Natural law and “Human law”: Western humanity’s
If in the seventeenth and eighteenth centuries the principles of natural law served as a reference point for Grotius and Vattel, in the nineteenth century the very concept of natural law came under criticism as a construct that, being “much more moral than legal, did not make it possible to achieve an adequate degree of accuracy in determining which acts this supreme rule permitted and which it prohibited” (Rougier 1910, 490; my translation). This sentiment was widely shared in the nineteenth century; indeed, as is known, this was the century of legal positivism, which saw that the certainty of law it cherished could not be guaranteed on a natural law foundation.
Thus natural law was displaced by the more legalistic conception of law as a human construct. We found this in authors like Arntz and Rolin-Jaequemyns, but also writing in this vein was Antoine Fillet (professor of international law at the University of Grenoble), who saw the peoples of the world as being organized on three levels: that of (1) national society, where we are concerned with relations among individuals within the same national boundaries; that of (2) international society, within which we are to frame relations among states; and that of (3) human society, where the essential relationship is that which exists among human beings without regard to the polity or nation they belong to. Each of these three levels of society, according to Fillet, was governed by its own law: we thus have (1) national or domestic law, (2) international law, and (3) the law of human society. This human law, Pillet explained, consists in “a set of obligatory principles which in the quality of our being human finds a sufficient ground of application” (ibid.; my translation).
In commenting on Fillet’s definition, Rougier attempted to clarify the scope of his human law by describing it as the highest source of law, for it answered “the deepest and most durable needs of human nature.” As such it had to “necessarily seep into national as well as international law,” for it was concerned to protect the human rights (droits humains') of everyone who belongs to a national society or the international society (Rougier 1910, 492; my translation).
This human law could be observed at work in the course it charted on both the national and the international level: it lies behind the political liberties recognized by the states, and in international law, it led to the protections recognized for prisoners of war, the end of the slave trade, and the establishment of international arbitration, among other developments. This makes it possible to identify the foundation that, from the nineteenth-century debate onward, human law was understood to rest on, namely, the principle of solidarity among humans. Rougier pointed out that the same view had previously been expounded by Leon Duguit, whose investigation of public law (Duguit 1901) led him to the conclusion that in social or human solidarity lay the fundamental legal principle, which positive law needed to embody if it was to be recognized as legitimate. In short, “human law is the most general expression of human solidarity” (ibid., 493; my translation). But as E. H. Carr (2001, 79) would later comment, and as Martti Koskenniemi (2004, 201) quotes him approvingly, “pleas for international solidarity and world union come from those dominant nations which may hope to exercise control over a unified world.”
But what content did human law need to take if it was to serve as the ultimate foundation of positive law? Human solidarity required all human activities and interests to be protected, and human law accordingly needed to encompass the right to life and liberty and to the rule of law, understood as the right to a legal system under which these human rights would be recognized and guaranteed.
In the Western debate of the nineteenth century, human law and the rights it encompassed were introduced as an aim recognized by all “civilized states,” and thus was closed the circle that outlined the paradigm of humanitarian
In Pillet’s (1894, 13) own words: “Nous arrivons ainsi au troisième et dernier échelon de notre progression. A la plus générale des trois formes de société doit correspondre le plus général des tous les droits; à la communauté humaine, un droit humain.”
The origins of humanitarian intervention 11 intervention: the West had depicted this community of states as a community committed to the principle of human solidarity—a principle whose legal embodiment was that of human law—and now this conceit became the foundation on which to legitimize humanitarian intervention. It was thus a specific depiction or representation of Western humanity that served as the criterion by which to judge other peoples as nonhuman. Indeed, as Rougier concluded:
When violations of human solidarity are [...] the work of a barbarous or semi-civilized state [Etat barbare ou mi-civilisé ...], the civilized powers are duty-bound to resort to a more energetic mode of control aimed more at preventing the harm than at suppressing or redressing it. Simple intervention will in that case be replaced by a permanent right to protect: this is the right the Western powers have claimed for themselves vis-à-vis the Ottoman Porte. (Rougier 1910, 497; my translation)
According to this doctrine, this kind of protection could be exercised even more strictly—to the point of establishing a protectorate—or it might have enabled the European states to claim the “right to civilize” the most “backward” tribes of Africa: this is what in the Code de droit international Johann Caspar Bluntschli called droit de la civilisation (sec Bluntschli 1895, livre IV, art. 280, 174-75), though it was, in the end, a way to camouflage the annexation of territories (Rougier 1910, 497).