CHANGING THE WORLD REQUIRES STRATEGY - EVEN FOR HISTORIANS

When you've been trained to struggle by assertion and change the world by articulation, you've also learned that you need strategy. How to concentrate your forces on the weakest link, how to predict who will yield to what, how to assess the distributional consequences of inhabiting one context rather than another, challenging this assumption but not that.

Putting a famous jurist in context requires choice: what context? Their nation? Their profession? The intellectual or religious tradition in which they would have situated themselves? What they had for breakfast and whom they loved? It is not at all clear they should be masters of their context. Nor even that their ‘historical context' be contemporaneous with their actual lives. Context may well include things of which the historical actor was himself unaware. Perhaps, as Anne Orford has argued, context should also include things that came ‘later' or happened ‘elsewhere'? Or happened long before or which took a great deal of time to unfold or may still be unfolding. As she writes:

Rather than, as most scholars interested in the internationalist implications of Vitoria's thought have done before and since, placing Vitoria in a ‘context' that begins with fifteenth century Scholasticism and ends with the adoption of Vitoria's innovative approach to questions of possession, commerce, war and alliance by the young Hugo Grotius, Anghie places Vitoria in a context that moves from the School of Salamanca to the late nineteenth century when empire and its rationalisation is about to take a radically new form in the aftermath of the Berlin conference, and then on to the mandate system, the creation of the IMF and the World Bank, and the invasion of Iraq.^[112]

It is not obvious that the present is so long ‘after' fifteenth-century writing that interpretation in light of present concerns must be ‘anachronistic' rather than ‘contextual'.

Presumably, people who write about international legal history are guided in making such choices by their strategic objective. Although critical legal historians do seem confident there is something rotten in international law made plausible by a common misuse or misunderstanding of history, reading them, it is often difficult to say just what. The sociological mechanism they have in mind can also be hard to identify: who has what bad ideas about history, whom and how does that empower? It seems to go with the contextual style to leave this a bit murky, as if the authors rely on the reader's own sophisticated disenchantment: at once knowing and not knowing that the telling of history is a site for political struggle.

The methodological convention not to make the strategic objective explicit and to act as if one were simply trying to set things right may result from a suspicion that the success of the strategic project depends on sounding innocent in the way History with a capital H, history by historians, history disciplined only by history rather than the concerns of jurists and politicians and advocates, can sound innocent. Although we know sophisticated histor­ians today will admit to presentist concerns, particularly if you ask them directly, something in their method or style of presentation does seem to preclude saying so too overtly. The cautious non-historian would be advised to tread more lightly still if the legitimacy of historical truth is to be success­fully harnessed.^[113] But coyness has costs. If you don't know where someone's aiming it is hard to know if they hit the target, and shyness about the effect one intends can mute attention to consequences all together.

In the legal academy, people in the ‘law and society' and ‘law in context' traditions have wrestled with a parallel tension.

When people in struggle try to create a ‘history effect', it is not surprising they lean on the practice of History by Historians - its authority and prestige, its marks of credible narration, its framing of action in time. In sketching a global context to believe in, experts routinely lean on the prestige and practice of the knowledge disciplines. They rely on Economics with a capital E, Sociology with a capital S, Realpolitik with a capital R, Humanitarianism with a capital H, the science of military Strategy with a capital S and, of course, Law with a capital L. Looking over your shoulder at Real Knowers, it is hard to avoid feeling disciplined by their gaze. But leaning on an academic discipline is quite different from performing within an academic discipline.

If there are ‘real' Sociologists and Geographers and Political Scientists, they may see more complexity than people with projects who invoke and imitate

the past be the past - at least as far as this is humanly possible.'); Georg Cavallar, ‘Vitoria,

Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans?', Journal of the History of International Law 10 (2008), 181-209, at 184 (‘Unlike commentators like Robert Williams, Antony Anghie or Brett Bowden, and like Paul Keal, I argue for a nuanced assessment.

Method is always somewhat like this. It’s the method of a field when it works as the method of the field - when one escapes criticism for ‘method crimes’. I know that graduate students often worry about ‘method’ and feel there must be some secret sauce no one has yet explained. I’ve always thought there was really only one method - you figure out what you’re interested in, who or what you’re against, and then read a lot and talk to people and think hard and try to figure it out.

As I read them, the international legal contextualists’ method is a kind of imitative pastiche, written with several influences (or disciplining conven­tions) in mind: those of ‘professional’ academic Historians as they imagine them, those of the international legal histories they aim to refute, those of ‘critical’ historical work in law with which they may be familiar, and those methodological cautions and proposals learned from the critical social theory of the last half century, most prominently as promoted by Michel Foucault. The result is a kind of loose vulgate for making historical arguments. In my experience, among these methodological influences, there are resources enough to create an effect without hiding one's animus under a barrel, just as there are tools for an after-action assessment to pinpoint collateral damage amidst the targets hit.

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