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Lauterpacht: The Victorian Tradition in International Law
Martti Koskenniemi1
Full text available: PDF format *
I.
Less than two months after the capitulation at Munich, on 16 November 1938, Hersch Lauterpacht delivered an address to the League of Nations Union of Cambridge University, his new academic home. The general subject of his presentation was the League of Nations. In his opening remarks, he confided to his audience that this was a topic about which he felt so strongly that he was unable to trust the `freely spoken word' and that, while it was not his custom, he would read from a manuscript in order to maintain restraint and deliberation.2 Nonetheless, the address departed from Lauterpacht's customary detached and complicated, somewhat dry English at several points, most notably when, shortly after the middle of his speech, he switched to the first person plural. The address opened with the argument that the events of the 1930s - the Manchurian and Abyssinian wars, as well as the Munich accords - and the positions assumed by key League members had resulted in the Covenant's collective security provisions, the territorial guarantee (Article 10) and the obligation of collective response (Articles 15 and 16) falling into desuetude. In fulfilling its principal objective, Lauterpacht claimed, the League had failed. All that remained was the hope, he asserted without conviction, `that the true spirit of man will assert itself in the long run'. Then followed the abrupt and uncharacteristic jump into informality and engagement:
But what have we to do in the meantime? Ought we to abandon the League and start afresh as soon as the obstacles disappear? Ought we to maintain it and to adapt it to the needs of a retrogressive period? Ought we to pursue the ideal of universality by reforming the League so as to make it acceptable for everyone? Ought we to admit that if peace cannot be achieved by collective effort, there are other good things that can be achieved through it?'3
The questions are put forward in a rhetorical, anxious tone, as much to highlight the urgency of the situation as to indicate alternative ways of response. Should the law be abandoned, or modified? Should its content or scope be adjusted in accordance with political realities? The questions are familiar to international lawyers, who must continually juggle the distance between `ought' and `is', law and fact. Here, however, the issues at stake seem to be of exceptional moment. They concern the intrinsic rationality of federalism and its concomitant, law and order through collective security: `progress in things essential has been arrested and the clock turned back'.
Lauterpacht's speech posits a cultural or political community which is estranged from the course of inter-war politics - the politics of national over common interests, of the reign of `short-sighted benefits' over stable and balanced growth, and the rise of dictatorships `on a scale unprecedented in history'.4 There can be little doubt about the principles which identified Lauterpacht's Cambridge audience as a community. To invoke those principles, Lauterpacht turned to the past - as Grotius had once done in seeking authority from the customs of the Romans, `better peoples and better times'.5 Looking beyond the immediate past, the nationalisms and disorder of the fin de siècle, his gaze rested upon the words of the Prince Consort at the 1851 International Exhibition in London:
Nobody who has paid any attention to the peculiar features of our present era will doubt for a moment that we are living a period of the most wonderful transition which tends rapidly to accomplish that great end to which indeed all history points - the realization of the unity of mankind.6
And in a tone of unmitigated Victorian nostalgia, he added: `How immeasurably far backwards do we seem to have travelled from those days of unbounded optimism?'7
To find a place for law in a dangerous time, Lauterpacht looked back to the middle of the nineteenth century, hoping to resuscitate its liberal rationalism and its ideal of the rule of law, its belief in progress, its certainty about the sense and direction of history - Proust's bon ange de la certitude. For him, Munich seemed deadly because it was an un-Victorian, anti-traditionalist attack on the political ideals - and the political system - that had become entrenched during the heyday of the bourgeois century. The way to combat it was to engage public opinion in defence of the idea of the League of Nations as a world federation, the `culmination of the political and philosophical systems of leading thinkers of all ages ... the final vision of prophets of religion'.8
This was no sudden turnabout in Lauterpacht's thought. Throughout the 1920s and 1930s he had critiqued a `positivism' which extolled the virtues of statehood and sovereignty and, allying itself with aggressive nationalism, had been responsible for the cataclysm of the Great War. In Lauterpacht's mind, this was to be replaced by a comprehensive and professionally administered system of cosmopolitan law and order in the image of the liberal state.
Historians debate the `modernist' and `traditional' understandings of the effects of the First World War on European consciousness.9 In this perspective, I see Lauterpacht as a traditionalist for whom the war of 1914-1918, together with the aggressive nationalism that provoked it and the twenty-year crisis that ensued, constituted an irrational rupture in the peaceful and inherently beneficial international developments associated with the nineteenth century. Lauterpacht always characterized the inter-war years as a period of `retrogression'.10 It was retrogression from the cosmopolitanism that inspired Wilson in Paris in 1918-19, but which owes its origin to the high liberalism of half a century earlier.11 Lauterpacht never gave up the ideals of liberalism and progress. On the contrary, he reasserted them in response to the experience of the Second World War in a famous 1946 article on `The Grotian Tradition in International Law' as well as in his post-war writings on human rights, grounding them expressly in the rationalist philosophy of the Enlightenment.12
Lauterpacht's traditionalism sets him apart from his Viennese teacher and contemporary Hans Kelsen, a legal modernist par excellence. Although Lauterpacht held Kelsen in the highest esteem (and is reputed to have kept a photo of him on the wall of his study, together with one of his mentor Arnold McNair and an engraving of Grotius) and was impressed by the Pure Theory of Law, they held strongly differing viewpoints regarding the place of natural law in legal construction. While Kelsen, in a pure modernist fashion, sought refuge in pure form from a politics gone awry, Lauterpacht insisted on the need to incorporate by reference fundamental (Victorian) values as the only guarantee against the politics of irrationalism.13
However, had Lauterpacht been simply a naturalist critic of nationalism and sovereignty, there would be little reason to distinguish him from the mainstream of the reconstructive scholarship that burgeoned during the 1920s in Europe and elsewhere, was branded `utopianism' in the 1940s and 1950s, and is now practically forgotten. To be sure, he does confess to a utopian federalism, liberal humanism and the associated values of cosmopolitan individualism. Kant (together with Grotius) is his acknowledged spiritual father. But the liberal legacy is ambiguous and in his professional work Lauterpacht treads a more complex path than that which could have been taken by such traditionalist inter-war figures as, for instance, Politis in France or Krabbe in the Netherlands - names which, unlike Lauterpacht, enter legal texts only to mark the discipline's historical continuity and pedigree, like ancestral portraits in the house of legal pragmatism, irrelevant beyond decorative purposes.14
Lauterpacht belongs also to the modernist camp in that he, like Kelsen, shares a non-essentialist epistemology. He is sceptical about the ability of juristic method to act as a safeguard against arbitrariness. Hence, for example, his emphatic and repeated criticism of judicial recourse to the doctrine of `normal meaning' which assumes what is to be proved and simplifies out of recognition the constructive aspects of judging.15 Principles of interpretation `are not the determining cause of judicial decision, but the form in which the judge cloaks a result arrived at by other means'.16 Nor are pure facts impartial arbitrators of normative disputes. Whether an entity is a state is not imposed on the observer through an `automatic test' but is the result of construction, undertaken, of course, `in good faith and in pursuance of legal principle'.17
Law is how it is interpreted. Lauterpacht's modernity lies in his constant stress on the primacy of interpretation over substance, process over rule, in a way that leads him into an institutional pragmatism that is ours too. However, it raises the further question of power, about who is vested with the interpreting, meaning-giving authority? It thereby creates what for Lauterpacht became the single most important problem of the international legal order, the problem of self-judging obligations, the state's ability to interpret for itself what its obligations are.
Now Lauterpacht is able to dispose of this difficulty only by returning to a liberal historicism which sees in public opinion, interdependence, common interests and the indivisibility of peace the compelling causes for a federalism that will dispose of self-judgment. As the international community outgrows the temporary phase of state sovereignty, a system of public administration will emerge which fulfils the ideal of the Rule of Law. Interpreting the law becomes the task of impartial and responsible public officials, in particular lawyers. Even as the League was struggling with the Abyssinian fiasco, and neutrality and alliances surfaced to replace collective security, Lauterpacht continued to profess:
faith in the ultimate assertion of reason in the relations of man [from which] conceptions like the League of Nations and collective security must be regarded as manifestations of a permanent and ever recurring purpose, and their eclipse must be regarded as temporary and transient.18
Finally, Lauterpacht always saw himself, and frequently characterized himself, as a challenger of orthodoxy, a `progressive'.19 His main works open up as criticisms of doctrines and theories that marginalize international law as a `primitive' law or that seek to limit its application by recourse to concepts such as `political' or `non-justiciable disputes'. Situating international law within a historical trajectory of European thought towards a Kantian, cosmopolitan law, he attacked entrenched substantive doctrines on the nature of recognition of states and governments, the position of the individual in international law, the criminal responsibility of states, state immunity, and so forth, all of which in one way or another appeared as obstacles in the law's great passage to universalism.
It is important to be clear about the sense of these critiques. The `progressivism' from which they emanate is not in conflict with nineteenth century liberal sentiments. Rather, it is perfectly compatible with those values, as indeed is evidenced by the above quote from the speech of Victoria's husband. The target is not (European) tradition per se, nor even the main current of that tradition, namely Enlightenment thought. Lauterpacht's critical posture is internal to its cosmopolitan and rationalist mainstream and is directed at the margins, against the `metaphysical' or outright `mystical' doctrines of nationalism, statehood and sovereignty. Thus, for instance, Lauterpacht criticizes Spinoza's doctrines of the reason of state and the separation of individual and state morality as an illogical deviation from the healthy rationalism of his general political philosophy. Somehow, when dealing with international relations, `a fatalistic determinism took the place of reliance upon the power of reason ... the master's hand lost its cunning'.20
As I will argue more fully later on, Lauterpacht's critique issues from, or at least can be understood against, the background of the Austrian liberalism which had its heyday in the 1860s but then disintegrated under the pressures of the nationalist, anti-Semitic mass movements of the fin de siècle years. For Lauterpacht, `Hegelian' philosophy, together with the associated code names of `Hobbes' and `Machiavelli', assume the role of respectable scholarly representatives for those anti-liberal sentiments, the separation of law and statehood from the rationally right.21 From such posturing, Lauterpacht's critique extends to `politics' in general, branded as irrational, egotistic, short-sighted, and certainly `unscientific'. All of this ensues from his aim to liberate history's intrinsic rationality through a legal ordering of international affairs.
Lauterpacht's ambivalence towards colonialism may illustrate the direction and limits of his liberalism. On the one hand, Lauterpacht regards the nationalist, exploitative face of imperialism as `the most ruthless economic exploitation of native peoples, maintained by the despotic rule of military administration'.22 On the other hand, he admires the `liberal tradition in British foreign policy' that abolished slavery and the Congo Free State and led to treaties to protect the natives. Lauterpacht saw these activities as marking a progressive turn in the doctrine of the subjects of international law which became concrete in the League's Mandates system.23 The differentiation works on the basis of humanitarian sentiments that were quite central to the mid-Victorian liberal consciousness. Awareness of complexity, ulterior motives, the powers of desire and the effects of its repression - essential to modern mentality and especially its (tragic) realism - are non-existent. Whereas Kelsen, for instance, was quite conversant with Le Bon's theories of the irrational behaviour of the masses, it would have been unthinkable for Lauterpacht to integrate such disturbing evidence into his ordered world. For Lauterpacht, even at the worst of times, the world remains a whole, united in the rational pursuit of liberal ideals. Here he is in 1941, defending the `reality of the law of nations' before the Royal Institute of International Affairs, Chatham House:
The disunity of the modern world is a fact; but so, in a truer sense, is its unity. Th[e] essential and manifold solidarity, coupled with the necessity of securing the rule of law and the elimination of war, constitutes a harmony of interests which has a basis more real and tangible than the illusions of the sentimentalist or the hypocrisy of those satisfied with the existing status quo. The ultimate harmony of interests which within the State finds expression in the elimination of private violence is not a misleading invention of nineteenth century liberalism.24
Today, international law remains one of the few bastions of Victorian objectivism, liberalism and optimism. After realism, however, we may no longer feel comfortable in speaking the (paternalistic) language of the `harmony of interests'. When called upon to defend our nineteenth century doctrines, irony may remain our only weapon: `so what better have you got?' Not so with Lauterpacht. His seriousness is attested to by his faith and his faith by a temporal displacement. Even if irrationality is here today, rationality will prevail tomorrow.
Lauterpacht's work combines Victorian ideals and a hermeneutics of judging that gives it both a historical and contemporary feel. We have been able to add little to the analysis of the relationship of law and politics since the debates between Lauterpacht, E.H. Carr and Julius Stone.25 We still regard as authoritative his writings on the Permanent Court or its successor, indeed his writings on any substantive international law problem. As the hundredth anniversary of his birth approaches, Lauterpacht remains interesting for he belongs to the era of our fathers and grandfathers, bridging the gap between the liberal rationalism of the nineteenth century and the functional pragmatism of the late twentieth century. Close and distant at the same time, he is uniquely placed to provide an understanding of why it is that we stand now where we do. Whatever Oedipal urge may be satisfied by a recounting of his work will, I hope, be excused by the fact that we too are historically situated in a project that is not only an abstract exercise in ideas but a continuum of political, moral and professional choices.
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1 Professor of International Law, Department of Public Law, 00014
University of Helsinki, Finland. I wish to thank Professor Eli Lauterpacht for
providing access to his father's papers, for his kind hospitality in Cambridge
as well as for an abundant amount of biographical information, only a part of
which has found its way into the present article but remains restored for
further use. Naturally, all responsibility for the ensuing interpretation of
Sir Hersch's oeuvre remains with the author.
2 `The League of Nations', in International Law, Being the
Collected Papers of Hersch Lauterpacht, systematically arranged and edited
by E. Lauterpacht (hereinafter CP) vol. 3 (1977) 575.
5 H. Grotius, De jure belli ac pacis. Libri tres. Carnegie
Endowment for International Peace, The Classics of International Law 3
(1925) Prolegomena § 46 (p. 25).
6 `The League of Nations', supra note 1, at 587. In his
monumental history of the nineteenth century, Peter Gay links this statement to
the Lord Mayor's Banquet of 1850, anteceding the Exhibition. Nonetheless, he
too considers it a good illustration of the Victorian mind's optimistic view of
`progress'. See P. Gay, The Bourgeois Experience. Victioria to Freud, Vol.
I, The Education of the Senses (1984) 46 and generally 45-56.
7 `The League of Nations', supra note 1, at 587. Examples of
nostalgia abound. Outlining in 1925 Westlake's progressive doctrine as
expressed in an 1895 book, Lauterpacht notes that the supervening political
changes would require only `minor alterations' in his work, `Westlake and
Present Day International Law', CP, vol. 2, at 400. Discussing in 1959
the 1871 London Protocol Lauterpacht notes that `[i]n comparison of what was to
follow, this was a law-abiding age', `International Law and Colonial Questions,
1870-1914', CP, vol. 2, at 99.
8 `The League of Nations', supra note 1, at 583, 585.
Lauterpacht's general lectures in Lent Term 1938 founded international law
under the Covenant on the peace schemes of Dubois (1305), Sully (1603) and
William Penn (1693), and invited students to read inter-war commentary on them.
It then presented the `legal organisation of peace' in five parts: i) the duty
not to resort to force; ii) the duty of peaceful settlement; iii) the duty to
accept arbitral or judicial settlement; iv) the duty to enforce collective
decisions; and v) the duty to participate in the machinery of peaceful change.
This was a complete constitutionalization of international affairs, a system of
Rule of Law writ large. Syllabus of Six Lectures by Professor Lauterpacht on
the Legal Organisation of Peace in the Lent Term, 1938.
9 For the modernist view, cf. P. Fussell, The Great War and Modern
Memory (1975). For the traditionalist interpretation, cf. J. Winter,
Sites of Memory, Sites of Mourning. The Great War in European Cultural
History (1995).
10 Cf., e.g., `International Law after the Covenant' (1936,
CP, vol. 2) 145.
11 For Lauterpacht's early enthusiasm about Wilson and the League of
Nations, cf. `The Mandate under International Law in the Covenant of the League
of Nations' (1922, CP, vol. 3) 40.
12 McNair remembers Lauterpacht telling him that the article on the
Grotian tradition `contained more of his essential thinking and faith than
anything else he had written', `Memorial Article', Annals of the British
Academy (1960) 379. Cf. also International Law and Human Rights
(1950, hereinafter Human Rights) and sections V and VII infra.
13 `Kelsen's Pure Science of Law' (1933, CP, vol. 2) 404,
especially 424-429 where Lauterpacht argues that Kelsen's rejection of a
natural law basis for his system was unnecessary. My reading of Kelsen as a
legal modernist is elaborated in slightly more depth in `The Wonderful
Artificiality of States', 88 ASIL Proceedings (1994) 22 et seq.
An interesting modernist interpretation sees Kelsen's `fetishism of the form'
as a repression of social reality, a `fear of the masses'. Cf. Carty, `Interwar
Theories of International Law: The Psychoanalytical and Phenomenological
Perspectives of Hans Kelsen and Carl Schmitt', 16 Cardozo Law Review
(1995) 1239. In a recent survey Alfred Rub has, however, piled Kelsen together
with the other 1920s reconstructivists that aimed to combine naturalism with
positivism, Hans Kelsens Völkerrechtslehre. Versuch einer
Würdigung (1995) 19.
14 Unlike his ultra-traditionalist Viennese contemporary, Alfred
Verdross, Lauterpacht did not assume that the unity of mankind could realize
itself by an incessant repetition of its intrinsic rationality. Where Verdross
relied on the self-evident beneficiality of natural law, Lauterpacht saw it as
more equivocal, stressing the constructive role of enlightened judicial
practice in fixing its meaning, cf. e.g. Human Rights, 103-111.
15 `The Doctrine of Plain Meaning', CP, vol. 4, at 393.
Likewise The Development of International Law by the International Court
(2nd edition, 1958) 49-60, 116-141.
16 `Restrictive Interpretation and the Principle of Effectiveness in
the Interpretation of Treaties', CP, vol. 4, at 410.
17 Recognition in International Law (1947) 50, 48-51.
18 `Neutrality and Collective Security', 2 Politica (1936)
154.
19 He does this most frequently in an indirect way, by praising the
progressive spirit of scholars with whom he agrees. Cf. e.g. `The Grotian
Tradition in International Law', CP, vol. 2, at 359-363; `Westlake',
supra note 6, at 402; `Brierly's Contribution to International Law'
(1955, CP, vol. 2) 431. Cf. also Human Rights,
103-111.
20 `Spinoza and International Law' (1927, CP, vol. 2) 374,
375.
21 Ibid, 366-384. Thus as `totalitarianism and its denial of
fundamental human freedoms drew their mystical inspiration from the
philosophical revolt against reason - one of the most characteristric
manifestations of the German National-Socialistic and Italian Fascistic
doctrines - it was inevitable that the drive to vindicate human rights should,
once more, ally itself with the rationalist foundations, truly laid by Locke,
Newton and Jefferson, of the philosophy of natural law', Human Rights,
112.
22 `The Mandate under International Law', supra note 10, at
39.
23 `International Law and the Colonial Question', supra note
6, at 101.
24 `The Reality of the Law of Nations', CP, vol. 2, at 26.
25 Cf. E.H. Carr, The Twenty-Years' Crisis 1919-1939 (2nd
edition, 1946 [1981]), especially Chapters 10-13 and J. Stone, Legal
Controls of International Conflict (1954), especially at 144-164; and from
Lauterpacht, e.g., his `Some Observations on the Prohibition of "Non
Liquet" and the Completeness of the Law', Symbolae Verzijl (1958)
196, as well as Stone's response `Non Liquet and the Function of Law in the
International Community', 35 BYbIL (1959) 124.
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