John H. Herz and the International Law of the Third Reich
| Published date | 01 December 2008 |
| DOI | 10.1177/0047117808097308 |
| Date | 01 December 2008 |
| Author | Peter M. R. Stirk |
| Subject Matter | Articles |
JOHN H. HERZ AND THE INTERNATIONAL LAW OF THE THIRD REICH 427
John H. Herz and the International Law
of the Third Reich
Peter M. R. Stirk
Abstract
John H. Herz was unusual amongst the founding fathers of international relations in having
paid detailed attention to the ideology and international law of the Third Reich in a study
published in 1938. This article sets his investigation in the context of the turn away from
law in the emerging discipline of international relations and the competing visions of
Hans Kelsen and Carl Schmitt. It assesses developments in the international law of the
Third Reich during the war years against Herz’s own expectation of the emergence of a
coherent doctrine, and concludes by suggesting that Herz’s defence of international law
has much to recommend it.
Keywords: John H. Herz, international law, Hans Kelsen, National Socialism,
Carl Schmitt
The challenge posed by the Third Reich plays a central role in general accounts of the
emergence of international relations as a discipline. Disillusion with a naïve faith in
the effi cacy of international law and in ‘legalism’ as an approach to the problems of
international relations, along with the harsh lessons of Munich, led, we are told, to the
emergence of realism and a turning away from law.1 This was held to be vital, for as
Edward Hallett Carr complained in his seminal text: ‘[n]o topic has been the subject
of more confusion in contemporary thought about international problems than the
relationship between politics and law’.2 The confusion lay, above all, in the ‘fallacy of
the personifi cation of law implicit in such popular phrases as “the rule of law” or “the
government of laws and not of men”’.3 The personifi cation of the law meant supposing
that laws could create and apply themselves. While Carr was content to dispel such
fallacies, the trend which he and other classical realists set in motion culminated in a
more dismissive approach to international law, from which both political scientists and
lawyers are now seeking to free approaches to international relations.4
Realism and law in international relations
In fact John Herz and his fellow German exile Hans J. Morgenthau seem to fi t into
this scenario better than the sometime diplomat Carr. Both were infl uenced by Hans
Kelsen, who fi gures in these accounts of the emergence of international relations as the
embodiment of the illusions from which the discipline had to liberate itself. Both are
also presented as key fi gures in the transition itself, turning away from Kelsen as they
formulated what became the classical realist position. In the case of Morgenthau, at
least, the turn against Kelsen has been linked to the infl uence of Kelsen’s great rival in
International Relations Copyright © 2008 SAGE Publications
Los Angeles, London, New Delhi, Singapore and Washington DC, Vol 22(4): 427–440
[DOI: 10.1177/0047117808097308]
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