German Idealism after Kant: Nineteenth Century Foundations of International Law

Abstract

What are the legal principles of German idealism in the long nineteenth century; and what conception(s) of international law do they offer? Opposing Kantian rationalism and its formalist law, two idealist reactions do emerge in the early decades of the nineteenth century. The first is offered by Hegel whose conception of state law will make him the principal representative of the future deniers of an objective international law. The second reaction comes from the German Historical School, whose moral and legal understanding of the people(s) does – on the contrary – develop a positive conception of international law based on a ‘society’ of nations. How, and to what extent, were these two idealistic approaches reflected in the international law textbooks of the age? This article investigates this question and finds that it is unquestionably the Historical School that came to dominate international law thinking in the long nineteenth century – and that not just in Germany but also in Italy and Great Britain. The nineteenth century is thus decidedly, under the influence of Savigny and the Historical School, a metaphysical century centred on an intrinsic connection between morality and law.