This chapter reopens the early 19th-century treatises of James Kent and Henry Wheaton, the first Americans to systematically describe and analyze international law. It remarks on the importance that both authors assigned to the law of nations, and explores why Kent and Wheaton paid such homage to Hugo Grotius and what they saw as the Dutch jurist's Protestant fashioning of what Wheaton called ‘the international law of Christendom’. The international law of Kent and Wheaton was a law necessarily limited to a circle of like-minded states bound by a common tradition of culture, law, and morals, a characterization which departed from Grotius's own universalistic preferences. It is argued that Kent and Wheaton rejected the universalism in the Grotian tradition for two of the very reasons that motivated them to emphasize international law in the first place. First, like the Founding Fathers, they were anxious to use the law of nations to secure the recently won independence and sovereignty of the United States. Second and more originally, Kent and Wheaton sought to answer new positivist critiques of international law by John Austin and to affirm the efficacy of international law in international relations. Finally, it is argued that in so doing, Kent and Wheaton were not guilty of the sins of legalism-moralism sometimes ascribed by George Kennan and other ‘realists’ to American international lawyers in general. Rather Kent and Wheaton presaged a realism about international law that would later characterize some, though not all, Americans who came to practice and profess the discipline.
Keywords: James Kent; Henry Wheaton; law of Christendom; Hugo Grotius; universalism; legalism-moralism; George Kennan; realism
Chapter. 12489 words.
Subjects: Public International Law
Full text: subscription required