Joint Straus/Tikvah Fellow
Academic Year 2011-2012
Charles Leben is emeritus professor of law at Panthéon-Assas (Paris 2) University where he taught from 1991 to 2010 after some time at Université de Bourgogne (Burgundy University, Dijon). He graduated from the École des Hautes Études commerciales (1967), from the Institut d’études politiques de Paris (1970), and the Paris Faculty of Law (1970). He has been professor of public law since 1976 (Agrégé de droit public).
The Jewish Roots of International Law in Early Modern Europe
Hebraic sources of international law doctrine as it emerged in 16–18th century Europe. The last decade has seen the development of studies on Hebraic sources in the political philosophy of 16–18th century Europe. It was at this era that the intellectual components of what was to be modernity emerged both in politics (emergence of republican ideas, limitation of power of sovereigns, equality of men before the law, tolerance) and in political philosophy (from Hobbes to Locke and the French Encyclopédistes). It was standard practice to attribute this development to political-religious developments within European states and especially to the emergence of states where the majority of the population was Protestant (The Netherlands, the German states, Great Britain). It was thinkers from these lands (although not exclusively) who were to convey modern ideas and defend values that still underpin Western political philosophy today.
Until recently virtually no-one had looked seriously into not only the Biblical references but also the Talmudic and Rabbinic references that are widespread in writers of the time (e.g. Grotius, Selden, Pufendorf, not to mention the particular case of Spinoza). Several books have come out recently showing the significance and influence of these Hebrew sources in the thinking of many writers of the time (two such references are G. Schochet, F. Oz-Salzberger, and M. Jones, Political Hebraism: Judaic Sources in Early Political Thought (Shalem, 2008); E. Nelson, The Hebrew Republic. Jewish Sources and the Transformation of European Political Thought (Harvard University Press, 2010).
All of these publications relate to political philosophy and the history of political ideas; it seems that recent authors have not addressed the history of international law, which emerges (in its modern guise) at this period (17–18th centuries) and among the same authors (Grotius, Selden, Pufendorf, etc.) whose political philosophy is examined but whose international law doctrine is ignored. And yet there were earlier studies that drew the attention of scholars to the importance of Jewish sources in the development of international law doctrine. I am thinking primarily of the paper by the great Israeli student of international law, the late Shabtai Rosenne, in the Netherlands International Law Review, 1958 on “The influence of Judaism on the development of international law”, but also the Hague Lectures by Prosper Weil on “Le Judaisme et le développement du droit international” (Hague Collected Courses, 1973/III).
These two papers provide a starting point for what could be an in-depth study of how Hebrew sources influenced the theorists of international law in the modern era. This would be an answer, fifty years on, to Shabtai Rosenne’s call, when writing of Selden (but the comment holds for other authors): “What would be of more interest would be a critical re-examination of Selden’s views upon international law and its rules, in the light of contemporary doctrine, and an attempt to reach some conclusions on the question, to what extent his views on international law itself have their origins in his conceptions of the Jewish law, whether those conceptions themselves were correct or not. Such research could be a preparatory measure to more profound work altogether”.