What Are and to What Avail Do We Study European International Law Traditions?

Peter Hilpold

doi:10.1007/978-3-030-52028-1_1

Abstract

AbstractIn recent years, in parallel with the rising interest for the history of international law and the evolving of a separate discipline of “Comparative International Law”, interest for national international law traditions—and in particular for European international law traditions—has continuously grown. This process raises a series of questions, in particular whether the assumption of the existence of such traditions is compatible at all with the very nature of international law, about the meaning of “Europeanness” and about the end of such a comparative endeavour. The present book collects a series of analyses in this field undertaken by renowned international lawyers. Of course, such a project cannot claim to give definite, encompassing answers, but it can aim at providing a better understanding of why international law is as it is, evidence what may be at the roots of so many misunderstandings in the international law dialogue between nations and academics and also, on a more positive note, show to what extent a common language has evolved and what the different national contributions were to these achievements.For the time being, studies of such a kind cannot be but electrical. Nonetheless, the hope is that they might contribute to a broader understanding of international law, offer a better comprehension in the discussion between international lawyers and perhaps build the basis for further studies in this area. This introductory chapter describes the research project as a whole, offers some methodological considerations and provides a short glimpse into the chapters of this book.

Highlights

We have, first of all, to ask whether it is correct to speak about “Legal Traditions”.1 And what is “European”? What is “International”? And above all, what is a “Tradition”? Do “traditions” have any place at all in modern international law doctrine otherwise so eager to keep up with the most advanced legal doctrine or even to represent its avant-garde?
If we dissect the texts, idioms and subtexts, we find traces of the European, which we cannot, in any way determine or fix without inserting the personal-political of the specific authors and their audiences into the ‘algorithms’ - the cultural geography of origin being one lesser figure among them
Might looking back constitute a step backwards in the legal development? Might a “re-nationalization” of international law constitute a further contribution to the much-lamented fragmentation of international law,[12] a road to the tower of Babylon where the common language so intensively propagated and cultivated in the past would again be exposed to the peril of going lost or at least be weakened so that communication across national borders could be further complicated? This project was premised on the proposition that such worries are not justified and that, on the contrary, a contribution could be given for a better understanding of international law, both with regard to its main elements and in the international dialogue about its core characteristics.[13]

Summary

Some Definitions

Discussions about “European International Law Traditions” have become more common in the last years even though still today many international lawyers might feel, in a first moment, uneasy with this concept. It has instead been suggested not to look for fully fledged Europeanness, a condition probably too demanding to prove but for “traces” of such Europeanness reflecting the cultural origin of the respective authors.[3] Defined this way, Europeanness becomes, a rather subjective characteristic, where the “critical mass” starting with which Europeanness can be seen as given lies, to a considerable extent, in the eye of the beholder. This project was premised on the proposition that such worries are not justified and that, on the contrary, a contribution could be given for a better understanding of international law, both with regard to its main elements and in the international dialogue about its core characteristics.[13] As it is often said, the main purpose of any comparative study of law is to know and to understand one’s own legal order better.[14]. Legal orders comprise, according to the monist approach, both national law and international law—they merge to a single legal order amenable to a unified act of interpretation

The European Perspective

The Single Contributions to This Book

Looking Forward