Refugee scholarship and the universality of legal concepts

ABSTRACT

Often, a more or less universal quality is attributed to certain legal concepts. For refugee scholars working between 1933 and 1945, the universal quality of these concepts was challenged on two fronts: first, the breaking down of the Weimar Constitution and the German Rechtsstaat under Nazi rule demonstrated the fragility of a constitutional and legal order. Moreover, the breakdown of the German Rechtsstaat was felt on a deeper conceptual level. ‘Immutable’ legal concepts turned out to be easily mutated to conform to Nazi ideology. The second major challenge to the universality of concepts thus pertains to the universal characteristics of the ‘concept of a concept’ itself. In brief, what German refugee legal scholars attempted to create in the course of the 1930s and 1940s was a ‘universal’ Rechtsstaat centred around concepts and legal scholarship that would avoid the breakdown by placing it into a feasible and balanced system of legal enforcement on an international level. Thus, in their new academic context, rather than dismissing the Rechtsstaatliche function of legal concepts and the role of legal scholars, refugee scholarship ventured to enhance it. This contribution argues that the development of Hersch Lauterpacht’s concept of human rights constitutes such an enhancement.

KEYWORDS:

• History of concepts
• universality
• natural law
• refugee scholarship
• human rights

1. Introduction: the problem of the ‘universality’ of legal concepts among refugee scholars

This contribution has the following purpose: often, a more or less universal quality is attributed to certain legal concepts. For example, ‘natural law’ is regarded as a type of law that is, at least theoretically, valid everywhere and for everyone equally.¹ For refugee scholars working between 1933 and 1945, the universal quality of these concepts was challenged on two fronts: first, the breaking down of the Weimar Constitution and the German Rechtsstaat under Nazi rule demonstrated the fragility of a constitutional and legal order not only from the perspective of the degradation of legal guarantees, but also on a conceptual level. The more universal the concept, the less prone it proved to be enforceable legally, for example in the context of international law or by those seeking legal redress while stateless, without citizenship or otherwise denied access to legal claims established on a national level. In the 1950s, this conceptual challenge was signalled by Hannah Arendt in her famous chapter The End of the Rights of Man in The Origins of Totalitarianism. The chapter obviously focuses on the newly emerging human rights regime under the Universal Declaration of Human Rights. It also employs historical examples not so much to show why and how legal enforcement had failed to provide adequate protection once human rights were established theoretically outside a national context, which had already happened in the context of the 1789 French Declaration des droits de l’homme et de citoyen, but the difficulties and pitfalls of attributing any kind of universal quality to a concept beyond the confines of the nation-state and citizenship, be it human rights, international law or natural law.² Arendt’s discussion of this problem is easily one of the most hard-hitting and influential treatments, but there is an earlier history to this problem, particularly among those scholars who had before 1933 been actively involved in developing and embedding these universalist conceptions, but after 1933 became deeply personally affected by the shortcomings demonstrated by the breakdown of the German Rechtsstaat and the ensuing total war. Their responses to these shortcomings in the period between 1933 and 1945 specifically focused on the problem of universality, and this is the first main topic of my contribution.

The breakdown of the German Rechtsstaat was also felt on a deeper conceptual level. German legal scholars tend to not just view constitutional guarantees as the defining hallmark of the Rechtsstaat, nor is the substance of the Rechtsstaat limited to the legal relation between individual or citizen and state alone.³ In the German-speaking legal culture, legal concepts specifically when embedded in a wider systematic context take on a protective role, with legal scholars rather than judges and legislators as their guardians. Legal concepts are seen as containing an immutable and traditionally established core forged through a relation between legislation, legal science and judicial decision. This core takes on a protective function central to the Rechtsstaat despite the implication of a reserved role for the state, and concerns the notions of property or contract in private law as much as a constitutional right to a fair trial or freedom of speech. I would argue that the importance of the role of private law and legal scholarship in German-speaking legal culture constitutes a major difference between the Rechtsstaat and the related but more common law-centred notion of the rule of law, which for instance lacks the principled division between public and private law itself.

In any case, the breakdown of the German Rechtsstaat under Nazi rule went beyond the practical obliteration of constitutional rights alone. ‘Immutable’ legal concepts turned out to be easily mutated to conform to Nazi ideology: in a post-war context, this shows the importance of reading a work like Die unbegrenzte Auslegung by Bernd Rüthers, which deals for a large part with the role of judges in determining private law notions and relations.⁴ This analysis of the breakdown of the Rechtsstaat is perhaps as hard hitting as even Arendt. Nor does this concern the position of judges alone: early on, the Nazis successfully targeted legal scholars who saw themselves as guardians of the Rechtsstaat, not only constitutional lawyers such as Hermann Heller, but also legal historians like Hermann Kantorowicz and private law scholars such as Hugo Sinzheimer.⁵ These were major figures in German-speaking interwar legal scholarship. The effectiveness with which even these scholars could be kaltgestellt, to a large extent removed from the system altogether, demonstrated not only the fragility of this aspect of the Rechtsstaat, but also the failure of the functional relationship between scholars and concepts and the ‘concept of a concept’ itself. This goes for post-war analyses of the breakdown of the Rechtsstaat, such as the famous 1946 Radbruch formula,⁶ but naturally it was deeply felt among the community of now-refugee legal scholars as well.⁷

The second major challenge to the universality of concepts thus pertains to the universal characteristics of the ‘concept of a concept’ itself. Of course, when legal scholars were forced out of Germany, many of them recognized the problem of having been academically raised and trained in German legal notions in a German legal system. They now had to reconcile their training with English and American legal systems and their notions simply to find employment predominantly in the Anglophone academic world. Thus, many of them turned to the burgeoning field of comparative law, expressly and purposefully aiming at a reconciliation through their scholarship.⁸ Of course, many of them used their existing expertise and newfound knowledge to create more universally valid systems of law encompassing both their old and new context. They had to balance out the unfettered power of a single state by achieving a measure of conceptual unity and building on established mechanisms of legal enforcement. Although these mechanisms had an internationalist or universalist character, in their work the refugee scholars turned away from traditional international legal mechanisms such as the League of Nations,⁹ which had for many of them done nothing at all. A solution was sought by balancing state interests but maintaining national mechanisms of legal enforcement based not on primarily constitutional or even international legal considerations, but through more traditional legal relations, both from national private and criminal law perspectives.¹⁰ In brief, what German refugee legal scholars attempted to create was a ‘universal’ Rechtsstaat centred around concepts and legal scholarship that would avoid a breakdown by placing it into a feasible and balanced system of legal enforcement on an international level. To be clear, this type of system building was not limited to (erstwhile) legal historians, legal theorists or private and criminal law scholars, but also concerned international law experts, as I will explain in more detail below.

Thus, rather than dismissing the rechtsstaatliche function of legal concepts and the role of legal scholars, refugee legal scholars ventured to enhance it. Instead of reasoning from the conceptually lacking and even hostile English and American legal systems, they tended to take the opposite route: bringing concepts and conceptual thought over into their new academic homes, but also aiming to embed them credibly into the new legal context without dispensing with the old one.¹¹ Theoretically, this may have to some degree countered the first major challenge to universality as set out earlier, namely the problem of legal enforcement as detrimental to the universal character of a notion such as natural law. However, it also led to a new challenge: the universal character of the concept of a concept itself. Reasoning from a German academic perspective, this problem has a long and complicated history. Based on the teachings of Friedrich Carl von Savigny and the Historical School, in the late nineteenth century scholars of international law theorized the ‘universality’ of legal concepts within the colonial framework, from the perspective of traditional notions of contract and property in particular.¹² Neo-Kantians such as Rudolf Stammler appropriated the universalism of Kantian conceptual thinking as a legal context, venturing to establish an abstractly valid legal system, though still very much from a German perspective.¹³ A third mode of influential universalist thinking in the early twentieth century emanated from a tradition of natural law that explicitly discussed the problem of the universality of (legal) concepts in a more abstract, theoretical sense. The discussion did not just involve legal scholars, but academics from a wide variety of disciplines. Although these debates were held in various groups, all of these discussions show a large degree of overlap, particularly after the catastrophe of 1932. This contribution argues that these debates culminated in the development of a specific set of new concepts that, however, were provided with a historical narrative to demonstrate their universal character. The primary concept treated in this contribution is that of human rights as proposed by the international lawyer Hersch Lauterpacht.

2. Natural law and the universality of concepts in the early twentieth century

At this point it is useful to state the following two things: first, many of the late 19th- and early twentieth-century leading figures of what we would now see as economics, sociology or political theory were classically trained as lawyers. To a degree, this shines through in the manner of the establishment of these ‘new’ fields and the works of their leaders, employing examples and modes of reasoning from the German legal tradition. For example, philosophers and lawyers write about chains of causality: however, in a legal context the question remains to what degree someone is liable for damages incurred in a court of law. Second, from a twenty-first-century perspective we tend to think of legal theory, legal history, legal philosophy, legal sociology and so on, as distinctive disciplines within law as an academic pursuit. However, this only partially reflects reality as legal-theoretical thinkers tended to have backgrounds and academic positions in the context of black letter law fields.¹⁴ There were no real separate chairs of legal theory, legal philosophy or legal sociology as there are today. The result of these two considerations is that on the one hand, the law, its concepts and its history provided a good deal of concretization and common intellectual ground for lawyers and the legally trained but also for those outside the field of law. On the other hand, legal scholars connected their experience and training in black letter law to larger notions, specifically in the context of the purpose of law in society, without losing that foundational framework of legal concepts. Therefore, when a notion of ‘universality’ is treated in early twentieth-century German academic debates, it is rarely done as such, but more usually in the guise of a notion that provided an intellectual common ground for philosophers, theologians, political theorists and legal scholars, namely natural law. The concept of natural law among legal scholars in Germany is problematic in this era, since it tended towards the (legal) positivistic, with even international law being very much focused on black letter law and notions such as national sovereignty.¹⁵ Moreover, natural law still had the Enlightenment connotation of a top-down application of norms, whereas legal theory emphasized a more organic horizontal relation between laws and norms, very much intertwined with the emergence of (legal) sociology as an academic discipline.¹⁶ However, we may identify several ‘cross-border’ trends where natural law and the universality of concepts are linked. Here, I would like to focus first on the Marxist tradition of universalism and natural law. Some integration was accomplished early on by Rudolf Stammler, though he later came to repudiate Marxist social ends, and emphasized ‘universal forms of thought of the fundamental concepts of law’ in a natural law context.¹⁷ In a 1951 work entitled Naturrecht und menschliche Würde, Ernst Bloch, a Marxist and refugee scholar, described the Marxist tradition primarily as hostile to positive law and bourgeois class-society concepts such as contract and property, and even to the notion of law itself.¹⁸ As such, there is in Marxism an ambivalence towards natural law that goes back to the writings of Marx himself.¹⁹

The ambivalence is visible in refugee scholarship more generally, particularly among the adherents to the Frankfurt School, which had been forcibly relocated to New York in the 1930s.²⁰ In the most famous work of the School, the Dialectic of Enlightenment by Horkheimer and Adorno, the self-contradictory and even self-destructive characteristics of the naturalist tendencies of the eighteenth century are emphasized.²¹ This is manifested particularly in the purported universal or natural character of concepts, which need to pass through a process of social utility or ‘a cleansing channel of conceptual order’ in order not to be felt as intrusive or arouse aversion. For example, only if anti-Semitism passes through this channel does it become a concept, and therefore ‘aware of its own senselessness’.²² Thus, there is in fact no such thing universal or natural concepts in actuality: the promise of human rights is a lie as long as classes exist, arousing the anger of the masses, and re-enacting the suppression of its longing for happiness.²³ Nevertheless, Marxist natural law retained a utopian character in which a revolutionary promise could be realized through the concepts of freedom and dignity.²⁴

In religious thought, there is an ongoing emphasis in the early twentieth century on the connection between natural law and universalism. D’Entrèves in this regard mentions the work of the Protestant theologian Ernst Troeltsch, who in 1922 decries the break of German Romantic thought with the ‘rest of Western Europe’ in this regard.²⁵ A real renaissance of universalist natural law thinking in Germany occurs in a Catholic context. Concerning legal theory, I specifically single out the thinking of Alfred Verdross below. However, natural law from a Catholic perspective was widely taken up from the 1910s onwards.²⁶ Central historical figures were Thomas Aquinas and the Spanish late scholastics, more specifically their theories of state. In a 1942 article, Jacques Maritain, a French theologian who had left Vichy France for the US, details the tradition,²⁷ and places it in explicit contradiction to Nazi policy.²⁸ However, in Maritain’s article, it is international law (droit des gens) rather than natural law that carries the universal connotation.²⁹ A year before, Ernst Fraenkel in his analysis of Nazi legal doctrine devotes a section to Nazi opposition to universal Christian concepts of natural law, referring to both Protestant and Catholic thought.³⁰ Following Fraenkel, it is the universalism inherent in various different strains of thought that unified such strains in opposition to Nazi ideology, since its rejection of any universal value was so strong.³¹ Turning decisively away from legal positivism, Verdross in 1923³² ventured to re-establish the historical natural law foundations of the international law tradition. A Catholic background is clearly present in this thinking, particularly when emphasizing the role of the late scholastics in the development of a law of nations in the sixteenth century.³³ As such, Verdross reintroduced the narrative to German-speaking international legal theory for a specific purpose. Rather than placing international law and natural law on an equal footing above and beyond the powers of individual nation-states, Verdross ‘universalizes’ the structure and sovereignty of states to an international level based on considerations of natural law.³⁴ The idea drew largely from historical conceptions of natural law viewed through a prism of Late Medieval and Early Modern treatments and transmissions of texts by above all Vitoria, Suarez and Grotius above all. Concurrently, Hans Kelsen and his pupils, Josef Kunz and Hersch Lauterpacht, upheld a similar outlook on natural law as a fundamental basis for a ‘universal’ international law. The international law theories of Kelsen, Kunz and Lauterpacht seen from a universalist perspective will be treated in the next section. Here, I will focus on the problem of a ‘universalist’ natural law in the context of Kelsen and Lauterpacht. Following Bernstorff, the natural law character of the international law theories of Kelsen, Kunz and Lauterpacht manifests itself in the progressive building of a universal legal system based on deduction. This theory has a neo-Kantian background.³⁵ As such, despite the fact that it transcends positive law, Kelsen’s natural law theory does not seem to be juxtaposed to his legal-positivistic outlook.³⁶ Natural law here is used in a primarily systematic and methodological sense, in that system rationality susceptible to cognition and scientific treatment is the defining feature of international law, and even law itself. As such, Kelsen’s concept of natural law does not clearly have a universal connotation, rather it is international law that is tasked with ‘universalizing’ abstract normative concepts.³⁷ The universal character of international law in Kelsen follows from his conception of the civitas maxima in Das Problem der Souveränität from 1920.³⁸ The natural law basis for international law was emphasized even more by Hersch Lauterpacht, who posits an explicit ‘natural’ moral foundation, something Kelsen was reluctant to do even in his conception of a basic norm.³⁹ As will be shown later, Lauterpacht maintained both the unity of national and international law, and the systematic-deductive character of natural law, though stressing the historical roots of these ideas in contemporary and later works. Although multiple strands of thinking about universality have been singled out in this section, it is clear from the substantial overlap between them that natural law in early twentieth-century Germany functioned as a type of intellectual common ground to discuss the universality of concepts.

3. International law and political theory between 1927 and 1945

Thus, in the 1920s, the Vienna School reintroduced natural law into German legal discourse via its international law theories Already in this period, the problem of the universality of concepts was central, not just to those employing a secular or liberal natural law idea, but for ‘Marxist’ and religious natural law notions as well. However, as already mentioned, the refugee experience provided some major practical challenges for the concept of universality itself. Despite the lack of a coherent legal philosophy⁴⁰ and the compatibility of certain other elements of natural law doctrine,⁴¹ Nazi ideologues clearly opposed a universal natural law.⁴² In short, they argued, there was no such thing as a universal (legal) concept, since all concepts were necessarily connected to a certain race or people (Volk) and derived any normative content from this connection.⁴³ Moreover, universalist tendencies in law were decried as an incursion by the ‘Jewish spirit’ in general,⁴⁴ and when these tendencies were of a Catholic character an active attempt was made to integrate them with Nazi policy.⁴⁵ Here, the practical challenge of Nazi ideology to the universality of concepts based on their lack of enforcement through marginalization, when for instance citizenship is taken away, dovetails with the theoretical challenge of the universality of the concept of a concept as such. The initial debate in the late 1920s concerned the collapse of the Weimar Constitution. This discussion, involving among others Hermann Heller, Hans Kelsen and Carl Schmitt, has been treated extensively in the literature, primarily by David Dyzenhaus.⁴⁶ There is, however, a strong internationalist and even universalist undercurrent. The early theoretical integration of constitutional and international law in the Vienna School has been noted previously. Arguing against Kelsen, Hermann Heller maintains that natural law can only provide the ethical basis for law. Any universal character of international law ends with a sovereign decision, i.e. that of of the individual state as the sole actor in the system. Above all, this statement is aimed at Kelsen’s conception of the civitas maxima in Das Problem der Souveränität.⁴⁷ However, neither the universal character of natural law nor the ‘constitutionalization’ of international law is decried by Heller. Instead, his idea is that the effectiveness of such a system would be based on and limited by the cooperation of sovereign states, not a Grundnorm such as pacta sunt servanda or an a priori deduction from natural law principles.⁴⁸ The constitutional debate between Kelsen and Heller continued after the collapse of the Weimar Constitution and the rise to power of the Nazis, Heller with his 1934 Staatslehre and Kelsen with his famous Reine Rechtslehre published in the same year.⁴⁹ However, after 1932, there seem to be two directions in which the basic premises of Kelsen, Verdross and Heller concerning the ‘constitutionalization’ of international law are taken, concurrent with where the scholar in question places the locus of the failure of legal protections on a national and international level. For those focusing on the failure of the German Rechtsstaat, a re-evaluation of the concept of the state within a new international legal order became paramount. Hermann Kantorowicz, who was also otherwise involved in debates with Kelsen before,⁵⁰ provided two highly theoretical instances, one in 1932⁵¹ and one immediately before his death in 1940.⁵² The idea of these publications is to (re)define ‘the state’ and ‘the law’ at least partly with the purpose of making the concepts applicable to the Anglophone and European continental legal and political orders.⁵³ As such, in Kantorowicz we find an early recognition of the theoretical problem of universal legal concepts not in the realm of enforcement, but the more fundamental difficulty of the ‘universality’ of the ‘concept of a concept’ itself. It is interesting to consider whether this problem emerged more widely among refugee legal scholars as a result of the practical necessity to engage in comparisons between common law and civil law, or whether these same comparisons were actually the consequence of the core problem of the ‘universality’ of a ‘concept of concepts’ felt more deeply among these scholars after the 1933 catastrophe. Because of his early American and English connections, coupled with his analytical genius, Kantorowicz would however have been ahead of the current thinking of his time in both instances.⁵⁴ Because of his background in philosophy, legal theory and legal history, the scholar who perhaps viewed this problem most clearly was Gerhart Husserl, the son of the phenomenologist, who in the 1930s and 1940s devoted a series of articles to devising new ‘universal’ concepts.⁵⁵

The problem with the universality of concepts being challenged by the collapse of the Weimar Constitution was of course not limited to émigré legal historians alone. In this context, it is noteworthy that in 1941 Ernst Fraenkel characterizes the breakdown of the Rechtsstaat under National Socialism by its attack on natural law, and particularly the juxtaposition of a (universal) societal natural law with a Nazi communal version of limited scope.⁵⁶ Contrasting Oliver Wendell Holmes and Adolf Hitler, Fraenkel then applies this juxtaposition to the difference in state concepts in the US (as an end in itself) and in Nazi Germany (as a means to an end).⁵⁷ The comparison is reminiscent of three publications on dictatorship by Hermann Kantorowicz and Hans Kelsen that appeared between 1934 and 1936. They contained in-depth surveys of the hallmarks of authoritarian governments, implicitly and explicitly providing building blocks for an international Rechtsstaat to counter the development.⁵⁸ Among refugee scholars, several high-profile analyses of the breakdown followed Fraenkel’s The Dual State, notably Franz Neumann’s Behemoth in 1944⁵⁹ and in 1946 The Myth of the State by the neo-Kantian philosopher Ernst Cassirer.⁶⁰ In 1936, Neumann had obtained his doctorate on a comparison of the rule of law in various countries,⁶¹ and from the early 1930s on ‘universalizing’ the Rechtsstaat (with or without including Germany) was widely felt among refugee scholars to be a solution to the political situation. However, it is precisely here that many of them encountered the theoretical problem of the specific character of the concept for the German-speaking cultural world.

Apart from those who emphasized the failure of the nation-state in a conceptual sense, other scholars moved towards a reconstruction of the international legal order aimed at curtailing the individual powers of nation-states. Among these scholars, there were several who built on Kelsen’s thinking, such as Josef Kunz, Hersch Lauterpacht, Hans Morgenthau and John Herz. In 1934, Kunz expounded Kelsen's theory, juxtaposing it with the sociological and realist currents in American jurisprudence, but also showing the compatibility of the theory to common law systems due to the strong role of judges in creating law.⁶² Morgenthau and Herz, in turn, provide a realist (or ‘functionalist’) critique of Kelsen's theory.⁶³ For Morgenthau, writing in 1950, the collapse of international society happened in conjunction with the degradation of any form of universal ethics due to the rise of nationalism.⁶⁴ A decade before, Morgenthau had formulated a more explicit critique of legal positivism in international law, and of Kelsen's monist, purely legal conception in particular. In Morgenthau’s critique of Kelsen it is specifically the building of international law completely on concepts derived from municipal or civil law that is decried. International law and municipal law differ since the latter is based on permanent and stable interests. Thus, the concepts and principles that form the basis of international law cannot claim the universal validity suggested by the legal positivists.⁶⁵

4. Lauterpacht, universal human rights and the re-emergence of natural law in the 1940s

Doubts can be cast over the status of Lauterpacht as a refugee scholar, as he had been in Britain since the early 1920s. Nevertheless, his concept of human rights comes into being in a constant debate with a group of forcibly displaced scholars, and – together with his idea of ‘crimes against humanity’ – may be seen as a capstone of a myriad of earlier projects concerning the development of a universal Rechtsstaat in the 1930s and 1940s, particularly with respect to a return to natural law concepts and histories. However much he supported Kelsen's universalist conception of international law, Lauterpacht like Morgenthau did not share the exclusion of moral, societal and political concerns inherent in the pure theory of law. This becomes apparent in two works published in the same year, one of his main doctrinal works, The Function of Law in the International Community (1933), and his discussion of Kelsen's pure science of law.⁶⁶ Concerning natural law, Lauterpacht's critique emphasizes the lack of content Kelsen provides for his concept,⁶⁷ and consequently to a large extent fails to provide any normative structure for international law apart from its primacy over municipal law.⁶⁸ In the course of the 1930s and 1940s, Lauterpacht set himself the task of actually creating, ‘filling in’, this conception, namely an international Rechtsstaat ‘writ large’ as an expression of natural law.⁶⁹ In the context of internationalizing the Rechtsstaat, my contribution argues that the concept of ‘human rights’ as it first appeared in his writings answers four challenges Lauterpacht's project faced in the late 1930s and early 1940s: the normative open-endedness of Kelsen's structure as set out previously; the theoretical problem posed by Kantorowicz concerning the universality of the concepts of law, the state and the Rechtsstaat first taken up in the Function of Law;⁷⁰ the rapidly deteriorating political situation on the European continent, particularly with respect to the position of the Jews and likely Lauterpacht's own family;⁷¹ and, much like in the case of Kelsen, the realist critique levelled by scholars such as Morgenthau and before him Edward Carr as a consequence of the political situation.⁷² Moreover, a fifth challenge may have consisted of the repudiation of Nazi legal scholars concerning a universalist, individualist natural law imposing a rule of law over national governments. Lauterpacht seems to have turned definitively to this fundamental concept of human rights in the early 1940s, in conjunction with starting his famous work on the punishment of war crimes that would prove so important in the Nuremberg Trials after the war. There is a clear conceptual relation between human rights and Lauterpacht’s statement of war crimes, above all visible in the formulation of ‘crimes against humanity’ in Article 6c of the 1945 London Charter, which set out the rules and procedures for the tribunal. We can see this conceptual relation, for example, in his 1950 work International Law and Human Rights,⁷³ but it is more or less present earlier on in his 1944 article ‘The Law of Nations and the Punishment of War Crimes’, arguably constituting his unequivocal turn to war crimes,⁷⁴ at least as ‘general principles or laws of humanity’ are concerned.⁷⁵ This decisive turn to formulating human rights, however, was made earlier, in a 1943 publication based on a 1942 lecture entitled ‘The Law of Nations, the Law of Nature and the Rights of Man’.⁷⁶ Concurrently, Lauterpacht would start work on his An International Bill of the Rights of Man, published in 1945. The essence of the 1943 article is, however, primarily historical, criticizing the dependence of human rights as an outcome of the history of natural law and natural rights on the enforcement by nation-states, and arguing for an obligation for their enforcement under international law.⁷⁷ In Lauterpacht’s paper, there is also a conceptual relation between human rights and war crimes, albeit somewhat indirectly, in ascribing to the seventeenth-century humanist lawyer Grotius an extensive theory of humanitarian intervention concerning violations against natural law.⁷⁸

Turning to the background of the 1943 article ‘The Law of Nations, the Law of Nature, and the Rights of Man’, the references Lauterpacht makes to his own previous work remain by and large implicit. Nowhere in the publication are there real direct connections to earlier books or articles. However, some themes in the article are immediately recognizable as stemming from his previous work, such as the emphasis on a monistic relation between the international legal order and states, the problem of enforcement particularly of individual claims in this system, the centrality of the individual in general over the state as a fictitious concept, and the defence of natural law thinking as a basis of international law. These themes and concepts can already be found in Private Law Analogies from 1927, and six years later in The Function of Law. However, the themes are embedded in the respective systematic and argumentative structures of these works. From them, the concept of human rights as Lauterpacht would later formulate them is lacking. Nevertheless, there are references to the notion of human rights in Lauterpacht’s pre-1943 works: for example, he relates ‘the fundamental rights of human personality’ to the theoretical admissibility of various forms of legal protection under international law in a 1937 article.⁷⁹ The contribution, a 300-page iteration of a course for the Hague Academy of International Law entitled Règles générales du droit de la paix, has in fact a full subchapter on the Droits fondamentaux de l’individu.⁸⁰ The subchapter is divided into four paragraphs: individual rights in positive international law (50), international protection of international individual rights (51), international protection of the stateless (52), and individual rights and humanitarian intervention (53). The subchapter reasons from a resolution adopted in 1929 by the International Law Institute in Paris,⁸¹ from which it is clear that the individual rights in question are the public and private rights on an international level that the state is obliged to uphold. These rights include life, liberty and property, and they are to be upheld without restriction, i.e. irrespective of nationality, race, gender and so on. Although the terms ‘les droits fondamentaux de la personalité humaine’ or ‘de l’individu’ are used rather than ‘human rights’, it is clear that the 1937 article anticipates crucial elements of Lauterpacht’s post-1943 work on human rights. This is all the more the case since there are at least some veiled references to the political situation in the subchapter alone. For instance, a 1936 treaty is invoked concerning the position of German refugees in the context of the protection of the rights of the stateless.⁸² Lauterpacht at this time was well aware of the highly problematic situation in Germany, having in 1933 already composed a memorandum for the Council of the League of Nations on German laws affecting the Jewish population.⁸³ In the memorandum as well as the draft resolution, the persecution of Jewish German citizens is stated to be a violation of the ‘rights of human personality’ as contrary to international law.⁸⁴ But the systematic treatment Lauterpacht would give the topic is not yet present in the 1933 memorandum. Therefore, although the personal and political impetus for his decisive and influential turn to human rights may have emerged only in the early 1940s, Lauterpacht’s academic trajectory towards a more systemic treatment of the concept starts at least as early as 1937. In essence, Lauterpacht then embeds the rudimentary proposal of the International Law Institute from 1929 into the larger system of international law as envisioned in Private Law Analogies and the Function of Law.⁸⁵ As such, it is interesting to note that the historical narratives of human rights as a result of the linking of natural rights, natural law and international law primarily by Grotius, as detailed in 1943, come after the definition and elaboration of the concept itself, i.e. in 1937. Clearly the concept of human rights in Lauterpacht is universalist, if not outright universal.⁸⁶ However, having worked in Britain since 1923, from 1931 onwards he explicitly poses the problem of the universality of his system of international law in the context of the difference between common and civil law.⁸⁷ Later, the common law–civil law dichotomy is touched on again specifically with respect to the differences in fundamental legal conceptions⁸⁸ and concerning natural, human, constitutional and political rights.⁸⁹ In recent years, Koskenniemi and Duranti have emphasized the conservative Victorian British roots of Lauterpacht's ideas, particularly in the formulation of his concept of human rights. However, there certainly seems to be a remnant of Germanic conceptual thinking at its basis as well: the human rights solution Lauterpacht provides to the challenge of reconciling Kelsen’s theory with the realist critique of Carr and Morgenthau, and the conceptual problem posed by Kantorowicz, could only be found by erecting a ‘Rechtsstaat writ large’ structured around a legal concept in the Germanic sense, a Rechtsbegriff, with a new role this time on an international level for its guardians, the legal scholars. For the notion of human rights to ‘count’ as such, it then needed to be given a legal history, ideally one shared by common law and civil law, a legal history composed by Lauterpacht after the fact. It is this idea in particular that Hannah Arendt appears to criticize in Origins.⁹⁰

5. Conclusion: the ‘universality’ of legal concepts and the post-war emergence of natural law

This contribution traced an intellectual development of the concept of ‘universality’, mainly along legal lines. Of course, even when seen from a purely legal view, the scholars and works only comprise a small selection of output pertinent to the problem of the universalism of concepts. For example, the fields of private international law and the conflict of laws have largely been left out of the discussion. Nevertheless, due to the prominence and influence of the scholars in question, arguably this selection seems indicative of a broader trend. In the early twentieth century the problem of universalism is rarely made explicit; instead it is hidden behind notions such as natural law, or taken in a very theoretical, abstract sense in the context of neo-Kantianism and the Vienna School. The 1932 catastrophe, however, resulted in several challenges to the universality of concepts, at first with respect to the encounter between forcibly displaced scholars and their new academic context, followed by a myriad of attempts to reconstruct a workable ‘universal’ international order to prevent, end or pre-empt the aftermath of the war. Particularly the realists in the burgeoning field of international relations vehemently criticized these attempts, from practical political perspectives to conceptual ones: if traditional legal concepts had done nothing to prevent the atrocities, how is this to be expected of any newly created idea? Lauterpacht’s concept of human rights can be regarded as an answer to this question.

Many histories of human rights after 1948 have been written. However, scholarship on human rights and its histories in Germany coincided with a revival of natural law thinking. The cause of this was a reckoning initiated by Radbruch of the failures particularly of legal positivism. Émigré scholars like Fraenkel had shown that the collapse of the Rechtsstaat and turning away from natural law in the first place had been related. ‘Realizing’ natural law as a Rechtsstaat ‘writ large’ on an international level through procedurally and institutionally enshrining concepts such as human rights was presented as the way forward by scholars directly affected by their experiences during the Second World War, Lauterpacht above all. The short- or long-term success of the attempt is of course debatable. Lauterpacht himself saw the UDHR as a failure. In 1951, Arendt skewered the turn towards human rights as conceptually lacking and practically ineffective due to the continued emphasis on the cooperation of individual states and the importance of citizenship in this regard. The UDHR did not provide a ‘right to have rights’.⁹¹ To some degree, this echoes the wartime realist and functionalist critique of the concept of international law itself: much like debates on whether human rights are ‘legal’ concepts, fuelled by the political circumstances throughout the 1930s and 1940s, the legal character of international law was questioned. To answer this question, first it needed to be determined what ‘law’ actually is. Thus, the ‘universality’ of the concept of law (as well as the related questions of the state and the rule of law) was central to the writings of many refugee scholars. In this light, there is some value in viewing Lauterpacht’s concept of human rights as a Rechtsbegriff in the German sense, in short as an attempt to translate ideas of universality (and individuality) into a specifically legal concept, such as contracts or property, whether or not it was intended in this way. In the literature, usually the British scientific background coupled with the Jewish cosmopolitan outlook of his thought is emphasized. This is partly confirmed by Lauterpacht’s efforts to design a concept of human rights that takes both the traditions of civil and common law into account. However, one of the main differences between the conceptions of the rule of law and the Rechtsstaat remains the central position of the scholar in the latter. Whereas common law tends to write its own history through judicial decision, or – it has been said – has no history at all due to its focus on legal concepts and their rechtsstaatliche function, the history of civil law needs to be written actively and in a longue durée manner. History and concept are intertwined. When the concept changes, its history needs to change. Refugee scholars such as Kantorowicz, Gerhart Husserl and Lauterpacht recognized this fundamental difference, and in recognizing it could to some degree supersede it, for instance by including common law in a larger, ‘universal’ narrative. Therefore, the concept of universal human rights as it emerged in the 1930s and 1940s is still a shining example of the strength of refugee scholarship.

Acknowledgement

The author wishes to thank Mark Shackleton for proofreading this article, and Liina Aulanko for her editorial work.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 E.g., Alessandro P. D’Entrèves, Natural Law: An Introduction to Legal Philosophy (London: Hutchinson, 1951), 17–32.

2 Hannah Arendt, The Origins of Totalitarianism, 5th ed. (New York: Harvest, 1973), particularly ‘The Perplexities of the Rights of Man’, 290–302.

3 See, for example, the very broad definition of the Rechtsstaat presented initially in 1936 by Franz Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (Leamington Spa: Berg, 1986), as discussed by Roger Cotterell, ‘The Rule of Law in Transition: Revisiting Franz Neumann’s Sociology of Legality’, Social and Legal Studies 5, no. 4 (1996): 451–70. The differences between the rule of law and the Rechtsstaat are emphasized in Jens Meierhenrich, ‘Rechtsstaat versus the Rule of Law’, in The Cambridge Companion to the Rule of Law, ed. M. Loughlin and J. Meierhenrich (Cambridge: CUP, 2021), 39–67, particularly 64.

4 Particularly in the context of Generalklauseln such as ‘good faith’, Bernd Rüthers, Die unbegrenzte Auslegung: zum Wandel der Privatrechtsordnung im Nationalsozialismus (Tübingen: Mohr Siebeck, 1968), 224–36.

5 Sinzheimer was the first to be sent into forced retirement in 1933: David Ibbetson, ‘Hermann Kantorowicz (1877–1940) and Walter Ullman (1910–1983)’, in Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain, eds. R. Zimmermann and J. Beatson (Oxford: OUP, 2004), 278.

6 For the problem of Radbruch’s own legal positivism, see Fabian Wittreck, Nationalsozialistische Rechtslehre und Naturrecht. Affinität und Aversion (Tübingen: Mohr Siebeck, 2008), 15–17.

7 Concerning, for example, Franz Neumann, cf. Kaius Tuori, Empire of Law: Nazi Germany, Exile Scholars and the Battle for the Future of Europe (Cambridge: Cambridge University Press, 2020), 109–11.

8 The main example is the influential comparative lawyer Ernst Rabel. See Reinhard Zimmermann, ‘“In der Schule von Ludwig Mitteis”. Ernst Rabels rechtshistorische Ursprünge’, Rabels Zeitschrift für ausländisches und internationales Privatrecht 65, no. 1 (2001): 1–38.

9 International or supranational courts were hardly, if ever, envisioned. See, for example, on Lauterpacht and the possibility of a European Court of Human Rights, Marco Duranti, The Conservative Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention (Oxford: OUP, 2017), 161. An unexpected wartime argument for a court comes from Hans Kelsen, ‘International Peace–By Court or Government?’, American Journal of Sociology 46, no. 4 (1941): 571–81.

10 Examples are rife, especially in the American context of Rabel and his scholars. For practical applications, see, for example, the writings of Frederick Mann in Britain: Lawrence Collins, ‘F.A. Mann (1907–1991)’, in Jurists Uprooted, 413–25.

11 The process has been traced for various scientific fields; a particular reference to law can be made for Mitchell G. Ash and Alfons Söllner, Forced Migration and Scientific Change: Émigré German-speaking Scientists and Scholars after 1933 (Cambridge: CUP 1995).

12 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (Cambridge: CUP, 2002), 100–16. For an overview of ‘universal’ legal histories in the nineteenth and early twentieth century, see Thomas Duve, ‘What is Global Legal History?’, Comparative Legal History 8, no. 2 (2020).

13 Particularly in Rudolf Stammler, Theorie der Rechtswissenschaft (Halle: Buchhandlung des Waisenhauses, 1911); cf. George H. Sabine, ‘Stammler’s Critical Philosophy of Law’, Cornell Law Quarterly 18, no. 3 (1933): 332–38.

14 For example, Rudolf Stammler and Eugen Ehrlich were professors of Roman law; Hermann Kantorowicz and Gustav Radbruch taught criminal law; and Hans Kelsen obtained a chair in constitutional law.

15 Cf. also Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford: OUP, 2017), 111.

16 E.g., the presence of Hermann Kantorowicz at the first German sociology conference: ‘Rechtwissenschaft und Soziologie’, in Verhandlungen des Ersten deutschen Soziologentages vom 19. bis 22. Oktober 2010 in Frankfurt-am-Main (1911), 275–310.

17 Stammler, Theorie, 1–3. See also Ernst Bloch, Natural Law and Human Dignity (Cambridge, MA: MIT Press, 1986), 138–9 as ‘decorative generalizations of the constitutional state’.

18 ‘The Marxist vision has to understand the past better than the past understood itself, for only then does it understand why so many excellent intentions were miscarried and were perverted. Innate rights are done away with, as well as all those rights that find the pride of man in private property. The social contract is abolished along with the a priori construction, the eternalities of human nature and nature as a whole. But the ideals do not rest entirely upon this historical tract; they are not only illusion and an illusory problem. As for the ideals of natural law, they contain (in the classical time) enough revolutionary salt, critical warning and ingredients to be a true, appearing essence’ Bloch, Natural Law, 184–5, and 199. See also Ernst Bloch, The Principle of Hope II (Cambridge, MA: MIT Press, 1986), 534–48.

19 William McBride, ‘Marxism and Natural Law’, American Journal of Jurisprudence 15, no.1 (1970): 127–53.

20 Rolf Wiggershaus, The Frankfurt School: Its History, Theories, and Political Significance (Cambridge, MA: MIT Press, 1994), 127–260.

21 Wiggershaus, Frankfurt School, 326–35, 349; cf. Avihu Zakai, The Pen Confronts the Sword: Exiled German Scholars Challenge Nazism (Albany, NY: SUNY Press, 2018), 272–305.

22 Max Horkheimer and Theodor Adorno, Dialectic of Enlightenment (Stanford, CA: Stanford University Press, 2020), 147–53; Wiggershaus, Frankfurt School, 338–44.

23 Horkheimer and Adorno, Dialectic, 141.

24 Bloch, Natural law, 204–8.

25 D’Entrèves, Natural Law, 20: as ‘common to humanity’, in The Ideas of Natural Law and Humanity in Western Politics.

26 Wittreck, Rechtslehre, 13–14, with a long list of references in note 43.

27 Jacques Maritain, ‘Le droit naturel et les droits de l’homme’, Collected Writings VII (1988): 615–95. Referring to precursors in (627) Aquinas; and (657) the Stoics, Cicero, Augustine, Suarez and Grotius.

28 Maritain, ‘Droit naturel’, 625, 659.

29 Maritain, ‘Droit naturel’, 663–4.

30 Fraenkel, Dual State, 115–21. Troeltsch at 115.

31 Fraenkel, Dual State, 121.

32 E.g., Alfred Verdross, Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (Tübingen: Mohr, 1926).

33 Jochen Von Bernstorff, The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge: Cambridge University Press, 2010), 123.

34 Bernstorff, Theory, 151. On the basis of late scholasticism: Verdross, Einheit, 39–44 (Die universalistische Konzeption der älteren Naturrechtslehre: die scholastische Doktrin and Die spätere Völkerrechtslehre auf naturrechtlicher Grundlage).

35 Bernstorff, Theory, 115.

36 For this difficult problem, see Hersch Lauterpacht, ‘Kelsen’s Pure Science of Law’, in International Law. Collected Writings of Hersch Lauterpacht 2.1, ed. Elihu Lauterpacht (Cambridge: Cambridge University Press, 1975), 423–9 and the remarks of Bernstorff, Theory, 116. See also Josef L. Kunz, ‘The “Vienna School” and International Law’, NYU Law Quarterly Review 11 (1934): 383: ‘Kelsen does not deny “natural law”, he only recognizes that “natural law” is not law in the sense of the jurist.’

37 Hans Kelsen, ‘Weltrechtsordnung und Weltstaat’, in Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre (Mohr: Tübingen, 1920), 249–56; Bernstorff, Theory, 110: ‘Kelsen’s use of the word “universal” can thus be understood in a twofold sense: “universal” stands for both the unity of international law and national law, and the unrestricted content of the medium of law as a “form” that could be used in any conceivable way.’ In 1928, Kelsen publishes Rechtspositivismus und Naturrecht in which he details the relation between natural law and legal positivism, but any form of explicit ‘universal’ natural law appears to be absent here. Arguably, the theory is ‘universal’ in the sense of amounting to an abstract scientific view not directly related to any specific legal order; see e.g. Bernstorff, Theory, 115–6.

38 Based on Christian Wolff: Kelsen, Theorie, 241–74.

39 Bernstorff, Theory, 114.

40 Wittreck, Rechtslehre, 6.

41 Ibid., 19f.

42 Ibid., 7, naming Julius Binder and Alfred Rosenberg in n. 24; n. 25, naming Beyerle.

43 Ibid., 22–4.

44 Ibid., 8, naming Schmitt in n. 25.

45 Ibid., 32, referring to Michael Smaus, criticized by Verdross in 1937 (n. 43).

46 For the debate between Kelsen and Heller with respect to the constitutional order, see David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: OUP, 1997), 161–7.

47 Hermann Heller, Die Souveränitat. Ein Beitrag zur Theorie des Staats- und Völkerrechts (Berlin/Leipzig: De Gruyter, 1927), 21–3 (on Kelsen’s natural law), 128–30 (as well as Verdross), 136–7.

48 ‘Ein rechtssystem hat die Souveränität zur Voraussetzung; es existiert nur dort, wo eine universale Entscheidungs- und Wirkungseinheit innerhalb von Rechtsgrundsätzen die Systemeinheit der Rechtssätze konstituiert und in ihrer Geltung garantiert.’ Heller, Souveränität, 136.

49 Dyzenhaus, Legality, 102–8, 165. The title ‘Pure Science of Law’ was only given to the second edition in 1960.

50 Kantorowicz, Rechtswissenschaft, 275–7.

51 In a lecture held in 1931 before the London School of Economics, published as ‘The Concept of the State’, Economica 35 (1932): 1–21. As early as the 1920s, Kantorowicz was a committed proponent of the accession of Germany to the League of Nations.

52 Hermann Kantorowicz, The Definition of Law, ed. A. H. Campbell (Cambridge: CUP, 1958).

53 E.g., Kantorowicz, ‘Concept’, 3: ‘(…) (T)he German Classical School of Laband and the present Vienna school of Professor Kelsen have sinned by considering the juristic conception of the State as the only one possible. On the other side, there is a tendency in English, French and American thought to put the empirical concept in the place of the juristic one, or to confuse both.’

54 Compare with respect to various incompatibilities with regard to the notion of the state: Hermann Kantorowicz, ‘Staatsauffasungen’, Rechtswissenschaft und Soziologie. Ausgewählte Schriften zur Wissenschaftslehre (Karlsruhe: Müller, 1962), 73.

55 Primarily in the context of international law, see e.g., Gerhart Husserl, ‘Interpersonal and International Reality: Some Facts to Remember for the Remaking of International Law’, Ethics 52, no. 2 (1942): 128–9; idem, ‘Global War and The Law of Nations’, Virginia Law Review 30, no.4 (1944): 543–602; idem, ‘The Conception of War as a Legal Remedy’, Chicago Law Review 12. no.2 (1945): 115–9.

56 Fraenkel, Dual State, 135–6.

57 Ibid., 136.

58 Hans Kelsen, La dictature de parti (Paris, 1934); Hermann Kantorowicz, ‘Dictatorships’, Politica 1 (1935): 470–508; Hans Kelsen, ‘Party-dictatorships’, Politica 2 (1936): 19–32. E.g., Kantorowicz, ‘Dictatorships’, 476: ‘an appeal to ideas of a universal nature would be hopeless’, 479: ‘(T)he distinction between States believing in dictation and others that do not, explains the failures of the present attempts of establishing a “collective system” in Europe without previously creating a certain uniformity of the political structure.’

59 Fraenkel, Neuman and Morgenthau (see below) were part of what Scheuerman calls the ‘Sinzheimer circle’, around the legal theorist Hugo Sinzheimer. Moreover, Neumann and Fraenkel closely cooperated both at the Frankfurt Institute for Social Science and in the context of the Frankfurt School in the US: William E. Scheuerman, Morgenthau:Realism and Beyond (Cambridge: CUP, 2009), 11–24. The essays on the Rechtsstaat by Neumann and Otto Kirchheimer are collected by Scheuerman in The Rule of Law Under Siege (Berkeley: University of California Press, 1996).

60 See, for example, Zakai, Pen, 83–152.

61 Franz Neumann, Die Herrschaft des Gesetzes. Eine Untersuchung zum Verhältnis von politischer Theorie und Rechtssystem in der Konkurrenzgesellschaft, London 1936, republished by Suhrkamp in German in 1980 and in English in 1986.

62 Kunz, ‘Vienna School’, 391, 421.

63 Bernstorff, Theory, 113, 116–7; John H. Herz, ‘The Pure Theory of Law Revisited: Kelsen’s Doctrine in the Nuclear Age’, in Law, State and International Order: Essays in Honor of Hans Kelsen, eds. Salo Engel and Rudolf A. Métall (Knoxville: University of Tennessee Press, 1964), 107–18. For the process of reinvention, see Alfons Söllner, ‘From International Law to International Relations: Émigré Scholars in American Political Science and International Relations’, in Émigré Scholars and the Genesis of International Relations, ed. Felix Rösch (Basingstoke: Palgrave Macmillan, 2014), 197–211.

64 Hans Morgenthau, Politics Among Nations. The Struggle for Power and Peace (New York: Knopf, 1950), 192–3. ‘Nations no longer oppose each other, as they did from the Treaty of Westphalia to the Napoleonic Wars and then again from the end of the latter to the First World War, within a framework of shared beliefs and common values, which imposes effective limitations upon the ends and means for their struggle for power. They oppose each other now as the standard-bearers of ethical systems, each of them of national origin and each of them claiming and aspiring to provide a supranational framework of moral standards which all the other nations ought to accept and within which their international politics ought to operate’ (ibid., 193).

65 Hans Morgenthau, ‘Positivism, Functionalism, and International Law’, American Journal of International Law 34 (1940): 273, 277, 278–83. ‘A contract of civil law generally uses standardized language whose legal meaning is definite, or at least can be ascertained according to objective, universally recognized characteristics. An international treaty is not necessarily of the same nature’ (ibid., e.g., 282).

66 Hersch Lauterpacht, ‘Kelsen’s Pure Science of Law’, in International Law. Collected Writings of Hersch Lauterpacht 2.1, ed. Elihu Lauterpacht (Cambridge: CUP, 1975), 404–30; cf. Martti Koskenniemi, ‘Lauterpacht: The Victorian Tradition in International Law’, European Journal of International Law 8, no. 2 (1997): 218–9, 222–3.

67 Lauterpacht, ‘Pure Science’, 424: ‘But Kelsen makes no attempt to analyse what is natural law and what are the problems and incidents of its application and incorporation in the body of positive law.’

68 Ibid., 419–22.

69 Koskenniemi, ‘Victorian Tradition’, 219, 225.

70 Martti Koskenniemi, ‘Hersch Lauterpacht (1897–1960)’, in Jurists Uprooted, 622–3.

71 Hersch Lauterpacht, ‘The Persecution of the Jews in Germany’, in International Law. Collected Writings of Hersch Lauterpacht 5, ed. Elihu Lauterpacht (Cambridge: CUP, 2004), 728–36.

72 Koskenniemi, ‘Lauterpacht’, 629–30; Edward H. Carr, The Twenty-Years’ Crisis 1919–1939 (London/Basingstoke, 1981), e.g., 78–81 (critique of universalism), 161–3 (critique of natural law), 164–5 (critique of Lauterpacht), 186 (critique of Kelsen).

73 Hersch Lauterpacht, International Law and Human Rights (London: Stevens,1950), 35–7; Ana Vrdoljak, ‘Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law’, European Journal of International Law 20, no. 4 (2009): 1190.

74 Vrdoljak, ‘Human Rights’, 1190.

75 Hersch Lauterpacht, An International Bill of the Rights of Man (New York: Columbia University Press, 1945), 65.

76 Hersch Lauterpacht, ‘The Law of Nations, the Law of Nature and the Rights of Man’, Transactions of the Grotius Society 29 (1943):1: ‘This paper is intended as an introduction to the consideration of the problem of the international recognition and protection of human rights, especially as expressed in proposals for an International Bill of the Rights of Man.’

77 E.g., Lauterpacht, ‘Rights of Man’, 11.

78 Ibid., 24.

79 Vrdoljak, ‘Human Rights’, 1190.

80 Recueil des cours 62–IV (1937), 95–422, here 228–40: Part II (Les sujets du droit des gens), Chapter V (Les sujets du droit international), subchapter III (Les droits fondamentaux de l’individu).

81 Lauterpacht, ‘Paix’, 228.

82 Ibid., 236.

83 Vrdoljak, ‘Human Rights’, 1180.

84 Lauterpacht, ‘Persecution’, 732, 736.

85 E.g., Koskenniemi, ‘Victorian Tradition’, 223.

86 E.g., Lauterpacht, ‘Rights of Man’, 11–13; Lauterpacht, International Bill, 11: ‘Shall it [the International Bill of Rights] purport to embrace situations as delicate and baffling as the position of the native population in South Africa, of the Indian community in Kenya, or of the Negro race in the Southern States of the United States?’ See, however, Koskenniemi, ‘Victorian Tradition’, 220 for his ambivalence towards colonialism.

87 E.g. Hersch Lauterpacht, ‘The So-called Anglo-American and Continental Schools of Thought in International Law’, in International Law. Collected Writings of Hersch Lauterpacht 2.1, ed. Elihu Lauterpacht (Cambridge: CUP, 1975), 483: ‘But present day international law at least constitutes a successful attempt at a common law of mankind, or relatively intensive and pervading universality and uniformity, in the limited field of relations between sovereign States. This is in itself no mean achievement. There is no good reason why it should be imperilled for the sake of traditional notions of doubtful legal value.’

88 Lauterpacht, ‘Paix’, 203–6 (in the chapter on the universality of international law): ‘Il est vrai que de nombreuses branches du droit international ont été constamment et avanteugesement influencées par des notions de droit privé. Mais elles l’ont été non par un système particulier, mais par des conceptions générales de droit privé communes a tout les systèmes principaux de droit. Ces notions générales révèlant un degré surprenant d'uniformité, en dépit des divergences de langue et à des particularités historiques.’

89 Lauterpacht, International Bill, 54–65.

90 Arendt, Origins, 292: ‘Even worse was that all societies formed for the protection of the Rights of Man, all attempts to arrive at a new bill of rights were sponsored by marginal figures – by a few international jurists without political experience (… .).’

91 Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press, 2010). 12 (Arendt), 184 (Lauterpacht).