The History of International Law – or International Law in History? A Reply to Alexandra Kemmerer and Jochen von Bernstorff

Can international law scholars be historians, and should they be? This question, arguably at the centre of Alexandra Kemmerer’s post, might initially seem surprising. At first glance, most research on the history of international law does not reveal any major differences between the disciplines. Lawyers of a historical bent are just as familiar with, and adept at, the methodical standards of the historiographical approach, encompassing proximity to and critique of sources, transparency in terms of the approach and the assumptions made, insight into the historian’s own subjectivity and into the construed nature of all narratives.

If, nonetheless, there does exist a communication gap between the respective examinations of the history of international law, then this is attributable less to these kinds of methodical requisites and more to the fact that it isn’t always very clear why we are interested in international law and why we undertake research on it. Evidently, the discourses within the legal and historical disciplines on the state of the art in the field do not run parallel to one another; indeed they may in fact be incommensurable. What might help is an interdisciplinary dialogue, particularly when it is understood that interdisciplinarity is not about adopting the objectives of another discipline but instead debating the potential scope – and the limits – of one’s own work.

This might help us to understand why international law’s much-discussed ‘historiographical turn’ has gone largely unnoticed by professional historians. This is starting to change, but a programmatic mapping of contemporary research, as undertaken in the formidable Oxford Handbook of the History of International Law, clearly shows how much the research is still indebted to legal discourse. Or take the German Studies on the History of International Law, a series set out to contribute to the discussion of the historical foundations of the current international legal order. It seems that despite the recent interest in fashioning a global history and in the postcolonial turn, as discussed on this blog by Jochen von Bernstorff, little has really changed. In other words: lawyers, even when working on historical topics, are predominantly interested in understanding the law itself. This, of course, is a legitimate source of scholarly interest for jurists — but historians might find something lacking.

Can international law be explained on its own terms?

A historian with aspirations to explore international law should perhaps set out not to attempt more than legal history scholars, but instead to contribute something different. Historians, as outlined in the article by Jacob Katz Cogan cited by Alexandra Kemmerer, tend to see law primarily as the ‘deep product’ of its time. Rather than trying to use international law to explain its own existence, the main point of interest is the law’s historical context.

One might argue that it is only when placed in its context that law is imbued with a meaning and a function, and only by looking at the context can we determine what individuals, groups or institutions understood law to mean at various times in the past. What kinds of expectations and demands have been placed on international law, under what circumstances and with what consequences? Why were international law arguments and actors seen as important in certain international and even domestic conflicts, but not in others? Under which political, sociocultural or economic conditions did ideas like the family of nations, international jurisdiction, humanitarian intervention etc. became conceivable as legal concepts?

For example: from a legal perspective, Germany’s violation of Belgian neutrality in August 1914 is perfectly unambiguous. Yet such an approach would neglect the crucial point: namely how this violation could create a dynamic which ultimately turned the First World War into a struggle for international law itself. Only when we consider the politics, culture and mentality of the time does it become clear that Britain’s invoking of international law and the sanctity of treaties developed such great momentum largely because Germany’s legal breaches were depicted as an attack on the very moral fibre of civilised society: the defence of international law as a question of honour! Fifty years earlier or later the reaction would undoubtedly have been different; in the First World War it contributed to the image of the European war as a campaign of civilisation against a barbaric enemy, an attitude previously only adopted towards the non-European world.

Certainly, those who see international law as a force for good per se and who are interested only in tracing the success story of its development will have little appreciation for detailed contextualisation. The same will apply to those who seek to disparage international law as a purely Eurocentric imperialist project. Historians, however, often find it difficult to see the historical development of international law solely in terms of progress or regression — to say nothing of more dated interpretations setting out a succession of neatly separated Spanish, French, English eras etc.

Unfamiliar and in need of explanation

The advantage of a genuinely historical approach thus lies in the fact that its conceptual roots are not exclusively rooted in law itself but instead in a general interest in all dimensions of the past. As such, historians who are keen to explore legal themes should not feel obliged to limit themselves to working within legal criteria or that they must try to approximate the systematic and stringent terminology of a juridical approach. Ultimately the endeavour should be less about the history of international law and more about international law in history.

Admittedly, this kind of outsider perspective lacks some disciplinary training. But historians are quite adept at familiarising themselves with the subject area of their research topics. In fact, it can be rather advantageous when legal terms, thought patterns and actions are looked at unburdened by the usual disciplinary filter. In this way elements which to a lawyer are self-evident suddenly become unfamiliar and in need of explanation. This much, at least, has been learnt by historians through debates and exchanges with anthropology and ethnology. After all: what can we really know about the world of the past (or indeed outside of Europe) if we apply only the framework of our own familiar categories? The historical view can reveal more by examining the ideas of international law and the practices of its actors from the outside rather than from within.

While such notions might be the product of an amateurish over-ambition, they may also serve as a contribution to an interdisciplinary dialogue with both sides open to the perspectives of the other. Historians should make their peace with the fact that lawyers and legal scholars tend to see the history of their profession as a meaningful and consistent whole – indeed they have to, as this is crucial to the integrity of their discipline. Lawyers, for their part, must accept that historians often insist on the contingency of the course of history and see international law not in terms of supra-historical categories but instead as an epiphenomenon of distinct political and sociocultural processes. After all, thinking about history is about remembering that nothing is inevitable and that things could have turned out altogether very differently.

This post first appeared in German language on the new international law blog voelkerrechtsblog.com, run by the Association of Young International Lawyers based in German-speaking countries but with an international outlook. The post was translated by Fiona Nelson, University of Potsdam. The German version can be accessed here.