1.4 HISTORY OF POLITICAL THOUGHT AND THE HISTORY OF THE POLITICAL

For all its critical drive, the extreme realist inflection of Skinnerian contextualism comes at some cost, both in terms of history and in terms of philosophy. It is invested in a Hobbesian (or ‘Hobbesian', since its construc­tion of Hobbes and of politics imply each other) vision of politics as, in some sense, true rather than ideological; and, for all its appeal to history, it cannot historically support that distinction.

The enlistment of contextual history of political thought to drive a wedge between history and politics on the one hand, and a certain kind of philosophy on the other, is interestingly paralleled elsewhere in intellectual history, and extended to address the history of international law.²⁵ In both cases, however, it involves importing premises which are not contained in the bare principle of ‘meaning in context' and which not all historians of political thought share. When it comes to political realism, they may quite well agree that certain kinds of contemporary political philosophy represent a form of moral pseudo­legislation to be avoided. But some of them think that to accept the realist premises is to lose rather than to gain critical purchase: at worst, simply to buy into the ideology of the modern state; at best, to write a form of history inadequate to handle pre-modern, non-Western and non-state-centric forms of political life and discourse.

Accordingly, another approach to the history of political thought starts from the same basic conceptual architecture. Unlike the first, however, it takes no prior decision on the adjective ‘political' that qualifies this ‘thought' as an object of history, except that it will very broadly concern the way that human

Real Politics in Contemporary Political Thought (Cambridge: Cambridge University Press, 2011), I77-205.

²⁵ Ian Hunter's contrast between the political and the historical on the one hand, and the metaphysical on the other, goes back to Rival Enlightenments:Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001) and is deployed with reference to contextualism in his ‘The Contest over Context in Intellectual History', History and Theory 58(2) (2019). Relevant to the history of international law, see for example Ian Hunter, ‘Global Justice and Regional Metaphysics', in Shaunnagh Dorsett and Ian Hunter (eds.), Law and Politics in British Colonial Thought (London: Palgrave, 2010).

Hunter is not a political realist, but the way in which he links philosophical productions to an intellectual and professional habitus constitutes a distinctive interpretative lens with its own consequences for reading universals.

²⁶ See, for example, Michael Brett on Fatimid eschatology in The Rise of the Fatimids (Leiden: Brill, 2001), e.g. at 127 (‘the token value of the names... was more important than the existence of such persons in the flesh. The letter of the Mahdi to the Yemen marks the beginning of the attempt to reduce the one to the other'), or Sheldon Pollock's thoughts on Sanskrit kavya in ‘Cosmopolitanism, Vernacularism and Premodernity', in Samuel Moyn and Andrew Sartori (eds.), Global Intellectual History (New York: Columbia University Press, 2013), 59-80.

To think about the history of the political in this way means, broadly speaking, shifting the emphasis from the political speaker or actor towards the other historiographical pole of language.^[22] The potential for that move is already contained within the original Skinnerian model of legitimation, in which the terms of shared normative language both enable and constrain linguistic agency. Hence arises Skinner's characteristic portrayal of the strong speech actor as an innovator, not a revolutionary, and the picture of contin­gent but ultimately far-reaching conceptual change that results from succes­sive acts of innovation.^[23] It remains true, however, that it appeals to a sharp sense of conflictual politics as what drives linguistic innovation, which is why it can be pushed towards political realism.

There are affinities here with Michel Foucault's understanding of discur­sive power, the way in which discourse constructs its own subjects and objects.^[25] Foucault's analysis helps us to see that in moving towards the pole of language we have not stopped talking about power, but it is power in a different sense: not the violence of putting someone in a straitjacket, or the authority to enforce it, but the power that constructs a madman who needs to be put in a straitjacket and the violence as therapy. Ultimately, it is the power of discourse to create its own reality, and consequently its own truth. It is of the essence of Foucault's position that that construction has a history, but it is not one that can be written with the techniques of classical historiography. It is not that there is no ‘out there' for the historian at all - as Paul Veyne pointed out in his classic essay on the subject, this form of analysis is in a way ultra­positivist in its approach to discursive data.^[26] But it is an ‘out there', not an outside of a story, because the words are opaque.

The late Foucault characterised his genealogical approach as ‘having some­thing to do with philosophy' in the sense of ‘a politics of truth' (une politique de la verite), ‘since', he said, ‘I see no other definition of philosophy, if not this'.^[27] As we saw at the beginning, the dialogue between history and philosophy has been key to the evolution of history of political thought as a discipline, and the shift towards the pole of language does indeed make space for mutual exchange between the two, resulting in a more philosophical style of history of political thought and a more historical style of philosophy. But, just as we saw earlier with the opposite end of the spectrum, most historians of political thought sympathetic to this way of thinking - and I am one, as will by now be obvious - do not, in the end, write Foucauldian genealogy or Foucauldian philosophy.

History of political thought in this vein, therefore, holds on to ‘meaning in context' as an essential precondition for its historical enterprise. Although it is in general a less agent-centred approach, it may involve drawing contextual parameters for a specific speech act and using independent information about a specific actor in order to make historical sense of it. On this understanding, however, the time and place of the text - the context, the ‘outside' that gives it historical meaning - is itself inside the time and place of language, which does not have a context or an outside in the same sense. It is not that there is no outside at all: political languages are embedded in social and cultural worlds that are made in multiple ways, not just with words, and they are inflected by these worlds just as they inflect them in turn. Nevertheless, the modulation between the inside and outside of language in the past destabilises the outside of the historian's story in the present, who cannot get independent historical distance on either the one or the other, but has to work between the two, in some sense from the inside out. The result is a voice not entirely discontinu­ous with the voice of the classical histor, but not entirely continuous either, as it inserts itself into the time of its own history. From the perspective of traditional historiography, it may simply look historically unstable. But is also possible to see the history of political language as a space for new experiments in historical writing, creating new kinds of historical voice or historiographical form. One might think here of the later work of John Pocock, a history written from inside the frame of Gibbon's Decline and Fall like a hermit crab inside a shell.^[29]

Finally, and in relation to creative possibilities for philosophy, the shift towards the pole of language impacts in turn upon the position of the speech act. Just as the instrumental model pulls the act towards the actor and the language towards the act, so to pull the approach in the opposite direction has the effect of freeing up the speech act from the actor. It is not pulled out of history altogether and then jammed back in, as in some older histories of philosophy. It remains politically active. But it can exist within language as an element of a historical construction of the political without being related to the immediate politics of action, even if what we know of the actor can be folded effectively into a broader story about language. In this way, the time of language provides the space for an intrinsically historical philosophy as well as a more philosophical history of political thought. ‘Our language', wrote Wittgenstein, ‘can be seen as an ancient city: a maze of little streets and squares, of old and new houses, and of houses with additions from various periods'.^[30] To explore the streets and squares of past political language is to re­inhabit the city of language in the present, to create a new way of living in it.

On one definition, that just is to do philosophy.^[31] But whatever the newness that the philosopher or historian brings into the world, its creation is and must be political, just as in all history of political thought. To translate meaning from the past into the city of the present cannot be anything else.

How does all this affect the way history of political thought views law? First, as we have seen, this iteration does not see the state as the privileged instance of the political, and international politics a secondary form shaped around the space of the state. Rather, the political is equally but differently under con­struction in all times and places, and equally within and between different groups of people and different geographical areas. Law belongs within the political in this broad sense, or within the city as I can now call it, in my own historical translation of early modern political language.^[32] But there is no prior commitment to any specific relationship between law and politics, nor to any particular kind of law as the privileged instance of law, nor to any particular field of its operation. At a more fundamental level, the way in which it frees up the speech act gives more space for law to be law. As we saw, political realism does not, in fact, collapse law into politics, giving it space to breathe within the political. But because that space is structured by sovereign power, that is, the space of the state, it is both predetermined and limited. Political languages, however, exist both conceptually and historically in a broader social and cultural world, in which law also operates and which it too serves to create. For the historian of political thought, tracking the contours of law, a discourse that penetrates every aspect of society, is one way of showing how the construction of the political implicates and is implicated in broader patterns of social, cultural and economic life.^[33] In principle, therefore, this kind of approach to history of political thought is more open to the ways in which lawyers themselves think about law, as a very broad field involving multiple forms of discursive production. This is perhaps even more true of international law with its even greater multiplicity of different forms, registers and sources. This approach is also sympathetic to the ways in which international lawyers reach out to other disciplines, such as anthropology, to understand how that kind of law is constituted. From the point of view of a history of political thought written from the inside out, law is not only a central part of that inside, but presents itself intriguingly as another kind of ‘inside' in itself.

If we look back from this perspective to histories of political thought written in the second half of the twentieth century, what impresses in practice is the enormous amount of attention devoted to law. In the European and North Atlantic world that was both home to this history in professional terms and its principal object of study, developments in legal discourse play a crucial role in the story of political conceptual change. The classic shape of that story is, in one way or another, the advent of political modernity, a story that begins in the European middle ages and ends at some point later in European or more broadly Western time, depending on how the historian has constructed the modern. Whatever the construction, modernity includes the modern state. But, while the shape of the story pulls the analysis of political discourse in that direction, two key features of this kind of history of political thought act as a brake. One is the commitment to historical contingency that marks the liberal historiographical voice. The metaphor of ‘foundations' is used simultaneously to tie medieval and renaissance political discourse into a forward-looking story and at the same time to set it free. It is there in Quentin Skinner's The Foundations of Modern Political Thought - Skinner was subsequently rather ambivalent about its teleological overtones - but also in Donald Kelley's Foundations of Modern Historical Scholarship and Brian Tierney's Foundations of the Conciliar Theory, all classics of the genre.^[34] Just as with all historiographical choices, the metaphor is reflexive on the historian herself (mostly himself at this time, it must be said). To set the discourse free from the story simultaneously frees the historian in the same way, creating the historical distance key to the voice of the classical histor, holding the line between the inside and the outside of the story.

If we study these works carefully, and the traditions of scholarship that lie behind them, we see that a second countervailing pull on the narrative of modernity and the modern state is precisely law, and it is directly related to the first. Law has to be set free from the story, because it cannot be reduced to the political. The law of the European world in question, the law that plays such a key role in creating this European moyenne duree, is not primarily the law of kings or commonwealths; it is an intricate web of civil law, common law, feudal law and canon law, local law and custom. In the historiography with which we are concerned, these are understood equally as fields of legal scholarship and as potential arsenals of ideological weaponry. Both the historic pluralism of European law in this period, and the non-reductive handling of it (as both law and politics, equally), contribute to a history of political thought that is undoubtedly orientated towards Western modernity, but not conceptu­ally invested in the modern state as the focal meaning of politics. It is, in good part, the attention to law which means that this historiography takes medieval political thought seriously, and sees medieval forms of government, including the church, as political on their own terms, without the Schmittian appeal to political theology that has become so popular as the way to integrate medieval political thought into the story of modernity. Rather, political discourse borrows from legal discourse and the same is true in reverse, as both lawyers and political philosophers struggle to create the normative language within which to legitimate both specific visions of law and politics and, simultan­eously, the very fields of law and politics themselves.

Part of that struggle is the way in which law constructs its own history, which is also a classic theme of the historiography in question.^[35] But there is a complexity involved because law, at least in the specific historical moyenne duree with which we are concerned here, does not always create its past in the same way. It does so in one way through its system of internal reference, the way in which it refers to the past of law in order to make law in the present. In so doing, it pulls things that were once outside law - the political and legal institutions of ancient Rome, in the case of civil law - inside law. Detached from its original reference, the city of Rome runs up and down the ladder of Roman legal time that stretches from the Roman past to the European present.^[36] In creating its own time, law creates its own world, and its history is inside that world. For the historian of political thought, that history is nevertheless political, because law's past is not the only past; there is a world outside law which gives political meaning to law's construction of its own history. But that meaning cannot be properly understood if the historian insists on trying to establish the ideological valence in a tight political context of every single legal reference to Rome, for example. In many, indeed in most cases, there will be no such valence. That is not what the law is doing; it's the wrong kind of meaning. Rather, the historian of political thought needs to take legal meaning seriously and work towards political meaning from the inside out.

As well as this, however, historians of political thought are also interested in those cases where law deliberately constructs a past for itself in order to position itself politically in the present. In this same European moyenne duree, the most spectacular example of this is probably the political mobilisa­tion of legal antiquarianism in the late sixteenth and early seventeenth centur­ies. Legal scholars across Europe used the humanist techniques of historical philology deliberately to stop legal meaning running freely up and down the ladder of time. For Franqois Hotman the internal time of Roman law is the ladder up which the tyranny of Rome crawls from the past to the present. It needs to be broken, as an act of both legal and political resistance, by freezing meaning at a certain time and place in the past. That means giving law an outside, a past that is not internal to law, in which legal terms have their true meaning. Political resistance, however, involves constructing that past as not merely historical but normative, in the ancient kingdom of Francogallia. In other words, Hotman's ‘contextual' history of law is irreducibly political, just as we have already seen with contemporary contextual history of political thought.^[37]

With Francogallia we have arrived back much where we left off at the end of the second section, with a work of early modern political jurisprudence. What we can see now, however, is that the either/or between law and politics with which we confronted The Law of War and Peace is too crude. Law is also a storymaker, also creates the past, and so the relationship between law and politics must always, in fact, be a three-way relationship between history, politics, and law. As works of legal antiquarianism and natural jurisprudence respectively, Francogallia and The Law of War and Peace might look like different kinds of legal scholarship, but both equally construct an ‘outside' of legal meaning, the one in the ancient land of Francogallia and the other in nature. Each of these, equally, provides external interpretative traction on historical legal meaning, although in very different ways. In both cases, the choice and construction of law's outside is irreducibly political, but it is not just a matter of politics. It is a historical, a legal and a political intervention all at the same time, and any historical appreciation of it needs to be able to move around between the inside and outside of all three fields.