GoJIL Vol. 4, No. 3 (2012)
Georg Jellinek and the Origins of Liberal Constitutionalism in International Law
Jochen von Bernstorff
At the end of the 19th century, Georg Jellinek developed a new theoretical foundation of international law, which he termed a “positivist” approach to international law. It became by far the most influential theory of international law developed in the 19th century in Europe. The structural ingredients of his attempt to construct a “scientific” foundation of international law as a binding and objective law of an “international community” continue to encapsulate the cornerstones, paradoxes and limits of liberal constitutionalist thinking in international law. In the 20th century reception of his international law works, Jellinek’s concept of “auto-limitation” was often portrayed as a staunch apotheosis of German (hegelian) notions of absolute State sovereignty (by Kelsen and Lauterpacht). Although this somewhat distorted reception during the interwar period seems to have buried a more nuanced understanding of Jellinek’s sophisticated theory of a “proto-constitution” of international law, it has after all had an arguably lasting impact on our modern concept of international law.
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