How to defend Utopianism ? Legal discourse in the nineteenth century international peace movement (1815-1873)

How should one study a ‘utopian’ ideology? Much of the history of the international peace movement in the nineteenth century is a story of failure. While the movement knew some limited success towards the end of the century, it never became the popular mass movement it sometimes pretended to be. For most decades of the nineteenth century, peace activism remained a small and rather elitist affair, composed mostly of bourgeois liberals, suffering from indifference or outright ridicule in larger society. This begs the question of how scholars should best approach any analysis of the legal instrumentation advocated by the adherents of the peace movement. Modern positive lawyers interested in the history of their discipline risk to overemphasize the contribution of pacifists to larger political developments, attributing influence where little could be plausibly found. They might also lose themselves in a highly conceptual analysis, resorting to abstractions and ideal-types that do not correspond anymore to the primary source material or the wider historical context. Conversely, historians like Skinner attach great importance to rooting out anachronisms, but can be accused of putting too firm a barrier between the past and the present.

Little as the peace movement may have politically accomplished prior to World War One, it cannot be disputed that modern-day public international law has deeply absorbed pacifist ideology. Whereas the law had for centuries given its sanction to the ultima ratio, the prohibition on the discretionary use of force by states is now one of the fundamental pillars of the world order installed by the United Nations. This fundamental shift in paradigm within international law has resulted from the confluence of many disparate longue durée processes, accelerated by two world wars. Legal historians have in recent years traced back the more immediate beginnings of this liberal-pacific turn to the professionalization of the discipline in the early 1870s. However, legalist anti-war thought goes back far earlier. While the peace movement may not have gained political traction in the nineteenth century, it did formulate a whole host of legal proposals, from arbitration to federative schemes, as well as set up an organization that attracted several prominent individuals. When the wind finally began to it blow in its favour during and after the Great War, the small pilot light kept alive by the earliest ‘friends of peace’ blazed high for the first time, finding expression in various legal instruments, like the Covenant of the League of Nations.

The extent to which pacifists actually contributed to these later developments, whether we are dealing with correlation or causation, is again up for debate, but this time far more likely than it had been for the earliest generations. Yet the purpose of ‘vernacular’ international legal histories should not be to explicitly expose direct genealogical links to the present, if not supported by the primary sources of the research period. Though it is theoretically possible to construct an evolutional history of any given legal notion, it is no necessary prerequisite for research into the intricate interplay of politics, law, and ideology in the middle of the nineteenth century, and, by careful analogy, beyond.