Judicial decisions of the 19th and first half of the 20th centuries: an anti-modernist analysis

This article is based on two considerations. According to the first, modern international law is a product of postmodernity, the main characteristic of which is the decline of metanarratives. In relation to international law, this means rejection of the liberal reform project which was its very essence at the turn of the 19th and 20th centuries. Instead there is a reorientation to the maintenance of bilateral relations, the consequent decline of the theory and the flourishing of judicial law (case law), which represents a set of autonomous and competing private (private law) narratives. The second thesis is that the progress of international law is not necessarily linear: it is quite possible that overcoming the crisis in which it finds itself today is feasible not through the development of existing ideas and institutions but through the resuscitation of ideas and political projects of the past. The anti-modernist analysis of international law should not be limited to a purely theoretical dimension but should be extended to law enforcement practices. This article discusses some of the original practices and approaches used by international courts in the 19th and first half of the 20th centuries that are not currently used by them. Among these are methods of working with facts (non-reduction) and methods of interpreting international treaties (e.g., priority of the intentional approach), regular judicial activism, ex aequo et bono dispute resolution, a combination of the judicial function with conciliation, the determination of legal regimes at the request of the parties, and the refusal to disclose motives. The author identifies some categories of cases, the share of which in the practice of international courts has decreased compared to the previous period, and explains the reasons for this. Among these are cases related to the exercise of diplomatic protection, clarification of special territorial regimes, interpretation of peace treaties, succession, and some others. The general conclusion is that international courts from the first half of the 19th century through the early 20th century were quite different from modern courts. First, they were greatly influenced by the natural law tradition (or its inertia); secondly, they used not only rational but also charismatic legitimation mechanisms; thirdly, they saw their task not only in the interpretation and application of international law but also in its development; and fourthly, they used a number of original approaches and practices. Some of these practices look archaic, while others could be rehabilitated and used by modern courts.

About the author: Vladislav Tolstykh – Doctor of Law, Professor of the Department of International Law of MGIMO of the Ministry of Foreign Affairs of Russia, Professor of the Department of International Law of the Kutafin Moscow State Law University (MSAL), Moscow, Russia.

Citation: Tolstykh V. (2022) Sudebnye resheniya XIX – pervoy poloviny XX veka: antimodernistskiy analiz [Judicial decisions of the 19th and first half of the 20th centuries: an anti-modernist analysis]. Mezhdunarodnoe pravosudie, vol. 12, no. 4, pp. 133–149. (In Russian).

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