Although new work on women's contributions is on the horizon, international lawyers have written relatively little history of their discipline from a gender perspective, whether on legal subjects or actors in international law, or on gender relations as a way of signifying or structuring legal power.

Histories of women and diplomacy, studies of gender and empire, and feminist intellec­tual history might therefore seem like obvious sources with which to engage.

The impetus for this volume, however, is a warning by some international lawyers that the cost of interdisciplinarity with history is conservatism.

However well founded this concern,^[923] there is reason to think it would apply differently to gender perspectives. Although methodological exchanges with historians are recent, feminist approaches to international law originated in the early 1990s, at a time when interdisciplinary research agendas for international law and international relations theory were similarly suspect. Critics argued that, unlike such agendas, the goal of engagement with another discipline should be to unsettle, rather than solidify or subordinate, inter­national law. Feminist approaches were among these ‘counter-disciplinary' explorations of international law because they drew on feminist critiques in other disciplines, including international relations, political theory and post­colonial studies.^[924] By the same token, gender as a category of analysis might identify directions for counter-disciplinary research between history and inter­national law.^[925] This chapter demonstrates the possibility, using the contextual- ist trend in the very scholarship that Orford criticizes: namely the growing historical focus on private law as the context of public international law's power, which she correlates with the marginalization of histories by Third World Approaches to International Law (TWAIL) scholars.

I use the new private-law contextualism to illustrate how critiques of international law might profit from even further reconstruction of the private-law context and why that context, in turn, might profit from a gender analysis. Focusing on late-nineteenth-century European ideas of international law, the chapter begins by showing that private international law, or conflict of laws, is a missing legal context for the new private-law contextualism as well as for TWAIL histories (Section 14.1).

Private international law is the branch of a state's law that determines when its courts will take jurisdiction over a private-law case with a foreign element: for example, an inheritance that turns on the validity of a marriage celebrated in another state (or another sub-unit in the case of a federal state). Further, if the court takes jurisdiction, does it apply its own law to determine the validity of the marriage? Or is the applicable law that of the state where the marriage was celebrated, the spouses' state of nationality, the state where they live, the state where the deceased lived or yet another state? In addition to issues of jurisdiction and choice of law, private international law also determines when a court will recognize and enforce the judgment of a foreign court. In the nineteenth century, international lawyers gave greater recognition to a conflict of laws between states belonging to the European ‘family of nations' than to a conflict between one of these states and a state outside the European ‘family'.^[926] And between the metropolitan state and its colonies, the French conceived of Droit international prive interne or le conflit de lois colonial, which the Dutch termed intergentiel recht, while the English sometimes referred to inter- communal private law.^[927] Some legal historians of the British empire use the term ‘imperial conflict of laws', the law usually being some combination of imperial statutes and general common-law rules of private international law.^{[928] [929] [930] [931]}

This chapter argues that recuperating private international law as a lost side of international law can open up counter-disciplinary research on gender in the history of international law in at least three ways. First, international lawyers have yet to participate in the ‘metropolitan turn' among historians of empire; that is, in studying empire's effects on the metropole as opposed to the colonies.

The sequencing of the chapter reflects successive phases of feminist legal scholarship.^[932] In identifying new lines of historical research, the chapter begins by locating women in international law and then moves to gender and gender relations as analytics. Lastly, it brings in feminist legal theory, specifically ideas of gender discrimination and relational feminism. Whereas liberal feminism addresses discrimination by pursuing what has been called a de-gendering strategy, relational feminism values the feminine.^[933] Critical of liberalism for its tendency to employ a pre-social conception of the individual, relational feminism derives an alternative conception from experiences and practices associated with the feminine. Relational feminism, in Marilyn Friedman's words, ‘fundamentally acknowledges the role of social relationships and human community in constituting both self-identity and the nature and meaning of the particulars of individual lives', and it links this conception of the self to ‘visions of the foundation of human society derived from nurturance, caring attachment, and mutual interestedness'.^[934] The chapter draws on these varieties of feminist legal theory because they chime with its emphasis on a pluralist, quotidian international as neglected in the history of international law.

While the directions for research that I propose operate on the relationship between public and private international law and draw on feminist legal theory, I note at the outset that the public/private, male/female and other binaries at work here should not be assumed to be fixed and permanent in time - any more than they should be assumed to be universal across cultures, as post-colonial feminists have pointed out. Instead, feminist historian Joan Scott's prescription for the study of gender as an analytical category in political history might also apply to law:

If we treat the opposition between male and female as problematic rather than known, as something contextually defined, repeatedly constructed, then we must constantly ask not only what is at stake in proclamations or debates that invoke gender to explain or justify their positions but also how implicit understandings of gender are being invoked and reinscribed.^[936]

14.1