While Tobias Asser was undeniably a child of his time, he was also a forebear of ours and someone who, from a meaningful family tradition, inherited the ability to recognise his mission for his time. But while his name is widely known, relatively few people know what made him a man of fame. Indeed, this biography is the first major, in-depth study of Asser’s life and work. Its starting point lies in the mid-19th century, when liberal ideas about state and society in Europe were on the rise, and its end comes just before the outbreak of the First World War, which brought disaster both to millions of people and to Asser’s ideals of peace and justice.
Arthur Eyffinger’s masterful biography, partly based on newly recovered documents, also contributes to the general history of international law and international relations. History helps us to understand how we can relate to the dilemmas of our time. In this sense, historical studies also help us to prepare for the future. Asser gave shape to his work as a jurist and a public intellectual conjointly with contemporaries in the Netherlands and other countries. His sharp mind and purposeful, ordered life enabled him to overcome established confinements, without his forgetting where he came from.
He was a descendant of a Jewish family that had contributed to the Jewish Enlightenment, the Haskalah, and the acquisition of citizenship, following in the footsteps of the Itzig and Mendelssohn families, to whom he was related both spiritually and through marriage. This passage out of the ghetto1 to the very heart of the city enabled these families’ experience and talent in international trade to become increasingly connected with the law and international relations. After being appointed a professor at the University of Amsterdam, at that time called the Athenaeum Illustre, at an exceptionally young age, Asser continued to be actively involved in both national and international legal practice. Politically he sided with those advocating renewal of the legal and political system, while ideologically he was related to J.R. Thorbecke, whose granddaughter later became his daughter-in-law. As a result of his involvement in foreign policy, his base increasingly moved to The Hague.
This is where Asser saw his mission for his time. Elsewhere I have put forward that ‘Asser’s personal vocation concurred with the purpose of the public sphere, i.e. the moral centre of society, a sphere of freedom that is visible in city life and is invisibly present as law, science, culture, and commerce. It is this public sphere that so many well-educated Jews wanted to make the centre of their activities.’2 His experience at international conferences brought him into contact with other leading jurists of his era, including Gustave Rolin-Jaequemyns and John Westlake. Among them were the ‘men of 1867’, who founded the Institut de Droit International in Ghent, as Martti Koskenniemi put it.3 Trust in the law in trade, personal relations and international politics was their guiding idea, and should still be meaningful to us to an undiminished degree. Yet their view of the world had constraints that now cause us offence, including their disregard for the cultures of indigenous peoples outside Europe. What Asser, though, saw and put into practice in cooperation with other leading figures was the importance of multilateral conventions in a variety of domains, including for private international law, for the efforts to eliminate the atrocities associated with war and for the attempts to apply international dispute resolution as a means of preventing war. Asser was awarded the Nobel Peace Prize in 1911 and, by the final decades of his working life, had gained international recognition as a leading figure in promoting peace and justice, for which the city of The Hague became the focal point. In these final decades of his life he and other great figures, such as the Russian Feodor Martens and the American Elihu Root, became beacons of international legal development.
Through the lens of Tobias Asser’s life, this great biography also takes us to the history of ideas in an era stretching from the French Revolution to the outbreak of the First World War. This was an era of emancipation, when, following the 18th-century ideas of ‘democratic Enlightenment’,4 the aftermath of the revolutionary and Napoleonic times saw a fundamental transformation of the political and legal culture. It was when the bourgeoisie moved into personal space previously reserved for the nobility and formed economic and cultural networks spanning the continent, although the disenfranchised labourers in industry and agriculture still had a long and demanding struggle ahead and one that lasted at least until the revolutionary years of 1917–1919. In hindsight, the most painful and embarrassing aspect of this emancipation movement was the colonial subjugation of much of the southern continents to the prevailing concepts of international law, as reflected at the Berlin Conference (1884–1885). The ‘men of 1867’ and subsequent decades were not only pioneers of a peace-oriented international legal order, but also—like the anthropologists of that time (the ‘orientalists’)—messengers of Western hegemony.5
At home, meanwhile, conservative voices continued to resist democracy and the emancipation movement, thus giving traction to the romantic embracing of nationalism. Their domains were the fields of the national economy, while their image of man was that of an own people with the associated cultural forms of expression in law, music and myths, their political programme was that of national sovereignty, and their power instrument was war. Long lines connect this ethno-nationalistic conservatism with movements occurring in the 21st century, including a fearful and frightening resistance to ‘cosmopolitanism’, for which the phantasma of ‘Jewish conspiracies’ served and still serves as a favoured prototype.
This deep contradiction was ultimately decisive for the (temporary) success and (temporary) failure of the multilateral international legal order which Tobias Asser and likeminded actors were aiming for. Within a decade, the promises of the Second Hague Peace Conference were followed by the outbreak of hitherto unprecedented military violence between states that was driven far more by national honour than by their effective national interests. Those who saw the international playing field as the domain of peaceful advocacy were fatally wounded by the rising tensions. They had firstly been trying to prevent the outbreak of this ‘Great War’. Then, once war started, they had sought to put an end to it as soon as possible. Both endeavours, however, were in vain, and the peace treaties of Versailles and the other Paris suburbs assumed the character of a confirmation rather than rejection of nationalism as the organising principle of international relations.
Although the efforts of Asser and the other ‘men of 1867’ were underpinned by lofty ideals and well-considered worldviews, Asser was not the author of a prestigious theoretical work on international law. Instead, his justification came more from his commitment to practice, and that is what he continued to seek to promote. Those wishing to profile the life and work of Tobias Asser in theoretical terms will find the most relevant contra-position in the conservative, if not fundamentalist admirers of absolute national sovereignty. The focus of the latter was predictably on the national—for example, on law and state theory. And even after the Second World War an influential conservative jurist such as Carl Schmitt,6 who had subscribed to National Socialism, proceeded to write a Nomos der Erde based on the idea that people legitimately seek to create state authority over a territory in order to take possession (‘Landnahme als konstituierender Vorgang des Völkerrechts’).7
In contrast, Asser’s life and work are inspiring examples of how individuals are able to transgress the confinements of descent and discipline without forgetting where they came from. Not being afraid of differences is the key to reinforcing trust in the belief that human beings have a common dignity that has to be recognised in law.
This book is published during a protracted period of peace in Western Europe. That may give us cause to feel that freedom and justice have finally prevailed in this part of the world, despite the proximity, both in place and time, of the cruel, ethnically motivated civil wars in the former Yugoslavia and even though now, too, opposing forces are not far away. Those aware of this will read this masterful biography of Asser’s life and work not only out of an interest in the past, but also out of concern for the future. While history tends not to repeat itself, patterns that were recognisable in the past can also help us to see what is going on now, what should be avoided and what should be pursued.
Ernst Hirsch Ballin
Distinguished University Professor at Tilburg University
Professor of Human Rights Law at the University of Amsterdam
President of the T.M.C. Asser Institute for International and European Law in The Hague
Bardo Fassbender, ‘Carl Schmitt (1888–1985)’, in: Bardo Fassbender & Anne Peters, The Oxford Handbook of the History of International Law, Oxford / New York: Oxford University Press 2012, pp. 1173–1178.
Michael Goldfarb, Emancipation: How Liberating Europe’s Jews from the Ghetto Led to Revolution and Renaissance, New York, NY: Simon & Schuster 2009.
Hirsch Ballin 2012
Ernst Hirsch Ballin, ‘A Mission for His Time’, in: Ernst Hirsch Ballin, A Mission for His Time: Tobias Asser’s Inaugural Address on Commercial Law and Commerce, The Hague: Asser Press 2012, pp. 1–14.
Jonathan I. Israel, Democratic Enlightenment: Philosophy, Revolution, and Human Rights 1750–1790, New York: Oxford University Press 2011.
Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960, Cambridge, UK; New York: Cambridge University Press 2002.
Martti Koskenniemi, ‘Carl Schmitt and International Law’, in: Jens Meierhenrich & Oliver Simons, The Oxford Handbook of Carl Schmitt, Oxford / New York: Oxford University Press 2016, pp. 592–611.
Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien, Berlin: Duncker & Humblot 2009.