Waiting for the barbarians : state theory, imperial order and the history of international law
License
Cadmus Permanent Link
Full-text via DOI
ISBN
ISSN
Issue Date
Type of Publication
Keyword(s)
LC Subject Heading
Other Topic(s)
EUI Research Cluster(s)
Initial version
Published version
Succeeding version
Preceding version
Published version part
Earlier different version
Initial format
Author(s)
Citation
Peking university international and comparative law review, 2018, Vol. 15, No. 1, pp. 3-35
Cite
CHEN, Xiaohang, Waiting for the barbarians : state theory, imperial order and the history of international law, Peking university international and comparative law review, 2018, Vol. 15, No. 1, pp. 3-35 - https://hdl.handle.net/1814/64968
Abstract
The emergence of 19th century positivist international law, was paralleled with the process in which“statehood” gradually took the dominate position in international legal system. Under the natural law discipline, state is no more than an instrument or carrier of the existing natural legal order. However, positivist international law considered state as the only subject of international law, which finally underpinned the indispensable importance of state theory in international legal history. The will of state is depicted as the foundation of international legal system,and state consent as an important source of legal validity. German public lawyers in the 19th century endorsed the theory of“rational will of state”, under which state possesses independent personality. More importantly,the theory of rational will of state opened a wider moral space for further construction and reconstruction of state theory Since state has a rational personality, it can be re-narrated within the discourse of“standard of civilization” , “ historical progress” , and states could recognize each other. The language of civilization during colonization in the late 19th century, principle of recognition, mandate system under the League of Nations and human rights protection after the Second World War, are the fundamental leverages in changing state concept and state theory. My argument is, that each reconstruction of state theory trigged the transformation of international legal order. The history of international law from the late 19th century, is a history of constant shifts of state theory, and each shift of state conception was re-defining and re-imaging the civilized state against barbarian state, advanced state against backward state, successful state against failed state. If state is the pivot of positivist international law, the dynamic between pluralism and universalism embedded in state theory from the very beginning, leads to a structural dilemma in international law. This structural dilemma is the final explanation why each internationalist project in international law seems fatally vulnerable in front of its imperial criticism.