International Law and Justice Working Papers - IILJ

“If the theory does not distinguish clearly both fields of law and politics and their subjects from
each other, how can this be expected from the practice?” 42
Bulmerincq’s conception of politics was, characteristically to his time, ‘positivist’. He claimed
the separation of law and politics as the underlying identity for international law. Already in
1858 he demanded the separation from the positivist legal material from philosophical
speculation: “Still today it is a widespread view held by distinguished authors that the system of
positive international law could not exist without the inclusion of the philosophical. But this view
is based on a misunderstanding of the most general nature and purposes of positive international
law. (…) The historical direction in legal scholarship which has in other fields won over natural
law, should also in positive international law bring the purely positive material to validity and
here too substitute the philosophical law with the philosophy of law.” 43
In creating the system of international law, one could only take into account the legal and not the
political: “What is therefore in treatises of positive international law not of purely legal nature,
has to be expelled from our systematization. (…) every field has to stay with what belongs to it. It
seems to us that the scholarly organization of the State external relations has to be mainly based
on two general ideas: law and wisdom.” Bulmerincq therefore held that it was necessary to
distinguish from international law “the external politics or State wisdom, the scholarly nature of
which is at the time yet problematical”. 44
Bulmerincq reiterated the same positions on politics in his “Praxis, Theorie und Codification des
Völkerrechts” (1874):
42 Bulmerincq, Praxis, Theorie und Codification des Völkerrechts, 1878, pp 96-97.
43 Die Systematik des Völkerrechts, 1858, p. 2 and 6.
44 Die Systematik des Völkerrechts, p. 7-8. Many international lawyers continue to be sceptical about the scientific
foundations of the field of international relations. See e.g. the Philip Allott’s foreword to his book “Eunomia”.