Giltaij, Jacob: Inclusion and exclusion in early twentieth century international law doctrine.

In his Gentle civilizer of nations, Martti Koskenniemi examines the logic of inclusion and exclusion in late nineteenth and early twentieth century international legal theory (Cambridge 2004, p. 127-132). Particularly among British scholars of international law of the period, the notion of ́civilization ́ was employed as a basis for imperialism and colonialism. Due to their lack of civilization, colonies were denied participation in ́more developed ́ European legal notions such as national sovereignty. Koskenniemi in his study both suggests a precursor to and an afterlife to this particular set of ideas. The precursor is the German Historical School, spearheaded by Friedrich Carl von Savigny. The School emphasized the specific national character of legal notions: a national codification should only entail those legal concepts that through historical circumstance had become part of the ́national spirit ́ (Volksgeist). Following Savigny, for Germany this meant notions derived from (received) Roman law in particular. Decisively influencing the content of the German Civil Code of 1900, already in the course of the nineteenth century, the School prompted an offshoot in British (legal) scholarship, among whom experts in the field of international law. Considering the emphasis on nationalistic tenets of law, the fact that the Historical School inspired international legal theorists –and in Great Britain at that- is noteworthy. The central idea of these theorists can be summarized as ́nation-states participate in international law concurrent with their level of development ́, i.e. ́civilization ́, with only the European states of course being fully capable of embracing (international) legal concepts. In this presentation, I shall take a look at the peculiar afterlife of this set of idea in the course of the early twentieth century. Though in this period the anticolonial movement to a degree mitigated the ́external ́ effects of the doctrine, its ́internal ́ afterlife will be the main focus. As such, the core of this presentation will be the development of a shared Western European common law based on Roman law tenets and international legal doctrine in the early twentieth century as a result of the teachings of the nineteenth century Historical School.