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2 Chi. J. Int'l L. 137 (2001)
The Return of the Standard of Civilization

handle is hein.journals/cjil2 and id is 145 raw text is: The Return of the Standard of Civilization
David P. Fidler*
'The nexus between Civilisation and International Law
is a basic question of International Law.
-Georg Schwarzenberger, 1955'
Those who teach international law are familiar with presenting Artide 38(1) of
the Statute of the International Court ofJustice (ICJ)2 as the authoritative list of the
sources of international law. Some teachers might engage students in discourse
about the source of the sources: is it positivism or natural law? But rarely, I would
wager, does a teacher have his or her students think about the following questions:
from where did the sources listed in Article 38(1) come, and who bounded the choice
to positivism and natural law?
These questions point to the development of international law. The answers to
these questions force us to see international law as the living artifact of 'Western
civilization. International law grew out of the Westphalian system of sovereign States
that emerged in Europe in the 17th century International law has, thus, deep
civilizational  roots.4  As   the   Westphalian     system    expanded     beyond    Europe,
international law followed in its wake. The European great powers and the United
* Associate Professor of Law, Indiana University School of Law.-Bloomington. MPhil 1938,
University of Oxford; JD 1991, Harvard Law School; BCL 1991, University of Oxford. An earlier
version of this article was presented at the Annual Meeting of the American Society of
International Law, April 2000.
1. Georg Schwarzenberger, 'e Standard of Cilisation in International Law, Current Legal Probs 212. 212
2.   Statute of the International Court ofJusdce 59 Stat 1055, Treaty Sr No 993 (1945).
3.  Peter Malanczak, Akehurst's Modern Introduction to International Law 9, 15-17 (Roudedge 7th rev ed 1997)
('The prevailing view in the study of international law is that it emerged in Europe in the period after the
Peace of Westphalia (1648).).
4.  The European roots of international law are explored in detail in Wilhem  G. Grcee. 1: EF:chp of
International Law (de Gtuyter 2000) (Michael Byes, trans).
5.  Id at 458 (In the nineteenth century the State system extended to cover the entire plane.j.

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