thinks that it must not take the institutional form of a federal State—but that is not because he believes, like Kant, that this is physically impossible;Footnote 140 rather, because such a solution is feared to ‘bring death instead of life’.Footnote 141 Nor is the British Empire, à la Mill, an institutional example to be followed.Footnote 142 The present era is, to Oppenheim, a nationalist one in which ‘the development of mankind is inseparably bound up with the national development of the different peoples and states’.Footnote 143 With the zeitgeist insisting on sovereign States,Footnote 144 it follows that ‘[t]here can, therefore, be no talk of a political central authority standing above individual states; and so the organization in question must be sui generis and cannot frame itself on the model of state organization’.Footnote 145
The new international organisation or ‘League of Nations’, as he calls it, would nonetheless have a ‘constitution’,Footnote 146 as it is to ‘be founded upon a solemn treaty’.Footnote 147 This constitutional treaty should, in turn, create an international legislature as well as an international court.Footnote 148 Yet can there be such a thing as international legislation? Oppenheim concedes that his is an innovative use of the word, yet according to him, the meaning of the concept of legislation should not be confined to a State context: ‘legislation is really nothing more than the conscious creation of law in contrast to the growth of law out of custom’.Footnote 149 Law-making treaties had indeed existed in the past,Footnote 150 but the twentieth century needed a more systematic and dynamic legislative activity: ‘international legislation can no longer be left to mere chance’.Footnote 151 The institutional organ to adopt such international legislation thereby ought to be ‘comparable to the parliaments of individual states’.Footnote 152 The sovereign equality of States must, however, always mean that every State has to agree individually to whatever law is made: international legislation ‘cannot be created by a majority vote’.Footnote 153
Oppenheim’s ‘League of Nations’ ought also to have an international court. To him, this indeed appears to be the most important issue of his time: ‘Hitherto, although International Legislation has been to some extent in existence, no International Courts have been established before which States in dispute have been compelled to appear.’Footnote 154 The future development of international law is thus seen to lie in its judicialisation: ‘every State must submit all judicial disputes to an International Court of Justice and abide by the judgment of such Court’.Footnote 155 The primary task of the world judiciary is therefore to interpret and give precision to customary rules. Through this process, Oppenheim believes, the many gaps in the existing law will come to light and may eventually be filled ‘by a discreet employment of analogy’.Footnote 156
These institutionalist ideas receive a last and posthumous treatment in the third edition of Oppenheim (1920),Footnote 157 in which a new chapter is dedicated to the—by then established—League of Nations, created by its 1919 Covenant of the League of Nations (Covenant). To Oppenheim, this child of the Versailles Treaty constitutes the first real attempt ‘to organise the hitherto unorganised community of states by a written constitution’Footnote 158 and, as such, despite some serious defects,Footnote 159 it ‘inaugurated a new epoch in the development of mankind’.Footnote 160 The centrality of the judicial function in Oppenheim’s future international law project is expressed one last time:
International Law [must] develop more or less on the lines of Municipal Law, aiming at the codification of firm, decisive, and unequivocal rules of International Law, and working for the establishment of international courts for the purpose of the administration of international justice.Footnote 161
5. Conclusion: three views on the nineteenth century revisited
What international law ideas characterise the British Victorian era? As explained in Sections 2 and 3, from the late 1830s onwards, three discursive traditions on the normativity of international law overlapped and competed with one another. There, first, remained a natural law tradition that had, nonetheless, shed its rationalist–legal character in favour of a Christian–moralist one. The re-Christianisation of international law is especially prevalent in the earlier Victorian periods.Footnote 162 With the rise of evolutionism (Darwin) and sociology (Spencer) in the 1860s and 1870s,Footnote 163 the intellectual background conditions of this theocratic–naturalist tradition, however, steadily disappeared.
A second British tradition, by contrast, had suddenly emerged around 1850. It was inspired by the rise of (legal) historicism on the European continent: ‘The mid-Victorians welcomed the doctrine that the law of civilised societies was the product of a development through a series of identifiable stages related to, but distinct from, the development of society itself.’Footnote 164 This historicist tradition derived the binding nature of international law from the moral existence of an international society out of which legal norms spontaneously sprang: ubi societas, ibi ius.Footnote 165 This second tradition gradually gained prominence in the late Victorian period and remained dominant—especially through the work of Westlake (and the early Oppenheim)—until the early twentieth century.
A third Victorian tradition finally emerged in the last quarter of the nineteenth century. It rejected all non-voluntarist elements within both the naturalist and the historicist schools and, through its emphasis on State sovereignty, it elevated international treaties to the centre of international law. As regards public international law, this State positivist school was nonetheless overshadowed by the Historical School and its emphasis on custom and reason (Westlake) until 1914;Footnote 166 yet for British conflict-of-law thinking, the influence and authority of Dicey had guaranteed a much earlier victory.
It is against the background of these brief conclusions that the three academic views on Victorian international law scholarship, set out in Section 1, can be revisited. These were: first, the belief that State positivism, especially that espoused by Austin, exercised a decisive influence on Victorian international law scholarship; second, the claim that, after 1850, a distinctively British approach to international law diverged from a continental one; and, third, the view that there was a major break in the general conception or sensibility of international lawyers around 1870. What can be made of these positions in light of Sections 2–4?
It was seen above that, for the better part of the nineteenth century, the influence of British utilitarian or State positivist thinking on international law was indirect and partial at best. This was especially true for Austin’s State positivism (outside private international law), for almost all public international law scholars, even positivist ones, consider international law as law properly so called.Footnote 167 The key—historicist—counterargument always insists that the State-sovereignty theory of law is unduly reductionist when applied to European or international society.Footnote 168 The master concept guaranteeing the legal normativity of international law after 1850 is the ‘collective consciousness’ of the international society as expressed in (rationalised) custom.
This leads directly to the second academic view. In light of the strong impact of the German Historical School in mid-Victorian Britain, the claim that, after 1850, the English approach to international law became ‘distinctive from the continental one’ must surely be qualified.Footnote 169 Indeed, as regards public international law scholarship, the very opposite is the case. The mid-Victorian legal imagination did not start ‘at home’ (Koskenniemi); it was inspired by foreign ideas and heavily borrowed from them. Even if the emergence of State positivism after 1870 was, in its engagement with Austin, a very ‘British’ affair, it also emerged—and with remarkable synchronicity—in the form of the German State positivists (Jellinek and Triepel), who also began to make their case in favour of absolute State sovereignty in the last quarter of the nineteenth century.Footnote 170
What of the third claim? Was there a radical break in the sensibility of international lawyers in the last third of the nineteenth century, when a new ‘shared Victorian conscience’ of rationalism, individualism and cosmopolitanism came to prevail? To the present author, the ‘men of 1873’ appear firmly embedded in an earlier historicist tradition best characterised by moralism, societism and regionalism. However, with Koskenniemi, something important did change around 1870. The traditional pessimism regarding legal codification partly gave way to a feeling of professional optimism that was best represented by Mancini’s belated rejoinder to Savigny in Della Vocazione del Nostro Secolo per la Riforma e la Codificazione del Diritto delle Genti.Footnote 171
Yet dialectically, and in contrast to Koskenniemi, it marks not the beginning of something new but the beginning of an end.Footnote 172 The process of codification, combined with the gradual rise of State positivism after 1873, entailed the danger that the ‘collective consciousness’, the moral-cum-legal object of scientific codification, was not seen as confirmed but rather validated, and thus surreptitiously replaced, by the formal will of sovereign States. Within post-Victorian Britain, this positivist danger is best exemplified by the later Oppenheim. Oppenheim’s State-centred method not only questioned the natural law foundations of international law; his subsequent turn towards international organisation and codification, based on unanimous State consent, made the decisive post-Victorian move against the Historical School’s moralistic and collectivist premisses.
With the 1919 Covenant of the League of Nations, Oppenheim’s ‘move to institutions’ became the defining characteristic of the twentieth century.Footnote 173 It was here that a ‘new’ modern international law was born.Footnote 174 The twentieth-century ‘British’ international law scholar that best represents that new institutionalist sensibility was Hersch Lauterpacht because, contrary to the suggestion of Koskenniemi, he did not ‘look[] back into the middle of the nineteenth century’.Footnote 175 Lauterpacht firmly began where Oppenheim had stopped: in 1919 and with the Covenant; from there, he looked into the future—a future in which an organised international society was to guarantee the normativity of international law through ‘statutes’ and ‘judgment’.Footnote 176 But this is a story for another time that will need to be told elsewhere.
Acknowledgements
The article is warmly dedicated to my former Durham colleague Professor Colin Warbrick, who offered the kindest of intellectual welcomes to a young German scholar entering British academic life.
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