(Re-)Discoveries in a ‘Lost’ Text

“Problems of international law in particular are still all too often discussed within national circles. The contributors and staff of journals normally come from more or less the same State. And yet, nothing is more necessary to form a legal opinion beyond national boundaries than an open discussion of contrary views as well as knowing and understanding diverging opinions.” (Viktor Bruns, ‘Vorwort’ ZaöRV 1 (1929), III-VIII, IV [not digitalised] translation by the author)

While it sounds like this could have been written today and is in line with a contemporary comparative international law approach, it actually dates from 1929. The words were written by Viktor Bruns, the first director of the Kaiser-Wilhelm-Institut für ausländisches öffentliches Recht und Völkerrecht, the predecessor to today’s Max Planck Institute for Comparative Public Law and International Law (MPIL or Institute). Bruns made this remark to explain why he launched a new journal, the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV or Journal).

Why do I dwell on this? After all, the quoted editorial is 95 years old. First of all, this year marks the 100^th anniversary of the MPIL, the institution behind the Journal. Anniversaries provide us with an occasion to take stock of what has been and reflect on the past. Here, the story of the editorial just cited starts. Supposedly, the ZaöRV’s contents are completely digitalised and available open access (here for vols. 1-80 and here as of vol. 81). Yet, upon closer scrutiny, some parts are missing. One of them is this editorial, which has escaped digitalisation (probably by accident). Because older texts suggested that there was such an editorial, I looked for it in the Journal’s physical copies, which apparently sufficed to re-discover a text ‘lost’ to our digital world.

And surprisingly, the editorial has still a lot to offer to the modern reader. When Bruns excuses the five-year (!) delay in publishing the Journal with his many other commitments, especially sitting on the bench of international tribunals (Bruns, p. V), one cannot but smile about this excuse too familiar to any academic. Perhaps, the academic’s struggle to find time for research, despite their various other obligations, is timeless. At the very least, we learn that the Kaiser-Wilhelm-Institut in the 1920s was no paradise lost despite no e-mails or smartphones interrupting one’s academic work.

In addition to this episode of anecdotal value, a closer look at the editorial provides intriguing insights that are valuable for today’s international lawyers, as I will lay out below. First, the editorial contains some clues on the Journal’s political agenda and thereby suggests a perspective on journals we otherwise rarely take: academic journals as a vehicle to pursue a (political) agenda. Despite the Journal’s agenda, the editorial may, secondly, be re-interpreted in a more modern fashion to provide guiding ideas for a journal in today’s world.

International Law Journals and Their Agenda

To turn back to the initial quote, Bruns’ lament is of course a creature of its time and its author’s political views. It must be understood in the context of Germany’s legal battle against the Treaty of Versailles. While Bruns does not explicitly say so, between the lines, one can read the message he actually wants to convey: The Journal is meant to sway the debate on pertinent issues of international law stemming from the First World War in favour of Germany. He expressly mentions that most international law congresses seem to exclude the most pressing issues, i.e. reparations, minority rights, and the interpretation of the peace treaties (Bruns, p. IV). While he does not say that these issues are the most urgent for Germany, they indeed were. To be sure, Bruns himself stresses the Journal’s commitment to publish every academic engagement with current issues of international law regardless of the authors’ political stance (Bruns, p. IV). Yet (unpublished parts of) Marie Burns’ diaries reveal that the Journal’s aim was to bring the German position to the party. The nationalist stance underlying her diaries resonates well with the overall political climate at the Institute then: German nationalist and dismissive of the Treaty of Versailles (Hueck, p. 525). Thus, Bruns and the Institute’s staff probably did not need to be persuaded to engage in a legal ‘fight’ against the Treaty of Versailles. Still, one should bear in mind that the Institute was closely intertwined with the German Foreign Office (Hueck, p. 500), though of course legally separate from the Reich as an association under German law (eingetragener Verein). As Hachtmann points out, this construction came in handy as the Institute could uphold a façade of scholarly impartiality when, in reality, they were close to the German State. Indeed, Bruns’ neutrally framed call for a more inclusive academic discourse very much seeks to avoid any impression of partiality. Nevertheless, the launch of the Journal stems from many German scholars’ perception that views hailing from the victors of the First World War dominated these debates.

In short, the Journal was a vehicle in a political struggle against the European order after 1918. This brings us to a more general point we can take from the editorial: Journals can pursue a (political) agenda and seeing them from that angle enhances our understanding of why certain (and not other) topics are covered etc. Put differently, journals are more than just a collection of articles and materials, but a carefully curated selection guided by a (political) idea. Hence, any analysis of international law journals should take this perspective into account. As the research on the history of international law journals is very much in its infancy (see de la Rasilla del Moral), it may profit from such an approach.

Ideals to Overcome Epistemic Nationalism in International Legal Scholarship

While Bruns’ plea for a more international discourse was driven by the legal fight against Versailles, the quote can be re-interpreted in a modern fashion. It reminds us of one basic pitfall of international legal scholarship: epistemic nationalism (Anne Peters, p. 768 et seq, and Armin von Bogdandy, p. 230). At the same time, Bruns offers a cure by encouraging diversity in authorship, open discussion, and efforts to understand the other side. If we leave aside for a moment the agenda implicit in Bruns’ text and just stick to what he actually wrote, we can find a guiding idea for today’s Journal there: a diverse and inclusive authorship representing various views and outlooks. The Institute’s centenary provides an occasion to take stock whether the Institute and its Journal have lived up to this ideal. Interestingly, Bruns himself concedes the difficulties of realizing this goal (Bruns, p. IV), and it is fair to say that difficulties have persisted until today. Besides, conceptions of inclusiveness and diversity have drastically changed since 1929. Where Bruns had in mind authors from different (predominantly) western States, we would think of authors from the Global South, women, or marginalised groups. As even the most cursory look at past issues informs us, there is still room for improvement. Being a diamond open access journal (see Armin von Bogdandy and Anne Peters), we strive to be a forum for everyone engaging with topics of international, European, and comparative public law. Bruns’ words remind us of this aim despite his differing intentions.

Instead of a Conclusion

Anniversaries prompt us to engage with our past and sometimes bring to daylight documents almost forgotten, as the example of the editorial shows. Although there has been significant work on the institution’s history (see Felix Lange, and Rudolf Bernhardt and Karin Oellers-Frahm), this research has been intensified, especially in a blog curated by Philipp Glahé and Alexandra Kemmerer reflecting on the MPIL’s history. The journal’s new issue will introduce some of their efforts and is complemented by Sabino Cassese’s reflections on the MPIL’s role within the broader development of the field. Over the course of this and the next year, we will publish more contributions engaging with the Institute’s past. Needless to say, some of the darker hours of Germany’s past (1933-1945) are also part of the Institute’s past, and the Journal’s history. It is a past we are committed to scrutinizing closely to understand the Institute’s role during this period. To this date, the Institute’s history before 1945 is still largely understudied (see however Hueck and recently Hachtmann)  So far, most work on the ZaöRV under the Nazi rule concluded that the Journal by and large managed to maintain its academic standards (see prominently Stolleis, p. 394) and only to a smaller extent published clearly national-socialist pieces (see eg here and here), yet such assessments were largely based on a selective review of certain key contributions. Thus, there is still much to discover, to analyse, and to draw out more clearly before we have a more robust idea of the Institute’s and the Journal’s history between 1933 and 1945. For the ZaöRV, Richard Dören (the journal’s book review editor) and I have started this journey by systematically analysing the content of the journal, pairing it with archival material, and putting it into the broader context of the time.