The law of international society: A road not taken

As I argued in my Gentle Civilizer of Nations, modern international law arose in the last third of the nineteenth century. At the time, as well as long into the twentieth century, its ideological centre lay in the concept of ‘civilization.’ This was a profoundly hierarchical notion that projected a particular developmental frame for all nations. That concept was embedded in a certain theory about history and statehood that was particularly well developed in German public law. However, by the mid-nineteenth century, another view to think about law, politics, and statehood was developing in Europe that focused on the concept of ‘society.’ This had its British, French, and Italian versions, but I want to focus on a German approach that, at one point, became a rival to old Staatslehre and the historical school. This had also an internationalist variant that was critical of old formalist public law and worked with a notion of ‘international society’ ( internationale Gemeinschaft). In this article, I want to examine the ascent of this notion, the brief moment when it seemed to provide a modern alternative to older ways in which to think about the laws of statehood and the international realm and its eventual demise at the time of the establishment of the Institut de droit international in 1873.