FROM ‘NARCISSISTIC’ POSITIVE INTERNATIONAL LAW TO ‘UNIVERSAL’ NATURAL INTERNATIONAL LAW: THE DIALECTICS OF ‘ABSENTEE COLONIALISM’
| Date | 01 March 2008 |
| Published date | 01 March 2008 |
| Pages | 56-82 |
| DOI | 10.3366/E0954889008000066 |
| Author | PRABHAKAR SINGH |
The classic notions of antiquity had very imperfect notions of international justice. With the Greeks and Romans, ‘foreigners’ and ‘Barbarians’ or ‘enemy’ were synonymous in language and in fact. By their rude theory of public law, the persons of alien were doomed to slavery (…) piracy was unblushingly practised by the most civilized states which then existed (…) Grecian philosophers gravely assert that they (barbarians or foreigners) were intended by nature to be the slaves of the Greeks.
H. Wheaton,
The Empire accidentally found a very faithful servant: international law, a servant which had accompanied the empire from Europe. Born and brought up in the post Westphalian European surroundings and emerging out of the tenets of naturalism, European international law was manufactured by a metamorphosis under the heat and pressure of market, money and materialism. Its nature and character changed completely. Even international law's Dutch father, Huig de Groot could not have recognised this new form of international law for which I have coined the term, ‘‘narcissistic positive international law’’. It was a post ‘Age of Reason’ phenomenon though there is ‘considerable evidence to contrary’ showing it was not exactly an age of reason.
J. Bacchus, ‘Groping Towards Grotius: The WTO and the International Rule of Law’, 44(2)
the renaissance, reformation and industrial revolution gave such a lead to the West over the rest that not only the former conquered and colonised the latter, but the former also got convinced that only the ideas and theories that helped it [the West] in bringing about this transformation, could transform the rest too.
M. P. Singh, ‘A Theory of Human Right for India’, 4(1)
Two contesting sets of dialogues that have affected the character of international law in the 19th and 20th centuries are the natural and positivistic law debates. Natural law advocates an application of universal principles of morality and justice, whereas legal positivism only considers the law flowing down from the sovereign as the true law. Thus Hobbes and Austin treated international law as ‘international morality’, and not fit to be called a proper law. Eighteenth century Europe was expanding and capturing colonial territories and it needed its colonial endeavours to be ‘legitimised’. International law, therefore, had to be proved a proper law – the first step in the justification of the politico-economic project of colonisation. An otherwise construction of international law on natural law grounds would not have approved the ‘colonisation project’ of the European states.
P. Singh, ‘Constitutional Norms in International law: International Judicial Regimes, Human Rights and Resistance’, 4(1)
H. Lauterpacht,
Towards the end of the 19th century positivism was replacing naturalism as the chief analytical apparatus to study law and society. Henry Wheaton, an American writer of considerable influence, emphatically claimed that the ‘Law of Nations’ or
Wheaton,
The major works of Austin are,
Wheaton,
L. Oppenheim, ‘The Science of International law: Its task and Method’, 2
Lauterpacht, ‘United States and the Permanent Court of International Justice’, 1
The publication of the British Yearbook of International law is one step in this direction. This was intended to record the developments in international law as in the domestic law. From 1939 to 1943 due to the outbreak of the Second World War the publication of the British Yearbook of International law was suspended. See Lauterpacht, ‘Introduction: Resumption of the publication of the British Yearbook of International Law’, 21
C. H. Alexandrowicz,
A. Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’, 27(5)
sketches out a history of the evolution of international law that focuses in particular on the manner in which imperialism shaped the discipline. It argues that colonialism, rather than being a peripheral concern of the discipline is central to the formation of international law and, in particular, it's founding concept, sovereignty. It argues that international law has always been animated by the civilising mission, the project of governing and transforming non-European peoples, and that the current war on terror is an extension of this project.
This article divulges the political and diplomatic aspects of ‘manufactured positive international law’ because the ‘colonial and postcolonial realities of international law have been obscured by the analytical frameworks that governed traditional scholarship on the subject’
For many, the universalisation of international law is principally the political by-product of imperialism. However true this may be, I would argue that the shift to positivism of international law from naturalism was a conscious choice by European scholars like Westlake,
See Generally, J. Westlake,
See, John Pawley Bate (Trans.),
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