Völkerrechtsgeschichten – Histories of International Law

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This is the first of a series of posts on the history of international law that 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. Further posts in the series will be published here shortly.

The history of international law comes in plural forms, and with multiple perspectives. International law does not have a history; it has histories. Martti Koskenniemi writes about ‘histories of international law’. His book ‘The Gentle Civilizer of Nations’ played a significant role in international law’s ‘historiographical turn’ around the turn of the millennium. Before this point, all had been rather quiet on the international legal history front. Back in 1952, the history of the discipline had been described as the ‘Cinderella of the doctrine of international law’ by Georg Schwarzenberger. The Cold War marked an ice age for the history and theory of international law. Pragmatists were dominant not only in practice, but also in scholarship. And ‘The Epochs of International Law’ by Wilhelm Grewes, published in German in 1984 and in English translation in 2000, were still firmly rooted in the pre-San Francisco era.

The study of international law has always involved historical and geographical background knowledge. Yet, the real move toward historical reflection only came with the growing awareness of the inadequacies of the ‘New World Order’ that had evolved after 1989. The emergence of new international institutions, the rapid proliferation of international and supranational courts, new human rights regimes and the blossoming of international criminal law were all soon overshadowed by Srebrenica, 9/11, transnational terrorism and the global financial crisis. The ‘fragmentation’ of the international legal order, the collision and competition of various normative orders, prompts questions about concepts and genealogies.

Ach, Europa!

Against this backdrop, the history of international law has undergone a veritable boom over the last ten years. The Journal of the History of International Law, the numerous studies written at the Max Planck Institute for European Legal History in Frankfurt and the recently published Oxford Handbook of the History of International Law are just the most prominent examples of the vast and growing literature on the subject.

Authors are taking a closer look at the darker legacies of the European mission civilisatrice. But it remains far from clear how adequately to approach the much-deplored Eurocentrism of international law and its history. It’s not just people and events that are informed by this European focus; it has also shaped and coined positions and concepts – and the very standards of historiography. Can research in international legal history really leave behind the Eurocentric framework of international law without also, at the same time, renouncing its claim to presenting a history of international law (and not just, as Rose Parfitt sagely points out, a historiography of something else)?

A more promising approach might be to attempt a well-considered contextualization that decentralizes international law and shifts Europe to the periphery for once – very much along the lines of Dipesh Chakrabarty’s ‘Provincializing Europe’. This is motivated, one might assume, not only by concerns of historiographical fairness but also with a view to the changing global political tableau. An idea of what this kind of decentralized European legal history might look like in a global context is set out by Thomas Duve in a memorandum that is equal parts ambitious and inspirational.

Law and history, lawyers and historians

We need to take into consideration not only the transregional expansion of familiar frames of reference, but also the transcending of disciplinary boundaries. The history of international law has long ceased to be the exclusive domain of lawyers. There are major contributions by historians, but also by sociologists and linguists, concerning, for example, the reception of European international law in China. Yet, cross-disciplinary exchange between scholars remains rare, with researchers commonly conducting research in parallel and not in cooperation.

There is an irritating silence between lawyers and historians when it comes to research topics and areas explored by both professions. In a conversation with Anne Orford and the author (due to appear in the forthcoming spring edition of the Zeitschrift für Ideengeschichte), Martti Koskenniemi questions the existence of such a silence. Of course, Kokenniemi’s work transcends the boundaries of legal disciplinarity, venturing across the fields of the humanities and social sciences with ease and sophistication.

But as soon as we move beyond the large syntheses by Koskenniemi and Osterhammel Moyn and Mazower, and into the more narrow research areas, mutual awareness begins to thin. Conversations beyond disciplinary boundaries are challenging and mired in presuppositions. Pre-conceptions are often prejudices. Lawyers tend to insist on precise terminology and pure doctrine. Historians (along with anthropologists, sociologists and political scientists) don’t like the technicalities, the complex institutional architectures, the intricate cases and convoluted judgements. While overcoming these differences is not easy, it is worth a try. For me, this has been proven by past experiences with three groups of fellows in the Berlin Rechtskulturen programme, a forum created to explore different cultural understandings of law and to encourage transdisciplinary and transregional perspectives.

How much context?

Jacob Katz Cogan, an international law scholar who also holds a PhD in history, is rather dissatisfied with lawyers’ scholarly production on the history of international law. He argues that such efforts can be divided into two main groups. Many researchers, he says, engage in ‘intensely internalist’ navel-gazing. They merely seek to provide the law as it stands with an affirmative historical foundation. Either that, states Cogan, or they pursue critical agendae, setting out to deconstructing precisely the very same narratives of progress that the ‘internalists’ hold dear. But with increasing frequency professional historians are turning their attention to the history of international law. They offer meticulous historical contextualization, (re)placing their research subjects in their respective times and exploring international legal developments as ‘embedded in their specific places and moments’.

But can international lawyers be historians, and should they be? ‘[W]hat we study as history of international law depends on what we think ‘international law’ is in the first place,’ writes Martti Koskenniemi. And while he sympathizes with the turn to contextual readings of international law, he is careful to draw some boundaries. It should be remembered that the reconstruction of context is a deliberate decision on the part of the (international law) historian.

Anne Orford rejects the strict historical-contextual approach, calling for radical anachronism—a reading of history in the light of present-day concerns. It turns out, however, that this approach is not so radical at all. In fact it merely extends the concept of ‘context’ beyond the past and into the present. In doing so, Orford relies on a genuine legal perspective and methodology, a ‘juridical thinking’ that offers theoretical, empirical and political advantages because it acknowledges the fact that when posing historical questions, international law scholars are acting as lawyers – and that this is true even when they study the history of international law. ‘Juridical thinking frames the problems […], shapes the archival choices made and the construction of […]narrative, structures […] argument and provides […] conceptual underpinnings’.

Reflexive Disciplinarity – seeing ourselves and the law from a distance

Professional historians engaging with the history of international law might understandably find such passionate anachronism rather suspect. After all, scholars from the historical side of the tracks can be just as self-confident and self-reassuring as their brethren from the legal field, who are prone to label their discipline just as ‘the profession’. What is of crucial importance, however, is that historians and lawyers discuss, debate and dispute (their) histories of international law. We need intellectual encounters and spaces for conflict and cooperation that will in turn challenge and promote reflexive disciplinarity in the respective fields. Of crucial importance here is the researcher’s awareness of her own position and situatedness.

It requires the researcher to not only consider ‘other’ perspectives like any good lawyer should, but also to develop and cultivate an awareness of her place in time and space. Where are my questions coming from? Why am I interested in how, in the second half of the 20th century, a transatlantic perspective, a transatlantic take on European legal integration evolved and gained influence on concrete legal developments within Europe? Why do I see this process as part of the history of international law, as part of a history of transnational law and as part of a ‘new public law’, an emerging law of public authority in national, supranational and global political contexts that currently is taking shape? Why am I interested not only in institutions and networks but also in specific actors and their biographies? That has to do with me, with my own pre-understandings and prejudices, my own professional socialization and with the questions I pose to the law and its history.

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Jordan says

January 6, 2015

And what are my psychic needs? Do they shape my jurisprudential orientation, the questions that I pose? While exploring legal history, why do I feel uncomfortable with the fact that international law has never been merely state-to-state, that there have been many actors other than the state with formal participatory roles in international and regional legal processes?