Into Positivism: Georg Friedrich von Martens (1756–1821) and Modern International Law

Abstract

There is a familiar way in which every politics – also international politics – is a politics of law. After all, most politics aims expressly to end up in the legal regulation of something. Such an image presumes the separation of the two, politics and law, like the distance between cause and effect, ends and means. But there is another, more subtle connection between politics and (international) law, a relation not between separate entities, but what is really a relation of identity. For whatever else political power might be, at least it entails the ability to speak authoritatively. And what is an authoritative form of normative speech – what idiom to use, what may be taken for granted and what is in need of proof and so on – is a reflection of legal doctrine and culture, what at any moment is recognised as professional legal speech.1 Changes in legal culture and doctrine are reflexively linked with political change, indeed, we often recognise the latter by observing the former. As ideas about authoritative speech change, familiar vocabularies lose their persuasive power. Old authorities no longer sound authoritative. A new idiom catches the imagination and new speakers begin to ring true, or right, that is, in possession of something powerful. Modern legal doctrine – legal doctrine since Bodin, Hobbes and Grotius – arose as a response to the loss of persuasive power in old European religious and scholastic vocabularies. Towards the end of the 16th and beginning of 17th centuries new forms of scientific and political speech began to articulate the transformation that was taking place in early modern Europe, providing an alternative both to the old verities and to the reactive scepticism that remained unable to carry a solid political form.2 The spiritual and political crisis peaked in the Thirty Years War out of which emerged a novel language of normative authority – natural law – with its own native speakers, the natural lawyers. Sounding in part like philosophers, in part like lawyers, often exploiting the idioms of mathematics and natural sciences, these men were able to speak persuasively about the role of the new territorial entities in providing security and, in due course, welfare to their populations. The new language made it possible to think the world as naturally divided into separate secular states whose rulers would enjoy supreme authority, both articulated in and limited by the idiom of secular sovereignty. By the end of the 18th century, this vocabulary had, for its part, become vulnerable to increasing criticism. The monarchic absolutism it had helped to support in practice, and the abstractions about human nature that it produced as theory, now seemed suspect and unpersuasive, its native speakers increasingly sounding like new scholastics out of step with an enlightened era.3 We recognise some of that critique in Rousseau’s attack on the way Grotius had offered “fact” for right and in Kant’s indictment of the whole lot of the natural lawyers – Grotius, Pufendorf and Vattel – as “miserable comforters” whose legal principles