194 Journal of the History of International Law

The Discipline of the History of International Law –

New Trends and Methods on the History of International
Law*
Ingo J. Hueck** Wissenschaftlicher Referent, Max Planck Institute
for European Legal History, Frankfurt/Main

1. Abstract and Introduction

Those dealing with the history of international law are once in a while keen to refer to
Wilhelm Georg Grewe’s The Epochs of International law. Grewe (1911-2000), the
elder of German-language history of international law, wrote his book during World
War II, although it was not until the end of his career as a distinguished law professor,
political advisor and diplomat that the book was published.1 Grewe’s book is highly
respected amongst both legal and historical researchers. His was not the first textbook
on the history of international law to appear after World War II. The renowned Berlin
expert on civil law and comparative law Arthur Nussbaum had already published his A
Concise History of the Law of Nations in 1947; the German translation appeared in

* A former German version of this article with a special focus on the European and German
development of the discipline of the history of international law was published in the year 2000,
see Ingo J. Hueck, “Völkerrechtsgeschichte: Hauptrichtungen, Tendenzen, Perspektiven”, in:
Wilfried Loth/Jürgen Osterhammel (eds.), Internationale Geschichte. Themen – Ergebnisse –
Aussichten, Munich: Oldenbourg, 2000, pp. 267-285. I am very grateful to the students of the
history of international law project at the Frankfurt Max Planck Institute who generously shared
their ideas with me. In this connection I owe a special debt to Tony Carty, David Kennedy,
Martti Koskenniemi and Michael Stolleis for their support and criticism.
** Lecturer at Humboldt University, Berlin, and Joh. Wolfgang Goethe University, Frankfurt;
Visiting Fellow at Harvard Law School, European Law Research Center, 2000-2001. For further
information on projects and writing, please refer to the Institute’s web site at www.mpier.
uni-frankfurt.de.
1
Wilhelm G. Grewe, Epochen der Völkerrechtsgeschichte, 1st ed. 1984, 2nd ed. 1988, Baden-
Baden: Nomos. During World War II Grewe published a draft version and summaries of his
Epochs of International Law in some German law journals, see Europäische Revue, Volume 16,
1940, No. 10, pp. 594-600, and Zeitschrift für die gesamte Staatswissenschaft, Volume 103,
1943, No. 1, pp. 38-66, No. 2, pp. 260-294. See also Grewe, Machtprojektionen und Rechts-
schranken. Essays aus vier Jahrzehnten über Verfassungen, politische Systeme und internationale
Strukturen, Baden-Baden: Nomos, 1st ed., 1991, Section II “Zur Geschichte des Völkerrechts”,
and most recently Grewe, “The Role of International Law in Diplomatic Practice”, in: Journal
of the History of International Law, Volume 1, No. 1, 1999, pp. 22-37.

Journal of the History of International Law 3: 194–217, 2001.

©2001 Kluwer Law International. Printed in the Netherlands.
Ingo J. Hueck 195

1960.2 Nussbaum (1877-1964) was amongst the first Jewish university lecturers to be
sent into forced retirement and exile by the Nazis. He went to the USA, where he was
awarded a public law professorship at Columbia University. In 1951 Georg Stadtmüller’s
Geschichte des Völkerrechts (History of International Law) appeared. The first volume
of this textbook deals with the history of international law from the ancient Orient to
the Congress of Vienna in 1815;3 a second volume was never written. Ernst Reibstein,
a German private scholar, presented his two volumes on the history of ideas in
international law in 1958/63.4
But Grewe’s textbook developed into the standard reference work in German-
language history of international law. This was due in particular to his division of
international law into different stages of development. Grewe’s approach was emulated
and developed more recently by Karl-Heinz Ziegler, whose textbook on international
law follows Grewe’s division into epochs.5 Finally, Norman Paech and Gerhard Stuby,
in their two-volume account of the various epochs of international law and of the main
elements of the modern order of international law, pursue a completely different
approach, one which moderates the Euro-Atlantic perspective.6 Regardless of this, the
translation and revision of Grewe’s textbook by Michael Byers (Duke University, USA),
published in summer 2000, could further improve its renown and popularity.7 It will
allow the work to become known in the English-speaking world, thus pursuing a
necessary trend in the field of international law of communicating and publishing in
English.
The extent of the influence of Grewe’s textbook prompts questions regarding the
state of the history of international law as an academic discipline and field of research.
What methodological significance and influence does Grewe’s textbook have today?
What national and international importance does the subject of history of international
law have? Is it possible to categorise it at all, when experts from the fields of international
law, the history of law, general history and political science are all equally involved in
research on the history of international law? Are there perhaps some areas where

2
Arthur Nussbaum, A Concise History of The Law of Nations, New York: Macmillan, 1st ed.
1947, 2nd ed. 1950, rev. ed. 1954; the German translation Geschichte des Völkerrechts in
gedrängter Darstellung, was published in 1960, Munich and Berlin: C.H. Beck. In Germany
Nussbaum was one of the prominent founders of the discipline of comparative law and one of
the most distinguished scholars of Berlin University during the Weimar period.
3
Georg Stadtmüller, Geschichte des Völkerrechts. Teil I: Bis zum Wiener Kongreß (1815),
Hanover: Hermann Schrödel, 1951.
4
Ernst Reibstein, Völkerrecht. Eine Geschichte seiner Ideen in Lehre und Praxis, 1. Band:
Vom Ausgang der Antike bis zur Aufklärung, 2. Band: Die letzten zweihundert Jahre, Freiburg/
Brg. and Munich: Karl Alber, 1958/1963.
5
Karl-Heinz Ziegler, Völkerrechtsgeschichte. Ein Studienbuch, Munich: C.H. Beck, 1994.
6
Norman Peach/Gerhard Stuby, Machtpolitik und Völkerrecht in den internationalen Bezieh-
ungen, Baden-Baden: Nomos, 1st ed., 1994.
7
Wilhelm G. Grewe, The Epochs of International Law. Translated and revised by Michael
Byers, Berlin/New York: Walter de Gruyter, 2000.
196 Journal of the History of International Law

researchers working outside the legal field are now setting the tone? Does the
interdisciplinary nature of international law lead to interactions between the various
disciplines involved? What main areas of emphasis and directions are there? What
methods and objectives are pursued? What possibilities and perspectives for the future
are there? These questions will be tackled in four sections in this paper. The first section
deals with Grewe’s methodological meaning and the textbook’s influence today,
especially after the publication of the English translation. The second section attempts
to produce a synopsis of the current state of the history of international law as a subject.
This is followed in the third section by a review of the literature, which is deliberately
selective, purposely avoids the standard works and pays particular attention to the
most recent literature. The last section examines methods and objectives with the aim
of both presenting and suggesting approaches – especially new ones – in international
law. This allows new angles and perspectives for the history of international law to be
created.

2. Grewe’s Epochs of International Law: A Brief Review on

Methodological Aspects
Following the death of Wilhelm G. Grewe in January 2000, the first English edition of
The Epochs of International Law was published in that very same year. Grewe
subsequently, and even up until the present, exerted a wide-reaching influence in the
history of European international law with his theory of periodical development of
international law which is characterised by a focus on the political-military and economic
dominance respectively of specific world-powers in conjunction with historical turning-
points and events.8 Grewe developed this theory of periodisation during World War II,
influenced by methodical thought of the time, in an attempt to present the development
of modern international law in the light of dominant instrumentality of states and
hegemonial power structures.9 In this connection it seems not wrong to say that Grewe’s
basic thought on this theory of periodisation seems influenced seriously by Carl Schmitt’s

8
The following authors, for instance, adopted Grewe’s conception of periodisation, cf. Wolfgang
Preiser, Ernst Reibstein, Hans Ulrich Scupin and Ulrich Scheuner in: Wörterbuch des Völker-
rechts, Volume 3, ed. by Karl Strupp and Hans-Juergen Schlochauer, Berlin: Walter de Gruyter,
1962, p. 680 ff.; Wolfgang Preiser, Hans-Ulrich Scupin, Stephan Verosta in: Encyclopaedia of
Public International Law, Volume 2, ed. by Rudolf Bernhardt, Amsterdam: Elsevier, 1995,
p. 716 ff.; Karl-Heinz Ziegler, Völkerrechtsgeschichte, Munich: C.H. Beck, 1992. Arthur
Nussbaum’s A Concise History of the Law of Nations, which was published in 1947 (see above),
adopted Grewe’s periodisation only partially. In opposite to Grewe’s conception, Nussbaum
described in much more detail the development of the theories and the discipline of international
law. Especially in the Modern Age, the theory of law and school of thought are not basically
influenced by one state doctrine or super-power, but primarily by independent states, politicians,
historians, lawyers and various school of thought.
9
Cf. Grewe, “Die Epochen der modernen Völkerrechtsgeschichte”, in: Zeitschrift für die
gesamte Staatswissenschaft, see above.
Ingo J. Hueck 197

Grossraum.10 As a result of the dominance of states he individually names the early

modern times as the Spanish age of international law (The Law of Nations in the
Spanish Age 1494-1648). The following 17th and 18th Centuries he subsequently holds
to be French dominated periods of international law (The International Legal Order
during the French Age 1648-1815), whilst the 19th Century, as a result of the increasingly
important role of the British Empire to where they were a world power, is viewed as
the British age (The International Legal Order of the British Age 1815-1919).11
One must ask, however, if an analysis of the bases of dogmatics and the discipline
of international law, not to mention the subject of international law, can or should be
divided accurately into time periods and periods of upheaval in the context of such
periodisation.12 In order to understand the development of international law, the shifting
interdependence between international legal practice and international legal literature
as well as changes in the discipline of international law and time periods of upheaval,
a method of approach is required which inherently requires that the primary focus not
be on historical turning-points and events. This is particularly valid for the Modern
Age and for the development of modern international law. In the late Middle Ages, the
foundations for the formation and differentiation of the later so-called modern State
systems were laid, providing a framework for the political and state-based pluralism of
the European State. Accordingly, political power, at least from a modern perspective,
becomes ever more difficult to define purely on the basis of dominant states, however
they may be defined. Grewe himself described these difficulties specifically in relation
to the 19th Century, the so-called Age of the British Empire: “The nineteenth century
was the age of British predominance in a different sense from that which the eighteenth
century was the age of French predominance, or the sixteenth century was the age of
Spanish predominance.”13 In the 19th Century, at the latest after 1815, numerous political
actors may be deemed to be powerful, including not only Great Britain, but also Austria,
Prussia, and Russia, as a member of the Holy Alliance. Later even France and finally
the USA may be included as further so-called super-power States. This deep-grasping

10
Cf. Carl Schmitt, Staat, Grossraum, Nomos. Arbeiten aus den Jahren 1916-1969. Ed. by
Guenter Maschke, Berlin: Duncker & Humblot, 1995, especially pp. 225 ff., pp. 234 ff., pp. 269
ff. See also Mathias Schmoeckel, Die Großraumtheorie. Ein Beitrag zur Geschichte der
Völkerrechtswissenschaft im Dritten Reich, insbesondere der Kriegszeit, Berlin: Duncker &
Humblot, 1994.
11
Grewe, Epochs, p. 137 ff., p. 279 ff., p. 429 ff.
12
For further ideas surrounding this question see the most recent publication of Heinhard Steiger,
“Vom Völkerrecht der Christenheit zum Weltbürgerrecht. Überlegungen zur Epochenbildung in
der Völkerrechtsgeschichte”, in: Reich, Regionen und Europa in Mittelalter und Neuzeit: Fest-
schrift für Peter Moraw. Ed. by Paul-Joachim Heinig et al., Berlin: Duncker & Humblot, 2000,
pp. 172-187. Steiger presents in this article a new approach of periodisation. He separates three
main time periods, the international law of Christendom or respublica christiana (pp. 175 ff.),
the international law of the civilized nations (pp. 179 ff.), and the epoch of modern international
law or the international law of humanity (pp. 182 ff.).
13
Grewe, Epochs, at 429.
198 Journal of the History of International Law

differentiation with its various political, economic and legal requirements and prefer-
ences for basic questions of international law (such as those of human rights, dis-
armament or humanitarian warfare) must also include an analysis of the bases of
dogmatics and the theory of international law, quashed like the assumed hegemonial
structures which, according to Grewe, originated in Great Britain in the 19th Century:
“In respect of the development of international law in the nineteenth century this
constellation had the effect that, on the one hand and primarily under British influence,
international law increased in scope to become universal.”14 In contrast, however, the
Finnish international law historian, Martti Koskenniemi, in a noteworthy analysis of
juristic argumentation of the Modern International Law history concludes, that certain
fixed principles and ideas of the order of society has been established in international
law since the 19th Century, which, in times of crisis and upheaval, based on power-
political and military considerations, remain as a kind of utopia and are regularly
revived.15 This phenomenon is not only a result of the role of Great Britain as a world
power with dominance over the sea in the 19th Century. According to Koskenniemie’s
observations, they are rather the result of a complex international discussion and
development on both a State and non-State plane between numerous actors in politics,
the economy and society in general.
Apart from the question of whether a periodisation of the history of theory and
dogmatics of international law is possible at all,16 the incorporation of the works of
Grewe and Koskenniemi raise, for the purpose of a scientific historical analysis of the
development of the theory of international law in particular time periods, three
predominant methodological threads of thought:
1. An observation of the development of the theory of international law should
possibly take place without focusing on specific historical turning-points or events.
It is crucial that the reconstruction of the development of the theory of international
law focus on the spirit of the time, and the social and political contexts respectively.
2. Hegemonial and national structures can influence the development of international
law, however they cannot determine what it becomes long-term. Philosophical
and theoretical/historical movements, which may but need not necessarily coincide
with political or national historical upheaval are decisive.
3. The international perspective: international lawyers are, as a result of their
profession, in need of overseas contact. In order to elaborate on international
common ground and national specifications an international perspective is therefore

14
Grewe, Epochs, at 429; see also Ziegler, Völkerrechtsgeschichte, pp. 210-211.
15
Martti Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument,
Helsinki: Lakimiesliiton Kustannus, 1989.
16
For further argument surrounding this question, cf. Stefan Kadelbach, “Wandel und Kontinu-
itäten des Völkerrechts und seiner Theorie”, in: Archiv für Rechts- und Sozialphilosophie (ARSP),
Supplementary No. 71: Rechtsphilosophie und Rechtsdogmatik in Zeiten des Umbruchs, Rolf
Gröschner and Martin Morlok (eds.), Stuttgart: Steiner, 1997, pp. 178-193.
Ingo J. Hueck 199

imperative. Not only reflections of international theory at a domestic level are

decisive, but also the perspective of foreign countries on domestic international
law theory.
It is on this basis that, periodisation and typology aside, it would be attempted to develop
the creation of a sophisticated picture of changes to theory and practise of international
law, especially in the Modern age. The development in theory and dogmatics as well
as in the education and teaching of international law could be presented in the context
of the spirit of the time, and social and political frameworks respectively, with reference
to reconstructed international influences of the time.

3. Synopsis: the History of International Law as a Subject

As remarked by Heinhard Steiger, “13 independent publications, mostly in the form of
theses, and around 30 essays, mostly in the form of commemorative volumes, have
appeared alongside Ernst Reibstein’s two-volume work and Grewe’s account since
1964. Only a few authors, in particular Grewe, have published continually. Only a
handful of these works have appeared in the major international law journals”.17 There
have hardly been any additions during the nineties. Indeed the situation has worsened.
Although almost all textbooks on international law set out the basic principles, basic
concepts, sources and history of international law in an introductory chapter, the subject
of “history of international law” as such no longer exists at law faculties in Germany
and many other countries.18 The history of international law exists neither as a sub-area
of international law nor of history of law. There have been experts from the field of law
who have dealt with the history of law. Indeed in some cases relevant university institutes
were even founded.19 But those dealing with international law in Germany are mainly
interested in current international law. They get involved with such issues as human
rights, maintenance of peace and the United Nations. Historical reflections are seldom
found in the literature, although it is repeatedly emphasised that international law as a
“young” and so far little codified field of law is “linked with history … to a particular

17
Heinhard Steiger, “Probleme der Völkerrechtsgeschichte”, in: Der Staat, Volume 26, 1987,
pp. 103-126, p. 103; translated by the author.
18
See Wolfgang Graf Vitzthum (ed.), Völkerrecht, Berlin/New York: Walter de Gruyter, 1st ed.,
1997; Knut Ipsen, Völkerrecht, Munich: C.H. Beck, 4th ed., 1999 ; Otto Kimminich/Stephan
Hobe, Einführung in das Völkerrecht, Stuttgart: UTB, 7th ed., 2000; Ignaz Seidl-Hohenveldern,
Völkerrecht. Von Ignaz Seidl-Hohenveldern und Torsten Stein, Cologne, Berlin, Bonn, Munich:
Heymann, 10th ed., 2000; Alfred Verdross/Bruno Simma, Universelles Völkerrecht. Theorie
und Praxis, Berlin: Duncker & Humblot, 3rd ed., 1984; Wilhelm Wengler, Völkerrecht, 2 Volumes,
Berlin: Springer, 1964.
19
Wolfgang Preiser, Professor of Criminal Law and International Law at Frankfurt University,
founded in 1954 an Institute for the History of International Law (Institut für die Geschichte des
Völkerrechts). For more details see Karl-Heinz Ziegler, “Zur Einführung: Völkerrechts-
geschichte”, in: Juristische Schulung (JuS) 1987, pp. 350-354, p. 350.
200 Journal of the History of International Law

degree”.20 There is an absence of such fundamental theoretical discussions as those

which took place at the time of the major peace conferences of 1899 and 1907 or , for
instance, in the Vienna School around Hans Kelsen, Josef Kunz and Alfred Verdross.
This is linked not only to a general pragmatic tendency, but also to the lack of interest
in the history of international law, the history of ideas in international law and the
epistemological history of international law. Only a few law experts remain academically
active in this area. In Germany Karl-Heinz Ziegler (Hamburg), Heinhard Steiger
(Giessen) and Wolfgang Graf Vitzthum (Tübingen) should be mentioned in this context.
The international law expert Ulrich Scheuner (1903-1981) and in particular the Frankfurt
expert on criminal law Wolfgang Preiser (1903-1997) have also made names for
themselves in the past few decades as experts on the history of international law.21
There are also numerous historians such as Wolfgang Reinhard (Freiburg), Jörg Fisch
(Zurich) or Heinz Duchhardt (Mainz), who have examined in particular the international
law of the Middle Ages and the early modern age. Others, like Jost Dülffer (Cologne)
or Wilfried Loth (Essen) are involved in the field of international history and have
focussed in particular on subjects such as peace studies or foreign policy. Finally, there
are some political scientists who examine issues such as the world order, international
organisations and power politics from a history-of-international-law perspective; these
include Volker Rittberger (Tübingen) and Klaus Dicke (Jena).
The lack of importance which has been placed on the history of international law
within jurisprudence is undoubtedly due to a whole variety of factors. Two aspects will
be given particular emphasis in this paper however: the development of international
law as an academic discipline and its institutionalisation in Germany and the changes
in its tasks and functions.
3.1. International Law as an Academic Discipline
It was only relatively late on that modern international law developed into an
independent academic discipline within the field of German jurisprudence.22 This young
academic discipline gradually developed during the last third of the 19th Century into
a sub-field of public law and constitutional law. Prior to this, international law had,
from its origins in the 17th Century until the beginning of the 19th Century, traditionally
been linked with the Law of Nature. At the beginning of the 19th Century the Law of

20
See Ziegler, JuS 1987, p. 350.
21
Cf. Festschrift für Ulrich Scheuner zum 70. Geburtstag, Horst Ehmke, Joseph H. Kaiser et
al. (eds.), Berlin: Duncker & Humblot, 1973; Wolfgang Preiser, Macht und Norm in der
Völkerrechtsgeschichte. Kleine Schriften zur Entwicklung der internationalen Rechtsordnung
und ihrer Grundlegung. Ed. by Klaus Luederssen and Karl-Heinz Ziegler, Baden-Baden: Nomos,
1st ed., 1978; Wolfgang Naucke, “Nachruf auf Wolfgang Preiser”, in: Neue Juristische Wochen-
schrift (NJW) 1998, p. 210.
22
Cf. August v. Bulmerincq, “Die Lehre und das Studium des Völkerrechts an den Hochschulen
Deutschlands”, in: Holtzendorffs Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft,
Neue Folge, Volume I (1877), pp. 457-464; Karl Strupp, Völkerrecht in Lehre und Prüfung,
Breslau: Kern, 1931.
Ingo J. Hueck 201

Nature began to be known as the Legal Philosophy. Thus international law, as a sub-
field of legal philosophy, was grouped together with the subjects of civil and criminal
law. Well-known authors on international law from within the field of criminal law and
legal philosophy included Ludwig von Bar, the Austrian Heinrich Lammasch, Franz
von Liszt and the Swiss Max Huber. Authors such as Johann Caspar Bluntschli or
Josef Kohler from the field of civil law also wrote on the subject. Before World War I
few seriously attempted intensive research or teaching in international law at the
beginning of their careers. Often it was not until they had taken up lectureships that
they were forced to examine international law more closely – as was the case with
Franz von Liszt in his Marburg years or the young Georg Jellinek in his Vienna years.
The international law research carried out by these two men made a major contribution
to improved recognition for international law in Germany. Eleven editions were issued
of Liszt’s textbook on international law, which became the standard work of the
Wilhelminian era.23 With his two international law monographs on inter-state relations
Jellinek achieved the desired reputation at a German university and was given an
international law chair at Heidelberg.24
Scholars like von Liszt or Jellinek were the exception however. Only a few experts
on international law, who were forced as a result of their lectureships to teach on the
history of international law were also involved in research or in the international field
of international law. In addition, teaching of legal philosophy within the law curriculum
was more or less halted completely during the course of national unification in 1870-
1871. Those working in the fields of public law and state law were mainly concerned
with internal domestic problems. The only area where any importance was still placed
on international law was in military and diplomatic training. It was only after the
consolidation of the nation-state and during the first major peace conferences that interest
in international law in Germany gradually began to revive around 1900. Thus until the
Weimar Republic the international law lectureship at Kiel University was the only one
in existence at the twenty or more universities in Germany. At many universities, even
large ones such as Berlin or Leipzig, there was only a small number of international
law events. In other European countries such as Austria, Belgium, Great Britain, France,
the Netherlands, Russia or Switzerland, international law lectureships were set up and
awarded to proven authors on international law comparatively early.25 England even
filled its international law professorships at its renowned London, Oxford and Cambridge

23
Franz v. Liszt, Das Völkerrecht, 1st ed. 1898, 11th ed. 1918, Berlin: Springer; after the dead
of Liszt in 1919 a 12th ed. of the textbook was published in 1925 by Max Fleischmann.
24
Georg Jellinek, Die rechtliche Natur der Staatsverträge. Ein Beitrag zur juristischen Construc-
tion des Völkerrechts, Vienna: Hölder, 1880; also, Die Lehre von den Staatenverbindungen,
Vienna: Hölder, 1882. About Jellinek’s life and career see Klaus Kempter, Die Jellineks 1820-
1955. Eine familienbiographische Studie zum deutschjüdischen Bildunsgbürgertum, Düsseldorf:
Droste, 1998.
25
See Ingo J. Hueck, “Die Gründung völkerrechtlicher Zeitschriften in Deutschland im inter-
nationalen Vergleich”, in: Juristische Zeitschriften. Die neuen Medien des 18.-20. Jahrhunderts.
Ed. by Michael Stolleis, Frankfurt am Main: Klostermann, 1999, pp. 379-420.
202 Journal of the History of International Law

universities with foreign experts such as the German Lassa Oppenheim or the Galician
Hersch Lauterpacht.26
The first significant German expert on international law at this time was Theodor
Niemeyer. He founded the first major international law institute in Kiel in 1913/14 and
taught international law at the Kiel Law School and the Kaiser’s Naval Academy. He
also set up the first well-known German international law journal Niemeyer’s Zeitschrift
für Internationales Recht (Niemeyer’s Journal of International Law), in 1909 and in
1916/17 founded the Deutsche Gesellschaft für Völkerrecht (German Society for
International Law).27 Today, the Kiel institute is named after his successor Walther
Schücking. Schücking started his career in international law with an international law
thesis and became strongly involved in the international and German peace movements.
Following the collapse of the Kaiserreich he took part in the peace negotiations as a
member of the German delegation. In the Weimar Republic he served as a Reichstag
MP for the German Democratic Party (DDP). Schücking reached the peak of his
academic and political career in 1930, when he became the first German to be elected
to the Permanent International Tribunal in The Hague.28 Precisely for this reason he
was highly respected internationally, but enjoyed very little recognition within
Germany.29
Despite this gradual professionalisation during the first decades of the 20th century,
there was no corresponding expansion of the subject of international law at the

26
Oppenheim (1858-1919) was Professor of Criminal law and International Law at Freiburg in
Germany and at Basel in Switzerland. He moved to England, where he became Lecturer for
Public International Law at the London School of Economics in 1895. The first edition of the
well-known textbook International Law. A treatise was published in 1905. In 1908 Oppenheim
became Whewell-Professor of International Law at Cambridge. About Lauterpacht (1897-1960)
please refer Martti Koskenniemi, Lauterpacht: “The Victorian Tradition in International Law”,
in: European Journal of International Law (EJIL), Volume 8, 1997, pp. 215-263
27
Cf. Hueck, p. 403, above.
28
For further details surrounding the German peace movement and international law, cf. Detlev
Acker, Walther Schücking (1875-1935). Eine Biographie unter besonderer Berücksichtigung
von Schückings Tätigkeit in der Friedens- und Völkerbundbewegung, Munster: Aschendorff,
1970, and Ulrich Scheuner, “Die internationale Organisation der Staaten. Zum Werk Walther
Schückings (1875-1935)”, in: Die Friedens-Warte, Volume 58, 1975, pp. 7-22
29
In this connection see the very interesting analysis from Scheuner, p. 8, where he mentioned:
“The relationship which Germany has to the establishment of a generally unified state has never
had the depth and the character of an idealistic, moralistic movement as it has in other countries,
especially in England.” Scheuner primarily based this finding, almost certainly correct, on external
relationships, including both of the world wars which resulted in brief, but not particularly
favourable era of the League of Nations, and with the division of Germany after 1945. About
Schücking’s status within the German academia during the Weimar period see also Frank
Bodendiek, Walther Schücking und Hans Wehberg, “Pazifistsiche Völkerrechtslehre in der ersten
Hälfte des 20. Jahrhunderts”, in: Die Friedens-Warte, Volume 74, 1999, pp. 79-97.
Ingo J. Hueck 203

universities and in the examination regulations.30 There were thus only a few inter-
national law authors able to work uniquely or mainly on international law and the
history of international law. Since World War II this situation has at least improved to
the extent that every German law faculty now has at least one chair for European law
and international law – allowing intensive cultivation of international law in both
research and teaching. However, one of the characteristics of this development was a
more or less complete break with the history of international law.
In the 17th and 18th centuries international law had traditionally been seen as “jus
naturae et gentium”, strongly linked to the Law of Nature. But it developed via a
“positivist” trend at the end of the 18th Century, represented by Johann Jacob Moser
and Georg Friedrich von Martens at the end of the 18th Century and Ludwig Klüber
and August Wilhelm Heffter in the 19th Century, into a “positive” field of law, collecting
and documenting international law and using this to derive rules of international law .
The latter movement was more of a legal science, the former more of a philosophy.
Seen in terms of Europe as a whole, this development in German international law was
closely linked with the overall development of European legal thinking. The positivist
movement was reinforced at the beginning of the 19th Century in particular through an
intensification of international relations at both an economic and a political level.
Particularly decisive were the industrial revolutions in Europe and the USA, the
development of international economic relations and the rise of international pacifism
– with its demands for peace preservation, disarmament and international jurisdiction
– all of which were reflected in writing on international law. Numerous treaties were
conducted under international law; the first international organisations were established
and the first academic institutions on an international level set up. These developments
not only laid the foundations for the emergence of a new academic discipline. They
also shaped a shift in tasks and functions which influenced the way in which the history
of international law was approached.
3.2. Tasks and Functions of the Academic Discipline of International Law
Up to the beginning of the 20th Century, international law theorists were not only
involved to a significant degree in the analysis of international law processes and events,
but their studies were also legal sources for international law. Thus, they were involved
in shaping modern international law, whether as international law advisers and experts
for governments, as representatives of non-state organisations or as academics and
committed legal authors. During the 19th and 20th Century however, the significance,
scope and structure of international law changed to such an extent that it was bound to
have an influence on the tasks and functions of the science of international law. The
international law of treaties widened; the first major codifications occurred via major
conferences and international judgements gradually developed into an important source
of international law. In addition, a certain change of perspective occurred within the
field of international law, which can be traced back to changes in constitutional law in
Germany during the 19th Century.

30
Cf. Moritz Liepmann, Die Pflege des Völkerrechts an den deutschen Universitäten (Denkschrift
für die Deutsche Liga für Völkerbund), Berlin: Engelmann, 1919.
204 Journal of the History of International Law

At the beginning of the 19th Century the German constitutional situation was
extremely unfavourable towards international law. The absence of a nation-state within
the German Bund prevented the necessary foreign policy perspective during the first
half of the 19th Century. German international law teaching and theory thus became
based to a large extent on overall European developments. The relevant authors were
mainly interested in international contexts. August Wilhelm Heffter for instance
developed the notion of an international link between France and Germany as the focal
point of a European union of states.31 With the foundation of the German Reich in
1870-1871, a change of perspective in several respects can be detected. There was a
certain move away from the international perspective and from the citing of political
motivations and ethical problems.32 At any rate the emphasis on the individual state
was increased and the focus switched to a concept of sovereignty based on the idea of
the nation-state. German international law thinking thus began to take a somewhat
different course to that of the rest of Western Europe and the USA. There, elements of
the Law of Nature and ethical and human impulses continued to have a strong influence
on the treatment of international law-related problems, whilst the establishment of the
nation-state and the striving for world-power status encouraged a tendency within
German theory to place particular emphasis on the power of individual states and legal
autonomy in international relations.
German theory was of course not alone in recognising the power of the state during
the era of imperialism and colonialism. Quite the opposite in fact: in the second half of
the 19th Century and particularly after the turn of the century the whole of Europe was
caught up in a wave of expansionism. In contrast to German international law thinking
though, strong impulses and calls for measures to preserve peace were emerging from
other European countries, whereas this was only occasionally the case in Germany.
This led to the establishment of international arbitration, to binding humanitarian
principles and humanitarian institutions, in particular in the conventions-of-war field.
A contrast to this was seen at the two Hague Peace Conferences of 1899 and 1907.33 At
both conferences the German Reich rejected the introduction of international arbitration.
It rejected both the establishment of a permanent court of arbitration and the concept
of obligatory arbitration. This was despite the fact that the official German international
law adviser Philipp Zorn representing the German delegation had already managed to
tone down the official line.34 This is particularly significant when one considers that

31
August Wilhelm Heffter, Das Europäische Völkerrecht der Gegenwart, Berlin: H. E. Schröder,
1844.
32
Cf. Leonard Nelson, Die Rechtswissenschaft ohne Recht. Kritische Betrachtungen über die
Grundlagen des Staats- und Völkerrechts, insbesondere über die Lehre von der Souveränität,
Leipzig: Veit, 1917; 2nd ed., Göttingen and Hamburg: Verlag “Öffentliches Leben”, 1949.
33
Surrounding these aspects see the excellent analysis from the German historian Jost Dülffer,
Regeln gegen den Krieg? Die Haager Friedenskonferenzen von 1899 und 1907 in der inter-
nationalen Politik, Berlin, Frankfurt am Main, Vienna: Ullstein, 1981.
34
Philipp Zorn, “Die beiden Haager Friedenskonferenzen von 1899 und 1907”, in: Handbuch
des Völkerrechts, Stuttgart: Kohlhammer, 1915; see also Stefan Verosta, Theorie und Realität
Ingo J. Hueck 205

Zorn himself saw international law as “external state policy” and indeed had étatist
tendencies in general. This episode demonstrates how rigid and centred on the national
interest the official German stance was up to the eve of World War I. This did not
prevent significant academic achievements in writing on international law which had a
Europe-wide influence, but it did gradually lead to isolation and “nationalisation”.
A systematic expansion of international law in universities and libraries and through
the establishment of research institutes thus only took place in Germany during and
especially after World War I.35 In 1922-1923 Hamburg used a combination of private
and public funding to establish the Institute for Foreign Policy (Institut für Auswärtige
Politik) which was intended to work closely with the Foreign Office in Berlin.36 The
liberal and cosmopolitan Albrecht Mendelssohn Bartholdy became its director. He was
forced to emigrate to England in 1934. He was succeeded by Friedrich (Fritz) Berber
who also advised the National Socialist Foreign Minister von Ribbentrop on international
law issues until “fleeing” to Switzerland in 1943.37 Whilst the Hamburg Institute was
essentially set up to communicate German positions abroad and to establish and cultivate
contacts with foreign institutions and researchers, the organisation set up shortly
afterwards at the seat of the government in Berlin was intended to deal with the “legal-
practical” problems of international law. The Kaiser Wilhelm Institute for Comparative
Public Law and International Law (Kaiser-Wilhelm-Institut für ausländisches öffent-
liches Recht und Völkerrecht; now the Max Planck Institute for Comparative Public
Law and International Law at Heidelberg) was established in 1924-1925 under the
auspices of the Kaiser Wilhelm Society for the Promotion of the Academic Sciences,
founded in 1911 (now the Max Planck Society), and of political circles and distinguished

von Bündnissen. Heinrich Lammsch, Karl Renner und der Zweibund (1897-1914), Vienna: Europa
Verlag, 1971.
35
Cf. Hueck, Die Gründung völkerrechtlicher Zeitschriften in Deutschland im internationalen
Vergleich, above, pp. 395 f., pp. 398 ff.
36
See Ingo J. Hueck, “Die deutsche Völkerrechtswissenschaft im Nationalsozialismus: Das
Berliner Kaiser-Wilhelm-Institut für ausländisches öffentliches Recht und Völkerrecht, das
Hamburger Institut für Auswärtige Politik und das Kieler Institut für Internationales Recht”, in:
Geschichte der Kaiser-Wilhelm-Gesellschaft im Nationalsozialimus. Bestandsaufnahme und
Perspektiven der Forschung, ed. by Doris Kaufmann, two volumes, Göttingen: Wallstein, 2000,
pp. 490-527, pp. 495-498.
37
See Friedrich Berber, Zwischen Macht und Gewissen: Lebenserinnerungen, ed. by Ingrid
Strauss, Munich: C.H. Beck, 1986; see also Dieter Blumenwitz, “Friedrich Berber zum 80.
Geburtstag”, in: Archiv des öffentlichen Rechts (AöR), Volume 103, 1978, pp. 605-606; Albrecht
Randelzhofer, “Friedrich Berber”, in: Juristen im Portrait. Verlag und Autoren in 4 Jahrzehnten.
Festschrift zum 225jährigen Jubiläum des Verlages C.H. Beck, Munich: C.H. Beck, 1988, pp.
170-177, pp. 175 ff., and especially the analyis of Berber’s activities during the nazi period from
Hermann Weber, “Die politische Verantwortung der Wissenschaft. Friedrich Berber in den Jahren
1937 bis 1945”, in: Eckart Krause/Ludwig Huber/Holger Fischer (eds.), Hochschulalltag im
“Dritten Reich”. Die Hamburger Universität 1933-1945, Band 2: Philosophische Fakultät, Rechts
und Staatswissenschaftliche Fakultät, Berlin: Dietrich Reimer, 1991, pp. 939-952.
206 Journal of the History of International Law

law professors from the Berlin University.38 It was financed mainly by the German
Reich, whilst the Kaiser-Wilhelm Society contributed its world-wide reputation and
the high degree of respect it enjoyed in international academic circles. The established
Berlin scholar Viktor Bruns was made head of the institute.39 Bruns had not previously
produced any work as an author on international law and only received a proper public
law chair in Berlin after World War I. He was essentially a civil law expert and legal
historian. He was, however, also a member of Berlin society, with good links to the
Berlin Law Faculty and to the Berlin ministries.40 The academic council at the institute
was made up of the renowned members of the Berlin faculty Heinrich Triepel and
Rudolf Smend. In 1928 they were joined by Erich Kaufmann, who was Gustav
Streseman’s main foreign policy advisor and who represented German interests
vehemently and successfully in many sets of arbitration proceedings connected with
the Treaty of Versailles. Kaufmann went into forced retirement in 1934 and was
succeeded by Carl Schmitt,41 who was not particularly concerned about the institute,
but published work as an author on international law related to the Nazis’ “Grossraum”
and “Lebensraum” plans.42 Bruns was quickly able to use the generous funding provided
by the Reich to turn the Institute into the most well-known international law centre in
Germany, alongside the Kiel Institute for International Law (Institut für Internationales
Recht).43 Only a few years after it had been established its library, accommodated

38
Cf. Hermann Mosler, “Das Max-Planck-Institut für ausländisches öffentliches Recht und
Völkerrecht”, in: Heidelberger Jahrbücher, Band XX, ed. by Universitäts-Gesellschaft Heidel-
berg, Berlin et al.: Springer, 1976, pp. 53-78; Hueck, Die deutsche Völkerrechtswissenschaft im
Nationalsozialismus, pp. 499-503. For further basic information see Forschung im Spannungsfeld
von Politik und Gesellschaft: Geschichte und Struktur der Kaiser-Wilhelm-/Max-Planck-
Gesellschaft. Aus Anlaß ihres 75jährigen Bestehens, ed. by Rudolf Vierhaus and Bernhard v.
Brocke, Stuttgart: Deutsche Verlags-Anstalt, 1990.
39
See Hueck, Die deutsche Völkerrechtswissenschaft im Nationalsozialismus, above, pp. 504-
506.
40
See A. N. Makarov, “Bertold Schenk Graf von Stauffenberg (1905-1944)”, in: Die Friedens-
Warte, Volume 47, 1947, pp. 360-365, p. 360.
41
For further details about the relationship between Kaufmann and Schmitt at the end of the
Weimar period see especially Helmut Quaritisch, “Eine sonderbare Beziehung: Carl Schmitt
und Erich Kaufmann”, in: Bürgersinn und staatliche Macht in Antike und Gegenwart. Festschrift
für Wolfgang Schuller zum 65. Geburtstag. Ed. by Martin Dreher, Konstanz: UVK Universitäts-
verlag Konstanz, 2000, pp. 71-87; see also Anna-Maria Gräfin von Lösch, Der nackte Geist. Die
Juristische Fakultät der Berliner Universität im Umbruch von 1933 (Beiträge zur Rechts-
geschichte des 20. Jahrhunderts 26), Tübingen: Mohr Siebeck, 1999, and the review of the Lösch
book by Ingo J. Hueck, Ius Commune. Zeitschrift für europäische Rechtsgeschichte, Volume
27, 2000, pp. 592-603.
42
For further information surrounding Carl Schmitt and his Grossraum theory, see Mathias
Schmoeckel, Die Großraumtheorie. Ein Beitrag zur Geschichte der Völkerrechtswissenschaft
im Dritten Reich, insbesondere der Kriegszeit, Berlin: Duncker & Humblot, 1994.
43
For further details about the Kiel institute, cf. Hueck, Die deutsche Völkerrechtswissenschaft
im Nationalsozialismus, pp. 493-495.
Ingo J. Hueck 207

alongside the Institute in the Berlin Royal Castle, was of a size only comparable with
the Peace Palace at The Hague. A staff of around 20-25 young researchers worked
there on a regular basis, including the social democratic constitutional law expert
Hermann Heller and Carlo Schmid, who was later to become a politician. Numerous
staff members – such as Gerhard Leibholz, Hermann Mosler, Ulrich Scheuner or
Wilhelm Wengler themselves became successful after World War II as renowned experts
on constitutional and international law.44 Bertold Schenk Graf von Stauffenberg, whose
younger brother attempted to assassinate Hitler on 20 July 1944, also worked at the
institute as an international law specialist.45
The institute, which was re-opened as the Max-Planck Institute in Heidelberg after
World War II remains to the present day one of the main centres of international law
research in Germany, alongside the Kiel school with its Walther-Schücking Institute.
However, reconstruction after World War II, with the establishment of the United Nations
and the Cold War, encouraged shifts in the tasks and functions of international law.
This is confirmed by an overview of the major textbooks on international law. The
development of international law via dogmatic impulses and the establishment of
theoretical principles has now come to the foreground. The science of international
law no longer sees itself as a source for international law. Rather, it sees its main task
as carrying out legal analysis on international law material – whether for international
law judgements or for national governments. This function is particularly obvious in
Article 38 (1), lit d of the ICJ Statute, which explicitly aims to include the “teachings
of the most highly qualified publicists from various nations” in the judicial decision
process as “supplementary means for the determination of rules of international law”.
Most specialists in international law thus work on current issues and are involved in
specialist areas such as international business law, international maritime law or
international public environmental law. These are areas whose significance and scope
in research and theory have increased enormously in the past few decades. This
development and the increasing practice-orientation in legal training in recent years
have also ultimately led to a neglect of the history of international law.
This not only applies to Germany, but also to all European, Asian and Anglo-
American countries. Any expert on international law or legal historian carrying out
research on international law will inevitably find him/herself part of a small international
circle of international law historians. Ongoing research and specific research projects
are currently focussed for instance in the UK (Anthony Carty, Derby), Finland (Martti

44
For more details about the institute’s history and members, cf. Ulrich Scheuner, “50 Jahre
Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht”, in: Max-Planck-
Gesellschaft, Berichte und Mitteilungen, 2/1975, pp. 25-35; Robert A. Riegert, “The Max Planck
Institute for Foreign Public Law and International Law”, in: The International Lawyer, Volume
3, No. 3, 1969, pp. 506-524.
45
Peter Hoffmann, Claus Schenk Graf von Stauffenberg und seine Brüder, Stuttgart: Deutsche
Verlags-Anstalt, 1992; English transl. by Peter Hoffmann, Stauffenberg. A Family History, 1905-
1944, University Press, Cambridge, 1995; Stauffenberg und der 20. Juli 1944, Munich: C.H.
Beck, 1998; see also Makarov, Die Friedens-Warte, Volume 47, 1947, above.
208 Journal of the History of International Law

Koskenniemi, Helsinki), Japan (cf. Yasuaki ONUMA, Tokyo; Masaharu YANAGI-

HARA, Kyushu), the Netherlands (C.G Roelofsen, Utrecht), USA (David Kennedy,
Harvard Law School, Cambridge; Nathaniel Berman, Northestern University, Boston;
David Caron, Boalt Hall School of Law, University of California, Berkeley) and
Germany (Max Planck Institute for European Legal History, Frankfurt/Main (Max-
Planck-Institut für europäische Rechtsgeschichte). A few isolated history-of-inter-
national-law theorists or other researchers interested in the field do also exist in other
countries, including Switzerland, Belgium, France and Italy.46 Despite frequent
complaints about fundamental subjects like the history of international law being
neglected in favour of new specialist subjects and as a result of performance pressure
in legal training, it should be emphasised that such a development does not necessarily
mean the end of the history of international law. The small country of Holland for
instance is able to find room for many niche subjects as a result of reforms, flexibility
and market awareness. Thus law students in the Netherlands have traditionally been
able to choose the history of international law as an examination subject, alongside the
history of Roman law and the history of private law within the framework of their
legal foundation training. Some courses also offer lectures in German or English,
attracting many additional foreign students.
This has meant that the presence of the history of international law has been able to
be maintained at an above-average level. Around half of the 13 universities in the
Netherlands have someone working in the history-of-international-law field; these
include in particular Utrecht, as mentioned above, together with Amsterdam and
Rotterdam.

4. Main Trends: Research on the History of International Law

The state of research on the history of international law in Germany was, until well
into the eighties, not particularly promising, as mentioned above. However, in the last
few years this negative state of affairs has improved somewhat for a variety of reasons.
The younger generation working in the field of international law is increasingly
interested in examining the epistemological development of international law and the

46
For Belgium see Randall Lesaffer, “De rechtspraktijk in beeld. Van Justinianus tot de Duitse
bezetting”, in: Handelingen van het XIV de Belgisch-Nederlands Rechtshistorisch Congres,
Katholieke Universiteit Brabant, Tilburg, ed. by B.M.C. Jacobs, Tilburg University Press 1997,
pp. 95-127; “The Westphalia Peace Treaties and the Development of the Tradition of Great
European Peace Settlements prior to 1648”, in: Grotiana, Volume 18, 1997, pp. 71-95; “Het
moderne Volkenrecht (1450-1750)”, in: Onze Alma Mater, Leuvense Perspectieven, No. 4, 1998,
pp- 426-451. For France and Japan see for instance the most recent publications from Emmanuelle
Tourmé-Jouannet, Emer de Vattel et L’emergence doctrinale du droit international classique,
Paris: Pedone, 1998, and from Kinji Akashi, Cornelius van Bynkershoek: His Role in the History
of International Law, The Hague: Kluwer International Law, 1998. For further details about a
recent Swiss project at Geneva, cf. Le Plan Briand d’une Union fédérale européenne. Perspectives
nationales et transnationales, avec documents, ed. by Antoine Fleury and Lubor Jílek, Bern,
Berlin et al.: Peter Lang, 1998.
Ingo J. Hueck 209

development of ideas which led to modern international law on the basis of international
comparisons. There is an increasing need for reflection on historical contexts, for critical
examination of researchers’ own intellectual preconceptions and conscious re-
examination of inherited assumptions. An examination of the role of international law
in National Socialism is particularly important for this type of reappraisal of intellectual
roots in Germany.47 A legal history project investigating trends in the law of nature
during the nineteenth and twentieth century, which also includes international law, has
also been underway for several years now.48 Most recently, monographies with history-
of-international-law angles, examining the state and unions of states in the 19th and
20th centuries and the history of international law, have begun to appear. Christian
Hillgruber’s publication for instance is a genuine history-of-international-law work,
whilst Stefan Oeter, in his reconstruction of the German discussion on federalism, also
examines issues relating to the history of international law.49
Prior to this, research on the history of international law within German jurisprudence
had a different focus in terms of both period and subject matter. When Wolfgang Preiser
founded his Frankfurt Institute for the History of International law in 1954 it was
primarily an institution set up to study the history of international law in the Ancient
Orient. His main works include “Early International Law Orders of the Non-European
World” (Frühe völkerrectliche Ordnungen der außereuropäischen Welt, 1976) and “The
History of International Law, Tasks and Methods” (Die Völkerrechtsgeschichte, ihre
Aufgaben und Methoden, 1964). Preiser has also published numerous essays on the
history of international law during antiquity and the Middle Ages.50 Karl-Heinz Ziegler,
one of Preiser’s students, also concentrates his research on the history of international

47
For further information about (the very late) research on international law during the Nazi
period in Germany, see Detlev F. Vagts, “International Law in the Third Reich”, in: American
Journal of International Law (AJIL) , Volume 84, 1990, pp. 661-704; Rüdiger Wolfrum,
“Nationalsozialismus und Völkerrecht”, in: Recht und Rechtslehre im Nationalsozialismus, ed.
by Franz Jürgen Säcker, Baden-Baden: Nomos, 1992, pp. 89-101; Hueck, Die deutsche
Völkerrechtswissenschaft im Nationalsozialismus, above. In this connection see also Eduard
Bristler (=John Herz), Die Völkerrechtslehre des Nationalsozialismus. Mit einem Vorwort von
George Scelle, Zurich: Europa-Verlag, 1938, and Schmoeckel, above.
48
Heinhard Steiger, “Völkerrecht und Naturrecht zwischen Christian Wolff und Adolf Lasson”,
in: Naturrecht im 19. Jahrhundert. Kontinuität – Inhalt – Funktion – Wirkung, ed. by Diethelm
Klippel, Goldbach: Keip, 1997, pp. 45-74.
49
Christian Hillgruber, Die Aufnahme neuer Staaten in die Völkerrechtsgemeinschaft. Das
völkerrechtliche Institut der Anerkennung von Neustaaten in der Praxis des 19. und 20. Jahr-
hunderts. Frankfurt am Main et al.: Peter Lang, 1998; Stefan Oeter, Integration und Subsidiarität
im deutschen Bundesstaatsrecht: Untersuchungen zu Bundestheorie unter dem Grundgesetz,
Tübingen: Mohr Siebeck, 1998.
50
Wolfgang Preiser, “Zum Völkerrecht der vorklassischen Antike”, in: Archiv des Völkerrechts
(AVR), Volume 3, 1954, pp. 275-288; Macht und Norm in der Völkerrechtsgeschichte. Kleine
Schriften zur Entwicklung der internationalen Rechtsordnung und ihrer Grundlegung, ed. by
Klaus Lüderssen and Karl-Heinz Ziegler, Baden-Baden: Nomos, 1978.
210 Journal of the History of International Law

law during antiquity, in particular during the Roman-Hellenistic period.51 Mention should
also be made here of Heinhard Steiger, one of the very few constitutional law and
international law experts whose work continually deals with the history of international
law. His major topics include the international community of states, the Law of Nature
and international law, together with the peace settlements and the peaceful order of the
Peace of Westphalia.52 In addition, he has written an excellent account examining the
concept of international law.53 There are no other authors from within the field of
jurisprudence who have continually included the history of international law in their
work.54
Research on the history of international law has traditionally had a firm place within
the field of history studies. Unfortunately, there have so far been very few links between
research on the history of international law within the field of history studies and that
within other disciplines. This also applies to the history of law and the history of
international law, despite the fact that there are many links and areas of interest which
could be dealt with from both sides. Admittedly, close and successful cooperation would
depend on the methodological foundations, which have changed and expanded in the
twentieth century in particular. The history of law has also made considerable progress
from this point of view in the past few decades and has critically examined and amended
its “methodical concept”.55 The history of law is no longer dominated by an approach
looking at the history of dogmas, of Roman law or the law of other periods, supposedly
establishing facts.56 Rather, the history of law today sees itself in many areas as being
a part of general history studies with specific history-of-law issues and various

51
Cf. Karl-Heinz Ziegler, “Das Völkerrecht der römischen Republik”, in: Aufstieg und
Niedergang der römischen Welt, ed. by H. Temporini and W. Haase, Volume I 2, 1972, pp. 68 ff.;
see also Ziegler, JuS 1987, p. 351, 352, and Völkerrechtsgeschichte, §§ 9-13, above.
52
Cf. Heinhard Steiger, Staatlichkeit und Überstaatlichkeit. Eine Untersuchung zur rechtlichen
und politischen Stellung der Europäischen Gemeinschaften, Berlin: Duncker & Humblot, 1966.
53
Heinhard Steiger, “Völkerrecht”, in: Geschichtliche Grundbegriffe. Historisches Lexikon zur
politisch-sozialen Sprache in Deutschland, ed. by O. Brunner, W. Conze and R. Koselleck,
Volume 7, pp. 97-140.
54
See the excellent collection of bibliographical materials in Grewe, Epochs, pp. 734 ff.
55
Cf. Uwe Wesel, “Zur Methoder der Rechtsgeschichte”, in: Kritische Justiz 1974, pp. 337-
368; Peter Landau, “Rechtsgeschichte und Soziologie”, in: Vierteljahresschrift für Sozial- und
Wirtschaftsgeschichte, 1974, pp. 145-164; Dietmar Willoweit, “Historische Grundlagen des
Privatrechts”, in: JuS 1977, pp. 292-297; Sten Gagnér, Zur Methodik neuerer rechtsgeschichtlicher
Untersuchungen, Volume I: Eine Bestandsaufnahme aus den sechziger Jahren, Ebelsbach: Cremer,
1993; Michael Stolleis, Rechtsgeschichte als Kunstprodukt. Zur Entbehrlichkeit von „Begriff“
und „Tatsache“, Würzburger Vorträge zur Rechtsphilosophie, Rechtstheorie und Rechts-
soziologie, Baden-Baden: Nomos, 1997.
56
Regina Ogorek, “Rechtsgeschichte in der Bundesrepublik”, in: Rechtswissenschaft in der
Bonner Republik. Studien zur Wissenschaftsgeschichte der Jurisprudenz, ed. by Dieter Simon,
Frankfurt am Main: Suhrkamp, 1994, pp. 12-99.
Ingo J. Hueck 211

methodological approaches.57 Against this background, small-scale interdisciplinary

approaches are already in existence within history-of-law research.
Most of these historical researchers in the German academia have concentrated on
the early modern age. In terms of content they have focussed on the peaceful order and
on peace settlements from the Peace of Westphalia onwards, examining arbitration
procedures, European expansionism and colonialism. In terms of methodology, many
pieces of research simply have a universal history approach, while others take an
epistemological or social history approach. One of the main political historians and
representatives of the political approach to international law is Heinz Duchhardt. He
succeeded in his numerous publications, having transcended the traditional under-
standing of political history, in setting new tones, without ever intending to be
revolutionary. The same applies to the works in the Handbook of International Relations
(Handbuch der Geschichte der Internationalen Beziehungen) by Durchhardt and Franz
Knipping.58 Alongside examining the peaceful order in the early modern age, this
handbook focuses on the European system of states: in particular France’s dominance
during the era of absolutism.59 Like Duchhardt and Knipping, Reinhardt’s intention in
writing his book was not specifically to produce a work written from a history-of-
international-law angle. He primarily examines the history of colonialism, which is
not classified as belonging to the field of international law studies.60 Jörg Fisch’s work
on the other hand includes not only a universal history work on the peace treaty, but
also a study on reparations with genuine history-of-international-law aspects.61 The
theological-ethical studies produced by Werner Führer and Gerhard Beestermöller on,
respectively, international peace and the idea of a league of nations, also take the same
direction. Both examine the central concepts and institutions of modern international

57
See especially Otto G. Oexle, “Rechtsgeschichte und Geschichtswissenschaft”, in: Akten des
26. Deutschen Rechtshistorikertages, ed. by Dieter Simon, Frankfurt am Main: Klostermann,
1987, pp. 77-107.
58
Cf. Heinz Duchhardt, “Balance of Power und Pentarchie”, in: Handbuch der Geschichte der
Internationalen Beziehungen, 9 volumes, ed. by H. Duchhardt und F. Knipping, Volume 4,
Paderborn, Munich, Vienna, Zurich: Schöningh, 1997.
59
Heinz Duchhardt, Studien zur Friedensvermittlung in der Frühen Neuzeit, Wiesbaden: Steiner,
1979; Krieg und Frieden im Zeitalter Ludwigs XIV., Düsseldorf: Schwann, 1987; Altes Reich
und europäische Staatenwelt 1648-1806, Munich: Oldenbourg, 1990; Deutschland und
Frankreich in der Frühen Neuzeit. Festschrift für Hermann Weber, ed. by H. Duchhardt and E.
Schmidt, Munich: Oldenbourg, 1987; Zwischenstaatliche Friedenswahrung in Mittelalter und
Früher Neuzeit, ed. by H. Duchhardt, Cologne, Vienna: Böhlau, 1991; Rahmenbedingungen
und Handlungsspielräume europäischer Außenpolitik im Zeitalter Ludwigs XIV., ed. by H.
Duchhardt, Berlin: Duncker & Humblot, 1991; Der Friede von Rijswijk 1697, ed. by H. Duchhardt,
Mainz: Zabern, 1998.
60
Cf. Wolfgang Reinhard, Geschichte der europäischen Expansion, 4 volumes, Stuttgart, Berlin,
Cologne, Mainz: Kohlhammer, 1983-1990.
61
Jörg Fisch, Krieg und Frieden im Friedensvertrag, Stuttgart: Klett-Cotta, 1979; Reparationen
nach dem Zweiten Weltkrieg, Munich: C.H. Beck, 1992.
212 Journal of the History of International Law

law, looking at theological-ethical aspects from a historical perspective.62

In summary, therefore, the present state of research within German academia cannot
be regarded as satisfactory. The history-of-law field has so far barely discovered the
history of international law. In the field of international law the history of international
law was more or less neglected for many years and finally largely forced out to make
room for new specialist areas. Only the most recent publications, some of which have
a genuine history-of-international-law character, give cause for optimism. From a legal
history perspective, research on the history of international law within the history field
often does not focus sufficiently on international law issues and problem areas in
literature and practice. Studies and accounts tend to aim at analysis in terms of universal
history, occasionally demonstrating an enlightened understanding of political history,
but fail to create new impetus.

5. Trends and Perspectives: New Approaches in the History of

International Law
The only research currently taking place alongside the project on the law of nature in
the 19th and 20th centuries where Heinhard Steiger is supervising international law
and Karl-Heinz Ziegler’s research on international law during antiquity is the project
set up at the Max-Planck Institute for European Legal History in Frankfurt/Main on
the History of Academic Trends and Ideas in International Law from the Kaiserreich to
National Socialism. Within this project a working group has been established, within
which 15 individual studies are being initiated. This project has succeeded in creating
a network and thus stimulating and incorporating further work outside Frankfurt. The
project has succeeded in building up a network and thus stimulating and involving
other projects outside Frankfurt. It deals with international law thinking from the middle
of the 19th Century up to the period after World War II. Against the background of the
major changes in interstate relations in the 19th Century, the normative implementation
and institutionalisation of the new guiding principles in international and German
international law theory (peace, justice, legal certainty, human rights) are examined.
Rather than concentrating uniquely on the event-related caesuras (1870, 1914-1918,
1933, 1945), long-term developments in international law doctrine and their effects on
practice are analysed. In other words: international law theories are taken historically
seriously. They are regarded as context-dependant, i.e. attempts are made to reconstruct
as exactly as possible the intellectual, social and political framework conditions of
theories and theorists, including their educational background, and to research the
methodological approaches used. After all, theories are not created in vacuums, neither
can they be automatically “derived” from the framework conditions. Rather, they would
appear to be “semi-autonomous”, in the sense that they are created through complicated

62
Werner Fuehrer, Der Internationale Friede. Theologisch-ethische Studien zum Problemn der
politischen Friedenssicherung, Frankfurt am Main et al.: Peter Lang, 1993; Gerhard Beester-
möller, Die Völkerbundidee. Leistungsfähigkeit und Grenzen der Kriegsächtung duech Staaten-
solidarität, Stuttgart, Berlin, Cologne: Kohlhammer 1995; see also Thomas von Aquin und der
gerechte Krieg, 1st ed., Cologne: Bachem, 1990.
Ingo J. Hueck 213

interactions between individual and wider factors. Of course the international perspective
is particularly important for the history of international law. German international law
experts have always made efforts to cultivate contacts abroad, as is usual in the field.
Admittedly though, they were overshadowed in the 19th Century by the major colonial
powers of the United Kingdom and France, and the USA has dominated since the
1920s. What this means for the project is that not only must influences from British,
French and American international law on German international law be taken into
account, but also the attention paid to German thinking on international law from abroad.
The common basis for the individual studies is dissatisfaction with the current state
of history of ideas and epistemology in history-of-international-law research, as well
as with study from a universal history perspective. The current state of research is used
as a basis for re-examination of the main directions and trends so far and a search for
new perspectives and possibilities. The aim is to add new contours to the traditional
epistemological history of law, by examining biographies and the history of institutions
and newspapers and attempting to reconstruct German and international networks.
This could allow history-of-law research to take on a new quality and initiate links to
modern epistemological history. New approaches within the traditional history of ideas
are also being sought. The project is part of a programme entitled “Ideas as creative
forces in society in the Europe of the modern age – tentatives towards a new history of
intellectual thought” (Ideen als gesellschaftliche Gestaltungskraft im Europa der Neuzeit
– Ansätze zu einer neuen ‘Geistesgeschichte’). The project thus attempts to go beyond
conventional observations looking at the history of institutions and institutes and
examine for example the way in which leitmotivs and academic styles of thinking
became integrated into organisations and institutes. Another strand of research examines
questions as to how far “Ideas as moving forces” (Ideen als Weichensteller, Max Weber)
are incorporated and can thus play an active part in academic and political processes of
genesis and change. These approaches create interdisciplinary links where history-of-
international-law research can make a contribution via new methodological approaches.
Thus the history of international law can certainly be an attractive sub-section of the
history of law and of history studies. As an empirical science it can serve to underpin
methodological and theoretically the examination of current law during legal foundation
training. It can also contribute within the framework of international law training to a
critical re-examination by students of preconceived ideas and a reappraisal of their
own intellectual foundations. This particularly applies to international law between
the wars and during the National Socialist era. If one observes discussion and develop-
ments in methods there are numerous new approaches in history-of-international-law
research. In particular for modern international law since the early modern era, many
new angles could be opened up if future studies succeed in transcending the traditional
approaches based on the history of ideas and development history. Ideas in international
law are not created in vacuums, but as a result of the interaction of various protagonists
within the academic, diplomatic, political and economic fields etc. Thus even such
brilliant studies as Grewe’s book only cover a certain section of the history of
international law – in this case the major theories and political history. New approaches
allow refinements and re-classifications. This applies for instance to studies carried out
in terms of development history which include a comparative approach. This type of
214 Journal of the History of International Law

approach combines specifically historical and juridical approaches because, alongside

the so-called lines of development, it also examines continuities, discontinuities and
fragmentations. From an epistemological point of view, numerous questions concerning
the genesis, transformation and development of an academic discipline in various
temporal, political and economic contexts are thrown up. In the field of international
law in particular, gaps in research can even be found, although major historic studies
already exist. Despite the numerous works in existence on German foreign policy and
the German Foreign Office in the various periods from the foundation of the German
Reich in 1870-1871 until 1945, a critical analysis of the work of the Foreign Office is
so far lacking, in particular with regard to international law issues.63
Finally, new spheres of work are also being created through interdisciplinary and
international approaches. The fact that international law research is an international
academic discipline is not always reflected in research. A new initiative in research on
the history of international law was however initiated in the nineties in the USA. There,
a loose alliance of international law researchers and other academics interested in the
history of international law was formed. This “Interest Group on International Legal
History Scholarship” was established in 1994 and currently has around 40 members
around the world – mainly from the USA, the UK and Japan.64 In the USA, two centres
have been created where research on the history of international law can take place
relatively intensively: the Center of International Legal Studies at the University of
California at Berkeley and the European Law Research Center at the Harvard Law
School, Cambridge.65 The history-of-international law projects at the different
institutions deal with the development of international law since the 19th Century. At
Berkeley for instance, studies with an institutional history focus, examining the history
of international organisations and the genesis and development of the early peace
movement in the USA are being carried out. Both projects pursue an interdisciplinary
approach, which incorporates in particular links and influences in political philosophy
and international law theory. A completely different approach is being pursued by
international law researchers from the Harvard Law School and the Boston Area. Their
research on the history of international law reflects critically on the history and
development of international law as an academic subject in the USA.66 The New
Approaches to International Law Project (NAIL) at the European Law Research Center
of the Harvard Law School was founded in the 1980s and influenced by the so-called

63
For further arguments surrounding this question, cf. Anthony Carty and Richard A. Smith,
Sir Gerald Fitzmaurice and the World Crisis. A Legal Adviser in the Foreign Office, 1932-1945,
1st ed., The Hague: Kluwer International Law, 2000.
64
For further information, please contact Professor David Bederman, Emory University, Atlanta,
USA, or the American Society of International Law, Washington DC, USA.
65
Please contact at Berkeley Professor David D. Caron, Director, International Legal Studies,
Boalt School of Law, and at Harvard Law School Professor David Kennedy, European Law
Research Center.
66
Cf. Wolfgang G. Friedman, The Changing Structure of International Law, London: Stevens,
1964.
Ingo J. Hueck 215

“critical legal studies” and postmodernism movement in the United States.67 David
Kennedy applied the general critical approach to established legal structures and legal
argumentation to international law. Since then, a multitude of individual studies have
investigated the development of present-day fundaments and principles in international
law. The basic aim is for new perspectives in international law to be developed through
historic and comparative analyses. Research has concentrated on such topics as
reinterpreting twentieth century international law as an intellectual and cultural event;
resituating the history of private international law in the nineteenth and twentieth
centuries in an ongoing relationship to public law; situating international law as a
variant of liberal legal thought, subject to criticisms made of other liberalisms, by
interpreting the internal history of the international law discipline to foreground
ambivalence, contradiction and repetition rather than progress. The approaches used
are comparative and historical. NAIL has political objectives: it aims at critical
examination of the development of international law, its fundaments, methods and law
legal regimes. The researchers often take a critical stance and make judgements on
international law and the international law discipline, without presenting clear
alternatives or solutions. This approach in particular provokes counter-criticism from
within the (American) international law community. There has been relatively little
critical reflection on, or absorption of these discussions in Europe, particularly in
Germany, despite the fact that the historic-comparative analyses carried out within the
NAIL project explicitly also include international law outside the Anglo-American
framework. The aims of this are manifest. The examination of the history of international
law is intended to give new direction to current international law thinking. The changes
in world politics since 1989-1990 and the attempts to reform the United Nations and
alter the role of the USA have also led to history-of-international-law studies in the
USA.68 Some works on the history of international law dealing with the reinterpretation
of the international law of the 19th and 20th centuries for example have already appeared
in the last few years.69 The methodology on which these works are based is one of

67
Cf. Duncan Kennedy, A Critique of Adjudication: Fin de Siécle, Cambridge, Mass./London:
Harvard Univ. Press, 1997; James Boyle, Critical Legal Studies, Aldershot: Dartmouth, 1994.
See also Richard Fox and James Kloppenberg (eds.), A Companion to American Thought, London:
Blackwell, 1995.
68
Cf. Anthony Carty, The decay of international law? A reappraisal of the limits of legal imagina-
tion in international affairs, Manchester: Manchester Univ. Press, 1986; Nathaniel Berman,
“‘But the Alternative is Despair’: European Nationalism and the Modernist Renewal of Inter-
national Law”, in: Harvard Law Review, Volume 106. 1993, pp. 1792-1903.
69
David Kennedy, “The Disciplines of International Law and Policy”, in: Leiden Journal of
International Law, Volume 12, 1999, pp. 9-133; “International Law and the Ninetheenth Century:
History of an Illusion”, in: Nordic Journal of International Law, Volume 65, 1996, pp. 385-420
(see also Quinnipiac Law Review, Volume 17, 1997, pp. 99-138); “The International Style in
Postwar Law and Policy”, in: Utah Law Review, Volume 1, 1994, pp. 7-103; “The Move to
Institutions”, in: Cardozo Law Review, Volume 8, 1987, pp. 841-988. See also Kennedy, “Losing
Faith in the Secular: Law, Religion, and the Culture of International Governance”, in: Mark W.
Janis, Religion and International Law, The Hague: Nijhoff, 1999, pp. 309-319.
216 Journal of the History of International Law

cultural history and the history of ideas; they use the most modern methodological
approaches within the American history-of-law and historiography fields. Further works
with an epistemological approach deal with the internal history and development of
the international law discipline in the USA.70 Here, surprising results have already
been produced which will prove of great significance in particular from a comparative
perspective for corresponding studies of continental European developments.71 On the
basis of the extremely flexible system of academic research in the USA, which is very
quick to react to new academic developments, the history of international law and of
international law as an academic discipline has been critically reconstructed and related
to the genesis of international relations as an academic discipline. Some research has
also concentrated on compiling historical studies on the close links between international
private law and international commercial law and international law, or on the structural
links between colonial law and international law.72 In the context of these research
angles, both traditional and new methodological approaches are examined and further
developed.73 Thus these studies on the history of international law contribute to the
debate about the relationship between the history of law and history studies, about the
relevant methodological foundations and specific features, as well as about the links
between current law and its history.74
This cursory examination of new trends and areas of emphasis in the study of
international law is intended to show that centres and projects dealing with the history
of international law do indeed exist. The distinguishing feature of the above-mentioned
projects is their search for new approaches in research on the history of international
law; alongside new approaches, looking at the development of ideas, and epistemological
approaches, these include new unconventional methods – in the USA in particular.

70
Cf. Anthony Carty, “Critical International Law: Recent Trends in the Theory of International
Law”, in: European Journal of International Law, Volume 2, 1991, pp. 61-96; Martti Koskenniemi,
“International Law in a post-realist era”, in: The Australian Yearbook of International Law,
Volume 1 6, 1995, pp. 1-19; see also International Law, ed. by Martti Koskenniemi, New York:
Univ. Press, 1992.
71
Cf. Kennedy, “The Disciplines of International Law and Policy” (see above), or Koskenniemi,
“International Law in a post-realist era” (see above).
72
Cf. Tony Anghie, “‘The Heart of My Home’: Colonialism, Environmental Demage, and the
Nauru Case”, in: Harvard Law Review, Volume 34, 1993, pp. 445-506; Nathaniel Berman,
“Sovereignty in Abeyance: Self-Determination and International Law”, in: Wisconsin Inter-
national Law Journal, Volume 7, 1988, pp. 51-105, and in: Koskenniemi (ed.), International
Law, pp. 389-444 (see above); Günter Frankenberg, Critical Comparison: “Re-thinking Compara-
tive Law”, in: Harvard International Law Journal, Volume 26, 1985, pp. 411-455.
73
For further arguments surrounding this question, cf. William W. Fisher III, “Texts and Contexts:
The Application to American Legal History of the Methodologies of Intellectual History”, in:
Stanford Law Review, Volume 49, 1997, pp. 1065-1110; see also John Barker, The Superhistorians
– Makers of Our Past, New York: Scribner, 1982.
74
Cf. Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal
Argument, Helsinki: Lakimiesliiton Kustannus 1989.
Ingo J. Hueck 217

Beyond this there is a strong need for interdisciplinary and comparative studies, which
has already led to varying degrees of cooperation. These international and inter-
disciplinary networks not only form the basis for closer exchange of ideas on methods
and projects. They also provide an important platform for improvement of the state of
the history of international law as an academic discipline.
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