Conclusion

Dans une Nation libre il est tres souvent indiferent que les particuliers raisonnent bien ou mal; il sufit qu'ils raisonnent: de-la sort la liberte qui garantit des effets de ces memes raisonnemens.

c-L. de Montesquieu, De l^,Espιrit desLoix (1748)^[42]

Analogies, principles, and authorities provided some of the best ways to rea­son within European legal thought by Montesquieu's time, before revolution­aries poised themselves around the next corner after him. But like so many others who, at various stages throughout human history, flaunted the promise of offering new principles and analogies, throwing away the old authorities, and reverting back to, much less creating a kind of custom, the disruption of their arrivals was only ever a means to an end. Of course, how we assess such ends, and this is the point of any history of legal thought in the longue duree, depends upon the perspective of time. Replacing one kind of absolutism with another, written constitutions put together for the United States of America and the Republic of France have been hailed for their progressiveness. But it may be unwise to continue for very long with the same celebrations without saving some regard for the safety and conservativeness of the institutions and ideas that fed into them. In this we see a recurring dialectic, even if the re­sponsibility for it falls at the feet of politicians as much as lawyers: when the severest proponents of legal positivism came up against the staidest students of the historical school of jurisprudence, the codifications and statutes receiv­ing the breath of life in these decades were safe and often modest little crea­tures. Looking further ahead, when decolonisation and democratisation triggered sweeping political overhauls across the rest of the world, constitu­tion framers are to be seen going about their work by comparing notes, com­promising for different interests, and producing functionally very similar documents to the extent that each shared an imperviousness to amendment by design.

These are the conditions being worked through today, as regimes continue to expand and contract geographically andjurisdictionally, notwithstanding our reluctance as historians and international lawyers to speak about any of this as �imperialism’. Upon the modern act of implementing constitutions, usu­ally encapsulating individuals from diverse backgrounds in the process, politi­cal and economic disorder has been encountered round the world. Where sta­bility has ensued, what has followed is some accession to constitutionalism: a concept which may be defined, with great cynicism, as the convention of al­lowing internal political impediments to be left in the way of attempts to amend, reform, or alter enactments of authoritative principle. Where instabil­ity ensued, what followed was some filling up of the voids of law with morsels of human rights: a concept which may be defined, with great defeatism, as an external source of moral principles innovated in the last quarter of the twenti­eth century by activists and lawyers, before its encumbrance in the first quarter of the twenty-first by a global industrial economy seemingly reliant upon ine­quality for its operation. Cynicism has been professed by legal thinkers for many centuries, of course. But defeatism is a trend little older than the most recent half of one.

The sum of this collection advocates a new approach to these questions: to work within a longue duree in order to examine what intellectual characteris­tics may be peculiar to legal thinkers over time and space. Fairly easily we ap­preciate that legal thinkers were much less obvious in their idealisation of civic conduct and princely virtu, and that legal thinkers were probably possessed of a greater propensity than political thinkers to lie about things, to change their minds about things, and to base a number of extraordinary assertions on fic­tions. And these characterisations continue to hold. While politics, at least as it continues to be studied in post-enlightenment democracies, continues ably to pass as a science that tends to the optimisation of governments and the en­couragement of civic participation within them, law, and especially law based upon precedent, continues to be revered as a series of outcomes which, having been reached by logic, can be pieced together to form a coherent if acceptably imperfect whole.

Less superficial differences appear when we consider the institutional ritu­als of law within the unyielding confines of jurisdiction. We know that legal thinkers as well as political thinkers throughout human history have both shown much keenness to the forms of organisation that encase individuals, families, and groups, and both have persistently sought to understand society in terms of the optimal configuration of these forms. Yet legal thinkers have always had to be more conscious of the limitations imposed upon the institu­tions offering determination for those forms, and in communicating their opinions have always had to fuss over the extent to which the technicality of their propositions makes them cognisable to others. For these essentially pro­cedural reasons, legal thought has a proneness to appear more chaotic, with sources strewn all over the place, and more specific and antiquarian, dedicated to singular vindication through some time-honoured action or plea, than po­litical thought, which has a proneness to appear more orderly, more ambitious, and at times necessarily more utopian, in comparison. Empire bore upon of the proceduralism of law as well as the idealism of politics, of course, but it bore upon each of them in different ways.

Legal thinkers have also been far more often called into service to support an interest connected in some way to a sponsor, superior, claimant, or defend­ant. This has an immense bearing on the kind of things that are argued or il­lustrated in the first place. Because of this, it is not uncommon within legal thought to discover priority for the persuasiveness and accomplishment of an argument over its consistency and altruism. This realisation is unavoidable to anyone who follows Grotius after his prison break in the United Provinces, through Antwerp, and into Paris where his bidding was that of the French king who offered him asylum and paid his pension.^[43] Of course, as Mark Somos is often at pains to emphasise, Grotius was more than just a hired pen. But he was also that - and many others were too. Historians and international lawyers should both recognise that this changing of tack, almost willy-nilly, is precisely the kind of thing that legal thinkers have had to do in order to win arguments at law. It is inconsequential whether or not some argument or other, mounted for the good andfair to prevail over the evil and unfair, is true or not. What mat­ters are the exertions of that particular legal thinker who is mounting that par­ticular argument to prove it. This more than any other aspect of legal thought is what gives it its special character. This is what Montesquieu, I think, was getting at.