The Return of the Standard of Civilization
Fidler, David P., Chicago Journal of International Law
"The nexus between Civilisation and International Law is a basic question of International Law."
-Georg Schwarzenberger, 1955(1)
Those who teach international law are familiar with presenting Article 38(1) of the Statute of the International Court of Justice ("ICJ")2 as the authoritative list of the "sources" of international law. Some teachers might engage students in discourse about the "source" of the sources: is it positivism or natural law? But rarely, I would wager, does a teacher have his or her students think about the following questions: from where did the sources listed in Article 38(1) come, and who bounded the choice to positivism and natural law?
These questions point to the development of international law. The answers to these questions force us to see international law as the living artifact of "Western civilization." International law grew out of the Westphalian system of sovereign States that emerged in Europe in the 17th century.3 International law has, thus, deep civilizational roots.4 As the Westphalian system expanded beyond Europe,5 international law followed in its wake. The European great powers and the United
States succeeded in imposing aspects of Western civilization on the rest of the world. Through this process, international law became a universal system, and the sources of international law likewise were universalized. The expansion of Western civilization, including international law, produced what I call the "Westphalian civilization."
A remnant of this expansion is found in Article 38(1)(c) of the ICJ Statute, which states that "general principles of law recognized by civilized nations" are a source of international law.6 In truth, each source listed in Article 38(1) was connected to what used to be called the "standard of civilization" ("SOC"). During the 20th century, this standard and the phrase "recognized by civilized nations" became embarrassments to the international legal profession: These terms were unfortunate relics of an arrogant age during which a certain segment of humanity deemed itself the guardian and organizer of the human race. As the SOC seemed to disappear in the last half of the 20th century, international lawyers perhaps believed that they were leaving behind an unsavory part of international law's history to enter a more enlightened era.
Historical relics sometimes, however, haunt the present. In some cases, such relics reappear to teach us that history changes less than we think. In the post-Cold War era, events have resurrected the SOC. Some scholars have argued that we have reached the "end of history" with regard to the organizing philosophical principles for human civilization.8 Others have claimed that what the post-Cold War era is witnessing is not civilizational harmonization but the "clash of civilizations."9 Still others believe that civilizational harmonization is occurring but in ways that are detrimental.10
Debates about globalization have also raised issues related to the role of civilization in global relations. Many commentators see globalization as a force of homogenization that is causing diverse political, economic, and cultural systems to conform to Western ways.11 The collapse of Soviet communism and the developing world's "revolt against the West"12 give globalization a Western flavor. Peoples and
governments differ in their reactions to the civilizational portents of globalization. For some, globalization promises the dark age of McWorld-a civilization in which the forces of homogenization swallow diversity.13 For others, globalization contains opportunities to create a global civilization that will allow humanity to overcome its attachment to tribal politics.14
Once upon a time, Western nations used international law to impose on nonWestern countries policies, institutions, and values embedded in Western civilization. The SOC was the operative international legal principle in this effort at civilizational harmonization, and it helped create a Westphalian civilization. …