Alejandro Álvarez Situated: Subaltern Modernities and Modernisms that Subvert

Leiden Journal of International Law

Volumn 19, Issue 4, 2006, Pages 879-930

  Lorca, Arnulf Becker ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

Alejandro lvarez; centre and periphery; history of international law; Latin American international law; modernism

Indexed keywords

EID: 85010104468     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156506003694     Document Type: Article

References (187)

1. For biographical information seeM. Caracciolo Parra-Pé rez, Notice sur la vie et les travaux de Alejandro Álvarez (1868-1960) par Institute de France (1962). To illustrate Álvarez's influence outside the Americas andWestern Europe see, e.g., Da lu jin dai fa lü si xiang xiao shi (Chinese translation of Une nouvelle conception des é tudes juridiques et de la codification du droit civil), selections, trans. Xiaoyue Fang and Menghe Tao, 1933); Modern uluslararasi hukukunmucip sebepleri ve bü yü k prensipleri beyannamesi (Turkish translation of Exposé demotifs et dé claration des grands principes du droit international moderne) trans. N. R. Erimand F. N. Berkol (1936).
2. See the regular symposium of the European Journal of International Law dedicated to the study of the major contributors to the European tradition in international law, including, among others, studies of Georges Scelle (Vol. 1, No. 1/2, 1990); Hersch Lauterpacht (Vol. 8, No. 2, 1997); or Charles de Visscher (Vol. 11, No. 4, 2000). US-American international lawyers, on the other hand, also pay homage to the most important international lawyers of their tradition. See e.g. F. R. Coudert, ‘An Appreciation of James Brown Scott’, (1943) 37 AJIL 559; O. Schachter, ‘Philip Jessup's Life and Ideas’, (1986) 80 AJIL 878; L. Damrosch, ‘Oscar Schachter (1915-2003)’, (2004) 98 AJIL 35; or the special issue on ‘The Enduring Contributions of Thomas M. Franck’, (2002-3) 35 New York University Journal of International Law and Politics. The international lawyers reviewed in these articles are generally situated in the cultural and political contexts of the world system's centres of power, where the history of international law is believed to unfold. SeeW. Grewe, The Epochs of International Law, trans. M. Byers (2000), for a description of the history of international law through successive periods, each defined by the dominance of a different international power.
3. Alejandro Álvarez was born in 1868 in Tulahué, a hacienda in the proximity of Ovalle, a small town in northern Chile. Álvarez's embedding in Latin American history is not limited to his Chilean origin, but includes the regional scope of his interests and the topics covered during his professional career. Álvarez worked for decades as legal adviser to the Chilean Ministry of Foreign Relations, intervening in many Pan-American Conferences (Mexico, 1901-2; Re’ o de Janeiro, 1906; Buenos Aires, 1910; Santiago, 1923; Havana, 1928) in the context of which he participated in the attempts to codify American international law. On Álvarez's professional presence in Europe see R.-J. Dupuy, Les Principes fondamentaux du droit international dans la doctrine de M. Alejandro Álvarez (1958), and for his presence in the United States see note 196 infra. Few have written about Álvarez linking the European and Latin American professional settings; the most comprehensive study remains that by Dupuy.
4. Rather than confirming the idea that international law originated as the ‘public law of Europe’ and subsequently became universal, the introduction of non-European authors and events among the historical contexts that explain the development of modern international law challenges the belief in its European origin and universality, for authors likeálvarez point to alternative non-Eurocentric interpretations of those notions. In this regard, it is noteworthy that in spite of the passage of time, Álvarez still triggers allergic reactions inmainstream international lawyers. When addressing ‘the role of the ASIL [American Society of International Law] in the further development of the existing college of international lawyers’, Ian Brownlie, renowned British international lawyer and former president of the ASIL, lists, among the topics to consider, the ‘need to reduce the fissiparous tendencies of different political groupings of states, tendencies that threaten the very existence of general international law’. Brownlie recalls Álvarez, who ‘made substantial claims to the legitimacy of American international law, by which he meant a regional Latin-American law. In practice such regional tendencies prove insubstantial and small in extent. Latin-American special rules have in practice boiled down to issues relating to diplomatic asylum and uti possidetis juris. The latter principle has in practice been incorporated into general international law as a consequence of Organization of African Unity (OAU) practice and the jurisprudence of the International Court.’ I. Brownlie, ‘The President's Roundtable’, (2001) American Society International Law Proceedings 13, at 13-14.
5. Dupuy, the regular symposium of the European Journal of International Law dedicated to the study of the major contributors to the European tradition in international law, including, among others, studies of Georges Scelle note 3, at 2-3.
6. For the idea of universal international law and its history as the expansion from a European starting point see for instanceHeinhard Steiger” ‘History of international law is at first the history of today's existing universal international law, as the common, reciprocative, in principle consensual law between sovereign states of equal standing. This law is of European origin. Its root lay in the 13th centuryAD. Therefore with this begins the subsequent effort to construct the epochs of this history.’ H. Steiger, ‘Vom Vö lkerrecht der Christenheit zum Weltbü rgerrecht. ü berlegungen zur Epochenbildung in der Vö lkerrechtsgeschichte’, in P.-J. Heinig et al. (eds.), Reich, Regionen und Europa in Mittelalter und Neuzeit Festschrift fü r Peter Moraw (2000), at 171. Historicism is not an exclusive monopoly of international law but a general trait of modern Western discourses, imposingwhatDipresh Chakrabarty has called a ‘“first in Europe, then elsewhere” structure’. See D. Chakrabarty, Provincializing Europe. Postcolonial Thought and Historical Difference (2000), 7.
7. See examples at note 2 the regular symposium of the European Journal of International Law dedicated to the study of the major contributors to the European tradition in international law, including, among others, studies of Georges Scelle.
8. I follow a world-system perspective in that I understand the international system to form a single economic and political entity-that is, a worldwide capitalist economy with a global division of labour and a set of rules and practices securing the coexistence of multiple political unities. Two types of actor-central and peripheral-might be distinguished according to the nature of the relationship they establish with and the position they occupy within the world system as well as from the point of view of their divergence of interests. Under unequal economic terms of exchange, the centre extracts the periphery's surplus value when capital-and technology-intensive goods of the former are traded for low capital-and technologyintensive products coming from the latter. Unequal power relations underlying the inter-state political system secure, perpetuate, and give legitimacy to the said exploitative economic exchange. See e.g. T. R. Shannon, An Introduction to theWorld-System Perspective (1989). To the extent that I try to explain Álvarez's modern international law in terms of historically contingent sociopolitical formations rooted both at the international and local levels, rather than in a facile deduction based on the location of Latin America and Álvarez in the centre/periphery configuration,my analysis is particularly influenced by dependency theory in the version advanced in F. H. Cardoso and E. Faletto, Dependency andDevelopment in Latin America, trans. M. M. Uriquidi (1979). Thus Álvarez's ideas, the fate of his professional interventions as well as the meanings and uses of international law in Latin America, are not only defined by Latin America's political relationship with Europe and theUnited States but also shaped by intra-elite disputes regarding fundamental differences about the nature of that interaction.
9. E.g. E. Vio Grossi,Homenaje al Profesor Doctor Alejandro Álvarez Jofré (1993-4); F. Gamboa, Alejandro Álvarez, su vida su obra (1954).
10. ‘The preceding words [describing Álvarez's professional achievements] synthesized the work of universal transcendence that Alejandro Álvarez has accomplished with his studies and publications about international law.He is no longer Chilean and [Latin] American but has stood out among the great thinkers of the world.’ V. Figueroa, Diccionario Histo’ rico y Biogra’ fico de Chile, vol. 1 (1925), 411-12.
11. I borrow the idea of distant reading from Franco Moretti's method of interpreting world literature. In particular I make use of his method of mapping the production, travel, or influx of texts within a world literary system as an alternative to a close reading of texts belonging to a circumscribed canon. See F.Moretti, Graphs,Maps and Trees” AbstractModels for a Literary History (2005).
12. Latin America is not taken to express a geographic or analytic unit based on intrinsic cultural, social, or ethnic commonalties (because it does not exist as such) but as a discursive production, resulting from the interplay between local, regional, and global forces, that signifies a historical project of regional integration, partially constructed by international lawyers, as Álvarez's professional imprint attests. I am not unaware of the fact that the idea of a ‘Latin’ America is also and at the same time a construction from without, based on negative defining conditions and intended to create a manageable picture of the region. And I am also conscious of deep intraregional divergences and rivalries. See LaurenceWhitehead for a positioning of Latin America as region in comparative perspective” Latin America” A New Interpretation (2006), introductory chapter.
13. On pluralism in international law see D. Kennedy, ‘One, Two, Three, Many Legal Orders” Legal Pluralism and the Cosmopolitan Dream’, unpublished paper, delivered at the International Law Association British Branch,March 2006.
14. I explore the relationship between Manley Hudson and Alejandro ‘Alvarez as an example of the interplay between international power relations and professional trajectories (see note 172, infra, and accompanying text). International lawyers’ yearnings for unity do not simply reflect international power, but translate the need of authority within a political configuration that exists without transcendental validation. In terms of the history of international law, the substitution of the ‘Law of Nations’ by the emergence of a secular international law is parallel to the project of finding a unified point of view in a historical narration centred on aWestphalian narrative of origin.
15. On the historiographical operations involved in the making of history-that is, the relations between the place ofwriting, its discipline, and procedures and the construction of awritten text-seeM. de Certeau, The Writing of History, trans. T. Conley (1988).
16. I have left aside the period Álvarez served as a judge on the International Court of Justice, that he only joined at the age of 78. At this point in his career his thinking and scholarship were well established, providing an excellent opportunity to try out his doctrines and ideas. For specific analyses of Álvarez's ICJ tenure seeW. Samore, ‘The New International Law of Alejandro Álvarez’, (1958) 52 AJIL 41, and A. T. Leonhard, ‘Regional Particularism” The Views of the Latin American Judges on the International Court of Justice’, (1967-8) 22 University of Miami Law Review.
17. A. Rama, The Lettered City, trans. J. C. Chasteen (1996).
18. I explore the relationship between Manley Hudson and Alejandro ‘Alvarez as an example of the interplay between international power relations and professional trajectories (see note 172, infra, and accompanying text)., ch. 2.
19. V. M. Uribe-Uran, Honorable Lives. Lawyers, Family and Politics in Colombia, 1780-1850 (2000), 26.
20. For the purposes of the article I combine a study of both Spanish America and Brazil, in spite of the differences in the colonial rule of Spain and Portugal. For example, Napoleon's invasion of the Iberian peninsula in 1807 and the overthrow of Ferdinand VII gave Spanish American Creoles the opportunity to claim self-government and set up the independence movement. The Portuguese court, on the other hand, escaped to Brazil, inaugurating Portuguese and then independentmonarchic rule on Brazilian soil.
21. ‘Now the task for the city of letters was to draft new laws, edicts, regulations, and above all, constitutions for emerging independent states.’ Rama, I explore the relationship between Manley Hudson and Alejandro ‘Alvarez as an example of the interplay between international power relations and professional trajectories (see note 172, infra, and accompanying text). note 20.
22. See section 3.3 infra.
23. ‘Anational administrationandanational… armywerecrucial inbuilding astate apparatusandtransforming de factopower into de jure government; these processeswere carried out at different periods and with varying degrees of similarity by Portales in Chile, Rosas in Argentina and the Regency in Brazil.’ Cardoso and Faletto, section 3.3 infra. note 8, at 67.
24. See, for instance, Rogelio Pé rez-Perdomo, Latin American Lawyers. A Historical Introduction (2006).
25. Thenotion ofunevenmodernization inRamosmakes problematic theuse of the European process of literary modernization as a basis for understandingmodern literature in LatinAmerica, for its emerging institutional base did not in itself provide for the autonomization of writing and the professionalization of the writer. I use this notion to avoid a reified understanding of lawyers’ professional specialization and to explore their historically contingent positioning in between emerging social, economic, and political spheres. J. Ramos, DivergentModernities. Culture and Politics in Nineteenth-Century Latin America, trans. J. D. Blanco (2001), 78-80 and passim.
26. G. Aching, The Politics of Spanish American Modernismo. By Exquisite Design (1997), argues for a political interpretation of modernistas’ aesthetic detachment, in terms of an ambiguous dependence and resistance to the political projects of the Latin American ruling elites.
27. Consequently, pronouncements about Latin America's legalist culture are common, as the remarks by Mexican writer and intellectual Carlos Fuentes show” ‘The Roman legalistic tradition is one of the strongest components in Latin American culture” fromCorté s to Zapata, we only believe in what is written down and codified.’ New York Times, Books, 6 April 1986, 34, quoted in Gonzalez Echeverre’ a, The Politics of Spanish American Modernismo. note 19, at 1. More recent examples in cultural studies include, e.g., J. Larrae’ n, Identity and Modernity in Latin America (2000), 196. Lawyers also share this diagnosis; see J. Esquirol, ‘Continuing Fictions of Latin American Law’, (2003) 55 Florida Law Review 41, for a study and critique of the perspectives that pose excessive formalism and the discrepancy between law and society as the defining characteristics of law in the region.
28. See section 3.1 infra.
29. One would expect Alejandro Álvarez to be regarded and remembered by Latin Americans as one of their most prominent international lawyers. It is surprising to realize that the pivotal place granted to Álvarez in any depiction of the discipline between the first decades of the twentieth century and the 1970s has waned sharply in present-day accounts of international law in the region. Contemporary Latin American scholarship has either formalizedálvarez's oeuvre into a narrowlist of decontextualized slogans-about the existence of a particularly (Latin)American international law-or simply forgotten his work. In other words, it seemshard to sustain in time thememory of aninternational lawyer whose impacthas been circumscribed to historic and intellectual contexts only of marginal relevance to the discipline-even for the practitioner who inhabits them. I have explored elsewhere the changing significance of Álvarez in Latin American legal scholarship. See A. Becker Lorca, ‘International Law in Latin America or Latin American International Law? Rise, Fall, and Retrieval of a Tradition of Legal Thinking and Political Imagination’, (2006) 47Harvard Journal of International Law 283. As regards the Chilean context see Pablo Ruiz-Tagle” ‘In spite of having rendered important assistance to our country, as adviser to the Ministry of Foreign Relations and delegate to various international conferences, today his name has been virtually forgotten.’ Derecho, Justicia y Libertad. Ensayos de Derecho Chileno y Comparado (2002), 59; C. Castro Ruiz” ‘Even though it seems strange, Professor Alejandro Álvarez-member of the Institute of France, founder of the American Institute of International Law, an authority in this branch of the law-is not sufficiently known in Chile… as he is only too well known in the American and European universities and government of both continents.’ Preface to Álvarez's La reconstruccin del Derecho de gentes” el nuevo orden y la renovacin social (1944), v.
30. Larrae’ n has described the period of modernization that followed independence as oligarchic because of its restricted character; a consequence of de facto limitations in the adoption of liberal liberties and institutions, of the consolidation of an export economy limited to the production of raw materials, and of the political alliance between traditional landowners and export capitalists. Larrae’ n, section 3.1 infra. note 30, at 70-4.
31. C. Hale, ‘Political Ideas and Ideologies in Latin America, 1870-1930’, in L. Bethell (ed.), Ideas and Ideologies in Twentieth-Century Latin America (1996), 134.
32. See F. Pike, Hispanismo, 1898-1936. Spanish Conservatives and Liberals and their Relations with Spanish America (1971).
33. The use of modernism as an interpretative category runs against the traditional operation of contextualization common in Latin American legal historiography, where political variables take precedence over social and cultural spheres. It is argued that law performs the functions ascribed to it by the political system and today by the globalmarket; the history of law and legal culture is marked by the transition from the former to the latter. See Pé rez-Perdomo, section 3.1 infra. note 27, for this position as regards the region, and Bravo Lira, section 3.1 infra. note 31, for Chile. Conversely, I understand law as a cultural artefact, constituted in its interconnectionwith the economic and political spheres. Setting Álvarez in the context of regional intellectual trends does not entail a reification of modernism for arrogating contextual stability and achieving explanatory certainty.On the contrary, modernism is a contested term with different connotations during different historical periods and settings. The heuristic gain is not obtained from an intrinsic advantage of the term, but from the debates that modernism allows to be visited, namely the analyses, common in cultural studies and literary criticism, which explore the mutually constitutive as well as embattled relationship between intellectual discourses and socioeconomic developments.
34. N. Berman, ‘Modernism, Nationalism, and the Rhetoric of Reconstruction’, (1992) 4 Yale Journal of Law and the Humanities 351.
35. D. Ades, ‘Modernism and the Search for Roots’, in idem (ed.), Art in Latin America” TheModern Era, 1820-1980 (1989), 125.
36. See note 136 infra and accompanying text.
37. As considered below, Latinoamericanismo was a political, intellectual, and artistic tendency that emerged at the turn of the twentieth century as a critique and reaction to (aesthetic) romanticism, (philosophic) positivism, and (economic) modernization once it was clear that scientific positivism did not delivered its promised path to progress and when new dangers of neocolonial intervention ensued. I contend that international legal thinking in the region joined the said trend in its specific effort to recuperate the unity of Spanish and Portuguese America (in its difference from Anglo-America) under a common, at the same time programmatic and paradigmatic, regionalist project. See J. Ramos, ‘Hemispheric Domains” 1898 and the Origins of Latin Americanism’, (2001) 10 (3) Journal of Latin American Cultural Studies; E.Devé s, El Pensamiento Latinoamericano en el siglo XX” entre la modernizacio’ n y la identitdad, del Ariel de Rodo’ a la CEPAL (1900-1950) (2000).
38. See notes 85 and 97 infra.
39. Intheperiodofpost-colonialconsolidation,ratherthanspecializedprofessionals,lawyersalsobelongedtothe lettered class. See E. Zimmermann, ‘Law, Justice and State-Building in Nineteenth-Century Latin America’, in idem (ed.), Judicial Institutions in Nineteenth-Century Latin America (1999). Their direct participation in the process of state formation blended neoclassicism (the commitment towards the rationalist project of constituting Latin American republics based on classic ideals)with the romantic sensibility dominant at the time.
40. See I. Jaksic’, André s Bello” Scholarship and Nation-Building in Nineteenth-Century Latin America (2001).
41. Political consolidation was achieved by the Conservative Party after the defeat of the Liberal faction in the civil strife of 1830, initiating what is known as the regime of Portales, a long-lasting period of conservative rule. See S. Collier, Chile” TheMaking of a Republic, 1830-1865, Politics and Ideas (2003).
42. Bello's own ideal of ‘aristocratic liberalism’ suited the authoritarian government of the epoch, for which he actively collaborated to become its main intellectual spokesman. A. Cussen, Bello and Bolivar (1991), 148. Bello was appointed under-secretary of foreign affairs in 1829 and was elected senator in 1837. However, he always remained active in the country's intellectual life, serving as the first rector of the University of Chile at its establishment in 1842, drafting (1840-55) the Chilean Civil Code, or, for example, intervening in a heated debate on the evolution of the Spanish language in independent Hispanic America. A. Bello, Grama’ tica de la lengua castellana destinada al uso de los americanos (1847).
43. Collier, notes 85 and 97 infra. note 47, at 13.
44. S. Collier and W. F. Sater, A History of Chile. 1808-2002 (2004), 60-4; C. Cariola and O. Sunkel, Un siglo de historia econo’ mica de Chile. 1830-1930 (1990);M. Zeitlin, The CivilWars in Chile, or the Bourgeois Revolutions that NeverWere (1984), 23-5.
45. A number of laws dealing with the minting of money were enacted between 1832 and 1860. A series of piecemeal regulation allowed insurance companies and brokerage firms, founded in the 1840s, to issue promissory notes, bills of exchange, bonds, and securities as well as collect debts.Moreover, the opening of the first stock exchange in 1840 and the establishment of commercial banks with Chilean capital (Edwards in 1846 and Arcos in 1849) that followed sustained economic growth was met by elites with the effort to have an up-to-date legal framework for commercial and financial activities. A law of joint-stock companies was enacted in 1854 and a bank law in 1860. In 1852 the Congress authorized the President to systematize existing economic legislation under a single commercial code, which came into force in 1865, abrogating previous colonial legislation (Ordenanza de Bilbao). See E. Cavieres, ‘Anverso y reverso del Liberalismo en Chile, 1840-1930, (2001) 34 Historia, 39-66.
46. Chile thus became the only country with exploitable reserves of nitrates; nitrate exports boosted internal agriculturalproduction, imports,andcommercewhile offering thegovernmentabudgetthatwaschannelled towards public infrastructure and education.
47. See Rama, intra note 69, at 40.
48. See Zeitlin, Chile thus became the only country with exploitable reserves of nitrates; nitrate exports boosted internal agriculturalproduction, imports,andcommercewhile offering thegovernmentabudgetthatwaschannelled towards public infrastructure and education. note 51.
49. See note 119 infra and accompanying text.
50. Zeitlin, note 119 infra and accompanying text. note 51.
51. The vast literature on the civil war of 1891 and the Balmaceda government is deeply divided along different ideological and methodological lines of interpretation. See Blakemore, ‘The Chilean Revolution of 1891 and its Historiography’, (1965) 45 Hispanic American Historical Review 425, reviewing the two main legal (constitutional) and economic strands of explanation. Bernardo Subercaseux has read the civilwar in a plural key, looking at the cultural transformations that the conflict represented as a legal-political controversy, as a socioeconomic tension, as a conflict of castes, and as a clash of personalities. Historia de las ideas y de la cultura en Chile, tomo II Fin de siglo” la é poca de Balmaceda (1997), 19-36. The authors I havemade use of followa political-economic interpretation of the civilwar, namely as a conflict between two factions of the dominant class that had opposing ideals of modernization. Whereas it is erroneous to conclude that Balmaceda's supporters were part of a national industrial bourgeoisie in a struggle with an alliance of Chilean bankers, miners, and merchants and British capital (see H. Kirsh, Industrial Development in a Traditional Society. The Conflict of Entrepreneurship andModernization in Chile (1977), 105), Zeitlin has identified an intra-class division between nitrate capitalists and bankers who led the armed insurrection against Balmaceda on the one hand and Balmaceda's supporters, drawn from the copper-mining bourgeoisie, on the other. Zeitlin, note 119 infra and accompanying text. note 51, at 188. However, I do not understand the legal conflict that preceded and justified the ‘congressionalist’ insurrection as a mere veneer covering underlying economic interests; rather I interpret it as one of the languages through which the conflict was expressed.
52. See H. Ramirez Necochea, Blamaceda y la contrarevolucion de 1891 (1969), 75.
53. The main exponent of the legal interpretation is J. Heise Gonza’ lez, Historia de Chile” el pere’ odo parlamentario, 1861-1925 (1974).
54. See T.Halpere’ nDonghi,Historia contempora’ nea deAmé rica Latina (1983), 205, arguing thatChile inserted itself in the emerging international division of labour.OnBritish influenceinLatin America see R. Miller, ‘Informal Empire in Latin America’, inW. Roger Louis (ed.), Oxford History of the British Empire. Vol. 5., Historiography (1999), 437-49.
55. Kirshmaintains that industrialists did not emerge as a separate group from the rest of the elite and thus did not challenge traditional institutions” ‘the conflict between the entrepreneurial bourgeoisie and the existing oligarchy, commonly believed to be inevitable in the industrialization of a nation, did not occur’.Kirsh, note 119 infra and accompanying text. note 60, at 157. On the coalescence of the Chilean dominant class and its contradictions see M. Zeitlin and R. E. Ratcliff, Landlords and Capitalists. The Dominant Class of Chile (1988).
56. ‘[W]hen the powerful businessmen of the nitrate industry recruited lawyers among the high-profile figures of national politics, they did so with the purpose of counting with the services of distinguished members of the legal profession and also with the aim of establishing connections that secured the protection of their interests by interventions in the political and administrative spheres.’ Ramirez Necochea, note 119 infra and accompanying text. note 61, at 85-6; see list of lawyers at 75. After the defeat of Balmaceda, elite lawyers who participated in the ‘congressionalist’ camp filled the cadres of the judiciary and state.
57. Dezalay and Garth put it in this way” ‘The legal-political world was built on extended families that were traceable to the old oligarchy. This family dimension meant that the legitimacy of the law was itself tied to the families behind the law, meaning, in turn, that this legitimacy also rested only lightly on specialized professional knowledge. One lawyer recounted the story of how professors in Chile would travel abroad, converse with a French professor, and then return to their farms to write a book based on the ideas they had learned on their travels.’ Y. Dezalay and B. Garth, The Internationalization of PalaceWars” Lawyers, Economists, and the Contest to Transform Latin American States (2002), 202 (including note).
58. G. Feliu’ Cruz identifies their strong liberal heritage, scientific positivism, national pride, and initial acknowledgment of the social question.According to this author, because of their love of freedommost of the young lawyers sided against Balmaceda. Feliu’ Cruz, Seis Claros Varones del la generacio’ n de 1868 (1968).
59. Subercaseux has explored this gap between social and ideological formations in the Chilean cultural life where on oligarchic bedrocks a bourgeois spirit developed. See B. Subercaseux, Historia de las ideas y de la cultura en Chile, Vol. 1, Sociedad y cultura liberal en el siglo XIX (1997), 251. As to Latin America in general, Whitehead has suggested that the region suffers from an orientation towards ‘modernity’, experienced as the need to catch up with the latest version of the models adopted in what are believed to be the advanced centres of the world, models that are successively imported and assimilated in uneven and incomplete manners.Whitehead, ‘[W]hen the powerful businessmen of the nitrate industry recruited lawyers among the high-profile figures of national politics, they did so with the purpose of counting with the services of distinguished members of the legal profession and also with the aim of establishing connections that secured the protection of their interests by interventions in the political and administrative spheres. note 12, ch. 1.
60. Ramos, ‘[W]hen the powerful businessmen of the nitrate industry recruited lawyers among the high-profile figures of national politics, they did so with the purpose of counting with the services of distinguished members of the legal profession and also with the aim of establishing connections that secured the protection of their interests by interventions in the political and administrative spheres. note 28, at 55-8. ‘More than a question of employment or professionalization and the commercialization of writing, the emergence of a negatively derived notion of “pure” literature that contrasted with the state function of letters was the result of a restructuring in the fabric of social communication.’ parenthesis omitted. ‘[W]hen the powerful businessmen of the nitrate industry recruited lawyers among the high-profile figures of national politics, they did so with the purpose of counting with the services of distinguished members of the legal profession and also with the aim of establishing connections that secured the protection of their interests by interventions in the political and administrative spheres., at 55.
61. Rubé n Dare’ o (1867-1916), who proclaimed himself the firstmodernist poet, spent key years of his youth in Chile (1886-8), where he experienced the conversion from romanticism tomodernism. Rama, ‘[W]hen the powerful businessmen of the nitrate industry recruited lawyers among the high-profile figures of national politics, they did so with the purpose of counting with the services of distinguished members of the legal profession and also with the aim of establishing connections that secured the protection of their interests by interventions in the political and administrative spheres. note 69, at 81.
62. Interestingly, charges of depoliticization and social detachment have been levelled against both Dare’ o and Álvarez. SeeAching, supranote 29, for adescriptionof andanswer tothe criticismof escapismdirectedagainst Dare’ o andmodernistas generally.Koskenniemi, on the other hand, is quite harshwithálvarezwhen assessing his place on the French scene; see the conclusions of this article. Álvarezwas just a year younger than Dare’ o. Both were in Santiago at the same time and then met again at some of the Pan-American conferences.
63. See sources quoted in notes 59 and 60.
64. In opposition to the Hispanic heritage, Frenchness symbolized a universal cosmopolitanism that was seen by Latin Americans as including them in an epochal spiritual renovation. See Subercaseux, sources quoted in notes 59 and 60. note 60, at 123.
65. Rama, sources quoted in notes 59 and 60. note 69, at 81.
66. Álvarez had gained a diploma in political sciences at the é cole Libre des Sciences Politiques and in 1899 a doctorate in law at the University of Paris.
67. Huneeus, sources quoted in notes 59 and 60. note 78, 232.
68. sources quoted in notes 59 and 60., at 333.4.
69. See Ramos, sources quoted in notes 59 and 60. note 28, ch. 4.
70. See ‘Conferencias en la Universidad de Chile en 1899-1900’ (ms.); see sources quoted in notes 78, 80, 84, and
71. Fewer works covered international topics” La tehorie de l'arbitrage permanent et le conflict de limites entre le Chili et la republique Argentine (1898); El plebiscito ante la historia diplomatica y ante los principios del derecho internacional (1900).
72. In 1902 Álvarez was appointed as legal adviser to the Chilean delegation at the Second Pan-American Conference in Mexico. And in 1905 he obtained a permanent post. ‘Today, February 21, 1905, the present book about commissions, consultations, etcetera of the Ministry of Foreign Relations concerning to my employment as lettered advisor is opened.’ A. Álvarez, ‘Libro De Encargos’, at 1, in ‘Anotaciones, asesore’ as, consultas y correspondencia de Alejandro Álvarez, 1902-1929’, Vol 306 A, Archivo General Histo’ rico del Ministerio de Relaciones Exteriores de la Repu’ blica de Chile.
73. sources quoted in notes 59 and 60. note 86, unnumbered page.
74. In 1901 Álvarez wrote a programmatic piece on legal reform, in which he states that ‘the orientation that should be given to juridical and political studies is the one that accordswith the spirit and intellectual needs of modern times.’ ‘La Reforma de los Estudios Juridicos i Politics’, (1901) 6 La Revista de Chile, at 263.
75. It is interesting to note that while the impact of the revolution on Chilean cultural life has been amply acknowledged (e.g. Subercaseux, sources quoted in notes 59 and 60. note 86, unnumbered page. note 60, at 37-46), the reform of 1902 has been interpreted as a continuation of the pre-civilwar project and Letelier as being in the same camp as Álvarez (e.g. B. Bravo Lira, LaUniversidad enlaHistoriadeChile.1622-1992(1992), 175-8).Moreover, theprogressive reformistmovement of the 1960s had in mind 1902. ‘[N]ow, in 1966, we intend to make a new and very important movement forward that, with justifiable pride, we can compare in significance with that of the 1902’ (Eugenio Velasco, quoted in S. Lö wenstein, Lawyers, Legal Education and Development” An Examination on the Process Reform in Chile (1970), 91.
76. See Antonio Gramsci on the relationship between social groups and the strata of intellectuals created in the process of constitution of those groups, which give them ‘homogeneity and an awareness of its own function not only in the economic but also in the social and political fields’. The Antonio Gramsci Reader. Selected Writings 1916-1935, ed. D. Forgacs (2000), 301. On the use of legal consciousness in legal history see D. Kennedy, ‘The Rise and Fall of Classical Legal Thought’, unpublished MS, 1975 (reformatted 1998). ‘The notion behind the concept of legal consciousness is that people can have in common something more influential than a checklist of facts, techniques and opinions. They can share premises about the salient aspects of the legal order that are so basic that actors rarely if ever bring them consciously to mind’ (at 11).
77. L. Claro Solar, Explicaciones de Derecho Civil y Comparado, Vol. 1, De las Personas (1898) (published serialized).
78. Most subsections start with a pragmatic question that is subsequently answered in the body of the text.
79. Diego Lopez Medina, in his path-breaking study of the reception of transnational jurisprudence in Latin America, has shown that Latin American legal classicism combined both exegesis and Begriffsjurisprudenz. See LopezMedina, Teore’ a Impura del Derecho (2004), 160.
80. This configuration had a great impact on the legal profession” ‘The influence of these lawyerswas felt by the bar as well as by the judiciary. Their systematic organization of concepts embodied in Chilean private law seemed to reinforce the belief of the legal profession in the neutrality of the jurist, ensured by the rigorous exclusion of moral judgments in the analysis of the law. Hence, the conceptual elaboration of Chilean law by these lawyers legitimated even further the assumption that judges performed a technical role consisting of applying the law with no concern for the consequences to those affected by the rules.’ H. Frü ling, ‘Law in Society” Social Transformations and Crisis of Law inChile 1830-1970’, SJD dissertation,Harvard Law School, 1984, at 273.
81. Claro Solar sharply distinguishes between natural law and positive law (Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 92, 3-4) and affirms, for example, ‘But the law should not be confused with the rest of social sciences and most of all with morals’ (Most subsections start with a pragmatic question that is subsequently answered in the body of the text., at 1-2). Although when it comes to the definition of marriage and the discussion of divorce, Claro indicates thatmarriage is the fundamental base of the family and affirms its indissolubility that the law has recognized following the Catholic teachings, given that it has not found strong enough reasons to introduce a change thatwould have gone deeply against the religious ideas of the majority of the country (at 439).Note the difference with Álvarez, who was in favour of divorce.
82. Álvarez, ‘La nueva tendencia en el studio del derecho civil’, (1900) 4 La Revista Chilena, at 298.
83. See LopezMedina, Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 94, 165.
84. Álvarez, Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 97, at 300. Note the impact that this argument might have had on the post-civil war Chilean oligarchic order.
85. Most subsections start with a pragmatic question that is subsequently answered in the body of the text. To fulfil the function of regulating society, law has to remain close to real life in order to respond to modern aspirations and the needs of all social classes. For Álvarez, these new imperatives that transform modern societies pushing for appropriate changes in civil legislation have a twofold nature-material and intellectual-and are classified in four different categories” economic, political, philosophical and religious, and social. In each of them there is old and new in addition to material and ideological (doctrinal) aspects. For example, economic solidarity (doctrinal) and the new needs and conditions of theworking class (material) render individualism (doctrinal) and absolute property (material) ineffectual. The same argument is articulated in Álvarez, Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 78.
86. That is the capacity of these labels to acknowledge the ‘misplacement of ideas’, that is, the dissonance between concepts and referents produced by their superposition into non-central contexts-sociological jurisprudence in Álvarez's Latin America. R. Schwarz, Misplaced Ideas” Essays on Brazilian Culture (1992), 27. Oncatachresis see G. C. Spivak,ACritique of Postcolonial Reason” Toward aHistory of theVanishing Present (1999).
87. For this view see e.g. Koskenniemi's Gentle Civilizer” ‘More than his future colleagues, however, Álvarez received his views from general developments in jurisprudence and was able to articulate them into a self-conscious progressivism’. Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 38, at 302.
88. On the role of foreign forms to produce unfamiliarity see V. Shklovsky, Art as Technique, in Twentieth-Century Literary Theory” A Reader, ed. K. Newton (1997).
89. G. Teubner has argued that foreign imports work as irritants; see ‘Legal Irritants” Good Faith in British Law or How Unifying Law Ends Up in New Divergences, (1998) 61 Modern Law Review 1.
90. ‘Since 1815, the date of the Congress of Vienna, there is solidarism in Europe regarding its political and economic situation. Today solidarity is not only European but American’, Álvarez, Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 97, at 302. This idea, first exposed in relation to the development of private law in theAmericas, is then repeated throughout Álvarez's international legal scholarship. For instance,Álvarez suggests in1910 that international life among Latin American states is characterized by a new orientation in American consciousness that has continuously enlarged the sentiment of continental solidarity; from its nineteenth-century expressions, appreciated in the trend towards the formation of a confederation, to the twentieth-century expansion of solidarity to include the common study and solution of all the political and economic problems that are particular to the continent.Álvarez, infra note 127, at 241-3.Although there is amajor change in the reinterpretation of 1910, the Congress of Vienna represents now the individualistic European balance of power vis-à-vis American continental solidarity.
91. ‘When pointing at the tendency or orientation that comparative law provides to the national institutions, we do not want to say that this examination indicates any single type of institution that should be applied in any country, since that depends of the social status and the dominant ideas in that country at a given moment.’ Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 97, at 309.
92. Most subsections start with a pragmatic question that is subsequently answered in the body of the text., at 339. See R. Mangabeira Unger, False Necessity. Anti-necessitarian Social Theory in the Service of Radical Democracy (1987).
93. Hale, Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 35, at 148. In this respect, the absence of references to the ideas ofValente’ n Letelier (a leading lawyer and educator who among other things introduced positivist legal sociology in Chile) in Álvarez's own work is telling about his modernist opposition to positivism.
94. The conflict between liberals and conservatives resurfaced again after the civilwar of 1891 around religious controversies. Subercaseux, Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 60, at 155-63.
95. S. Grez Toso, La ‘Cuestio’ n social’ en Chile” ideas y debates precursores, 1804-1902 (1995).
96. Bernardo Subercaseux has argued that the triumph of economic liberalism entailed the defeat of political liberalism as an ideal for social change. Most subsections start with a pragmatic question that is subsequently answered in the body of the text. note 68, at 248.
97. I havemainlymade reference toDare’ o for a study of the second period of literarymodernism, that is after the departure of Dare’ o and the end of the civil war of 1891. See J.M. Fein,Modernism in Chilean Literature (1965).
98. I. Jaksic’, Academic Rebels in Chile” The Role of Philosophy in Higher Education and Politics (1989), 69-91. Among them, the philosopher Enrique Molina is an example of the links between ‘spiritualism’ and the revival of continental regionalism; see ‘El nacionalismo y la solidaridad americana’, (1925) 2 (2) Atenea 2.
99. See sources Most subsections start with a pragmatic question that is subsequently answered in the body of the text. notes 33 and 89.
100. They might also explain Álvarez's obsessive craving for recognition of his views, ideas, and influence. This has been a common trait of Chilean intellectuals of mesocratic origin,who in spite of their intellectual achievements fail to achieve social recognition and political influence. Subercaseux offers this interpretation for understanding the egocentrismand resentment of the liberal intellectual José Victorino Lastarria. sources Most subsections start with a pragmatic question that is subsequently answered in the body of the text. notes 33 and 89. note 68, at 233-40. Pike senses a degree ofmegalomania in Álvarez's fixationwith his own influence. F. Pike, Chile and the United States, 1880-1962 (1963), 404.
101. Alejandro Álvarez's father cultivated a hacienda in the transversal valleys of the north of Chile. McBride describes the social organization of labour of these lands as less hierarchical, since labour was supplied not by inquilinos, as in the central valley, but by wage labourers. ‘The provinces of the north have an agrarian situation different from the that of the central region. The regime of the hacienda is less fixed upon it. There is no such clear stratification of society as in the central provinces. The social structure is simpler but more democratic.’ See G.McBride, Chile” Land and Society (1936), 357-69.
102. Álvarez is absent from Dare’ o's listing of his bohemian (but highly selective, including the president's son Pedro Balmaceda Toro) circle of friends, and was not a member of the group known as Ricardo Montaner Bello's young intellectuals. See respectively R. Dare’ o, Autobiografe’ a (1983 [1918]), and Feliu Cruz, sources Most subsections start with a pragmatic question that is subsequently answered in the body of the text. notes 33 and 89. note 67, at 62.
103. ‘Álvarez continued his studies in law’, Feliu Cruz, sources Most subsections start with a pragmatic question that is subsequently answered in the body of the text. notes 33 and 89. note 67, at 60 Arturo. Alessandri, on the other hand, whowasanactive participant in theopposition againstBalmacedaandlaterbecamepresident (1920-5,1932-8) under a liberal coalition, had bitter disputes with Álvarez, excluding himfromthe Chilean delegation to the Pan-American Conference inMontevideo in 1933.
104. This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. Nothing about that studentmade him notable for his wit or for his dedication to his studies, the existence of the psychicmaterials that have elevated him to the exalted regions of human knowledge.’ Figueroa, sources Most subsections start with a pragmatic question that is subsequently answered in the body of the text. notes 33 and 89. note 10, at 412. For similar statements see Gamboa, sources Most subsections start with a pragmatic question that is subsequently answered in the body of the text. notes 33 and 89. note 9, at 11, and Álvarez Álvarez, sources Most subsections start with a pragmatic question that is subsequently answered in the body of the text. notes 33 and 89. note 89, at 45.
105. Modernistswere the ‘first to regard themselves as separated from the rest of society, and justify this isolation on the grounds that modern society was base and materialistic, ignorant of the true values which they, as seers and prophets, glimpsed.’ J. Franco, TheModern Culture of Latin America” Society and the Artist (1970), 23.
106. For themain Chilean exponent of sociological empiricismin legal studies see V. Letelier, Gé nesis del Derecho (1967 [1918]).
107. Adam Sharman argues thatmodernism was a new sensibility that sustained the romantic project of regional differentiation and thus continued using positivist metaphors of evolutionism, such as race, in the same way as Álvarez was using it. ‘Modernismo, positivismo y (des)herencia en el discurso de la historia literaria’ in Richard Cardwell and BernardMcGuirk (eds.), Qué es el modernismo? Nueva encuesta, nuevas lecturas (1993).
108. For example, Dare’ o's short stories” ‘El rey burgues’ (The bourgeois king) or ‘La cancio’ n del oro’ (The song of the gold) in Prosas profanas y otros poemas (1901).
109. Álvarez, This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. note 97, at 335. Subsequently Álvarez transposes this line to international law” ‘Up to the middle of the nineteenth century, international life was dominated by feelings and passions, especially by national egoism, prejudice of race, territorial aggrandizement, and by other similar selfish interests.'Álvarez, Prosas profanas y otros poemas. infra note 196 (1929), 46.
110. Cf. Rama, This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. note 69, at 78.
111. During the first decade of the twentieth century. Álvarezwrote a number ofminor pieces and legal briefs for the Ministry of Foreign Relations that paved the way for the publication in 1910 of his most relevant piece on the subject that alsomarked his debut as a renowned international lawyer. Le droit international amé ricain, son fondement-sa nature d'aprè s l'histoire diplomatique des é tats du nouveau monde et leur vie politique et é conomique (1910). This publication also runs parallel to the revisionist posture that characterized the sensibilities in most Latin American countries of an elite facing the first centenary of independence.
112. Álvarez, This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. note 78, distinguishes between the Roman and the modern, the Frankish, the medieval, and transitional models of the family.
113. Note the parallels in the titles ofálvarez's dissertation (Álvarez, This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. note 78, distinguishes between the Roman and the modern, the Frankish, the medieval, and transitional models of the family. note 78) and his publication of 1910 (Álvarez, This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. note 78, distinguishes between the Roman and the modern, the Frankish, the medieval, and transitional models of the family. note 127).
114. Álvarez co-founded the American Institute of International Law(1912), andwas an active participant in the effort to codify American international law; see the next section, infra.
115. Beforeálvarez,nineteenth-centuryliberal intellectuals suchasLastarria,Alberdi,Alcorta,Quesada,orTudela used and promoted the expression ‘American international law’. See my article, Álvarez, This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. note 78, distinguishes between the Roman and the modern, the Frankish, the medieval, and transitional models of the family. note 33. Álvarez was conscious of the previous tradition and of the differences between the previous and his own usage of the term. Álvarez, La reconstruccio’ n del Derecho de gentes” el nuevo orden y la renovacio’ n social (1944), 76.
116. See Obrego’ n's interpretation of Calvo, Álvarez, This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. note 78, distinguishes between the Roman and the modern, the Frankish, the medieval, and transitional models of the family. note 49.
117. Almacio Alcorta ((1883) 7 (June) Nueva Revista de Buenos Aires, at 422-3) criticized Calvo, who, ‘dedicated exclusively to the study of international law, had been able to give to his work a more American unfolding, and as a fellow countrymanwewould say,moreArgentinean… If hisworkhas gained forhimanameamong distinguished publicists, fair is that this name reflects with benefits for these [Latin American] countries so little known in relation with their true importance, and so many times victims of the doctrines that the powerful have secured to establish in their benefit.’ It is interesting to note here thatwithin the context of the pre-fragmentation of letters, Alcorta sees full-time dedication to international law as a sort of civil sin. Calvo answered, ‘These words entail a reproach that is not comprehensible for an Argentinean juristconsult who follows the world's scientific movement, precisely because the results obtained in that respect are superior to everything that might have been expected. Read the latest editions of Hefter, Sir R. Phillimore, Bluntshli, Fiore… and you will see that since then no single book of international law has been published in which Latin America has not occupied the rank that correspond to her among the cultivated nations. ((1883) 7 (Nov.) Nueva revista de Buenos Aires, at 632).
118. ‘The states of America share the same civilization as the European peoples, yet they have developed under different conditions.’ Álvarez, Obrego’ n's interpretation of Calvo, Álvarez, This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. note 78, distinguishes between the Roman and the modern, the Frankish, the medieval, and transitional models of the family. note 49. note 127, at 18. A similar idea is expressed by him, Obrego’ n's interpretation of Calvo, Álvarez, This interpretation explains a common though puzzling statement about Álvarez” ‘The beginnings of his career were dull and belated. note 78, distinguishes between the Roman and the modern, the Frankish, the medieval, and transitional models of the family. note 49. note 101, at 33.
119. A. Álvarez, ‘Latin America and International Law’, (1909) 3 AJIL 269, at 273-4.
120. The re-emergence of Americanism, the regional sentiment that characterized the early period of postindependence, had to wait until the crisis of scientific positivism and the articulation of an idealist reaction of which modernism was part. Liberal governments, such as the Mexican Porfiriato or Roca in Argentina, having gained national political stability under the aegis of positivism, had no patience for regionalist attitudes that would challenge their central authority. See Hale, ‘The states of America share the same civilization as the European peoples, yet they have developed under different conditions.’ note 35.
121. Among the chronicleswritten by José Marte’ during theNewYork years,Mother America andOur America had an enormous imprint on Latin American intellectuals. The former was originally a welcome speech to the SouthAmerican delegates to the first Pan-American conference inWashington. ‘In ourAmerica there should be no Cain; our America is one. But the other America [United States] refused to sign the project that declared the elimination of conquest from American public law. Then embarrassed, [theUS] agreed to eliminate it for twenty years.’ La Nacion, 3May 1890, quoted in A. Palacios, La Comunidad Iberoamericana (1959), p. 63.
122. Themajor and most influential exponent of the dichotomy between civilization and barbarism as the central dynamic in Latin American culture was D. F. Sarmiento, Facundo, Civilization and Barbarism, trans. K. Ross (2003 [1845]).
123. José Marte’, Our America, trans. E. Randall (1977), 88.
124. ‘Education at our universities… has been exclusively European, leaving aside its American character, that is, it has been shaped by the old world, without any preoccupation as to the special conditions and developmentof thenewworld, that require a tendencyin this education tobeinharmonywith theconditions that distinguish us fromEurope.’ A. Álvarez, Conferencia sobre Derecho Constitutional Americano (1910), at 2.
125. A. Álvarez, Rasgos generales de la historia diploma’ tica de Chile (1810-1910)” primera é poca de la emancipacio’ n (1911), 15.
126. Álvarez, The re-emergence of Americanism, the regional sentiment that characterized the early period of postindependence, had to wait until the crisis of scientific positivism and the articulation of an idealist reaction of which modernism was part. note 127, at 23.
127. The re-emergence of Americanism, the regional sentiment that characterized the early period of postindependence, had to wait until the crisis of scientific positivism and the articulation of an idealist reaction of which modernism was part., at 23-25, and The re-emergence of Americanism, the regional sentiment that characterized the early period of postindependence, had to wait until the crisis of scientific positivism and the articulation of an idealist reaction of which modernism was part. note 141, at 15-29.
128. Álvarez's proposition raised opposition at times from Latin American, US-American and European international lawyers; seemy exploration of these debates at The re-emergence of Americanism, the regional sentiment that characterized the early period of postindependence, had to wait until the crisis of scientific positivism and the articulation of an idealist reaction of which modernism was part. note 33.
129. Álvarez's proposition raised opposition at times from Latin American note 141, at 30.
130. Álvarez's proposition raised opposition at times from Latin American., at 24, 27, 57.
131. ‘The general conclusion that can be drawn is that international law, considered in its totality, has to be studied with a different conception from the one that has prevailed’. Álvarez, Álvarez's proposition raised opposition at times from Latin American note 97, at 266. ‘The solidarity of the American continent only aimed to repel the interference of Europe and not to isolate the hemisphere fromthe civilization of the OldWorld.’ Álvarez, Álvarez's proposition raised opposition at times from Latin American note 135, at 312.
132. J. E. Rodo’, Ariel, trans. Sayers Peden (1988), 42-3 (emphasis in original).
133. ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”. But in lieu of an absolute distinct and autonomous particularity, we Latin Americans have a heritage of race, a great ethnic tradition, to maintain, a sacred place in the pages of history that depends upon us for its continuation. Cosmopolitanism, which we must respect as a compelling requisite in our formation, includes fidelity both to the past and to the formative role that the genius of our race must play in recasting the America of tomorrow.’ ‘The general conclusion that can be drawn is that international law, considered in its totality, has to be studied with a different conception from the one that has prevailed’., at 44.
134. ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”., at 71.
135. ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”., at 73-4 (emphasis in original).
136. ‘French, Italian, German, North American, Russian or Slavic and Japanese schools.’ Álvarez (1929), infra note 196, at 44.
137. Álvarez, ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”. note 141, at 272 (emphasis added).
138. In his annual State of the Union address to Congress in 1823, the US president James Monroe declared that the western hemisphere was closed to future colonization and consequently any attempt by a European power to occupy or control any nation in the western hemisphere would be viewed as a hostile act against the United States. At the time of its proclamation, this statement of foreign policy, known as the ‘Monroe Doctrine’, expressed the United States’ moral commitment against European colonialism. Subsequently, however, it came to be interpreted as asserting a special area of influence over Latin America, including, according to Roosevelt's corollary of 1904, the right to intervene in their domestic affairs. A. Álvarez, The Monroe Doctrine” Its Importance in the International Life of the States of the NewWorld (1924).
139. L'histoire diplomatique des Ré publiques Amé ricaines et la Confé rence de Mexico (1902), 49, and ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”. note 127, ch. 5. As a legal adviser to the Chilean government Álvarez was sent toWashington in 1908 to work on an amicable resolution of the ‘affair Alsop’, a dispute between the Chilean state and Alsop Company (a Chilean corporation in which some US citizens were stakeholders) regarding claims of Alsop against Bolivia that originated in the territory ceded to Chile after theWar of the Pacific. Álvarezworkedwith State Department solicitor James Brown Scott, reaching in 1909 an agreement that was not recognized by incoming Secretary of State Knox. For an extensive account of the affair see Pike, ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”. note 116, at 139-42.
140. For example, territorial disputes between Chile and Argentina inaddition to controversies over disarmament were behind the Argentinean opposition to the Chilean initiative to codify ‘American international law’ (in the Pan-American Conference of 1923 in Santiago) that was seen by Argentinians as a Brazilian and Chilean alliance against their interests. For the Argentinian position against Álvarez see D. Antokoletz, Tratado deDerecho Internacional Pu’ blico (1951), 59-60” ‘It is very doubtful that the fundamental rights of states (independence, juridical equality) have been of American origin and then incorporated into the universal international law.’ See generally Pike, ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”. note 116, at 403. In the same vein, Chile had to wait until the resolution of the of the Tacna-Arica dispute with Peru, pending since the end of the War of the Pacific, to break its traditional regional isolationism and its opposition to the otherwise regionally accepted principle of compulsory arbitration. Pike, ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”. note 116, ch. 7.
141. For example, the idea of ‘American international law’ was used by Latin American diplomats to support the creation of an American Society of Nations, independent from the League as a way of establishing an intra-regional organization with competences that would have been larger than those of the Pan-American Union, a proposal thatwas opposed by the United States. Álvarez, La Cinquième Confé rence Panamé ricaine et la So’ cié té des Nations (1924).
142. Thus, at the Pan-American Conference of 1928 in Havana, Álvarez's project of a code of public international law was rejected due to US-American opposition. On the other hand there was agreement on Bustamante's code of private international law.
143. This interpretation is suggested by Pike, ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”. note 116, at 222-3.
144. Oswald Spengler's The Decline of theWest was a bestseller in Latin America. Franco, ‘Whatmay perhaps be lacking in our collective character is a sharply defined “personality”. note 121, at 82, 118-19. Álvarez describes the First and SecondWorldWars as social cataclysms.
145. Franco, Oswald Spengler's The Decline of theWest was a bestseller in Latin America. note 121, at 82.
146. Oswald Spengler's The Decline of theWest was a bestseller in Latin America., at 40-1.
147. Ades, Oswald Spengler's The Decline of theWest was a bestseller in Latin America. note 40, passim.
148. E.g. Diego Rivera's ‘Pan-American UnityMural’, currently at City College of San Francisco.
149. See Le droit international nouveau dans ses rapports avec la vie actuelle des peuples (1959). This publication goes beyond the three periods of Álvarez's trajectory analysed in this article. However, I make reference to it because it is partly a memoir, partly a massively detailed description of his talks and publications and comments on his work delivered by illustrious international lawyers, butmainly a comprehensive revision and development of his thinking based on the bulk of his oeuvre. Álvarez proposes the creation of three new sciences to investigate the life of people” (i) a science of the evolution of the life of peoples, chiefly from the international standpoint, that would show the unfolding and transformation and evolution of peoples; (ii) a science of the psychology of peoples, mainly from the international standpoint, that would grasp the mentality, sentiment, and immaterial factors of social life; and (iii) a science of the renovation of the basis of social life that would provide the insights to renovate political sciences and economics and create the science of law, a social science and an international science.
150. See, e.g., Diego Rivera's ‘Pan-American UnityMural’, currently at City College of San Francisco., part 1, section 1, ch. 7.
151. On the psychology of peoples see Diego Rivera's ‘Pan-American UnityMural’, currently at City College of San Francisco., part 2, section 2, ch. 1.
152. The following publications were written by Álvarez on the occasion of differentmeetings” 1912, Diego Rivera's ‘Pan-American UnityMural’, currently at City College of San Francisco. note 101; 1923, infra note 181; and 1927, infra note 188.
153. The Álvarez of 1959 has grown conventional in contrast to previous periods, which illustrates the general fatigue that Latin American modernism suffered by the middle of the century, before beginning a further round of renovation during the 1960s and 1970s.
154. Quoted by M. C. Ramirez, ‘Inversions. The School of the South’, in M. C. Rame’ rez and H. Olea et al. (eds.), Inverted Utopias. Avant-Garde Art in Latin America (2004), 73.
155. ManleyO.Hudson Papers.HarvardLawSchool Library. Correspondence B. Period 2” 1919-44.MSBox 5, folder 5-23. Hudson is referring to Álvarez's La codificacio’ n del derecho internacional en Amé rica” trabajos de la Tercera Comisio’ n de la Asamblea de Jurisconsultos reunida en Santiago de Chile Santiago (1923).
156. Handson Papers, Diego Rivera's ‘Pan-American UnityMural’, currently at City College of San Francisco. note 172.
157. Leonhard has suggested that ‘Lauterpacht, likemany jurists from theUnited States and Britain, considers the Latin American international lawyers to belong to the Continental tradition. It is likely that any distinction between ContinentalandLatinAmerican international jurisprudence is overlooked because there is a feeling that the contributions of Latin Americans to the study of international law are not significant enough to merit such a distinction’. Leonhard, Handson Papers note 17, at 677. H. Lauterpacht, The Development of International Law by the International Court (1958), 127-34, where, sustaining the claim that there has been no alignment of Anglo-Americans against Continentals in the ICJ, he subsumes Latin Americans under the latter.
158. R. P. Dhokalia, The Codification of Public International Law (1970), 68-71.
159. (1926) 20 AJIL 655.
160. Handson Papers., at 657.
161. MoorewasUS-American delegate to the Pan-American conferences, international law professor atColumbia University and later judge at the Permanent Court of International Justice.
162. See copy at Harvard Law School” ‘Gift of Alexandre Álvarez’, ‘Hommage de l'Auteur’.
163. La Codificacio’ n del Derecho Internacional en Amé rica (1923). After the Santiago conference, Álvarez also published a scholarly piece specially tailored for an audience of international lawyers, ‘Le nouveau droit international public et sa codification en Amerique’ (1924).
164. Codification of American International Law (1925). The advisory committee of jurists that prepared the projects was composed of James BrownScott,Alejandroálvarez, LuisAnderson, PierreHudicourt, José Matos,Rodrigo Octavio, and Antonio Sa’ nchez de Bustamante.
165. See J. BassetMoore, A Digest of International Law (1906), vol. 6, 247, for an account of the circumstances under which interventionwas thought to be lawful. Pike, copy at Harvard Law School” ‘Gift of Alexandre Álvarez’ note 116, at 226, describes the stance adopted byUSAmerican diplomats at the Pan-American conference in Havana” ‘Charles Evens Hughes, head of the United Sates delegation, indicated that his country would never consider abandoning its rights of intervention, allegedly sanctioned under certain circumstances by international law as interpreted by leading authorities throughout the world.’ ‘From time to time there arises a situation most deplorable and regrettable in which sovereignty isnot at work, inwhich for atimeandwithin a limited sphere there isnopossibilityofperforming the functions of sovereignty and independence… What are we to do when government breaks down and American citizens are indanger of their lives?… Nowit is a principle of international law that insucha case a government is fully justified in taking action-I would call it interposition of a temporary character.'Charles E. Hughes, Report of the Delegates of the Untied States of America to the Sixth International Conference of American States, Held at Havana, Cuba, January 16 to February 20, 1928, at 14. See also Charles E. Hughes, Our Relations to the Nations of the Western Hemisphere (1928), 81-3. The United States finally renounced any right of intervention in the Americas in a series of treaties signed during the 1930s. See S. Bemis, The Latin American Policy of the United States. An Historical Interpretation (1943), chs. 12-15.
166. Published in 1904 and translated into English in The Modern Legal Philosophy Series, The Science of the legalmethod (1917) and TheContinental History series, The Progress of Continental law in the 19th century, by various authors (1918) at 3-64 and 151-262
167. Revue Gé né rale de Droit International Public. Vol. 20, 1913.
168. The American Institute of International Law’,Washington, Institut amé ricain de droit international, 1917.
169. Rapport. Unio’ n Juridique Internationale Sé ances et Travaux, vol. 2, Novembre 1919 (1920).
170. Rio de Janeiro Imprensa Nacional 1927, which was written by Álvarez on the occasion of the mentioned meeting in Rio
171. S. Freud, The Uncanny (2003 [1919]). My familiarity with Latin America, which allowed the present contextualization of Álvarez'swork, brings out a range of coincidences revealing a typically Latin American desire to be genuinely central in the face of the repressed realization of our peripheral condition. This article was initially written to fulfil the same degree and at the same law school whereHudson gained his SJD, roughly a century beforeme (and during the period when Álvarez presented a lecture on the renewal of international law), yet, obviously, under the guidance of a different supervisor, who happened to be the Manley Hudson Professor of Law.
172. http//www.ljil.leidenuniv.nl/index.php3?c=181 (last visited 1 November 2005), inverted commas in the original.
173. O. Schachter, ‘The InvisibleCollege of International Lawyers’, (1977-8) 72Northwestern UniversityLawReview 217.
174. A. Álvarez, L'histoire diplomatique des ré publiques americaines et la Conference deMexico (1902).
175. Álvarez, copy at Harvard Law School” ‘Gift of Alexandre Álvarez’ note 97.
176. Álvarez, copy at Harvard Law School” ‘Gift of Alexandre Álvarez’ note 135.
177. copy at Harvard Law School” ‘Gift of Alexandre Álvarez’ note 89 and accompanying text.
178. In 1914 the Division of International Law of the Carnegie Endowment for International Peace organized a Conference of Teachers of International Law in connectionwith the annual meeting of the American Society of International Law. The purpose of the conference was to consider further steps in the development of the study of international law in American universities. Following the resolution adopted in the conference calling for the invitation of prominent experts in international lawto lecture atUS universities,Álvarezwas entrusted by James Brown Scott, director of the Division of International law, with the task of delivering lectures during the academic years of 1916-17 and 1917-18. Among other universities, Álvarez lectured at California, Chicago, Columbia, Harvard, Iowa, Michigan, Minnesota, Princeton, Stanford, Tulane, and Yale. At Harvard Álvarez delivered three lectures in December 1916, at the time Manley Hudson was pursuing his SJD. See Álvarez, International Law and Related Subjects from the Point of View of the American Continent. A Report on Lectures Delivered in theUniversities of the United States, 1916-1918 (1922). An expanded version of the lectures was published in 1929” A. Álvarez, ‘The New International Law’, (1929) 15 Transactions of the Grotius Society 35.
179. See La reconstruccio’ n del Derecho de gentes” el nuevo orden y la renovacio’ n social (1944), 31.
180. Dupuy, copy at Harvard Law School” ‘Gift of Alexandre Álvarez’ note 89 and accompanying text. note 3, at 12-13.
181. I have borrowed from literary studies this technique of interpreting cultural products ofminority agents by identifying the signs that shuttermeaning, rather than uncovering their formal, textual signification. See D. Sommer, Proceed with Caution, when Engaged byMinorityWriting in the Americas (1999).
182. ‘Using his non-European voice and his interest in a regional American law, he could pass as an innovator while ensuring ready acceptance by the mainstream. For the claim to renew legal doctrine because it has failed to reflect “social reality” is a deeply conservative technique that deflects criticism away from “reality” and those responsible for it. By directing his attack against an academic enemy that was largely a straw man, Álvarez remained unthreatening for the legal establishment and could be celebrated as a wonderful manifestation of the profession's liberality.’ Koskenniemi, Gentle Civilizer, copy at Harvard Law School” ‘Gift of Alexandre Álvarez’ note 89 and accompanying text. note 38, at 304.
183. ‘Even a close reading indicates only two rather undramatic problems” formalism and Eurocentrism. In particular, Álvarez refrained from identifying his enemy. If law was based on interdependence, why did it now (and since the mid-nineteenth century) fail to reflect it? In the former case, Álvarez should have identified the political causes (or actors) that prohibited “life” from receiving an authentic expression in law. But the impression is that he always identified the problem with an obsolete legal doctrine-thus either inflating the importance of a marginal profession, or failing to indicatewhy one should be concerned.’ ‘Using his non-European voice and his interest in a regional American law, he could pass as an innovator while ensuring ready acceptance by the mainstream., at 305.
184. It is worth noting that Alejandro Álvarez bequeathed to the University of Chile his personal library, his collection ofmedals (instructing them to be melted down and the resulting gold used as determined by the law school), and his watch, as well as the amount accumulated in his bank account, that had to be spent on the creation of a seminar on international law and on a prize for the best monograph on public international law written at an American university. He also instructed his remains to be cremated and returned to Chile. In 1960 Álvarez explained his intention in a letter addressed to the dean of the law school” ‘What used to be my Alma Mater has always occupied a preferential place in my mind. Having been dedicated for many years, and almost exclusively, to the study of public international law, I have formed myself the conviction that the study of this discipline should be realized under bases different from the traditional ones… By bequeathing my library and thementioned valuablesmy purpose is to give life to an institution that strives to deepen and renew these studies and that offers a prize that encourages thosewhodemonstrate theirunderstanding of the relevance of the said studies.’ Unclassified papers, Coleccio’ n Alejandro Álvarez, Universidad de Chile.
185. I havementioned above Álvarez's use of the League to oppose US hegemony in Latin America. Álvarez also used his professional position to advance Chilean interests in respect of conflicts with other Latin American countries. In 1920 Álvarez informed the Chilean minister of foreign affairs that French intellectuals would support Chile in the conflict with Peru about the realization of the plebiscite of Tacna and Arica as parallel to other plebiscites in Europe. Álvarez narrates his encounters with Lapradelle and Fauchille, editors of the Revue Gé né rale de Droit International Public, and says that they asked himto write an article about plebiscites in the face of the new international law. ArchivoMinisterio de Relaciones Exteriores, Vol. 823c, Legacio’ n de Francia. See also the long correspondence that Álvarez exchangedwith the Colombian international lawyer Yepes, discussing the ways in which to advance Álvarez's ideas to support Chilean or Colombian foreign policies. Unclassified papers, Coleccio’ n Alejandro Álvarez, Universidad de Chile.
186. For example, international lawmight be interpreted as having facilitated European colonial expansion and informal intervention on the one hand and, on the other, as having bestowed on Latin American states of the nineteenth century sovereign rights (but not to other regions of the periphery) that shielded them from direct foreign interference but not from economic domination.
187. On the one hand, international lawyers’ double consciousness pulls their allegiances between the discipline andthelocal context. Ontheotherhand,evenwhencrossingthecentre/peripheryboundarytheinternational lawyer redeploys the distinction. For example, we might think of the case brought by Nicaragua to the ICJ involving US paramilitary action in Central America as an intervention of US-American international lawyers to change domestic politics, rather than understanding it as an intervention of the Latin American discipline of international law.