The Particularistic Universalism of International Law in the Nineteenth Century

Responding to Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int’l L.J. 475 (2010).

I.        Introduction

Becker Lorca’s essay is divided into three main parts—(a) the appropriation of classical international law, (b) international legal regimes, and (c) the particularistic universalism of non-European international lawyers.  Each section makes it possible to problematize the current state of research in the history of international law.[1]

The first part sets out the essay’s main thesis: nineteenth-century international law has not been imposed on non-Western peoples but has been appropriated by non-European jurists (or “semi-peripheral jurists,” as Becker Lorca defines them), who have modified non-Western peoples’ rules in ways functional to their countries’ interests.  To identify this appropriation process as the source driving the global expansion of European international law is to deny the view that such law expanded unilaterally through the pressure of Western powers.  Rather, the expansion rested on a dialectical interaction between Western and non-Western states.

This appropriation thesis, strongly supported by a variety of primary sources, offers a new interpretation of the way international law developed in the nineteenth century.[2] Especially notable is Becker Lorca’s analysis illustrating how international European law was received by recombining its constitutive elements—legal positivism, sovereignty, and the standard of civility—thus creating a tension between the self-proclaimed universality of international law and the specificity of national interests.

I start out by introducing the important thesis that Becker Lorca terms the particularistic universalism of international law in the nineteenth century, a development that began with the historic turn which followed the natural law of the seventeenth and eighteenth centuries and climaxed with the legal positivism of the nineteenth century.  I then expand this thesis by noting how particularistic universalism grew historically out of the plurality of universalistic conceptions of international law proclaimed by different legal civilizations, rather than just by Western civilization.  With that done, I critically discuss the standard of civilization by analyzing it not only in legal terms but also from an anthropological and sociopolitical standpoint.  Finally, I underscore the continuity of the West’s civilizing and hegemonic ideology encapsulated in international law and spanning from the early modern age to the contemporary world, regardless of however much it takes on different conceptual forms.

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[1] See generally Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int’l L.J. 475 (2010).

[2] Becker Lorca’s thesis is markedly different, for example, from that argued by Onuma Yasuaki holding that the nineteenth century saw a collapse of non-Western legal regimes, especially the Chinese and the Islamic ones, making it possible for Western international law to universalize, thus imposing its hegemony on non-Western states.  See Onuma Yasuaki, When Was the Law of International Society Born? – An Inquiry of the History of International Law from an Intercivilizational Perspective, 2 J. Hist. Int’l L. 1, 64 (2000).