Inter Ruinas Publicas Scriptum’: Ernest Nys, a Legal Historian in Defence of Belgian Tax Payers During the Great War Frederik Dhondt Published Online: 08 Jun 2015
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This article was downloaded by: [University of Gent], [Frederik Dhondt] On: 09 June 2015, At: 00:47 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Comparative Legal History Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rclh20 ‘Inter ruinas publicas scriptum’: Ernest Nys, a legal historian in defence of Belgian tax payers during the Great War Frederik Dhondt Published online: 08 Jun 2015. Click for updates To cite this article: Frederik Dhondt (2015): ‘Inter ruinas publicas scriptum’: Ernest Nys, a legal historian in defence of Belgian tax payers during the Great War, Comparative Legal History To link to this article: http://dx.doi.org/10.1080/2049677X.2015.1041730 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. 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Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions Downloaded by [University of Gent], [Frederik Dhondt] at 00:47 09 June 2015 Comparative Legal History, 2015 http://dx.doi.org/10.1080/2049677X.2015.1041730 ‘Inter ruinas publicas scriptum’: Ernest Nys, a legal historian in defence of Belgian tax payers during the Great War Frederik Dhondt* (Received 3 October 2014; accepted 7 November 2014) The Belgian scholar Ernest Nys (1851–1920), a big name in public international law and legal history, is primarily known for his extensive publications in the Revue de droit international et de législation comparée, which often focus on medieval and early-modern doctrine. Yet, Nys was also active as a judge and an ad hoc legal adviser, combining his abilities as a traditional continental jurist and a legal historian. During World War One, he drafted an impressive manifesto against wartime contributions on movable property designed by the German occupant. The text combines an intellectual pedigree of political thought with strict legal reasoning on the basis of classics, such as the 1874 Brussels Conference or the 1899 and 1907 Hague Conventions. Finally, Nys’ motivations for an assault on this capital tax, which included a compulsory declaration of personal wealth, can be situated in traditional liberal resistance against state intrusion into the private sphere. Keywords: history of international law; tax law; World War One; legal history Ernest Nys (1851–1920)1 has been called the ‘first professional historian of public international law’ by a leading historian2 and, in the words of another eminent *(Postdoctoral Research Fellow of the Research Foundation Flanders (FWO), Legal History Institute (Ghent University), and Visiting Fellow, Graduate Institute for Inter- national and Development Studies (Geneva). Email: [email protected]. 1Nys had also been active as a judge in the Tribunal of First Instance in Antwerp (1882) and Brussels (1883), Chamber President in the Brussels Court of Appeal (1898) and, finally, Downloaded by [University of Gent], [Frederik Dhondt] at 00:47 09 June 2015 member of the Permanent Court of Arbitration in The Hague. An outspoken anglophile, Nys spent each summer in the manuscripts collection of the British Museum: Paul Errera, ‘Notice sur Ernest NYS, membre de l’Académie’ Annuaire de l’Académie Royale de Belgique 1. See also the biographical entry in the Biographie Nationale de Bel- gique by Jean Salmon (ULB): http://www.academieroyale.be/cgi?lg=fr&pag=906&tab= 102&rec=17794&frm=363; Frederik Dhondt, ‘België en de historiografie van het volken- recht in de Belle Époque: François Laurent en Ernest Nys’ in Bruno Debaenst (eds), De Belle Époque van het Belgisch Recht (Die Keure, 2015) (forthcoming). 2Martti Koskenniemi, ‘A History of International Law Histories’ in Anne Peters and Bardo Fassbender (eds), The Oxford Handbook of the History of International Law (Oxford UP, © 2015 Taylor & Francis 2 F. Dhondt specialist of the discipline, stands out as a ‘très très grand nom’3 whose works ‘ont plutôt bien vieilli’.4 After his law studies in Ghent (1874) under his master Fran- çois Laurent (1810–1887),5 combined with a training at the faculty of Arts and Philosophy, Nys took courses in Heidelberg, Leipzig and Berlin in the roaring German Empire, where Heinrich von Treitschke, Theodor Mommsen or Rudolf von Gneist taught. Back in Belgium, Nys refrained from a personal political com- mitment. Yet, he benefitted from the liberal electoral victory in 1878, and obtained a directorship in the Ministry of Justice. At the age of 35, on recommendation of Alphonse Rivier (professor of Roman law and international law 1835–1898),6 he was appointed a professor at the Law faculty of the Université Libre de Bruxelles in 1885. Nys taught several courses on positive law, as well as, in the School for Political Science, ‘diplomatic history since 1815’.7 In 1898, after Rivier’s death, Nys took over the latter’s course on the law of nations. He published an astonish- ing amount of work on the history of public international law, extensively covering the Middle Ages and the early-modern period. Most of these are still worth reading today and have lost nothing of their appeal. He was one of the pillars of the Revue de droit international et de legislation comparée (°1868), the official organ of the Institut de droit international, founded in Ghent in 1873. An annual summer visitor to the British Museum’s manuscripts department, translator of James Lorimer (1818–1890)8 and John Westlake (1828–1913),9 doctor honoris causa in Edinburgh and Glasgow, Nys was a crucial bridge to the Anglo-American world. He contributed an astonishing 116 times to the journal between 1884 and 1914, and published 39 books in the same time span. This article will not discuss Nys’s published texts, but a handwritten memor- andum, Les impôts dans l’occupation de guerre, composed in September 1917 and kept at the Belgian Royal Library.10 Contrary to what is often assumed, there was no contradiction in Nys’s activities as a practical lawyer and a legal 2012) 955; Martti Koskenniemi, ‘Histories of International Law: Dealing with Eurocentr- ism’ (2011) 19 Rechtsgeschichte 152. 3Dominique Gaurier, Histoire du droit international (PU Rennes, 2005) 202. 4Ibid, 32. 5Ernest Nys, ‘François Laurent, sa vie et ses oeuvres’ (1887) XIX Revue de droit inter- national et de législation comparée 409; Dirk Heirbaut, ‘Een hopeloze zaak: François Laur- ents nieuw burgerlijk wetboek voor België’ (2013) 15 Pro Memorie. Bijdragen tot de rechtsgeschiedenis der Nederlanden 261. Downloaded by [University of Gent], [Frederik Dhondt] at 00:47 09 June 2015 6Alphonse Rivier, Introduction historique au droit romain (Mayolez, 1881); Principes du droit des gens (Rousseau, 1896); Henri Rolin, ‘Notice sur Ernest Nys: Biographie’ (1951–1952) IV Revue de l’université de Bruxelles 349. 7Rolin (n 6) 349. 8James Lorimer, Principes de droit international (E Nys tr, Muquardt, 1885). 9John Westlake, Études sur les principes du droit international (E Nys tr, Fontemoing, 1895). 10Ernest Nys, Les impôts dans l’occupation de guerre. Inter ruinas publicas scriptum (s.n., 1917). Belgian Royal Library, 58558 (third series), 291383 (available at http://uurl.kbr.be/ 1041910). Comparative Legal History 3 historian.11 In his positive law teachings, including constitutional law, social law or introduction to civil law, Ernest Nys clung to a strict exegetic method.12 The present text is an example of Nys’s interdisciplinary skills in his practical advisory work, combining both a historical and a strict legal approach.13 Since October 1914, almost the whole of Belgium had been under belligerent occupation by the German Empire.14 The German army had reduced the 1839 Treaty of London,15 which guaranteed Belgium’s neutrality, to ‘a scrap of paper’,16 invoking necessity.17 The multilateral diplomatic system, which had dominated part of the eighteenth and most of the nineteenth centuries and inspired considerable periods of stability, had come to a halt.18 Throughout the war, Nys continued to draft legal opinions, refuting German claims ‘la plume à la main’, using the laws of war against the Diktat of the temporarily dominant party.19 Nys claimed not to have been totally unsuccessful, finding interlocutors within German civil administration outside the army.20 His memoranda not only attacked 11Dominique Gaurier, Histoire du droit international (PU Rennes, 2014) 544. 12See the handwritten syllabi by Ernest Nys in the ULB’s archives, 01Q/3653 (droit civil), 01Q/3651 (droit constitutionnel), 01Q/5257 (introduction au cours de droit civil), 01Q/3654 (législation sociale). 13Nys was appointed on the commission on violations of the laws of war by the German army on 7 August 1914 by the Minister of Justice. After the occupation of Brussels (20 August 1914), where Nys lived, he continued to write privately. Nys drafted the 1916 declaration of the ULB against the German occupant, advised the City of Brussels, the Pro- vince of Brabant (for which he already drafted an anti-tax memorandum on 26 August 1914), the Belgian National Bank (Ernest Nys, L’Occupation de guerre.