Lauterpacht: The Victorian Tradition in International Law

VIII.

I have interpreted Lauterpacht's work in terms of a movement that started as a theoretical-doctrinal effort to envisage an international legal order resembling the structures of the liberal state and ended up celebrating the virtues of a legal pragmatism that was alien to theory and doctrine. For me, Lauterpacht's oeuvre and career constitute a striking illustration of an international legal consciousness that sought to resuscitate the rationalism of the nineteenth century in the aftermath of the Great War but used up its emancipatory potential in the doctrinal struggles of the 1930s, became eclectic after the Second World War, and was institutionalized as the normal discourse of law and diplomacy in the 1960s.

Lauterpacht's main theoretical work, The Function of Law in the International Community (1933), set up the doctrine of a comprehensive international legal order to defend in legal terms the unity of a world that seemed to be heading from fragmentation to catastrophe, from the League of Nations to the Holocaust. It was compatible with the ideas of the nineteenth century Jewish enlightenment and prevailing pacifist sentiments. It also helped Lauterpacht to assimilate within a cosmopolitan elite that contracted its identity from rationalist, anti-nationalist sentiments and an individualist cultural outlook.

During his career, Lauterpacht applied this projected legal order to politics, ethics and professional practice. I see these moves as corresponding to three orientations in twentieth century liberal jurisprudence. The attempt in the 1930s and 1940s to construe international law as a scientifically based constraint on the conduct of foreign policy ended with the collapse of the inter-war peace system and the establishment of the United Nations on `realist' principles. The central thesis in Recognition in International Law (1947) (namely that nationalism can be tempered by a rational legal order) was the most ambitious outcome of this effort. The subsequent effort to articulate in ethical terms the political unity that seemed lost as the juggernaut of modernity crashed into Auschwitz culminated in the publication of Human Rights in International Law (1950), a celebration of rationalist naturalism that turned on a practical proposal. Lauterpacht's final move was to emphasize the significance of enlightened judicial practice - that is, legal pragmatism - as an instrument for peace, and is presented in the 1958 edition of the The Development of International Law by the International Court. Where Function of Law completed the work of theoretical reimagination, Recognition hoped to bridge the gap between that theory and practice, Human Rights instituted an abstract justification for the legal project and, finally, Development inaugurated pragmatism as the culture of future generations of international lawyers.

My interest in this narrative lies in what it tells us about what happened to international law as political commitment during the twists and turns of a particularly tragic half-century that came to rest in a pragmatism of the 1960s, a pragmatism which by now may have spent whatever creative force it once had.²⁸⁰ I have stressed the biographical and historical aspects of Lauterpacht's oeuvre to expel the sense that his doctrine was merely a free-floating academic play or at best a move in a sealed-off utopian discourse. I see it as a consistent attempt to maintain, through projection, the wholeness of a social world and personal identity when none of the competing projects (of science, politics or economy) had been up to the task. Lauterpacht was a Victorian liberal in a time when the dialectic of the enlightenment was only slowly asserting itself. That he had no doubts about the universal and intrinsically beneficent character of legal reason defines him as a historical agent whose defence of international law through an underlying federalist Weltanschauung maps out for us a large field of our shared professional past. For me, Lauterpacht's main contribution is to have articulated with admirable clarity the theoretical and historical assumptions on which the practice of international law is based. If we now continue those practices, but feel embarrassed when trying to express their premises in the language of historical optimism, I see only two ways out. Either the practice must be changed (so as to reflect our modern/post-modern theory), or we have to readdress the premises. In the latter case, we must ask ourselves whether it is possible to continue the project of a global federalism that should be managed by the last remaining group of Victorian gentlemen, international lawyers.

280 Cf. my `International Law in a Post-Realist Era', 16 Australian Yearbook of International Law (1995) 1-19.

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