2.3 HISTORIES OF INTERNATIONAL LAW

In addition to law as a practice of history, lawyers have also compiled histories of this practice. I have elsewhere discussed the general theme of the history of international law histories, including the different ways in which these histor­ies have conceived their object.³⁶ Legal texts in the nineteenth century often imagined that object as inextricable from the history of European diplomacy and warfare, deriving its rules and practices as well as the related thinking and writing from the period of the wars of religion, especially the Thirty Years' war and the Peace of Westphalia.

Borders:The Obligation to Show Consideration for the Interests of Others (Abo Akademi Universität, 2005), 70-115.

³⁴ A matter I have dealt with in extenso in my From Apology to Utopia.

³⁵ See, e.g., Anne Orford and Florian Hoffmann, ‘Theorizing International Law', in Orford and Hoffmann (eds.), Oxford Handbook of the Theory of International Law, 1-17, at 7-9.

³⁶ Martti Koskenniemi, ‘A History of International Law Histories’, in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012), 943-71.

³⁷ For the latter, see Amnon Altman, Tracing the Earliest Recorded Conceptions of International Law:The Ancient Near East (2500-330 BCE) (Leiden: Brill, 2012). Altman defends the appropriateness of applying the notion of ‘international law’ to the entities of his study by quoting the expansive definition of Grewe that focuses on a ‘plurality of relatively independent (although not necessarily equal-ranking) bodies politic which are linked to each other in political, economic and cultural relationships’: xxiv.

Though most histories briefly reference such ancient times, the consensus today seems to be that the proper object is the law applicable in reasonably stable relations between ‘political communities' reasonably akin to states.^[76] Recent histories with their focus on intercultural or colonial aspects of the law have sought the origins of the discipline in the encounter between Europeans and the inhabitants of the New World in the late fifteenth and early sixteenth centuries and the practices of colonial administration in the nineteenth century. ^[77] My own work that concentrated on the professionalisation of the field situated the beginning of the field in the last third of the nineteenth century.^[78]

Different origin narratives produce different accounts of international law itself. They are, as Matthew Craven has put it, intervention rather than discovery.^[79] Such intervention may sometimes emerge from a deliberate effort to tweak the priorities of the field. When the Belgian Ernest Nys and the US lawyer James Brown Scott in the late nineteenth and early twentieth centuries challenged the place of the Dutch Protestant Hugo Grotius as ‘father' of the discipline, and singled out the writings of Spanish Catholic theologians, they were not only expanding the field but also reimagining its ideological sub- stance.^[80] When Arthur Nussbaum in 1951 replaced the writings of philosophers and natural lawyers by the treaty-making and diplomatic prac­tices of states, he was consciously re-orienting the field towards his ‘realist' methodological and political priorities.^[81] Another kind of international legal history opened up in Carl Schmitt's Nomos der Erde, although it took decades (and an English translation) for the argument about the ius publicum Europaeum as a violence-hedging device to access the discipline's internal conversations.^[82] This direction was followed by Wilhelm Grewe and Karl­Heinz Ziegler, both of whom wrote histories of international law in terms of successive epochs of international dominance, seeking to offer a ‘realistic' image of the law as a product of the interests of each moment's leading power.^[83] Anghie and other post-colonial scholars, too, understood European imperial history as the central aspect of international law's past - but the message they drew from that history of course differed from that of the German lawyers.

Such realisms have produced welcome counterpoints to the narrative of international law as part of universal history with a cosmopolitan purpose. Some of them fall into the category of modernist functionalism and are amenable to criticisms often targeted at their mainstream variants.^[85] The rules are too indeterminate, the causal chains too complex and the moment's - any moment's - law too fragmentary and contested to allow the kinds of determin­ation suggested by realism. Surely law is not just a product of power but also a challenge to it - which is why its politics sometimes shifts from right to left, from admiration of (European) power to its anti-imperialist critique. An ‘epoch' is never just one impenetrable black box but instead contains many actors and ideas that collide and struggle.^[86] Much of the world that realism merely claims to describe - the ‘state' itself, and the idea of ‘state sovereignty' - is already embedded in legal concepts, practices and categories that do not describe the real world but constitute what can been seen there. An ‘alliance' or a ‘treaty' are not features of the material world but often contested legal interpretations that point towards some way of acting in it. The balance of power was certainly a key concept of eighteenth-century international law. But this does not mean that the jurists would have agreed on its meaning, applicability or wisdom.^[87]

But in moving closer to the historical context, does that mean loss of contemporary relevance and political power? A key question for new histories is how to give room to the many roles that law, lawyers and legal arguments play at any single moment while still seeking to keep their eye on the longue duree of structural causality that will help the past to speak to the present.

Until very recently, colonisation was virtually excluded from the history of international law.^[89] This accorded with the preferences of the colonial powers themselves: for example, the most important summary of British colonial law from 1834 makes no mention at all of international law and John Westlake used to insist that Britain's relations with the Indian principalities was not a matter of international but British (imperial) law.^[90] But recent studies of the history of international law focus precisely on the rules and practices governing the work of colonial administrators, even suggesting that they might lie at the ‘origins of international law'.^[91] But the move from wars and diplomacy to commerce and colonisation suggests that more work ought to be directed to the legal practices of contracting, shipping and banking that made long-distance trade and colonisation possible. New studies focus on the large overseas trading companies as mercantile operators but also as colonists, sovereigns and belligerent powers.^[92] Further work in this vein is needed to include examinations of their internal structures and expand into the law and practice of foreign investment that undergirded the companies but also more widely accounted for the legal structures of Western global domination.^[93] All this puts into question the conventional boundaries of history of international law itself.

It is perfectly natural to think that the field consists of what prior historians have included in it.