von Bernstorff and Mayer on The Historical School and German 19th Century Contributions to International Legal Thought

Jochen von Bernstorff, University of Tuebingen, Faculty of Law, and Max Mayer, University of Tuebingen, have published The Historical School and German 19th Century Contributions to International Legal Thought. Here is the abstract.

In the second half of the 19th century, European international law became what Western international lawyers up until the 1930s conceived of as international law. The transformative process during that time led to the establishment of a number of important concepts: the modern notion of the sovereign state as the foundational unit of an international legal order based on common consent; a dualist notion of customary law as an empirical emanation (state practice) of a common legal “consciousness”; post-natural law concepts of a ius ad bellum, sovereign equality, the balance of power, a (constitutive) recognition-doctrine; and the closely connected Eurocentric legal dichotomy of a “civilized” core of Western states and a non-Western periphery. The rise of these concepts was shaped by major political, ideological, jurisprudential and philosophical currents during the long 19th century.The contribution will disentangle some of the most important 19th century doctrinal developments and the associated German jurisprudential theories. In a first step we will describe the reception of the Historical School in international legal scholarship and its doctrinal implications for a modern theory of customary law. As a second step we will reconstruct the contribution of German theories of the sovereign will of the state as the formal basis of international law [Staatswillenspositivismus] leading to new theories of “common consent” and recognition. These two broader developments shaped the last decades of the 19th century and would have long lasting implications for modern international law. Despite the reformist rhetoric of our main scholarly protagonists, both the new historicist foundation of international law in custom and the late 19th century turn to multilateral treaties and common consent were regarded by late 19th century contemporaries as complementing each other. German Staatswillenspositivismus à la Jellinek or Oppenheim developed its theories on “common civilised consent” inside the new historicist foundation of European international provided by the reception of the Historical School in the mid-19th century.

Download the article from SSRN at the link.