Zeitschri des Max-Planck-Instituts für europäische Rechtsgeschichte Rechts R Journal of the Max Planck Institute for European Legal History geschichte g Rechtsgeschichte Legal History www.rg.mpg.de http://www.rg-rechtsgeschichte.de/rg22 Rg 22 2014 214 – 226 Zitiervorschlag: Rechtsgeschichte – Legal History Rg 22 (2014) http://dx.doi.org/10.12946/rg22/214-226 Elisabetta Fiocchi Malaspina Nina Keller-Kemmerer International Law and Translation in the 19th century Dieser Beitrag steht unter einer Creative Commons cc-by-nc-nd 3.0 Abstract The article aims to investigate, under the aspect of translation, the process of legal appropriation and reproduction of international law during the course of the 19th century. An occidental under- standing of translation played an important role in the so-called process of universalization in the 19th century, as it made the complexity of global circulation of ideas invisible. Approaches proposed by scholars of Postcolonial, Cultural and Trans- lation Studies are useful for re-reading histories of the circulation of European ideas, particularly the international law doctrines, from a different per- spective. The great strides made in Translation and Cultural Studies in the last decades, as well as the discernment practiced in the scholarship of Post- colonial Studies, are important for a broader and more differentiated understanding of the processes of appropriation and reproduction of the doctrines of international law during the 19th century. The present article begins by tracing the connection between translation and universalization of con- cepts in 19th century international law; after a short excursus on the Western idea of translation, the attention is focused on the translation of interna- tional law textbooks. The conclusive section is dedicated to a comparison between Emer de Vat- tel’s Droit des gens and Andrés Bello’s Principios de Derecho de Jentes. □× Rg 22 2014 Elisabetta Fiocchi Malaspina, Nina Keller-Kemmerer International Law and Translation in the 19th century* 1Introduction the sources text will be preserved as closely as possible but not so closely that the target In European Legal History – Global perspective language structure will be seriously distort- Thomas Duve issued a challenge to cultivate an ed.« 4 openness to interdisciplinarity in legal history scholarship, which has tended towards an episte- According to this understanding of translation mology of law in the global process of cultural the translator is not seen as a creator but a mere translation. He maintains: »to do so, we have to technician. Translation is therefore regarded as a open the field of observation, and obviously, seek a secondary activity in researches that often only well-balanced interdisciplinary approach that does consider the value of a translation. »What is ana- not consider ›law‹ as something categorically differ- lyzed in such studies is the product only, the end ent from other fields of cultural production, but as result of the translation process and not the process one modus of normativity.« 1 itself«. 5 This perspective allows us to trace the process The translation process was foundational to the of legal appropriation and reproduction of inter- formation and legitimation of the international national law during the 19th century. The Western law doctrine. At the same time, the complexity approach to translation was pivotal to how trans- of the 19th century translation process cannot be lation was instrumentalized in the universalizing understood without the critical intervention of process of the 19th century as an invisible force Postcolonial, Cultural and Translation Studies. behind the global circulation of ideas. That sets the history of the circulation of European Even if translation has taken the center stage in ideas, in particular, of the international law doc- all major cultural exchanges, 2 atthesametimeit trines, in a broader context and allows us to reread still remains an underestimated phenomenon. 3 it in a different way. Even today, it is perceived as a mechanical process, which can be acquired by studying a foreign lan- guage. As Susan Bassnett pointed out: 2 Translation and universalization of concepts »What is generally understood as translation Translation is not a recent phenomenon, but involvestherenderingofasourcelanguagetext played an important role in the circulation of into a target language text so as to ensure that Western ideas especially during the 19th century, (1) the surface meaning of the two will be as recent studies on global, intellectual and trans- approximately similar and (2) the structure of national history have shown. 6 * This research is the result of the work 1Duve (2013) 18; see also Duve (2012). 5 Ibid. carried out within the Group »Trans- 2 »In Europe that represented the scene 6 Among many: Armitage (2013) lation« at the Max Planck Institute for of the most sustained and intense 17–32; Armitage (2004); Moyn / European Legal History. We would cultural transfers throughout its long Sartori (2013). See also: Iriye like to express our gratitude to Pro- history, a long process marked by an (2013); Iriye /Saunier (2009), fessor Thomas Duve for permitting enormous efforts in translation: of and the recent book edited by this collaboration, to Lena Foljanty religious, scientific, political and McMahon /Moyn (2014). and to the Group for their support literary works […] and of vernaculars and for all the interesting suggestions crossing national and linguistic received. Special and sincere thanks boundaries«: Burke /Po-chia Hsia to Professor Miloš Vec for reading the (2007) 1. draft critically and providing precious 3Bassnet (2013) 15. comments. 4 Ibid. 214 International Law and Translation in the 19th century Fokus focus The American historian and philosopher of as a legal advisor to the Peruvian government; 12 science, Arthur Lovejoy, has noted »Ideas are the Gustave Rolin Jacquemyns, one of the founders of most migratory things in the world«. 7 European the Institut de droit international (in Ghent, 1873), concepts spread all over the world during the worked as the counselor to the King of Siam 19th century, due in equal part both to the numer- (1892–1902). 13 ous publications of textbooks and to their trans- Non-European scholars and practitioners of in- lations. However, this process had some important ternational law would meet in European capitals, consequences: first, European concepts came to be where they were sent as diplomatic emissaries to perceivedasuniversallyvalid,andsecondEurope their nations and governments while they were established its expansion through the spread of acquiring knowledge about the European law of control and culture, as it affirmed its mission to nations. The Latin American legal scholar Andrés »civilize« the »uncivilized nations«. Bello lived in London for two decades from 1810 on, working as a diplomat for different Latin »As concepts moved – as the global intellectual American countries; 14 in 1827 the US-American historian Christopher Hill wrote – around the Henry Wheaton was appointed chargé d’affaires to world, they experience multiple mediations, Denmark, and between 1837 and 1846 he worked including translation into other languages and as US minister to the Court of Berlin. 15 The same mass reproduction in the form of textbooks and can be said for the Argentinean Carlos Calvo, who publication for popular audiences.The resulting gained his knowledge on international law in process of abstraction attenuated the concepts’ Europe. He wrote his works in Spanish and also connection to their originators and to the Euro- in French, the language of diplomacy, so »that he pean examples from which they were derived. would reach a broader European audience«. 16 He Mediation and abstraction allowed the ›univer- also translated Henry Wheaton’s HistoiredeProgrès salization‹ of concepts in a specific sense.The use du Droit des gens en Europe into Spanish (Paris of a concept as if it were valid in all places at all 1841). All of them – Bello, Wheaton and Calvo – times«. 8 »promoted the European legal doctrine. Thus they took an active part in the globalization and global- International law doctrines were a part of this ization of international law«. 17 wave of universalization for their intrinsic and Furthermore, with the prolificcirculationof peculiar aim to regulate relations between states literature on international law, the field of inter- and to create an international legal order. 9 Ideas national law had properly »universalized« from the on international law circulated due to the prolific second half of the 18th century, and particularly works of international lawyers. In the 19th century during all the 19th century. Handbooks, textbooks, international lawyers, in fact, were called to take an comprehensive treaties on positive international active part in this process and »to mediate between law, compendia, texts on history of international universalism and nationalism, humanitarian aspi- law (or history of the law of nations 18)were»mass« rations and colonial impulses, technical, economic produced and translated for European and non- and financial challenges, nations and states«. 10 European countries, where governments spon- They were hired by non-European states to sored and incentivized their translation. 19 teach international law and to partake in diplo- The number of textbooks and comprehensive matic and government matters. Paul Louis Ernest treatises on positive international law that were Pradier-Fodéré went to Perù and founded in Lima published are impressively shown (but not with- a faculty of political and administrative sciences, 11 out gaps) in the work of Peter Macalister-Smith where he taught international law and also worked and Joachim Schwietzke, Bibliography of the Text- 7Lovejoy (1904) 4. on Pradier-Fodéré see: Saint-Bonnet 14 Jaksic (2001) 8. 8Hill (2013) 135. (2007) 641; Elliot (1908). 15 Liu (2012) 1133. 9Becker Lorca (2010) 476; Nuzzo 13 Becker Lorca (2010) 484, note 15. 16 Obregón Tarazona (2009b) 158. (2012). »According to his biographer, Rolin 17 Vec (2012) 674. 10 Nuzzo /Vec (2012) XII. Jacquemyns played a vital role in 18 For a conceptual history see Steiger 11 Lachs (1987) 77.