INTERNATIONAL CRISIS AND TRANSNATIONAL EVERYDAY: GENDER RELATIONS AS CHANGES OF STATE

Thus far I have sketched how the lost private side of international law invites international lawyers to participate in the metropolitan turn already taken by historians. This is also to share historians' interest in ‘the formal and, more important, informal arrangements that royal subjects made in their legal arrange­ments as they traveled across the internal borders of the empire'.^[964] I next suggest how this interest in mobile subjects might dovetail with feminist critiques of international law in a second direction for gendering histories of international law.

Feminist legal theorist Hilary Charlesworth has critically described (public) international law as a ‘discipline of crisis'.^[965] She argues that the tendency to construct situations like Kosovo in the late 1990s as ‘crises' systematically skews the development of international law. Moreover, international lawyers' addic­tion to crises is bound up with gendered imaginaries. It plays to a sense of heroic mission, Charlesworth asserts, drawing on Anne Orford's analysis of the international discourse justifying military intervention in Kosovo.^[966] Orford shows that a number of accounts ‘justifying intervention relied on narratives ingrained in the popular imagination of the West to cast the international community as masculine action hero and the state targeted for intervention as helpless feminine victim'.^[967] Charlesworth also parallels ‘the international law attachment to crises and the way that traditional forms of history have concentrated on “great men” and narrative representation of short-term polit­ical conflicts and crises',^[968] arguing instead for a focus on everyday life and attention to longer-term trends and structural problems. Critical international lawyer Luis Eslava directs Charlesworth's challenge toward the traditional separation of international law from national and local affairs.^[969] Arguing that international law should be understood as an ordinary component in the constitution of social relations, he focuses on places that have been subject to colonial rule and the target of development projects.^[970]

In contrast to public international law, we do not have to go outside private international law to locate the everyday for women and gender relations.

Cumulatively, then, the transnational legal arrangements that private individuals made to evade English marriage law could have systemic effects for the state. Some of these practices were de facto more egalitarian, as with Scottish divorces, while others were not. For most of the nineteenth century, there were strong debates in England about whether it should become legal for a man to marry his deceased wife's sister or whether it would be akin to legalizing marriage between siblings.^[976] However, nothing points to this as an issue for feminists of the time concerned with the reform of marriage law; rather, their focus was on legal inequalities between husband and wife such as with regard to property rights and the guardianship of minor children.^[977] A household scenario commonly cited as leading couples with means to marry abroad was that of an unmarried woman who lived with her late sister's family and helped to raise her children.^[978] English courts, though, refused to recognize the marriages of English couples who wed in Denmark or Germany in order to evade the English law on the prohibited degrees of marriage. By differentiating the essential validity of a foreign marriage (at issue in these so- called Danish marriage cases) from the formal validity (including the parental consent issue in the Gretna Green marriage cases), English choice-of-law rules were able to recognize the latter and not the former.^[979] But colonial laws allowing marriage to a deceased wife's sister could not as easily be kept at a distance, including because these unions were not evasive.

Returning to the parallel that Charlesworth draws between international law's development through crises and ‘great men' histories and historical analyses of short-term political crises, we can thus add the potential parallel between private international law's development and other forms of history that aim to do justice to the everyday, including empire and the everyday. Beyond this potential parallel, the examples in this section highlight the ways in which rules on jurisdiction, choice of law and recognition of judgments furnished individuals with the means not only to order their own gender relations differently, but cumulatively to re-order the state.

To this direction for research into the gendered history of international law, it must be added that nineteenth-century private international law is often assumed to have been inhospitable to understanding individuals in their social contexts and to recognizing their transnational lives as lived. In recent historical work, however, Roxana Banu argues that modern conflicts scholars err by projecting onto nineteenth-century private international law thought the clas­sical liberal ideas of the individual as isolated and autonomous, and of private matters as strongly separated from public.^[982] Banu identifies and seeks to recover a lost alternative in the nineteenth-century scholarship that she interprets as theorizing ‘various levels of relationships amongst individuals and with various communities in the transnational realm'.

14.4