Although it sounds innocent enough - putting legal doctrines, personalities and ideas in historical context - the conclusion is less ‘thought you'd like to know' than ‘this matters'. Contextual histories aim volleys at the field's commanding height
to change how we imagine international law and the world around us. International law's history is not as you were taught, international law not what you thought. And the world is not the one you are accustomed to inhabiting.
If we think the world is different, perhaps it will be.Although many are coy about their political ambitions, some do wear these projects on their sleeves. Here is Antony Anghie on history's significance for appreciating the legacies of colonialism in the contemporary world:
My argument here is that the practices of cultural subordination and economic exploitation, which are essential aspects of colonialism, are not epi- phenomenal aberrations in the international system that were remedied by the project of decolonization and self-determination. Rather, they continue to play a role in contemporary international relations and generate important analytic categories that have an enduring and crucial significance to our understanding of international law as a whole.[103]
Or here on history's lessons about the nature of sovereignty and the role of international legal doctrines in global politics:
My interest lies, however, not only in the important point that positivism legitimized conquest and dispossession, but also in the reverse relationship— in identifying how notions of positivism and sovereignty were themselves shaped by the encounter.... Colonialism cannot be accounted for as an example of the application of sovereignty; rather, sovereignty was constituted and shaped through colonialism.[104]
Arnulf Becker Lorca places the jurist Alejandro Alvarez simultaneously in his Chilean and European/global/French historical contexts to change how we understand the relationship between the global and the local, law's role in their interaction and in subject-creation:
[My] rereading of [Alejandro] Alvarez...
reveal[s] not only international law's plurality of senses in time and space... but also international law's heterogeneity inscribed in the selfsame person of the international lawyer.... My central argument is that Alvarez... evidences the constitution of the discourse of modern international law as part of the continuous configuration of the world system. This insight suggests, first, that the construction of modern international law has been a transnational project, produced and resisted from multifarious points of reference by European and non-European international lawyers alike.... Second, this line of enquiry also acknowledges that international law is embedded in international as well as domestic power relations.[105]B.S. Chimni describes the project of those third world international legal histories he applauds in these terms:
A critical third world approach goes further and gives meaning to international law in the context of the lived experiences of the ordinary peoples of the third world in order to transform it into an international law of emancipation. It has as its primary goal the shaping of an international law that offers a life of dignity for the poor and oppressed in the third world. It is amidst this hope that I take a sweeping look at the past, present and future of international law.[106]
Anne Orford assesses the significance of international historical context work this way:
The stakes of the debate about the legacies of the imperial past in the multinational present are high. In part this is because the authority and legitimacy of modern international law rests on its claim to have transcended its European heritage and to operate today as a universal law capable of representing humanity. The suggestion that international law may still operate in a differentiated fashion undermines that claim to universality. In addition, the idea that imperialism is of no relevance to the contemporary global order plays a significant part in justifying the status quo.... Questioning the extent to which decolonization has ever fully taken place thus remains a critical intervention in contemporary global politics.[107]
Sundhya Pahuja describes the methodological aspiration of work re-narrating law's past:
Critical redescription is an attempt to redefine through narrative, a world we take for granted, inviting it to be seen differently as a mode of political engagement.
As a style, critical redescription offers to legal thought the potential of story-telling in trying to understand the world differently than the way we usually know it.[108]These academics write history to change the world. Is such an ambition plausible? If so, is changing the world something a legal historian can undertake pragmatically, with a sense of responsibility, as much as passion?
It does seem plausible. Linking people, ideas, projects and institutions to a ‘context' is a familiar - and often powerful - move in contemporary professional and public reason. Lots of people try to do it - there is no reason legal historians ought not as well. People invoke context to identify powers which must be respected, and the direction history is travelling. Context establishes the frame within which problems can be identified and solutions imagined. People also turn to context for authority. This is how things are, where things stand, where things came from and where they are going - and so we must...
For lawyers, establishing the context is a routine practice. Legal work frames the spatial and historical terrain for global political, economic and cultural rulership.[109] The legal academy, moreover, is a place where rulers are trained. Trained not in the sense of brainwashed to ‘believe' or accept one rather than another idea about the world - although that certainly also happens - but trained in modes of engagement, terms of debate, frames of reference within or against which they will struggle with one another as they come to rule the world. In the legal academy, they learn how to understand, remake and disrupt the background or terrain for rulership. Establishing the context, like disrupting a taken-for-granted frame, is a strategic move you can learn. Elsewhere in the academy, professional historians offer training both in their shared professional vision of history and in the tools for its strategic disruption.
Both are worth learning because they can have consequences. Doubling down on professional common sense reinforces the plausibility of institutions and projects aligned with history's destiny. A new history might resurrect workable alternatives which were defeated, opening paths for opposition to the conventions of elite governance. A history which draws attention to the incoherence and pluralism of international legal materials may unsettle the confidence of people using them. When a context is effectively established or disrupted, some people will be empowered, some interests legitimated, others disempowered or delegitimated.
So it can be done. Indeed, it is done routinely. And it can have an effect. Like other rulership practices, making a new context ought to be undertaken responsibly, with due attention to consequences. Who will gain and who will lose? Unfortunately, conventions of historical writing inhibit many authors from acknowledging their present revisionist aspirations and from attending more concretely to the effects of their interventions. International legal historians need not be so bashful: there is ample methodological space to notice the consequences of governing in the shadow of one rather than another contextual sensibility. You could write history to change the world pragmatically, strategically, responsibly. Indeed, I hope you will.
3.1
More on the topic Although it sounds innocent enough - putting legal doctrines, personalities and ideas in historical context - the conclusion is less ‘thought you'd like to know' than ‘this matters'. Contextual histories aim volleys at the field's commanding height:
- The Context for Context: International Legal History in Struggle
- INTERNATIONAL LEGAL CONTEXT-MAKING: DOING THINGS WITH TIME
- Previous versions of our paper on legal principles have been subjected to a number of criticisms, most of them expressed orally in several seminars where we had the chance to discuss our ideas.1
- This is a book about history: the ‘historical turn' in international law on the one hand, and the ‘international turn' in the history of political thought on the other.
- 2.3 HISTORIES OF INTERNATIONAL LAW
- The underlying doctrines of the British constitution
- Contextual Analysis: The ‘Non-dits’ OF THE MyTHEMES
- Having studied this chapter, you should be able to explain the following matters:
- The Ideas behind the Quasi Categories
- The main Roman delicts divide the field in this way: furtum and damnum iniuria datum have to do with wealth.
- WAS CAIN INNOCENT? THE EARLY RABBIS INTERPRET GUILT
- 1.2 HISTORY OF POLITICAL THOUGHT AND POLITICS
- 3.5 A POST-WAR INTERNATIONAL ORDER UNDER SIEGE: LESSONS FROM CRITICAL HISTORIES
- The state still matters: but it may no longer do the things it did
- International intervention, be it with the aim of emergency relief, peacebuilding or development aid, often involves such a multitude of actors that it is hard to get an overview.
- Historical institutionalism
- Growing out of feudalism and harking back to Roman imperial times, the system of government that appeared in Europe during the years 1337-1648 was still, in most respects, entirely personal.
- 1.3 HISTORY OF POLITICAL THOUGHT AND THE POLITICS OF POWER
- CHAPTER V The historical record
- The state as historical contextualization